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As lawyers in New Jersey, the home of the Statue of Liberty, we take particular pride in the statue and the 1883 sonnet by Emma Lazarus, "The New Colossus," penned to raise funds for the pedestal on which the statue now stands in New York Harbor. A plaque of the sonnet installed on the pedestal in 1903 greets visitors:

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep, ancient lands, your storied pomp!" cries she With silent lips.

"Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

Unfortunately, America's immigration policy has not always matched the aspirational ideal of the Lazarus verse on either of its two prongs—welcoming immigrants without regard for their origin or financial condition.

Arrival of Lady Liberty followed Dred Scott v. Sanford by 26 years and was virtually coextensive with the Chinese Exclusion Act, which forbid Asian immigration. For decades since the early 20th century, the allocation of immigrants by quotas skewed to favor already predominant Northwestern European Protestant groups meant that non-white immigration was disfavored. The Dillingham Commission report of 1911 shamefully compiled volumes of statistics to justify that position.

The Euro-centric bias of immigration law ended at about the time of, and can be thought as part of, the civil rights reforms of the mid-1960s. Thus, the Hart-Celler Act of 1965, passed by broad bipartisan margins, eliminated the quota system. Since then, the mix of immigrants and residents has taken on a more multicultural hue than those who sailed the Mayflower; most have celebrated that diversity.

On the financial front, Lazarus's welcome to the "wretched refuse" and "homeless" of the world came a year after the 1882 "public charge" statute, which discouraged immigration of persons who would be "primarily dependent" on cash benefits from the government or who would be institutionalized. Thankfully courts and agencies have construed it narrowly: each one of our immigrant families has stories of folks coming ashore with nothing more than the clothes they wore and a few pennies in their pockets. The American story is that these people and their descendants made immeasurable contributions to the many aspects of our society, not only in business but also in the arts, medicine, academia, the sciences, our factories and our shops. Those workers built the Brooklyn Bridge in 1883 and countless other public and private works since. They fought and died in our wars, and no one asked if they had ever needed food stamps. As exemplified by the 1999 rules governing applicants for green cards and changes in status for those legally resident in the U.S., receipt of supplemental benefits such as food stamps, medical care and housing assistance available to all working Americans, have not been disqualifying. Indeed, both statutes and courts have mandated that these programs be available to qualifying immigrants on an equal basis with other Americans.

The march toward an immigration system that approaches the Lazarus ideal has not been uniformly steady, and there remains a steadfast group of nativists who see immigration, especially from South of the Border, as a personal insult. The most recent of these challenges has been the publication this summer of federal regulations to redefine the existing "public charge" rules.

Notably, there has been no grave dissatisfaction with the way the rules have worked in their most recent, 1999, iteration. Statistics do not show widespread, or even measurable, abuse, and the hundreds of pages in the proposed and final new rules do not articulate any. Without attempting to identify a problem crying out for a solution, the new rules would change the definition of public charge from the destitute and those primarily dependent on public assistance for survival to include persons not deemed "self sufficient" because they receive non-cash assistance to raise the income of workers making less than a living wage, to ease the transition from one job to another, or to provide housing or medical care, all programs available generally to working Americans. Apparently, a fast-food or big-box retail employee, here legally but without permanent status, who must supplement the employer's below-poverty wages with food stamps or housing vouchers, will find his or her green card application more likely to be denied than under current rules.

An expressed "benefit" of the changed regulations is to save the federal government tens of billions of dollars annually because immigrants will be discouraged from applying for such programs. As noted above, though, immigrants are explicitly eligible for the programs, so the rules cannot reverse the statutory mandate. Moreover, if immigrants do not apply for these benefits, because of the new rules, the purposes for which the supplemental programs were intended will be frustrated. Thus, even while the proposed regulations say that the existing rules are "insufficiently protective of the public budget," the regulations cannot say that their purpose is to discourage immigrants from applying for green cards or the newly disqualifying supplemental programs, though some press releases do tout this bug as a feature.

The actual purpose, as revealed by public statements, was clear, though: to encourage immigration of highly educated and financially secure applicants and to discourage immigration of young or elderly family members or laborers, especially from South of the Border. We cringe at the words of administration officials who would rewrite the Lazarus sonnet to have meant that only European or wealthy immigration is welcome—as if they would welcome a return to pre-Hart-Celler quotas. In fact, the verse refers explicitly to America's "world-wide welcome." To discount the verse as having been added to the pedestal in 1903 ignores its history. The officials' rhetoric evidences a peculiarly cramped view of immigration by people who, once their families arrived, want to pull up the bridge with little regard to the contributions generations of immigrants have made—and will continue to make—to our nation regardless of their current educational or financial status.

Litigation is now underway to enjoin enforcement of the new public charge rules. As alleged in a half-dozen complaints, including State of Washington v. U.S. Department of Homeland Security, 19-5219 (E.D. Wash.), in which New Jersey has joined, the regulations violate the Administrative Procedures Act, were not issued by a Senate-confirmed secretary, violate the Fifth Amendment, and contradict the terms and purposes of various enabling statutes.

Courts in other contexts have dealt with the APA issues inconsistently, and we do not deign to predict whether they might hold sway. The most intriguing argument—we note without the benefit of any legal briefing on forthcoming motions for injunctions—should be those focusing on the perceived financial "benefits" of these changes. As much as an executive department may want to protect the "public budget," it would seem doubtful the department could do so by indirectly discouraging a group from applying for statutory benefit programs that Congress and the courts have said must be made available to them, and where reducing their participation likely will increase malnutrition, poor housing and substandard medical care for immigrants and, likely, their children (who may be U.S. citizens). If, in fact, the financial benefit is to the intended detriment of disfavored groups, then Fifth Amendment equal protection and due process arguments—to some extent also embodied in the APA—may prove too powerful for the administration to overcome.

We support the goals of the complaints and the restoration of immigration policy consistent with the ideals of "The New Colossus" and the United States as a world leader in the 21^st century.