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Lifting Hold on Public Charge Rule Evokes Antebellum Slave Codes

Summary:
In a 5-4 decision yesterday, the Supreme Court temporarily lifted a nationwide preliminary injunction that had kept the Trump administration from implementing its rule that vastly expands the reach of the public charge provision in federal immigration law. Immigration officials will now be able to deny lawful permanent resident status (“green cards”) to immigrant spouses ...

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In a 5-4 decision yesterday, the Supreme Court temporarily lifted a nationwide preliminary injunction that had kept the Trump administration from implementing its rule that vastly expands the reach of the public charge provision in federal immigration law. Immigration officials will now be able to deny lawful permanent resident status (“green cards”) to immigrant spouses and otherwise eligible immigrant family members of US citizens based on their prediction that the immigrant will “become a public charge at any time in the future.” The rule also allows immigration officials to permit entry to someone found likely to become a public charge if the person provides a “public charge bond” of $8,100 or more.

Immigration historians have written extensively about how the archaic provision Trump is relying on had antecedents in state laws regulating Atlantic immigration in the 1800s. But little, if anything, has been said in the media about how Trump’s rule is also rooted in a different set of state laws, specifically, state slave codes and other antebellum-era laws designed to preserve slavery and limit the movement of freed slaves. Slaveowners had a right under the common law to free their slaves. But slave states typically put conditions on the authority of slaveowners to liberate their slaves. Eleven states had laws that conditioned manumission on the slaveowner posting a bond to ensure that the slave would not become a public charge. 

From the early 1800s until the end of the Civil War, it took a special act of the legislature for an owner to free a slave in Georgia, Mississippi, and South Carolina. Alabama required similar legislative approval until 1834. In these states, the legislature expressly conditioned each individual grant of manumission on the slaveowner providing a bond, and the freed slave not becoming a public charge. For an example, see this act passed by the Alabama Legislature in 1824 that “emancipated the mulatto girl Margaret, a slave of James Johnson” while requiring Johnson to “enter into bond with security in the penal sum of $1,000” and “Conditioned, that the said girl Margaret shall not become a public charge.” [italics in original].

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