                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19-3169
COOK COUNTY, ILLINOIS, et al.,
                                                 Plaintiffs-Appellees,
                                 v.

CHAD F. WOLF, Acting Secretary
of Homeland Security, et al.,
                                             Defendants-Appellants.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
             No. 19 C 6334 — Gary Feinerman, Judge.
                     ____________________

    ARGUED FEBRUARY 26, 2020 — DECIDED JUNE 10, 2020
                ____________________

    Before WOOD, Chief Judge, and ROVNER and BARRETT, Cir-
cuit Judges.
    WOOD, Chief Judge. Like most people, immigrants to the
United States would like greater prosperity for themselves
and their families. Nonetheless, it can take time to achieve the
American Dream, and the path is not always smooth. Recog-
nizing this, Congress has chosen to make immigrants eligible
for various public beneﬁts; state and local governments have
2                                                     No. 19-3169

done the same. Those beneﬁts include subsidized health in-
surance, supplemental nutrition beneﬁts, and housing assis-
tance. Historically, with limited exceptions, temporary receipt
of these supplemental beneﬁts did not jeopardize an immi-
grant’s chances of one day adjusting his status to that of a le-
gal permanent resident or a citizen.
    Recently, however, the Department of Homeland Security
(DHS) issued a new rule designed to prevent immigrants
whom the Executive Branch deems likely to receive public as-
sistance in any amount, at any point in the future, from enter-
ing the country or adjusting their immigration status. The
Rule purports to implement the “public-charge” provision in
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4).
States, cities, and nonproﬁt groups across the country have
ﬁled suits seeking to overturn the Rule.
    Cook County, Illinois, and the Illinois Coalition for Immi-
grant and Refugee Rights, Inc. (ICIRR) brought one of those
cases in the Northern District of Illinois. They immediately
sought a preliminary injunction against the Rule pending the
outcome of the litigation. Finding that the criteria for interim
relief were satisﬁed, the district court granted their motion.
We conclude that at least Cook County adequately estab-
lished its right to bring its claim and that the district court did
not abuse its discretion by granting preliminary injunctive re-
lief. We therefore aﬃrm.
                         I.     The Setting
                    A. The Public-Charge Rule
   The Immigration and Nationality Act (INA, or “the Act”)
provides that a noncitizen may be denied admission or ad-
No. 19-3169                                                    3

justment of status if she “is likely at any time to become a pub-
lic charge.” 8 U.S.C. § 1182(a)(4)(A). The statute does not de-
ﬁne the term “public charge,” nor has it ever done so. Instead,
the Act calls for a “totality-of-the-circumstances” analysis,
though it singles out several factors to be considered “at a
minimum”: age; health; family status; assets, resources, and
ﬁnancial status; education and skills; and any aﬃdavit of sup-
port under section 1183a. Id. § 1182(a)(4)(B). The statute does
not specify how oﬃcials should weigh the listed factors and
any others that appear to be relevant.
    On August 14, 2019, following a notice and comment pe-
riod, DHS issued a rule interpreting this provision. In it, DHS
deﬁnes as a “public charge” any noncitizen (with some excep-
tions) who receives certain cash and noncash government
beneﬁts for more than “12 months” in the aggregate in a
36-month period. Inadmissibility on Public Charge Grounds,
84 Fed. Reg. 41292–508 (Aug. 14, 2019) (“Rule”). It applies to
all legally admitted immigrants; we are not concerned here
with those in the country unlawfully. The Rule is not limited
to federal beneﬁts; instead, it sweeps in any federal, state, lo-
cal, or tribal cash assistance for income maintenance; Supple-
mental Nutrition Assistance Program (SNAP) beneﬁts; most
forms of Medicaid; Section 8 Housing Assistance under the
Housing Choice Voucher Program; Section 8 Project-Based
Rental Assistance; and certain other forms of subsidized
housing. Id. at 41295, 41501. Each beneﬁt received, no matter
how small, is counted separately and stacked, such that re-
ceipt of multiple beneﬁts in one month is considered receipt
of multiple months’ worth of beneﬁts. Id. at 41295. For exam-
ple, an immigrant who receives any amount of SNAP beneﬁts,
Medicaid, and housing assistance, and nothing else for four
months in a three-year period, will be considered a public
4                                                   No. 19-3169

charge and likely denied adjustment of status. The stacking
rule means that a person can use up her “12 months” of ben-
eﬁts in a far shorter time than a quick reading of the Rule
would indicate.
    The Rule also explains what facts DHS will consider with
respect to an applicant’s age, health, family status, ﬁnancial
status, and education and skills. Id. at 41502–04. “Heavily
weighted negative factors” include the following: lack of cur-
rent employment or reasonable prospect of future employ-
ment; previous receipt or approval for receipt of 12 months’
worth of public beneﬁts in a three-year period; diagnosis of a
medical condition that is likely to require extensive medical
treatment or institutionalization or that will interfere with the
ability to provide for oneself, attend school, or work, along
with lack of insurance and no prospect of obtaining private
health insurance, and insuﬃcient ﬁnancial resources to pay
for reasonably foreseeable medical costs related to such med-
ical condition; and prior determination of inadmissibility or
deportability on public-charge grounds. Id. at 41504.
    The “heavily weighted positive factors” are exclusively
monetary. They include the following: a household income,
assets, resources, or support amounting to at least 250 percent
of the Federal Poverty Guidelines for the household size; cur-
rent employment with an annual income of at least 250 per-
cent of the Federal Poverty Guidelines for the household size;
and private health insurance other than subsidized insurance
under the Aﬀordable Care Act. Id. To put this in perspective,
recall that the Federal Poverty Guideline in 2020 for a family
of four is $26,200 in annual income. Poverty Guidelines,
www.aspe.hhs.gov. An annual income 250 percent of that
No. 19-3169                                                                5

number is $65,500, which is very close to the median U.S. in-
come of $63,179 (the 2018 number reported by the U.S. Census
on Sept. 10, 2019, see Income, Poverty and Health Insurance
Coverage in the United States: 2018, www.census.gov).
    Other factors include whether an immigrant is younger
than 18 or older than 61 (bad); household size (smaller is bet-
ter); whether an immigrant’s household annual gross income
is at least 125 percent of the Federal Poverty Guidelines; past
receipt of any amount of public beneﬁts (bad); level of educa-
tion (good); English language proﬁciency; and credit history
and credit score. Id. at 41502–04.
    The Rule represents a striking departure from the previ-
ous administrative guidance—one with a potentially devast-
ing impact on those to whom it applies. 1 That guidance, is-
sued in 1999 by the Immigration and Naturalization Service
(the predecessor of today’s U.S. Citizenship and Immigration
Services), deﬁnes as a public charge a noncitizen who is “pri-
marily dependent on the government for subsistence, as
demonstrated by either (i) the receipt of public cash assistance
for income maintenance or (ii) institutionalization for long-

    1 The dissent emphasizes the fact that the Rule will not affect certain
people, such as those for whom a sponsor has furnished an affidavit of
support. But those are not the people who concern Cook County—it must
deal with those who bear the brunt of the Rule. Cf. Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 894 (1992) (“Legislation is
measured for consistency with the Constitution by its impact on those
whose conduct it affects. … The proper focus of constitutional inquiry is
the group for whom the law is a restriction, not the group for whom the
law is irrelevant.”). The dissent concedes, as it must, that the affected
group is not the null set.
6                                                    No. 19-3169

term care at government expense.” Field Guidance on Deport-
ability and Inadmissibility on Public Charge Grounds, 64 Fed.
Reg. 28689 (May 26, 1999) (“1999 Field Guidance”) (emphasis
added); see also Proposed Rule: Inadmissibility and Deporta-
bility on Public Charge Grounds, 64 Fed. Reg. 28676 (May 26,
1999). Drawing on both dictionary deﬁnitions and the devel-
opment of immigration law since the 1880s, the proposed rule
accompanying the 1999 Field Guidance explained that “a per-
son becomes a public charge when he or she is committed to
the care, custody, management, or support of the public,” and
that the term is best understood to signify “a complete, or
nearly complete, dependence on the Government rather than
the mere receipt of some lesser level of ﬁnancial support.” 64
Fed. Reg. at 28677.
                      B. Procedural History
    DHS’s new rule was scheduled to go into effect in October
2019. Before it did so, plaintiffs filed this suit against DHS and
related entities for declaratory and injunctive relief. The com-
plaint presents several theories: (1) the Rule violates the Ad-
ministrative Procedure Act (APA), 5 U.S.C. § 706, because it
exceeds DHS’s statutory authority; (2) the Rule violates APA
section 706 because it is not in accordance with law; (3) the
Rule violates APA section 706 because it is arbitrary and ca-
pricious; and (4) the Rule violates the Fifth Amendment’s
Equal Protection guarantee because it discriminates against
non-white immigrants.
   Focusing on the APA theories, plaintiffs moved for a pre-
liminary injunction, which the district court granted on Octo-
ber 14, 2019. (Following plaintiffs’ lead, we do not discuss the
Equal Protection theory.) The injunction is geographically
limited to Illinois. The district court concluded that both Cook
No. 19-3169                                                  7

County and ICIRR have constitutional standing to sue—Cook
County primarily because of the added costs its health and
hospital system is absorbing and will have to absorb as a re-
sult of decreased immigrant enrollment in government-pro-
vided health care coverage, and ICIRR because it is expending
and will continue to expend additional resources to educate
immigrant communities about the Rule and ensure they are
able to obtain necessary health services. The court also deter-
mined that both the County and ICIRR fall within the “zone
of interests” protected by the INA, for largely the same rea-
sons they have constitutional standing. On the merits, the
court concluded that DHS’s reinterpretation of the term is
likely impermissible. The court found the statute to be clear
and to require more substantial, sustained dependence on
government assistance than the Rule demands before a
noncitizen may be considered a public charge. This showed,
the court held, that plaintiffs are likely to succeed on their
claims. Finally, the court ruled that plaintiffs had shown a
likelihood of irreparable harm and that the balance of harms
favored them, such that a preliminary injunction is war-
ranted.
     DHS filed an immediate appeal and moved to stay the pre-
liminary injunction pending resolution of its appeal. We de-
nied the stay and a renewed motion for a stay, but on Febru-
ary 21, 2020, the Supreme Court granted a stay. Chad Wolf, et
al. v. Cook County, et al., 140 S. Ct. 681 (2020).
   As we write, parallel cases are being litigated in New
York, Maryland, California, and Washington. New York v. U.S.
Dep’t of Homeland Sec., No. 19-cv-7777 (S.D.N.Y.); Make the
Road New York v. Cuccinelli, No. 19-cv-7993 (S.D.N.Y.); Casa de
Maryland, Inc. v. Trump, No. 19-cv-2715 (D. Md.); California v.
8                                                    No. 19-3169

U.S. Dep’t of Homeland Sec., No. 19-cv-4975 (N.D. Cal.); La
Clinica De La Raza v. Trump, No. 19-cv-4980 (N.D. Cal.); Wash-
ington v. U.S. Dep’t of Homeland Sec., No. 19-cv-5210 (E.D.
Wash.). The district courts in each of those cases also issued
preliminary injunctions, though with nationwide effect. DHS
appealed the preliminary injunctions and requested stays
pending appeal. The Ninth and Fourth Circuits granted
DHS’s stay requests. City and Cnty. of San Francisco v. U.S. Cit-
izenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019); Casa
de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Dec. 9, 2019).
The Second Circuit declined to issue a stay, but the Supreme
Court granted one pending further proceedings. Dep’t of
Homeland Sec., et al., v. New York, et al., 140 S. Ct. 599 (2020).
    Rather than discussing these opinions point-by-point, we
think it better to spell out our own analysis of these issues.
                       II.     Right To Sue
    Plaintiﬀs invoked the district court’s jurisdiction under 28
U.S.C. § 1331 for their claims under the APA. DHS responds
that they lack standing to sue under Article III of the Consti-
tution. The district court rejected that argument. It also con-
cluded that plaintiﬀs had adequately raised a claim within the
“zone of interests” of the INA. We review the legal question
of standing de novo and the factual ﬁndings underlying the
district court’s determination of standing for clear error. Arre-
ola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008).
                      A. Article III Standing
   Article III of the Constitution limits the federal judicial
power to the adjudication of “cases” and “controversies.” U.S.
Const. art. III, § 2, cl. 1. For there to be a justiciable case or
controversy, the party invoking the power of the court must
No. 19-3169                                                      9

have standing to sue. Hollingsworth v. Perry, 570 U.S. 693, 700
(2013). To assert standing for injunctive relief, a plaintiﬀ must
show that it is under an actual or imminent threat of suﬀering
a concrete and particularized injury-in-fact; that this injury is
fairly traceable to the defendant’s conduct; and that it is likely
that a favorable judicial decision will prevent or redress the
injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
    Municipalities generally have standing to challenge laws
that result (or immediately threaten to result) in substantial
ﬁnancial burdens and other concrete harms. See, e.g., Dep’t of
Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (“diminish-
ment of political representation, loss of federal funds, degra-
dation of census data, and diversion of resources” were suﬃ-
cient to give states and municipalities standing to sue over the
proposed inclusion of a citizenship question on the 2020 cen-
sus); Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 110–11
(1979) (municipality had standing based on the eﬀect of racial
steering in housing on the municipality’s tax base and social
stability).
    The district court found that Cook County has standing
based on the ﬁnancial harms the County will incur if and
when the Rule goes into eﬀect. The Rule is likely to cause im-
migrants to forgo routine treatment, immunizations, and di-
agnostic testing, resulting in more costly, uncompensated
emergency care and an increased risk of communicable dis-
eases spreading to the general public. Indeed, DHS conceded
this harm in its commentary on the Rule, acknowledging
“that increased use of emergency rooms and emergent care as
a method of primary healthcare due to delayed treatment is
possible and there is a potential for increases in uncompen-
sated care in which a treatment or service is not paid for by an
10                                                 No. 19-3169

insurer or patient.” 84 Fed. Reg. at 41384. The district court
determined that “[b]oth the costs of community health epi-
demics and of uncompensated care are likely to fall particu-
larly hard on [the Cook County health system], which already
provides approximately half of all charity care in Cook
County, including to noncitizens regardless of their immigra-
tion status.” The district court found that these ﬁnancial and
health burdens were suﬃcient.
    The district court also concluded that ICIRR has Article III
standing based on the eﬀect of the Rule on its ability to per-
form its core mission and operate its existing programs. The
court found that the Rule would impair the organization’s
ability to achieve its mission of increasing access to care, im-
proving health literacy, and reducing reliance on emergency
room care in immigrant communities. The Rule already has
caused ICIRR to divert resources from its core programs to
new eﬀorts designed to educate immigrants and staﬀ about
the Rule’s eﬀects and to mitigate the Rule’s chilling impact on
immigrants who are not covered by the Rule but who none-
theless fear immigration consequences based on their receipt
of public beneﬁts.
    Under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)
and Common Cause Indiana v. Lawson, 937 F.3d 944 (7th Cir.
2019), this is enough. In Havens, the Supreme Court found that
a nonproﬁt organization focused on equal housing access had
standing to sue an apartment owner under the Fair Housing
Act for racial discrimination, based on the negative impact of
the defendant’s racial steering practices on the organization’s
ability to provide counseling and referral services for low-and
moderate-income home-seekers. 455 U.S. at 379. And in Com-
mon Cause, we relied on Havens in concluding that the plaintiﬀ
No. 19-3169                                                  11

voting rights organizations had standing to challenge an In-
diana law designed to remove certain people from the voter
rolls, because the law caused the organizations to divert their
limited resources from core programs to ameliorating the ef-
fects of the law. 937 F.3d at 950–52.
    We agree with the district court that Cook County and
ICIRR have established cognizable injuries. Their alleged in-
juries are predictable, likely, and imminent. And the Rule—
not independent third-party decision-making—is the but-for
cause of these injuries. Plaintiﬀs thus have constitutional
standing to challenge the Rule.
                     B. Statutory Coverage
    The next question is whether the interests Cook County
and ICIRR assert are among those protected or regulated by
the INA. A statute “ordinarily provides a cause of action only
to plaintiﬀs whose interests fall within the zone of interests
protected by the law invoked.” Bank of America Corp. v. City of
Miami, 137 S. Ct. 1296, 1302 (2017).
    The zone-of-interests test is not “especially demanding” in
the APA context. Lexmark Int’l, Inc. v. Static Control Compo-
nents, Inc., 572 U.S. 118, 130 (2014). This is because it was
“Congress’s evident intent when enacting the APA to make
agency action presumptively reviewable.” Match-E-Be-Nash-
She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,
225 (2012). The plaintiﬀs’ interests must only arguably fall
within the zone of interests of the statute. And the emphasis
on the word “arguably” is not ours: the Supreme Court has
“always conspicuously included the word ‘arguably’ in the
test to indicate that the beneﬁt of any doubt goes to the plain-
tiﬀ.” Id. It is not necessary to demonstrate any “indication of
12                                                 No. 19-3169

congressional purpose to beneﬁt the would-be plaintiﬀ.” Id.
Suit is foreclosed “only when a plaintiﬀ’s interests are so mar-
ginally related to or inconsistent with the purposes implicit in
the statute that it cannot reasonably be assumed that Con-
gress intended to permit the suit.” Id.
     1. Cook County
   The district court concluded that Cook County satisﬁes the
zone-of-interests test based on the ﬁnancial burdens the
County will incur as a result of the Rule. It drew an analogy
to City of Miami, in which the Supreme Court held that Mi-
ami’s allegations of lost tax revenue and extra municipal ex-
penses placed it within the zone of interests protected by the
Fair Housing Act.
    DHS takes issue with these conclusions. It argues that the
County does not fall within the INA’s zone of interests be-
cause its asserted interests are inconsistent with the statutory
purpose. DHS sees a tension between the County’s eﬀorts to
provide services to immigrants and the supposed aim of the
public-charge provision, which it understands as a command
to reduce and penalize immigrants’ receipt of public beneﬁts.
DHS also contends that the district court misread City of Mi-
ami, and that the INA does not give any third party a judicially
enforceable interest in the Executive Branch’s immigration
decisions.
   DHS has overshot the mark. Indeed, its own arguments
undermine such an absolutist position. DHS admits that one
purpose of the public-charge provision is to protect taxpayer
resources. In large measure, that is the same interest Cook
County asserts. DHS tries to distinguish itself from Cook
County by saying that it is focused on reducing the burden on
No. 19-3169                                                     13

federal taxpayers, but the Rule itself covers not just federal, but
also state, local, and tribal assistance. Even if the eﬀect of the
Rule is some reduction in the burden on federal taxpayers,
Cook County has plausibly alleged that at the same time, the
Rule will increase the burden on those same people in their
capacity as state and local taxpayers, who will have to suﬀer
the adverse eﬀects of a substantial population with inade-
quate medical care, housing, and nutrition.
     Furthermore, though the purpose of the public-charge
provision is to screen for and promote “self-suﬃciency”
among immigrants, it is not obvious what self-suﬃciency
means. Subsidies abound in the modern world, from dis-
counted or free transportation for seniors, to public snow re-
moval, to school lunches, to childhood vaccinations, and
much more. Cf. Danilo Trisi, Administration’s Public Charge
Rules Would Close the Door to U.S. Immigrants Without Substan-
tial Means, Ctr. on Budget and Policy Priorities (Nov. 11, 2019)
(noting that in a single year, one in four U.S.-born citizens,
and 15 percent of all residents, receives a beneﬁt included in
the Rule’s public charge deﬁnition). Ensuring that immigrants
have access to aﬀordable basic health care, for example, may
promote their greater self-suﬃciency in other domains, in-
cluding income, housing, and nutrition. It also protects the
community at large from highly contagious diseases such as
COVID-19. Cook County’s interest in ensuring lawful immi-
grants’ access to authorized federal and state public beneﬁts
is not plainly inconsistent with the text of the statute. Its ﬁ-
nancial interests thus suﬃce to bring it within the zone of in-
terests of the public-charge provision.
14                                                  No. 19-3169

     2. ICIRR
   The court also found that ICIRR ﬁts within the INA’s zone
of interests, explaining that there is “ample evidence that
ICIRR’s interests are not merely marginal to those of the aliens
more directly impacted by the public charge provision” and
that “ICIRR [is] precisely the type of organization that would
reasonably be expected to ‘police the interests that the statute
protects.’”
    Because only one plaintiﬀ need demonstrate that it has
stated a claim within the zone of interests of the statute, we
elect to pass over ICIRR without much comment. We recog-
nize that it asserts that it has suﬀered a ﬁnancial burden di-
rectly attributable to the Rule. And we accept that ICIRR helps
immigrants navigate the INA’s various requirements, includ-
ing the public-charge rule, and it has an interest in ensuring
that immigrants are not improperly denied adjustment of sta-
tus or removed from the country because of confusion over
DHS’s Rule. But the link between these injuries and the pur-
pose of the public-charge part of the statute is more attenu-
ated, and thus it is harder to say that the injury ICIRR has as-
serted meets the “zone-of-interests” test.
    Given Cook County’s presence in the case, we need not
resolve ICIRR’s status deﬁnitively, and so we limit our discus-
sion in the remainder of the opinion to Cook County. The cen-
tral question is whether the district court abused its discretion
in preliminarily enjoining the Rule for the State of Illinois?
                III.   The Preliminary Injunction
    To obtain a preliminary injunction, a plaintiﬀ must estab-
lish that: (1) she is likely to succeed on the merits, (2) she is
likely to suﬀer irreparable harm in the absence of preliminary
No. 19-3169                                                      15

relief; and (3) legal remedies are inadequate. See Winter v. Nat-
ural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Eli Lilly & Co.
v. Arla Foods, Inc., 893 F.3d 375, 381 (7th Cir. 2018). “If the mov-
ing party makes this showing, the court balances the harms to
the moving party, other parties, and the public.” Eli Lilly, 893
F.3d at 381. The standard is the same for an application for a
stay under section 705 of the APA. Cronin v. U.S. Dep’t of
Agric., 919 F.2d 439, 446 (7th Cir. 1990).
   The district court concluded that Cook County is likely to
succeed on the merits and that the other requirements for pre-
liminary injunctive relief have been met. We review the issu-
ance of a preliminary injunction under the deferential abuse-
of-discretion standard, reviewing legal issues de novo and fac-
tual ﬁndings for clear error. Whitaker v. Kenosha Uniﬁed Sch.
Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017).
                     A. Likelihood of Success
    The pivotal question in this case, as in many involving pre-
liminary relief, is likelihood of success on the merits. We
therefore devote the bulk of our analysis to this issue, under-
standing that the litigation is still in an early stage and any-
thing we say may change as the record develops further.
    The APA provides for judicial review of ﬁnal agency deci-
sions. 5 U.S.C. §§ 702, 706. The overriding question is whether
the agency’s interpretation of the relevant statute is one the
text will permit. We approach this inquiry through the two-
step framework set forth in Chevron U.S.A. Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984). The ﬁrst issue is “whether
Congress has directly spoken to the precise question at issue.”
Id. at 842. If Congress has done so unambiguously, then that
is the end of it: the agency and courts alike are bound by what
16                                                    No. 19-3169

Congress wrote. Id. at 842–43. If Congress has not spoken
clearly, then we move on to step two, in which we consider
whether the agency’s interpretation reﬂects a permissible con-
struction of the statute. Id. at 843. We defer to the agency’s
reading “unless it appears from the statute or its legislative
history that the accommodation [of conﬂicting policies] is not
one that Congress would have sanctioned.” Id. at 845; see also
Indiana v. EPA, 796 F.3d 803, 811 (7th Cir. 2015).
    Statutory interpretation is not the end of the matter, how-
ever. We also must assess the agency’s policymaking to en-
sure that it is not “arbitrary and capricious,” as the APA uses
those terms. 5 U.S.C. § 706(2)(A). This review, guided by Mo-
tor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29 (1983), focuses not on the facial validity of the agency’s in-
terpretation, but rather on the soundness of the process by
which it reached its interpretation. See Encino Motorcars, LLC
v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“[W]here a proper
challenge is raised to the agency procedures, and those pro-
cedures are defective, a court should not accord Chevron def-
erence to the agency interpretation.”).
     1. Chevron Step One
     We begin our analysis of DHS’s Rule with an analysis of
the text of the INA. In conducting this analysis, we consider
the words of the public-charge provision, its place in the over-
all statutory scheme, the relation of the INA to other statutes,
and “common sense as to the manner in which Congress is
likely to delegate a policy decision of such economic and po-
litical magnitude to an administrative agency.” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000).
No. 19-3169                                                    17

    As we noted at the outset, the INA contains no formal def-
inition of what it takes to be a “public charge.” It merely lists
several broad factors that are relevant to the determination.
8 U.S.C. § 1182(a)(4)(B). It does not provide weights for either
the listed factors or any others that might exist in a given case.
Instead, it relies on the discretion of the responsible consular
oﬃcial or the Attorney General. Id. § 1182(a)(4)(A). It also au-
thorizes the Secretary of Homeland Security to promulgate
rules to guide those determinations. Id. § 1103(a)(3).
    In defense of its Rule, DHS relies heavily on the 1996
amendments to the INA. There Congress stated that “self-suf-
ﬁciency has been a basic principle of United States immigra-
tion law since this country’s earliest immigration statutes.” 8
U.S.C. § 1601(1). Congress also announced its intent that “al-
iens within the Nation’s borders not depend on public re-
sources to meet their needs, but rather rely on their own ca-
pabilities and the resources of their families, their sponsors
and private organizations”; and that “the availability of pub-
lic beneﬁts [should] not constitute an incentive for immigra-
tion to the United States.” 8 U.S.C. § 1601(2).
    Both parties also cite various other statutory provisions
that they believe shed light on the meaning of the public-
charge provision, including the requirement for some immi-
grants to obtain aﬃdavits of support from sponsors, 8 U.S.C.
§ 1183a; an exception to the public-charge provision for immi-
grants who are victims of domestic violence and receive ben-
eﬁts in that capacity, id. §§ 1182(a)(4)(E), 1641(c); and several
other statutes that extend, with varying conditions, certain
beneﬁts to immigrants, see, e.g., id. §§ 1611, 1621. We do not
ﬁnd these provisions to be particularly helpful; each is sus-
ceptible to more than one reasonable reading.
18                                                   No. 19-3169

    Cook County argues that long-established judicial deci-
sions, ratiﬁed by Congress, point us to only one possible in-
terpretation—that is, the one that it urges. But in our view, the
historical record is not so clear. The parties agreed in the dis-
trict court that the understanding of the term “public charge”
around the time it ﬁrst entered federal immigration law in
1882 is particularly relevant. See New Prime Inc. v. Oliveira, 139
S. Ct. 532, 539 (2019) (“It’s a fundamental canon of statutory
construction that words generally should be interpreted as
taking their ordinary meaning at the time Congress enacted
the statute.”). But that is where the harmony ends.
    Enter the dueling dictionaries. In Cook County’s corner,
we have the Century Dictionary, deﬁning a “charge” as a per-
son who is “committed to another’s custody, care, concern or
management,” Century Dictionary 929 (William Dwight
Whitney, ed., 1889) (emphasis added); and Webster’s Diction-
ary, likewise deﬁning a “charge” as a “person or thing com-
mitted to the care or management of another,” Webster’s Con-
densed Dictionary of the English Language 84 (Dorsey Gard-
ner, ed., 1884). These suggest primary, long-term dependence.
In DHS’s corner, we have dictionaries deﬁning a “charge” as
“an obligation or liability,” as in a “pauper being chargeable
to the parish or town,” Dictionary of Am. and English Law
196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a
“burden, incumbrance, or lien,” Glossary of the Common
Law 56 (Frederic Jesup Stimson, ed., 1881). These deﬁnitions
can be read to indicate that a lesser reliance on public beneﬁts
is enough. Finding no clarity here, we move on.
    Cook County contends that from the outset Congress dis-
tinguished between, on the one hand, those who were permit-
No. 19-3169                                                  19

ted to “land” and receive short-term support from govern-
ment agencies, and, on the other hand, those who were ex-
cluded as public charges. Under the 1882 Immigration Act,
the set of people who could be prevented from landing in-
cluded convicts, “lunatics,” “idiots,” and any other person
“unable to take care of himself or herself.” An Act to Regulate
Immigration, ch. 376, § 2, 22 Stat. 214 (1882). The 1882 Act au-
thorized the Secretary of the Treasury, who was responsible
for supervising immigration, to enter into contracts with state
entities “to provide for the support and relief of such immi-
grants therein landing as may fall into distress or need public
aid, under the rules and regulations to be prescribed by said
Secretary.” Id. Cook County stresses this distinction between
excludable public charges and immigrants who (less drasti-
cally) “may fall into distress or need public aid.”
    This argument has some intuitive merit. DHS responds
however, that the general revenues were not at risk under the
1882 Act for immigrants who were not self-suﬃcient upon ar-
rival. The 1882 Act directed the Secretary of the Treasury to
levy an entry tax on all noncitizens arriving by ship to cover
both the cost of regulating immigration and that of temporary
assistance. 1882 Act, ch. 376, § 1. It also speciﬁed that “no
greater sum shall be expended for the purposes hereinbefore
mentioned, at any port, than shall have been collected at such
port.” Id. In other words, federal funding was available only
to the extent the funds matched collections from the vessels.
This general feature is no longer part of the law (putting to
one side the special case of sponsored immigrants).
    Congress tinkered with the language in 1891, 1903, and
1907. See An Act in Amendment to the Various Acts Relative
to Immigration and the Importation of Aliens Under Contract
20                                                  No. 19-3169

or Agreement to Perform Labor, ch. 551, 26 Stat. 1084, 1086
(1891); An Act to Regulate the Immigration of Aliens into the
United States, ch. 1012, 32 Stat. 1213, 1213–1214 (1903); An Act
to Regulate the Immigration of Aliens into the United States,
ch. 1134, 34 Stat. 898, 898–899, 904–905 (1907). Never, how-
ever, did it deﬁne “public charge” or explain what degree of
reliance on government aid brands someone as such a person.
    Federal district court and state-court cases from this pe-
riod point in diﬀerent directions. For example, in In re Fein-
knopf, 47 F. 447 (E.D.N.Y. 1891), a district court distinguished
between the primary dependence of persons who live in alms-
houses and the lesser dependence of those who merely re-
ceive public support. Around the same time, a North Dakota
court indicated that temporary aid is actually a means of
averting public dependence, insofar as it can keep those “des-
titute of means and credit from becoming a public charge.”
Yeatman v. King, 2 N.D. 421 (1892). On the other hand, the
question in Yeatman was whether an obligation to repay the
county the value of received temporary public assistance
counted as a tax, and so the decision is of limited value.
    The district court did not ﬁnd these and other early deci-
sions to be dispositive. Instead, it thought that the Supreme
Court’s decision in Gegiow v. Uhl, 239 U.S. 3 (1915), resolved
the issue. But there, too, the question presented was a narrow
one. The Court said that it was addressing the “single ques-
tion … whether an alien can be declared likely to become a
public charge on the ground that the labor market in the city
of his immediate destination is overstocked.” Id. at 9–10. It an-
swered in the negative, saying that “[t]he persons enumer-
ated, in short, are to be excluded on the ground of permanent
personal objections accompanying them irrespective of local
No. 19-3169                                                     21

conditions … .” Id. at 10. The district court in our case under-
stood Gegiow as holding that the term “public charge” encom-
passes only persons who are substantially, if not entirely, de-
pendent on government assistance on a long-term basis.
   While there is language in Gegiow that supports that read-
ing, we are not persuaded that the Supreme Court necessarily
ruled so broadly. The Court went out of its way to say that the
question presented was the one we noted above. The Acting
Commissioner of Immigration, in deciding to deport the per-
sons at issue, mentioned in addition to local labor conditions
“the amount of money possessed and ignorance of our lan-
guage.” But the Court brushed oﬀ these considerations as
mere “makeweights.” Id. at 9. It thus had no need to address
directly the immigrants’ ﬁnancial resources and education.
    In context, the Court’s reference to “permanent personal
objections” might have simply reﬂected a distinction between
the individualized characteristics of an immigrant and exter-
nal factors such as a local labor market. The terse opinion is
silent about any distinction between people whose need for
public assistance is temporary and minimal, and those whose
need is likely to be substantial or permanent. We thus agree
with DHS that the case before us cannot be resolved exclu-
sively by reference to Gegiow.
     Circuit court decisions in the aftermath of Gegiow add little
clarity to this picture. For example, in Wallis v. United States ex
rel. Mannara, 273 F. 509 (2d Cir. 1921), the Second Circuit de-
ﬁned a person likely to become a public charge as “one whom
it may be necessary to support at public expense by reason of
poverty, insanity and poverty, disease and poverty, idiocy
and poverty.” Id. at 511. It did so in a case in which the immi-
22                                                   No. 19-3169

grant family’s primary breadwinner was “certiﬁed for senil-
ity” and thus would never be “capable of continued self-sup-
port.” Id. at 510. The court noted that the family had “insuﬃ-
cient [means] to provide for their necessary wants any reason-
able length of time” and no private sources of support. Id. On
the other hand, in Ex parte Hosaye Sakaguchi, 277 F. 913 (9th
Cir. 1922), the Ninth Circuit held that an immigrant woman
with the skills to support herself was not likely to become a
public charge. Id. at 916. It ruled that the government had to
present evidence of “mental or physical disability or any fact
tending to show that the burden of supporting the [immi-
grant] is likely to be cast upon the public.” Id. How much of a
burden was left undeﬁned. See also United States ex rel. De
Sousa v. Day, 22 F.2d 472, 473–74 (2d Cir. 1927) (“In the face of
[Gegiow] it is hard to say that a healthy adult immigrant, with
no previous history of pauperism, and nothing to interfere
with his chances in life but lack of savings, is likely to become
a public charge within the meaning of the statute.”).
    The parties and amici also call our attention to later actions
by the Executive Branch, but we ﬁnd these also to be incon-
clusive. See, e.g., Matter of B-, 3 I. & N. Dec. 323, 326 (BIA &
AG 1948) (stating that the longstanding test for whether an
immigrant could be deemed a public charge had three com-
ponents: (1) the state must charge for the service it renders; (2)
it must make a demand for payment; and (3) the immigrant
must fail to pay).
    What we can say is that in 1952 Congress amended the Act
in a way that uses the language of discretion: it deems inad-
missible immigrants “who, in the opinion of the consular of-
ﬁcer at the time of application for a visa, or in the opinion of
the Attorney General at the time of application for admission,
No. 19-3169                                                  23

are likely at any time to become public charges.” An Act to Re-
vise the Laws Relating to Immigration, Naturalization, and
Nationality; and for Other Purposes, Pub. L. No. 414, § 212, 66
Stat. 163, 183 (1952) (emphasis added). This language clariﬁes
the temporal dimension of the public-charge determination,
but it says nothing about the degree or duration of assistance.
The Immigration Act of 1990, Pub. L. No. 101-649, § 601, 104
Stat. 4978, also lacks a clear deﬁnition of “public charge.”
     In the 1996 Immigration Act, Congress for the ﬁrst time
provided guidance on what the Executive Branch must con-
sider when determining whether an immigrant is likely to be-
come a public charge. As we noted earlier, immigration oﬃ-
cials were instructed “at a minimum” to look at age, health,
family status, ﬁnancial situation, and education and skills. Il-
legal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. No. 104-208, Div. C, § 531, 110 Stat. 3009
(1996). They also could consider whether an immigrant had
an aﬃdavit of support from a third party. Id. Congress re-
jected a proposal to deﬁne “public charge” to cover “any alien
who receives [means-tested public beneﬁts] for an aggregate
of at least 12 months.” 142 Cong. Rec. 24313, 24425 (1996).
    Contemporaneously, Congress enacted the Personal Re-
sponsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. 104-193, 110 Stat. 2105 (1996), commonly known
as the “Welfare Reform Act.” DHS places great weight on lan-
guage in that statute’s expression of Congress’s desire that
immigrants be self-suﬃcient and not come to the United
States with the purpose of beneﬁtting from public welfare
programs. See 8 U.S.C. § 1601(1). The INA (with that amend-
ment) pursues that goal by restricting most noncitizens from
eligibility for many federal and state public beneﬁts. It grants
24                                                 No. 19-3169

lawful permanent residents access to means-tested public
beneﬁts only after they have spent ﬁve years as a lawful per-
manent resident. Id. §§ 1611, 1613, 1621. But the exclusions are
not absolute. Congress speciﬁed instead that immigrants may
at any time receive emergency medical assistance; immuniza-
tions and testing for communicable diseases; short-term, in-
kind emergency disaster relief; various in-kind services such
as short-term shelter and crisis counseling; and certain hous-
ing and community development assistance. Id.
    The INS summarized its understanding of the 1996 legal
regime in the 1999 Field Guidance, which deﬁned as a public
charge those who are “primarily dependent on the govern-
ment for subsistence, as demonstrated by either (i) the receipt
of public cash assistance for income maintenance or (ii) insti-
tutionalization for long-term care at government expense.” 64
Fed. Reg. at 28689. Following an earlier 1987 interpretive rule,
see Adjustment of Status for Certain Aliens, 52 Fed. Reg.
16205, 16211–12, 16216 (May 1, 1987), the 1999 Field Guidance
said that “oﬃcers should not initiate or pursue public charge
deportation cases against aliens who have not received public
cash beneﬁts for income maintenance or who have not been
institutionalized for long-term care.“ 64 Fed. Reg. at 28689. It
directed oﬃcers “not [to] place any weight on the receipt of
non-cash public beneﬁts (other than institutionalization) or
the receipt of cash beneﬁts for purposes other than for income
maintenance with respect to determinations of admissibility
or eligibility for adjustment on public charge grounds.” Id.
    Later enactments lightened some of the statutory re-
strictions, in order to allow additional categories of immi-
grants to qualify for certain beneﬁts without a ﬁve-year wait-
ing period. See Farm Security and Rural Investment Act of
No. 19-3169                                                   25

2002, Pub. L. 107-171, § 4401, 116 Stat. 134 (2002); Children’s
Health Insurance Program Reauthorization Act of 2009, Pub.
L. 11-3, § 214, 123 Stat. 8 (2009).
    This is where things stood when DHS developed the Rule.
What should we make of this historical record? As the district
court recognized, there is abundant evidence supporting
Cook County’s interpretation of the public-charge provision
as being triggered only by long-term, primary dependence.
But the question before us is not whether Cook County has
oﬀered a reasonable interpretation of the law. It is whether the
statutory language unambiguously leads us to that interpre-
tation. We cannot say that it does. As our quick and admit-
tedly incomplete overview of this byzantine law has shown,
the meaning of “public charge” has evolved over time as im-
migration priorities have changed and as the nature of public
assistance has shifted from institutionalization of the destitute
and sick, to a wide variety of cash and in-kind welfare pro-
grams. What has been consistent is the delegation from Con-
gress to the Executive Branch of discretion, within bounds, to
make public-charge determinations.
    Thus, this case cannot be resolved at Chevron step one. But
that does not end the analysis, because we may aﬃrm the dis-
trict court’s issuance of a preliminary injunction on any basis
in the record. See Valencia v. City of Springﬁeld, Ill., 883 F.3d
959, 967 (7th Cir. 2018). We therefore proceed to step two.
   2. Chevron Step Two
   At step two of the Chevron analysis, we consider “whether
the agency’s answer is based on a permissible construction of
the statute.” 467 U.S. at 843. Our review is deferential; we ac-
cord “considerable weight … to an executive department’s
26                                                    No. 19-3169

construction of a statutory scheme it is entrusted to adminis-
ter.” Id. at 844; see also Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 980 (2005).
    A court may strike down an agency’s interpretation of a
law if, for example, the agency’s reading disregards the stat-
utory context, see, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2708
(2015); its rule is based on an unreasonable interpretation of
legislative history, see, e.g., Council for Urological Interests v.
Burwell, 790 F.3d 212, 223 (D.C. Cir. 2015); or its new position
“would bring about an enormous and transformative expan-
sion in [the agency’s] regulatory authority without clear con-
gressional authorization, Util. Air Reg. Grp. v. EPA, 573 U.S.
302, 324 (2014).
    Cook County oﬀers several reasons why DHS’s interpre-
tation founders here. First, it contends that the Rule conﬂicts
with at least two statutes: the SNAP statute and the Rehabili-
tation Act of 1973. Second, it urges that the DHS position cre-
ates internal inconsistencies in the immigration laws them-
selves. We address these points in turn.
    The SNAP statute prohibits the government from consid-
ering SNAP beneﬁts as “income or resources for any purpose
under any Federal, State, or local laws.” 7 U.S.C. § 2017(b). But
DHS is not trying to characterize these beneﬁts as income or
resources held by the immigrant in question. The Rule merely
notes that receipt of the beneﬁts is an indicium of a lack of
self-suﬃciency. Whatever else one might say about that posi-
tion, it is not one that the SNAP law forbids.
   The Rehabilitation Act of 1973 prohibits the government
from excluding from participation in, denying the beneﬁts of,
or subjecting to discrimination under any federally funded
No. 19-3169                                                      27

program or activity, a person with a disability “solely by rea-
son of her or his disability.” 29 U.S.C. § 794(a). An agency vi-
olates the Act if it (1) intentionally acts on the basis of the dis-
ability; (2) refuses to provide a reasonable modiﬁcation; or (3)
takes an action or adopts a rule that disproportionately aﬀects
disabled people. A.H. ex rel. Holzmueller v. Ill. High Sch. Ass’n,
881 F.3d 587, 592–93 (7th Cir. 2018). An aggrieved person
must demonstrate that “but for” her disability, she would
have been able to access the desired beneﬁts. Id. at 593.
    DHS frankly acknowledges that it takes disability into ac-
count in its public-charge analysis, and it does so in an unfa-
vorable way. 84 Fed. Reg. at 41383 (“DHS considers any disa-
bility or other medical condition in the public charge inadmis-
sibility determination to the extent the alien’s health makes
the alien more likely than not to become a public charge at
any time in the future.”). Indeed, the Rule brands as a heavily
weighted negative factor a medical condition that is likely to
require extensive medical treatment or interfere with the per-
son’s ability to provide for herself, attend school, or work. Id.
at 41504. DHS does not say what amounts to “extensive med-
ical treatment” or what it means for a condition to “interfere
with [an immigrant’s] ability to provide for herself, attend
school, or work.” The Rule leaves the interpretation of these
terms to immigration oﬃcials. It is therefore unclear what
sorts of disabilities DHS will place into this category.
    As several amici curiae point out, the Rule ignores the fact
that private insurers do not cover many home- and commu-
nity-based services, and so denial of beneﬁts is eﬀectively de-
nial of access to programs or activities. See id. at 41382. DHS
responded to this criticism, as it applies to Medicaid Buy-in
for those with disabilities, with the comment that “[a]liens
28                                                  No. 19-3169

should be obtaining private health insurance other than Med-
icaid in order to establish self-suﬃciency.” Id. But that is chi-
merical. Private insurance in the United States typically ex-
cludes these beneﬁts, and so persons with disabilities are able
to obtain essential services, including personal-care services,
specialized therapies and treatment, habilitative and rehabil-
itative services, and medical equipment, only by participating
in the Medicaid Buy-in program. With this assistance, they are
able to work and thus can avoid becoming a public charge,
which is DHS’s purported goal.
    The conclusion is inescapable that the Rule penalizes dis-
abled persons in contravention of the Rehabilitation Act. All
else being equal—education and skills, work history and po-
tential, health besides disability, etc.—the disabled are sad-
dled with at least two heavily weighted negative factors di-
rectly as a result of their disability. Even while DHS purports
to follow the statutorily-required totality of the circumstances
test, the Rule disproportionately burdens disabled people and
in many instances makes it all but inevitable that a person’s
disability will be the but-for cause of her being deemed likely
to become a public charge.
    We do not mean to suggest that the Rehabilitation Act re-
pealed the “health” criterion in the public-charge provision
by implication. There is no need to do that, if the two statutes
can be reconciled—and it is our duty to see if that can be ac-
complished. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624
(2018) (“[T]his Court is not at liberty to pick and choose
among congressional enactments and must instead strive to
give eﬀect to both.”). And they can live together comfortably,
as long as we understand the “health” criterion in the INA as
referring to things such as contagious disease and conditions
No. 19-3169                                                  29

requiring long-term institutionalization, but not disability per
se. That interpretation is also historically grounded.
    DHS’s interpretation also creates serious tensions, if not
outright inconsistencies, within the statutory scheme. It con-
ﬂicts with Congress’s aﬃrmative authorization for desig-
nated immigrants to receive the beneﬁts the Rule targets. See
8 U.S.C. §§ 1611, 1621 (allowing immigrants to receive emer-
gency medical assistance, immunizations and contagious dis-
ease testing, and some public housing assistance); Farm Secu-
rity and Rural Investment Act of 2002, Pub. L. No. 107–171,
§ 4401, 116 Stat. 134 (authorizing supplemental nutrition ben-
eﬁts for certain categories of immigrants, and Medicaid and
children’s health insurance for noncitizen children and preg-
nant women). Cook County is largely correct when it accuses
the Rule of “set[ting] a trap for the unwary” by penalizing
people for accepting beneﬁts Congress made available to
them. Although the Rule does not punish immigrants for us-
ing the designated beneﬁts, in the sense of imposing a ﬁne, its
heavily negative consideration of such use is an even worse
penalty for someone seeking a lawful path to staying in the
United States. Furthermore, the preliminary injunction record
shows that many immigrants are not sophisticated enough to
know which beneﬁts they may safely accept and which not.
    Congress drew the balance between acceptance of beneﬁts
and preference for self-suﬃciency in the statutes, and it is
DHS’s duty to respect that outer boundary. The Welfare Re-
form Act achieved its stated goal of reducing immigrant reli-
ance on public assistance by barring receipt of any beneﬁts by
some classes of noncitizens and authorizing receipt by other
classes only after a ﬁve-year waiting period. The statute did
not create a regime that permitted self-suﬃciency to trump all
30                                                No. 19-3169

other goals, nor did it modify the public-charge provision to
penalize receipt of non-cash as well as cash assistance. DHS is
correct that its Rule is not worded as an outright prohibition
against an immigrant’s receipt of beneﬁts to which Congress
has entitled him. The latter would exceed DHS’s authority.
But the record before us indicates that it may have the same
eﬀect.
    Our concerns are heightened by the fact that DHS’s inter-
pretation of its statutory authority has no natural limitation.
Although it chose a rule that quantiﬁed the beneﬁts used to
12 months’ worth over a 36-month period, nothing in its in-
terpretation requires even that limit. There is nothing in the
text of the statute, as DHS sees it, that would prevent the
agency from imposing a zero-tolerance rule under which the
receipt of even a single beneﬁt on one occasion would result
in denial of entry or adjustment of status.
    We see no warrant in the Act for this sweeping view. Even
assuming that the term “public charge” is ambiguous and
thus might encompass more than institutionalization or pri-
mary, long-term dependence on cash beneﬁts, it does violence
to the English language and the statutory context to say that
it covers a person who receives only de minimis beneﬁts for a
de minimis period of time. There is a ﬂoor inherent in the
words “public charge,” backed up by the weight of history.
The term requires a degree of dependence that goes beyond
temporary receipt of supplemental in-kind beneﬁts from any
type of public agency.
    DHS also runs into trouble as a result of its decision to
stack beneﬁts and disregard monetary value. Under its Rule,
the receipt of multiple beneﬁts in one month, no matter how
No. 19-3169                                                    31

slight, counts as multiple months of beneﬁts. DHS acknowl-
edges that the Rule’s 12-months-in-36 tolerance would actu-
ally run out in four months if an immigrant received non-
emergency Medicaid, any SNAP beneﬁt, and housing assis-
tance, or even sooner if she additionally received any amount
of cash income assistance through a federal, state, local, or
tribal program. Paradoxically, the Rule provides no oppor-
tunity for an immigrant to repay the value of the beneﬁts re-
ceived once she is back on her feet. This is another way in
which it unreasonably imposes substantially disproportion-
ate consequences for immigrants, compared to the supposed
drain on the public ﬁsc they cause.
    The ambiguity in the public-charge provision does not
provide DHS unfettered discretion to redeﬁne “public
charge.” We ﬁnd that the interpretation reﬂected in the Rule
falls outside the boundaries set by the statute.
   3. Arbitrary and Capricious Review
   Our conclusion that the Rule likely does not meet the
standards of Chevron step two is enough to require us to move
on to the remainder of the preliminary-injunction analysis.
But even if we are wrong about step two, one more inquiry
remains: whether the Rule is arbitrary and capricious, as the
APA uses those terms. See 5 U.S.C. § 706(2)(A). That requires
an examination of DHS’s policymaking process.
    When conducting rulemaking, an agency must “examine
the relevant data and articulate a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State
Farm, 463 U.S. at 43. It may not “rel[y] on factors which Con-
gress has not intended it to consider, entirely fail[] to consider
32                                                   No. 19-3169

an important aspect of the problem, [or] oﬀer[] an explanation
for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
diﬀerence in view or the product of agency expertise.” Id. Fur-
thermore, when an agency changes course, as DHS did here
when it adopted a radically diﬀerent understanding of the
term “public charge” compared to the 1999 Field Guidance, it
“must show that there are good reasons for the new policy.”
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In
explaining a change in policy, “an agency must also be cogni-
zant that longstanding policies may have engendered serious
reliance interests that must be taken into account.” Encino Mo-
torcars, 136 S. Ct. at 2126. This is because a “settled course of
behavior embodies the agency’s informed judgment that, by
pursuing that course, it will carry out the policies committed
to it by Congress.” State Farm, 463 U.S. at 41–42. Thus, “a rea-
soned explanation is needed for disregarding facts and cir-
cumstances that underlay or were engendered by the prior
policy.” Fox Television Stations, 556 U.S. at 516.
   The review called for by State Farm is narrow in scope and
does not permit us to substitute our own policy judgment for
that of the agency. We ask only whether the agency’s “deci-
sion was based on a consideration of the relevant factors” and
was not “a clear error of judgment.” 463 U.S. at 43.
    In response to its notice of proposed rulemaking, DHS re-
ceived a whopping 266,077 comments, the vast majority of
which opposed the proposed rule. In the preamble to the ﬁnal
rule, DHS summarized signiﬁcant issues raised by the com-
ments and changes it made in the ﬁnal rule. We assess the va-
lidity of DHS’s decision-making process based on this record.
No. 19-3169                                                  33

    Cook County urges that the Rule is arbitrary and capri-
cious in a number of ways: (1) DHS failed meaningfully to
evaluate and address signiﬁcant potential harms from the
Rule, including its substantial chilling eﬀect on immigrants
not covered by the Rule; (2) DHS failed to give a logical ra-
tionale for the duration-based standard; and (3) DHS added
factors to the totality-of-the-circumstances analysis that are
“unsupported, irrational and at odds with the Final Rule’s
purported purpose.” Numerous amici underscored these
points and explained how the Rule will lead to arbitrary re-
sults, cause both direct and indirect economic harms, burden
states and localities that have to manage fallout from the Rule,
and disproportionately harm the disabled and children.
    We look ﬁrst at DHS’s dismissal of concerns about the
Rule’s chilling eﬀect on legal immigrants and family members
who fall outside its scope. DHS acknowledged a “plausible
connection” between the Rule and needless disenrollment by
exempt noncitizens (including refugees, asylees, and victims
of domestic violence) in covered public beneﬁts, and by cov-
ered immigrants in noncovered beneﬁt programs. 84 Fed.
Reg. at 41313. DHS also said that it “appreciates … the poten-
tial nexus between public beneﬁt enrollment reduction and
food insecurity, housing scarcity, public health and vaccina-
tions … and increased costs to states and localities.” Id. None-
theless, it brushed oﬀ these impacts as “diﬃcult to predict”
and refused to “alter this rule to account for such unwar-
ranted choices.” Id. Even though these consequences are fore-
seeable, the Rule does not literally compel them, and so DHS
asserted that they could be addressed through additional
public guidance.
34                                                  No. 19-3169

     DHS may think that these responses are unwarranted, but
it does not deny that they are taking place and will continue
to do so. Moreover, the record indicates that the target popu-
lation is responding rationally. DHS’s system of counting and
stacking beneﬁts is hardly transparent, and so a rational per-
son might err on the side of caution and refrain from seeking
medical care, or food, or housing, even from a city, state, or
tribe rather than the federal government. And the risk that the
Rule may become more stringent at any time and operate ret-
roactively against the use of beneﬁts already used is a real
one. DHS trumpets its view that the Rule stops short of its
lawful authority and that it could promulgate a more restric-
tive rule if it so chooses. In response to comments on the pro-
posed rule, DHS used discretionary language: “DHS believes
it is a reasonable approach to only designate Medicaid at this
time,” id. at 41381 (emphasis added); and “DHS will not con-
sider [Healthy Start] beneﬁts at this time,” id. at 41390 (empha-
sis added). It warned that it may “updat[e] the list of beneﬁts
through future regulatory action.” Id. at 41387. Immigrants
thus reasonably anticipate that their receipt of beneﬁts that
are currently not covered could eventually hurt them if DHS
alters the Rule in the future.
    It was not enough for DHS simply to nod at this argument;
it called for a serious explanation. The importance of the
chilling eﬀect is not the number of disenrollments in the ab-
stract, but the collateral consequences of such disenrollments.
DHS failed adequately to grapple with the latter. For example,
commenters predicted that disenrollment and under-enroll-
ment in Medicaid, including by immigrants not covered by
the Rule, would reduce access to vaccines and other medical
care, resulting in an increased risk of an outbreak of infectious
disease among the general public. To recognize the truth in
No. 19-3169                                                    35

that prediction, one need only consider the current outbreak
of COVID-19—a pandemic that does not respect the diﬀer-
ences between citizens and noncitizens.
    There is also the added burden on states and local govern-
ments, which must disentangle their purely state-funded pro-
grams from covered federal programs. The federal govern-
ment has no interest in the way that states and localities
choose to spend their money. There is no reason why immi-
grants should not continue to beneﬁt from the state programs
without being penalized at the federal level. The Rule will
force states to make their own public welfare programs more
robust to compensate for a reduction in the availability of fed-
eral programs. DHS touts the savings to the federal govern-
ment from the Rule, primarily through a signiﬁcant reduction
in transfer payments to the states (including, it should be
noted, for persons who disenroll unnecessarily because of the
chilling eﬀect), but at the same time it expects the states to ﬁll
the gaps and continue to provide critical services such as pre-
ventive healthcare. See, e.g., id. at 41385 (“In addition, local
health centers and state health departments provide preven-
tive services that include vaccines that may be oﬀered on a
sliding scale fee based on income. Therefore, DHS believes
that vaccines would still be available for children and adults
even if they disenroll from Medicaid.”). It assumes this while
simultaneously denying that the Rule will have “substantial
direct eﬀects on the States, on the relationship between the
Federal Government and the States, or on the distribution of
power and responsibilities among the various levels of gov-
ernment.” Id. at 41481.
    Cook County also asserts that DHS failed to give a logical
rationale for its chosen durational threshold. In its notice of
36                                                    No. 19-3169

proposed rulemaking, DHS proposed an array of thresholds
that would apply before beneﬁts can be counted against a
noncitizen in the public charge analysis. Those lines came un-
der sharp criticism for being arbitrary, confusing, and an un-
acceptable proxy for undue reliance on public support. Id. at
41357–58.
    In the ﬁnal Rule, DHS opted for the single threshold for
both monetizable and nonmonetizable beneﬁts of 12 months
(stacked) over a 36-month period. It touted this approach as
“particularly responsive to public comments that communi-
cated concerns about the complexity of the bifurcated stand-
ard and lack of certainty.” Id. at 41358. It also asserted that the
12/36 standard “is consistent with DHS’s interpretation of the
term ’public charge.’” Id. at 41359. DHS equates the term
“public charge” with a lack of “self-suﬃciency” and it regards
anyone who fails its test as not self-suﬃcient. Id. It defends its
stacking mandate on the theory that it “ensures that aliens
who receive more than one public beneﬁt (which may be more
indicative of a lack of self-suﬃciency, with respect to the ful-
ﬁllment of multiple types of basic needs) reach the 12-month
limit faster.” Id. at 41361. DHS concluded that the bright-line
rule “provides meaningful guidance to aliens and adjudica-
tors, … accommodates meaningful short-term and intermit-
tent access to public beneﬁts, and … does not excuse continu-
ous or consistent public beneﬁt receipt that denotes a lack of
self-suﬃciency.” Id.
   This explains how DHS incorporated its understanding of
“self-suﬃciency” into the Rule. But we still have a textual
problem. The INA does not call for total self-suﬃciency at
every moment; it uses the words “public charge.” DHS sees
“lack of complete self-suﬃciency” and “public charge” as
No. 19-3169                                                  37

synonyms: in its view, receipt of any public beneﬁt, particu-
larly one related to core needs such as health care, housing,
and nutrition, shows that a person is not self-suﬃcient. See id.
at 41356. This is an absolutist sense of self-suﬃciency that no
person in a modern society could satisfy; everyone relies on
nonmonetary governmental programs, such as food safety,
police protection, and emergency services. DHS does not oﬀer
any justiﬁcation for its extreme view, which has no basis in
the text or history of the INA. As we explained earlier, since
the ﬁrst federal immigration law in 1882, Congress has as-
sumed that immigrants (like others) might face economic in-
security at some point. Instead of penalizing immigrants by
denying them entry or the right to adjust status, Congress
built into the law accommodations for that reality. Also, as
numerous commenters on the Rule pointed out, the beneﬁts
it covers are largely supplemental and not intended to be, or
relied upon as, a primary resource for recipients. Many recip-
ients could get by without them, though as a result they
would face greater health, nutrition, and housing insecurity,
which in turn would likely harm their work or educational
attainment (and hence their ability to be self-suﬃcient).
    Finally, Cook County contends that the Rule adds irra-
tional factors into the public-charge assessment, including
family size, mere application for beneﬁts, English-language
proﬁciency, lack of disability, and good credit history. With
respect to language, we note the obvious: someone whose
English is limited on the date of entry may be entirely compe-
tent ﬁve years later, when the person ﬁrst becomes eligible for
beneﬁts under the Welfare Reform Act and related laws. In
almost all cases, an immigration oﬃcial making a determina-
tion about whether someone is likely to become a public
38                                                   No. 19-3169

charge will be speculating about that person’s family size, lin-
guistic abilities, credit score, and the like no fewer than ﬁve
years in the future.
    Even if we grant that these new factors carry some mini-
mal probative value, it is unclear to us, and DHS nowhere ex-
plains, how immigration oﬃcials are supposed to make these
predictions in a nonarbitrary way. Worse, for many people
the relevant time is not ﬁve years—it is eternity, because the
Rule calls for oﬃcials to guess whether an immigrant will be-
come a public charge at any time. There is a great risk that of-
ﬁcials will make their determination based on stereotype or
unsupported assumptions, rather than on the type of objec-
tive facts called for by the Act (age, present health, family sta-
tus, ﬁnancial situation, and education or skills).
    DHS also never explains why it chose not to take into ac-
count the possibility that an immigrant might, at some point
in the future, be able to repay the value of public beneﬁts re-
ceived. Someone who seeks to adjust status will be penalized
for having previously received public beneﬁts without being
given the opportunity to refund the government the cost of
those beneﬁts. This is new: the regulations governing depor-
tation on public-charge grounds require a demand and a fail-
ure to pay. See 64 Fed. Reg. at 28691.
    All of this convinces us that this Rule is likely to fail the
“arbitrary and capricious” standard. The Rule has numerous
unexplained serious ﬂaws: DHS did not adequately consider
the reliance interests of state and local governments; did not
acknowledge or address the signiﬁcant, predictable collateral
consequences of the Rule; incorporated into the term “public
charge” an understanding of self-suﬃciency that has no basis
in the statute it supposedly interprets; and failed to address
No. 19-3169                                                   39

critical issues such as the relevance of the ﬁve-year waiting
period for immigrant eligibility for most federal beneﬁts.
          B. Other Criteria for Preliminary Injunction
    We have spent most of our time on likelihood of success
on the merits, because that is the critical factor here. We add
only a few words about the other requirements for prelimi-
nary relief. Cook County had to show that it is likely to suﬀer
irreparable harm in the absence of preliminary relief; that le-
gal remedies are inadequate; and that the balance of equities
tips in their favor. The district court found that it did so.
   As we noted earlier, Cook County has shown that the Rule
will cause immigrants, including those not covered by the
Rule, to disenroll from, or refrain from enrolling in, federal
Medicaid and state-level public health programs. This already
has led to reduction in rates of preventive medicine and
caused immigrants to rely on uncompensated emergency care
from Cook County’s hospital system; the record supports the
prediction that those harms will only get worse. The result for
the County will be a signiﬁcant increase in costs it must bear
and a higher county-wide risk of vaccine-preventable and
other communicable diseases for its population as a whole.
The record also supports the district court’s ﬁnding that Cook
County will have to divert resources away from existing pro-
grams to respond to the eﬀects of the Rule.
    The district court was also on solid ground in ﬁnding that
Cook County lacks adequate legal remedies for the injuries
imposed by the Rule. The APA provides a limited waiver of
the United States’ sovereign immunity and supports a claim
for a challenge to agency action, but only to the extent that the
plaintiﬀs “seek relief other than money damages.” 5 U.S.C.
40                                                    No. 19-3169

§ 702. There is thus no post-hoc legal remedy available to
Cook County to redress the ﬁnancial harms it stands to suﬀer
as a result of the Rule. It is injunctive relief or nothing.
     With respect to the balance of harms, we must take ac-
count of the Supreme Court’s decision to stay the preliminary
injunction entered by the district court. The Court’s stay deci-
sion was not a merits ruling. To succeed in obtaining a stay
from the Supreme Court, an applicant “must demonstrate (1)
a reasonable probability that four Justices will consider the is-
sue suﬃciently meritorious to grant certiorari or to note prob-
able jurisdiction; (2) a fair prospect that a majority of the Court
will conclude that the decision below was erroneous; and (3)
a likelihood that irreparable harm will result from the denial
of a stay.” Conkright v. Frommert, 556 U.S. 1401, 1402 (2009)
(Ginsburg, J., in chambers). Stays, the Court tells us, are
“granted only in extraordinary cases.” Id. We do not know
why the Court granted this stay, because it did so by sum-
mary order, but we assume that it abided by the normal
standards. Consequently, the stay provides an indication that
the Court thinks that there is at least a fair prospect that DHS
should prevail and faces a greater threat of irreparable harm
than the plaintiﬀs.
    The stay thus preserves the status quo while this case and
others percolate up from courts around the country. There
would be no point in the merits stage if an issuance of a stay
must be understood as a sub silentio disposition of the under-
lying dispute. With the beneﬁt of more time for consideration
and the complete preliminary injunction record, we believe
that it is our duty to evaluate each of the preliminary injunc-
tion factors, including the balance of equities. In so doing, we
apply a “sliding scale” approach in which “the more likely the
No. 19-3169                                                     41

plaintiﬀ is to win, the less heavily need the balance of harms
weigh in his favor; the less likely he is to win, the more need
it weigh in his favor.” Valencia v. City of Springﬁeld, 883 F.3d at
966. We also consider eﬀects that granting or denying the pre-
liminary injunction would have on the public. Id.
    In our view, Cook County has shown that it is likely to
suﬀer (and has already begun to suﬀer) irreparable harm
caused by the Rule. Given the dramatic shift in policy the Rule
reﬂects and the potentially dire public health consequences of
the Rule, we agree with the district court that the public inter-
est is better served for the time being by preliminarily enjoin-
ing the Rule.
                         IV.    Conclusion
    While we disagree with the district court that this case can
be resolved at step one of the Chevron analysis, we agree that
at least Cook County has standing to sue. We make no ruling
on ICIRR’s standing, and so we have based the remainder of
our opinion on Cook County’s situation only. The district
court did not abuse its discretion or err as a matter of law
when it concluded that Cook County is likely to succeed on
the merits of its APA claims against DHS. Nor did the district
court’s handling of the balance of harms and lack of alterna-
tive legal remedies represent an abuse of discretion. We there-
fore AFFIRM the district court’s order entering a preliminary
injunction.
42                                                  No. 19-3169

     BARRETT, Circuit Judge, dissenting.
    The plaintiffs have worked hard to show that the statutory
term “public charge” is a very narrow one, excluding only
those green card applicants likely to be primarily and perma-
nently dependent on public assistance. That argument is be-
lied by the term’s historical meaning—but even more im-
portantly, it is belied by the text of the current statute, which
was amended in 1996 to increase the bite of the public charge
determination. When the use of “public charge” in the Immi-
gration and Nationality Act (INA) is viewed in the context of
these amendments, it becomes very difficult to maintain that
the definition adopted by the Department of Homeland Secu-
rity (DHS) is unreasonable. Recognizing this, the plaintiffs try
to cast the 1996 amendments as irrelevant to the meaning of
“public charge.” That argument, however, flies in the face of
the statute—which means that despite their best efforts, the
plaintiffs’ interpretive challenge is an uphill battle that they
are unlikely to win.
    I therefore disagree with the majority’s conclusion that the
plaintiffs’ challenge to DHS’s definition of “public charge” is
likely to succeed at Chevron step two. I express no view, how-
ever, on the majority’s analysis of the plaintiffs’ other chal-
lenges to the rule under the Administrative Procedure Act.
The district court did not reach them, and the plaintiffs barely
briefed them. The preliminary injunction was based solely on
the district court’s interpretation of the term “public charge.”
Because its analysis was flawed, I would vacate the injunction
and remand the case to the district court, where the plaintiffs
would be free to develop their other arguments.
No 19-3169                                                   43

                               I.
    There is a lot of confusion surrounding the public charge
rule, so I’ll start by addressing who it affects and how it
works. The plaintiffs emphasize that the rule will prompt
many noncitizens to drop or forgo public assistance, lest their
use of benefits jeopardize their immigration status. That’s
happening already, and it’s why Cook County has standing:
noncitizens who give up government-funded healthcare are
likely to rely on the county-funded emergency room. But it’s
important to recognize that immigrants are dropping or for-
going aid out of misunderstanding or fear because, with very
rare exceptions, those entitled to receive public benefits will
never be subject to the public charge rule. Contrary to popular
perception, the force of the rule does not fall on immigrants
who have received benefits in the past. Rather, it falls on
nonimmigrant visa holders who, if granted a green card,
would become eligible for benefits in the future.
    To see why, one must be clear-eyed about the fact that fed-
eral law is not particularly generous about extending public
assistance to noncitizens. That is not a function of the public
charge rule; it is a function of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, 110 Stat. 2105 (1996), commonly referred to as the
“Welfare Reform Act.” Under the Act, undocumented noncit-
izens are ineligible for benefits. So are nonimmigrant visa
holders, a category that encompasses noncitizens granted
permission to be in the United States for a defined period—
think of tourists, students, and temporary workers. See 8
U.S.C. §§ 1611(a), 1621(a), 1641(b) (excluding undocumented
noncitizens and nonimmigrant visa holders from the list of
44                                                            No. 19-3169

noncitizens “qualified” for government benefits). 1 Because of
these restrictions, many noncitizens are altogether ineligible
for the benefits relevant to a public charge determination.
    Only two major groups are statutorily eligible to receive
the benefits that the public charge rule addresses, and the rule
has little to no effect on either. The first group is certain espe-
cially vulnerable populations—refugees and asylees, among
others. Congress has entitled these vulnerable noncitizens to
public assistance, 8 U.S.C. § 1641(b), and exempted them from
the public charge exclusion, id. §§ 1157(c)(3), 1159(c). That
means that their need for aid is not considered when they are
admitted to the United States, nor is their actual receipt of aid
considered in any later adjustment-of-status proceeding. The

     1 There are some narrow exceptions, but they are irrelevant to the
“public charge” determination. All noncitizens, including the undocu-
mented, are eligible to receive short-term, in-kind emergency disaster re-
lief; certain forms of emergency medical assistance; public-health assis-
tance for immunization, as well as treatment for the symptoms of com-
municable disease; other in-kind services such as soup kitchens and crisis
counseling; and housing benefits to the extent that the noncitizen was re-
ceiving public housing prior to 1996. 8 U.S.C. §§ 1611(b), 1621(b). Other
than the housing benefits, none of this aid counts under the rule’s defini-
tion of a “public benefit,” so none has any effect on any future adjustment-
of-status proceeding. See 8 C.F.R. § 212.21; see also Inadmissibility on Pub-
lic Charge Grounds, 84 Fed. Reg. 41,292, 41,313 (Aug. 14, 2019) (noting that
the rule’s “definition does not include benefits related exclusively to emer-
gency response, immunization, education, or social services”); id. at 41,482
(explaining that the rule’s definition “does not include emergency aid,
emergency medical assistance, or disaster relief”). And while housing
benefits are covered by the public charge rule, 8 C.F.R. § 212.21, they are
largely irrelevant because the number of noncitizens still within the
grandfathering provision has presumably dwindled dramatically in the
quarter century since the Welfare Reform Act was passed.
No 19-3169                                                    45

public charge rule is entirely irrelevant to the most vulnera-
ble.
    The second group eligible for benefits is lawful permanent
residents, often referred to as green card holders, and the rule
is almost entirely irrelevant to them too. Here’s why: The pub-
lic charge exclusion applies to noncitizens at the admission
stage or an adjustment-of-status proceeding. Id.
§ 1182(a)(4)(A). (“Admission” is a term of art referring to “the
lawful entry of the alien into the United States after inspection
and authorization by an immigration officer.” Id.
§ 1101(a)(13)(A).) Lawful permanent residents have already
been admitted to the United States, and they already possess
the most protected immigrant status. They are therefore not
subject to the public charge exclusion unless they jeopardize
their lawful permanent residency. See id. § 1101(a)(13)(C) (de-
scribing the narrow circumstances in which lawful perma-
nent residents are considered to be “seeking an admission”).
Most relevant here, a green card holder who leaves the coun-
try for more than 180 days puts her residency in question and
might need to “seek[] an admission” upon returning to the
United States. Id. § 1011(a)(13)(C)(iii). If she used benefits
prior to her departure, then her use of those benefits might
count against her at reentry. But this consequence is easy to
avoid by keeping trips abroad shorter than six months. It’s
also worth noting that a lawful permanent resident is eligible
to receive very few benefits until she has been here for five
years—which is the point at which she is eligible for citizen-
ship. Id. § 1427(a). Naturalization eliminates even the small
risk that a lawful permanent resident would ever face the ad-
mission process again. Notably, the rule doesn’t apply at the
naturalization stage. See id. § 1429.
46                                                            No. 19-3169

    The upshot is that the public charge rule will rarely apply
to a noncitizen who has received benefits in the past. 2 Indeed,
in the Second Circuit case challenging this same rule, both the
government and the plaintiffs conceded as much. When
pressed to identify who could be penalized under the public
charge rule for using benefits, neither side identified any ex-
ample other than the 180-day departure of a lawful perma-
nent resident. See Oral Argument at 36:06–38:47, 1:03:45–
1:04:40, New York v. U.S. Dep’t of Homeland Sec., Nos. 19-3591,
19-3595 (2d Cir. Mar. 2, 2020), https://www.c-
span.org/video/?469804-1/oral-argument-trump-administra-
tion-public-charge.
    Notwithstanding all of this, many lawful permanent resi-
dents, refugees, asylees, and even naturalized citizens have
disenrolled from government-benefit programs since the
public charge rule was announced. Given the complexity of
immigration law, it is unsurprising that many are confused or
fearful about how the rule might apply to them. Still, the pat-
tern of disenrollment does not reflect the rule’s actual scope.
Focusing on the source of Cook County’s injury can therefore
be misleading.
   That does not mean, however, that the rule has no effect.
Even though it is almost entirely inapplicable to those cur-
rently eligible for benefits, it significantly affects a different
group: nonimmigrant visa holders applying for green cards.

     2Hence the majority is wrong to treat the rule as unreasonable be-
cause it “set[s] a trap for the unwary.” Maj. Op. at 29. Because those eligi-
ble for the designated benefits are not subject to the rule—except in very
rare circumstances—it does not “penaliz[e] people for accepting benefits
Congress made available to them.” Id.
No 19-3169                                                               47

Recall that nonimmigrant visa holders, unlike lawful perma-
nent residents and those holding humanitarian-based visas,
are ineligible for the relevant benefits in their current immi-
gration status. If granted lawful permanent residency,
though, they would become eligible for these benefits in the
future. The public charge rule is concerned with what use a
green card applicant would make of this future eligibility. As
a leading treatise puts it, the public charge determination is a
“prophetic” one. 5 CHARLES GORDON ET AL., IMMIGRATION
LAW AND PROCEDURE § 63.05[3] (2019). If DHS predicts that an
applicant is likely to rely too heavily on government assis-
tance, it will deny her lawful permanent residency on the
ground that she is likely to become a public charge. This case
is about whether DHS has defined “public charge” too expan-
sively and is therefore turning too many noncitizens away.
    There are four major routes to obtaining the status of law-
ful permanent resident: humanitarian protection (refugees
and asylees), the sponsorship of a family member, employ-
ment, and winning what is known as the green card lottery. 3
See U.S. DEP’T OF HOMELAND SEC., OFFICE OF IMMIGRATION
STATISTICS, ANNUAL FLOW REPORT: LAWFUL PERMANENT
RESIDENTS      3–4    (2018),   https://www.dhs.gov/sites/de-
fault/files/publications/Lawful_Permanent_Resi-
dents_2017.pdf. Those seeking humanitarian protection are
not subject to the statutory provision rendering inadmissible
any “alien who … is likely at any time to become a public
charge,” 8 U.S.C. § 1182(a)(4)(A), and only a subset of those in
the remaining three categories will be subject to the DHS rule.

    3 The diversity visa, commonly referred to as the green card lottery, is
awarded to foreign nationals from underrepresented countries in an effort
to increase diversity within the United States. See 8 U.S.C. § 1153(c).
48                                                            No. 19-3169

That is because DHS only handles the applications of noncit-
izens who apply from within the United States; the State De-
partment processes the applications of noncitizens who apply
from abroad. 4 This division of authority means that, as a prac-
tical matter, the regulation applies to those present in the
United States on nonimmigrant visas who seek to adjust their
status to that of lawful permanent residents. And because the
green card lottery is processed almost entirely by the State De-
partment, the DHS rule applies primarily to employment-
based applicants and family-based applicants (by far the
larger of these two groups). 5
     As nonimmigrant visa holders, these applicants have not
previously been eligible for the benefits designated by DHS’s
rule—so the determination is not a backward-looking inquiry
into whether they have used such benefits in the past. Instead,
it is a forward-looking inquiry into whether they are likely to
use such benefits in the future. The rule guides this forward-
looking inquiry. Under the 1999 Guidance, an applicant was

     4 The State Department has adopted the interpretation set forth in this
rule, but its implementation of the public charge exclusion is not at issue
in this case. See Visas: Ineligibility on Public Charge Grounds, 84 Fed. Reg.
54,996, 55,000 (Oct. 11, 2019).
     5 In 2019, approximately 572,000 noncitizens adjusted their status to

that of lawful permanent residents. The largest group—roughly 330,000—
were family based, and the majority of those (over 217,000) were spouses
of U.S. citizens. About 111,000 were employment based, and only about
1,000 were lottery winners. The vast majority of the remaining 130,000
noncitizens—refugees and asylees, among others—were exempt from the
public charge rule. See Legal Immigration and Adjustment of Status Report
Data Tables: FY 2019, U.S. DEP’T HOMELAND SECURITY tbl.1B (Jan. 15, 2020),
https://www.dhs.gov/immigration-statistics/readingroom/spe-
cial/LIASR#.
No 19-3169                                                    49

excluded only if she was likely to be institutionalized or pri-
marily dependent on government cash assistance for the long
term. Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26,
1999). Now, DHS considers the applicant’s potential usage
not only of cash assistance for income maintenance (including
Temporary Assistance for Needy Families (TANF), Supple-
mental Security Income (SSI), and state cash assistance), but
also of the Supplemental Nutrition Assistance Program
(SNAP), the Section 8 Housing Choice Voucher Program, Sec-
tion 8 project-based rental assistance, housing benefits under
Section 9, and Medicaid (with some explicit exceptions). 8
C.F.R. § 212.21. And if DHS concludes that an applicant is
likely to use more than 12 months’ worth of these benefits—
with the use of 2 benefits in 1 month counting as 2 months—
it will deem her “likely to become a public charge” and deny
the green card. Id.
   This heightened standard for admissibility is a significant
change—but it’s not the one that the plaintiffs’ emphasis on
disenrollment suggests. Evaluating the rule requires a clear
view of what it actually does; so, with the rule’s scope in
mind, I turn to the merits.
                               II.
     While I agree with the majority’s bottom-line conclusion
at Chevron step one that “public charge” does not refer exclu-
sively to one who is primarily and permanently dependent on
government assistance, I have a little to add to the history and
a lot to add to the statutory analysis. In my view, the majority
takes several wrong turns in analyzing the statute that skew
its thinking about Chevron step two. For purposes of this Part,
the most significant is that the majority accepts the plaintiffs’
50                                                 No. 19-3169

view that the 1996 amendments to the public charge provision
were irrelevant. In what follows, I’ll lay out my own analysis
of the plaintiffs’ arguments, which will explain why I wind
up in a different place than the majority does on the reasona-
bleness of DHS’s interpretation of the statute.
    The plaintiffs advance three basic arguments as to why the
term “public charge” refers exclusively to one who is “pri-
marily and permanently” dependent on government assis-
tance. First, they say that the term had that meaning when it
first appeared in the 1882 federal statute. Second, they con-
tend that even if the term was unsettled in the late nineteenth
century, subsequent judicial and administrative decisions
narrowed it, and later amendments to the statute ratified
these interpretations. Third, they argue that interpreting the
term “public charge” to encompass anything short of primary
and permanent dependence conflicts with Congress’s choice
to make supplemental government benefits available to im-
migrants. I’ll take these arguments in turn.
                              A.
    The plaintiffs first argue that in the late nineteenth cen-
tury, “public charge” meant primary and permanent depend-
ence. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019)
(“[I]t’s a ‘fundamental canon of statutory construction’ that
words generally should be ‘interpreted as taking their ordi-
nary … meaning … at the time Congress enacted the stat-
ute.’” (citation omitted)). Evaluating this argument requires
careful consideration of a term with a long history. The term
“public charge” was borrowed from state “poor laws,” which
were in turn modeled on their English counterparts.
HIDETAKA HIROTA, EXPELLING THE POOR: ATLANTIC SEABOARD
STATES AND THE NINETEENTH-CENTURY ORIGINS OF AMERICAN
No 19-3169                                                              51

IMMIGRATION POLICY 43–47 (2017). Early poor laws used
“public charge” synonymously with “public expense,” refer-
ring to any burden on the public fisc. Thus, when someone
sought assistance from a city or county overseer of the poor,
the cost of the relief provided was entered on the overseer’s
books as a public charge—that is, an expense properly charge-
able to, and therefore funded by, the public. Over time, the
term “public charge” came to refer (at least in the context of
poor relief and immigration laws) not only to expenditures
made under the poor laws, but also to the people who de-
pended on these expenditures. 6
    State legislatures, worried about the burden that destitute
immigrants might place on programs to aid the needy, co-
opted the poor-law language into immigration legislation. In
1847, New York created an administrative apparatus for deal-
ing with the influx of immigrants. The new “Commissioners
of Emigration” were tasked with examining incoming passen-
gers to determine if “there shall be found among such passen-
gers, any lunatic, idiot, deaf and dumb, blind or infirm per-
sons … who, from attending circumstances, are likely to be-
come permanently a public charge”—language, incidentally,
that suggests that one could be a public charge either tempo-
rarily or permanently. Act of May 5, 1847, ch. 195, § 3, 1847
N.Y. Laws 182, 184. These individuals were permitted to land
in the state upon payment of a bond by the vessel’s master “to
indemnify … each and every city, town and county within

    6 This is why nineteenth-century dictionary definitions of “charge”
are unhelpful. The words “public” and “charge” comprise a unit that must
be understood in the context of the laws that used the phrase. Cf. Yates v.
United States, 135 S. Ct. 1074, 1082 (2015) (“[A]lthough dictionary defini-
tions of the words ‘tangible’ and ‘object’ bear consideration, they are not
dispositive of the meaning of ‘tangible object’ ….”).
52                                                  No. 19-3169

this state, from any cost or charge … for the maintenance or
support of the person … within five years.” Id. The bonds
paid for the landing of these immigrants were then used to
pay for the state immigration infrastructure, including the
provision of some temporary aid to new arrivals. Two years
later, the state expanded the category of people for whom a
bond was required. Still excluded were those “likely to be-
come permanently a public charge” but also those “who have
been paupers in any other country, or who from sickness or
disease, existing at the time of departing from the foreign
port, are or are likely to soon become a public charge.” Act of
Apr. 11, 1849, ch. 350, § 3, 1849 N.Y. Laws 504, 506. By 1851,
the New York statute contained the language which would be
included in both the 1882 and 1891 federal statutes. Gone was
the reference to those “likely to become permanently a public
charge,” replaced by phrases referring to someone “unable to
take care of himself or herself without becoming a public
charge” and someone “likely to become a public charge.” Act
of July 11, 1851, ch. 523, § 4, 1851 N.Y. Laws 969, 971. In the
event that a bond was unpaid, New York—and Massachu-
setts, which enacted a substantially similar law—ordered the
exclusion of those immigrants deemed “likely to soon become
a public charge.” HIROTA, supra, at 71–72.
    The bond system was held unconstitutional by the U.S. Su-
preme Court on the ground that that the power to tax incom-
ing foreign passengers “has been confided to Congress by the
Constitution.” Henderson v. Mayor of New York, 92 U.S. 259, 274
(1876). The decision threw the state systems into uncertainty
and created demand for federal legislation, largely to reenact
the defunct state policies and to replace the lost funding. Since
the states could no longer fund their immigration systems us-
ing state bonds, the 1882 federal statute levied “a duty of fifty
No 19-3169                                                       53

cents for each and every passenger not a citizen of the United
States” arriving by sea; this was to “constitute a fund … to
defray the expense of regulating immigration … and for the
care of immigrants arriving in the United States, for the relief
of such as are in distress.” Act of Aug. 3, 1882, ch. 376, § 1, 22
Stat. 214, 214. The first federal statute therefore filled the space
left by the now-ineffective state laws: it used funds raised
from the immigrants or their carriers to provide some care for
the newly arrived, while describing criteria for excluding
those likely to financially burden state and local governments.
Because the term “public charge” had been pulled directly
from the state statutes, it presumably had the same meaning
that it had come to have under the state laws: someone who
depended, or would likely depend, on poor-relief programs.
    But when the term “public charge” was imported into fed-
eral law, it was unclear how much state aid qualified someone
as a “public charge.” Neither state poor laws nor state immi-
gration laws defined “public charge,” and no clear definition
emerged in judicial opinions or secondary sources, either.
Early efforts to enforce the 1882 statute bear out the uncer-
tainty surrounding the term. In 1884, an association of ten
steamship companies asked the Secretary of the Treasury, on
whom responsibility for immigration fell at the time, to “spe-
cifically define … the circumstances which shall constitute ‘a
person unable to take care of himself or herself without be-
coming a public charge,’ and who shall not be permitted to
land under … the [1882] act.” SYNOPSIS OF THE DECISIONS OF
THE TREASURY DEPARTMENT ON THE CONSTRUCTION OF THE
TARIFF, NAVIGATION, AND OTHER LAWS FOR THE YEAR ENDED
DECEMBER 31, 1884, at 365 (1885). (The steamship companies
had a stake because they were on the hook for the noncitizen’s
return ticket if she was rejected as a likely public charge.) The
54                                                  No. 19-3169

Secretary demurred, answering that “the determination of the
liability of arriving immigrants to become public charges is
vested … in the commissioners of immigration appointed by
the State in which such immigrants arrive,” and thus “this De-
partment must decline to interfere in the matter.” Id. One year
later, Treasury continued to recognize that “difficulties have
arisen in regard to the construction of so much of section 2 of
[the 1882 act] … as refers to the landing of convicts, lunatics,
idiots, or persons unable to take care of themselves without
becoming a public charge,” though it still refused to offer clar-
ification. SYNOPSIS OF THE DECISIONS OF THE TREASURY
DEPARTMENT ON THE CONSTRUCTION OF THE TARIFF,
NAVIGATION, AND OTHER LAWS FOR THE YEAR ENDING
DECEMBER 31, 1885, at 359 (1886).
    The term was not necessarily clarified in 1891, when im-
migration-enforcement authority was placed directly in the
hands of federal officials. (From 1882 until Congress enacted
the Immigration Act of 1891, states had continued to admin-
ister immigration enforcement, albeit under authority con-
ferred by the federal statute.) With the change in administra-
tion, the steamship companies continued to express confu-
sion, informing Treasury officials that the phrase “was some-
what indefinite and [that they] desired to have a more specific
explanation of its meaning.” 1 LETTER FROM THE SECRETARY OF
THE     TREASURY, TRANSMITTING A REPORT OF THE
COMMISSIONERS OF IMMIGRATION UPON THE CAUSES WHICH
INCITE IMMIGRATION TO THE UNITED STATES 109 (1892). At this
point, Treasury offered an answer, but it was hardly clarify-
ing. Pressed by Congress to describe the standards used by
officials to determine whether an immigrant was “likely to be-
come a public charge,” the Assistant Secretary in 1892 re-
sponded that “written instructions and an inflexible standard
No 19-3169                                                    55

would be inapplicable and impracticable … and the sound
discretion of the inspection officer, subject to appeal as pre-
scribed by law, must be the chief reliance.” H.R. REP. NO. 52-
2090, at 4 (1892).
    Rather than conveying something narrow and definite, the
term “public charge” seemed to refer in an imprecise way to
someone who lacked self-sufficiency and therefore burdened
taxpayers. Explanations of the term offered in a congressional
hearing by John Weber, the first commissioner of immigration
at Ellis Island, illustrate the point. He explained that “[t]he
appearance of the man, his vocation, his willingness to work,
his apparent industry, and the demand for the kind of work
that he is ready to give, is what governs” whether an individ-
ual was likely to become a public charge. Id. at 359. When
asked whether an immigrant would be considered likely to
become a public charge if “it is necessary that a private charity
shall furnish food and lodging … for a period long or short
after landing,” Weber responded that such a person would
likely be considered a public charge, but that it would not vi-
olate the statute to allow him to land so long as it was obvious
that he would be “supported on private charity only up to the
time when [he got] employment, which may only be until the
next day.” Id. at 425.
    The repeated requests for clarification from steamship op-
erators and Congress, coupled with Treasury’s reluctance to
provide a concrete answer, indicate that the term did not have
a definite and fixed meaning. That is unsurprising in the con-
text of the time: it would have been difficult to have a one-
size-fits-all definition of how much aid was too much, be-
cause there was not a one-size-fits-all system of welfare. Poor
relief was largely handled by towns and counties, which
56                                                 No. 19-3169

made their own choices about how to deliver aid. Most local-
ities deployed “outdoor relief”—in-kind and cash support
without institutionalization. See MICHAEL B. KATZ, IN THE
SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN
AMERICA 37 (1986) (“[P]oorhouses did not end public outdoor
relief. With a few exceptions, most towns, cities, and counties
helped more people outside of poorhouses than within
them.”). Other areas were more reliant on “indoor” relief in
the form of poorhouses. Id. at 16–18. Some used a mixed sys-
tem, adjusting the provision of indoor and outdoor relief as
poorhouse populations ebbed and flowed. Id. at 39. And
while the plaintiffs treat residence in a poorhouse as a proxy
for primary and permanent dependence, that’s not how poor-
houses worked—they housed a mix of the permanently and
temporarily dependent, serving as “both a short-term refuge
for people in trouble and a home for the helpless and elderly.”
Id. at 90.
    The bottom line is that in the closing decades of the nine-
teenth century, several different forms of public relief existed
contiguously. And when nineteenth-century immigration of-
ficials determined whether someone was “likely to become a
public charge,” dependence on a particular kind or amount of
relief does not appear to have been dispositive. Rather than
serving as shorthand for a certain type or duration of aid, the
term “public charge” referred to a lack of self-sufficiency that
officials had broad discretion to estimate. Neither state legis-
latures nor Congress pinned down the term any more than
that.
                              B.
  The plaintiffs have a backup argument: even if the term
was unsettled in the late nineteenth century, they claim that it
No 19-3169                                                   57

became settled in the twentieth. According to the plaintiffs,
courts and administrative agencies repeatedly held that “pub-
lic charge” meant one who is “primarily and permanently de-
pendent” on the government, and Congress ratified this set-
tled meaning in its many reenactments of the public charge
provision. See WILLIAM N. ESKRIDGE JR., INTERPRETING LAW: A
PRIMER ON HOW TO READ STATUTES AND THE CONSTITUTION
app. at 421 (2016) (“When Congress reenacts a statute, it in-
corporates settled interpretations of the reenacted statute.”).
Thus, the plaintiffs say, whatever uncertainty may have sur-
rounded the term in 1882, there was no uncertainty when
Congress reenacted the provision. And because Congress
reenacted the provision many times—in 1891, 1907, 1917,
1952, 1990, and 1996—the plaintiffs canvass a century’s worth
of judicial and administrative precedent in an effort to show
that a consensus existed before at least one of these reenact-
ments.
   The bar for establishing a settled interpretation is high: at
the time of reenactment, the judicial consensus must have
been “so broad and unquestioned that we must presume Con-
gress knew of and endorsed it.” Jama v. Immigration & Customs
Enf’t, 543 U.S. 335, 349 (2005). The plaintiffs rely heavily on
Gegiow v. Uhl, 239 U.S. 3 (1915), to establish this consensus,
but I share the majority’s view that Gegiow doesn’t do the
work that the plaintiffs want it to. In that case, the Court did
not define “public charge” other than to say that it cannot be
defined with reference to labor conditions in the city in which
an immigrant intends to settle. The Court concluded that im-
migrant arrivals “are to be excluded on the ground of perma-
nent personal objections accompanying them irrespective of
local conditions unless the one phrase before us [public
charge] is directed to different considerations than any other
58                                                            No. 19-3169

of those with which it is associated.” Id. at 10. In other words,
classifying someone as a likely “public charge” does not de-
pend on whether he is bound for Portland or St. Paul. The
Court did not define the degree of reliance that renders some-
one a “public charge,” because that was not the question be-
fore it. Thus, Gegiow neither binds us nor offers a definition
that Congress could have ratified. 7
    Without Gegiow, the plaintiffs face an uphill battle because
satisfying the requirements of the reenactment canon typi-
cally requires at least one Supreme Court decision. See, e.g.,
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244 n.11 (2009);
Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979). And for the
reasons that the majority gives, this is not the rare case in
which lower court and administrative decisions are enough
to demonstrate a consensus. See Maj. Op. at 21–22; see also Wil-
liam N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH.
L. REV. 67, 83 (1988) (“[T]he Court often will not incorporate
lower court decisions into a statute through the reenactment
rule.”); cf. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys.

     7 It is worth noting that even after Gegiow, state and local governments

took varied positions on what it meant for an immigrant to be a public
charge. For instance, in the 1920s, Los Angeles worked closely with chari-
table institutions to report as public charges immigrants who were receiv-
ing outdoor relief. Cybelle Fox, The Boundaries of Social Citizenship:
Race, Immigration and the American Welfare State, 1900–1950, at 266–67
(May 7, 2007) (unpublished Ph.D. dissertation, Harvard University). But
other jurisdictions rarely reported immigrants who were receiving only
outdoor relief—for example, as early as the 1920s, Cook County devel-
oped its own local policy to not “deport when the necessity for public care
[was] only temporary.” Id. at 278.
No 19-3169                                                     59

Project, Inc., 135 S. Ct. 2507, 2520 (2015) (applying the reenact-
ment canon in light of “the unanimous holdings of the Courts
of Appeals”) (emphasis added).
    In any event, the reenactment canon requires more than a
judicial consensus—it applies only if Congress reenacted the
provision without making material changes. Jama, 543 U.S. at
349; see also Holder v. Martinez Gutierrez, 566 U.S. 583, 593
(2012) (“[T]he doctrine of congressional ratification applies
only when Congress reenacts a statute without relevant
change.”). Whatever one thinks of earlier changes to the pub-
lic charge provision, there can be no doubt that the 1996
amendments were material.
    The INA is notoriously complex, and these amendments
are no exception. Making matters worse, the amendments
came from two separate acts, themselves incredibly complex,
that were passed a month apart: the Welfare Reform Act, Pub.
L. No. 104-193, 110 Stat. 2105 (1996), and the Illegal Immigra-
tion Reform and Immigrant Responsibility Act, Pub. L. No.
104-208, 110 Stat. 3009-546 (1996) (IIRIRA). But because the
plaintiffs challenge the materiality of these amendments to
the meaning of the term “public charge,” it is necessary to step
through them at a level of detail that is, unfortunately, excru-
ciating.
    Congress enacted IIRIRA, which made sweeping changes
to the INA, in September of 1996. Among its changes were
several material amendments to the public charge provision.
For the first time in the provision’s 114-year history, Congress
required the Executive to consider an itemized list of factors
in making the public charge determination, thereby ensuring
that the inquiry was searching rather than superficial. See 8
U.S.C. § 1182(a)(4)(B)(i) (providing that “the consular officer
60                                                         No. 19-3169

or the Attorney General shall at a minimum consider” the
noncitizen’s age; health; family status; assets, resources, and
financial status; and education and skills). Even more signifi-
cantly, it added a subsection to the public charge provision
rendering most family-sponsored applicants automatically
inadmissible on public charge grounds unless they obtained
an enforceable affidavit of support from a sponsor (usually
the family member petitioning for their admission). Id.
§ 1182(a)(4)(C) (rendering a family-sponsored noncitizen “in-
admissible under this paragraph” unless the sponsor executes
an “affidavit of support described in [8 U.S.C. § 1183a] with
respect to such alien”).8 The affidavit provision had been in-
serted into the INA weeks earlier by the Welfare Reform Act.
See Welfare Reform Act § 423. In addition to making the affi-
davit of support mandatory under the public charge provi-
sion, IIRIRA significantly expanded 8 U.S.C. § 1183a by
spelling out what the affidavit of support requires.
    The affidavit provision is meant to establish that the appli-
cant “is not excludable as a public charge.” 8 U.S.C.
§ 1183a(a)(1). To that end, it empowers the federal govern-
ment, as well as state and local governments, to demand re-
imbursement from the sponsor for any means-tested public
benefit    received    by      the  sponsored       noncitizen. 9
Id. § 1183a(b)(1)(A). A “means-tested public benefit” is one

     8 IIRIRA originally provided that a family-based applicant was “ex-
cludable” without the affidavit. IIRIRA § 531(a). A subsequent amend-
ment to the INA changed the terminology from “excludable” to “inadmis-
sible.”
     9 It also requires the sponsor “to maintain the sponsored alien at an

annual income that is not less than 125 percent of the Federal poverty
line.” 8 U.S.C. § 1183a(a)(1)(A).
No 19-3169                                                                61

available to those whose income falls below a certain level.
The provision explicitly excludes certain benefits, regardless
of whether they are means tested, from the sponsor’s reim-
bursement obligation; by implication, receipt of every other
means-tested benefit is included. See id. § 1183a note. 10 If the
sponsor doesn’t pay upon request, the government can sue
the sponsor. Id. § 1183a(b)(2). If the sponsor doesn’t keep “the
Attorney General and the State in which the sponsored alien
is currently a resident” apprised of any change in the spon-
sor’s address, she is subject to a civil penalty—and that pen-
alty is higher if she fails to update her address “with
knowledge that the sponsored alien has received any means-
tested public benefits” other than those described in three
cross-referenced provisions of the Welfare Reform Act. Id.
§ 1183a(d). 11 The affidavit is generally enforceable for ten
years or until the sponsored noncitizen is naturalized. Id.
§ 1183a(a)(2).12

    10   I discuss these exemptions, which are narrow, in my analysis at
Chevron step two.
     11 This list of exempted benefits in the change-of-address penalty sec-

tion largely track those in the “benefits subject to reimbursement” section.
     12 IIRIRA contained another provision relevant to the “public charge”

ground of inadmissibility: section 564 of the Act directed the Attorney
General to establish a pilot program “to require aliens to post a bond in
addition to the affidavit requirements under [8 U.S.C. § 1183a].” IIRIRA
§ 564(a)(1). The bond covered the cost of benefits described in the affidavit
provision—that is, any means-tested benefit other than those described in
three cross-referenced provisions of the Welfare Reform Act. Id. Congress
instructed the Attorney General to set the bond at “an amount that is not
less than the cost of providing [the relevant benefits] for the alien and the
alien’s dependents for 6 months.” Id. § 564(b)(2). If an admitted noncitizen
used a covered benefit, the government could bring suit either on the bond
62                                                        No. 19-3169

    Notwithstanding IIRIRA’s obvious—and obviously sig-
nificant—amendments to the public charge provision, the
plaintiffs insist, and the majority agrees, that its amendments
reveal nothing about the scope of the term “public charge.”
Yet as I will explain below, the 1996 amendments were not
only material, but they also increased the bite of the public
charge exclusion.
    The plaintiffs characterize the affidavit provision as hav-
ing nothing to do with admissibility; as they see it, the provi-
sion merely reinforces restrictions on government benefits for
lawful permanent residents. They offer two basic arguments
in support of that position: first, that the supporting-affidavit
requirement appears in a different provision than does the
public charge exclusion (8 U.S.C. § 1183a, as opposed to
§ 1182(a)(4)), and second, that the supporting-affidavit re-
quirement doesn’t apply to everyone who is subject to the
public charge exclusion.
    The first argument is totally unpersuasive. The public
charge provision explicitly cross-references the affidavit pro-
vision, thereby tying the two together, and it makes obtaining
an affidavit of support a condition of admissibility. Id.
§ 1182(a)(4)(C)(ii). What’s more, the affidavit provision ex-
pressly states that the point of the affidavit is “to establish that
an alien is not excludable as a public charge under section
1182(a)(4).” Id. § 1183a(a)(1). Because a family-sponsored ap-
plicant is inadmissible as a public charge without the affida-
vit, the coverage of the affidavit is very strong evidence of the

or against the sponsor pursuant to 8 U.S.C. § 1183a. IIRIRA § 564(a)(2).
Congress allowed this pilot program to sunset after three years. Id.
§ 564(e).
No 19-3169                                                           63

nature of the burden with which the public charge exclusion
is concerned. 13
    The plaintiffs’ second argument fails too. As an initial mat-
ter, the affidavit provision—which, it bears repeating, is tied
by cross-reference to the public charge exclusion—uses the
term “public charge,” and we “do[] not lightly assume that
Congress silently attaches different meanings to the same
term in the same or related statutes.” Azar v. Allina Health
Servs., 139 S. Ct. 1804, 1812 (2019); see also Desert Palace, Inc. v.
Costa, 539 U.S. 90, 101 (2003) (explaining that as a general rule,
“identical words used in different parts of the same act are
intended to have the same meaning” (citation omitted)). The
plaintiffs don’t specify what different meaning the term “pub-
lic charge” might have in the affidavit provision; they just
vaguely assert that the provision is getting at something else.
They presumably don’t want to embrace the logical implica-
tion of their position: that the term “public charge” means
something more stringent for family-based immigrants, who
need to produce an affidavit, than it does for the others, who
don’t.
   In any event, this argument assumes that if the affidavit
were tied to the standard of admissibility, Congress would
have required one from everyone subject to the exclusion. Its
choice to require an affidavit only from family-based immi-
grants, the logic goes, means that the affidavit provision can’t

   13 The same is true of IIRIRA’s pilot bond program. The required bond

protected the government against the risk that the noncitizen would be-
come a public charge, so the scope of its coverage is a window into the
meaning of the term at the time of the 1996 amendments.
64                                                  No. 19-3169

shed any light on the admissibility provision, which is more
generally applicable.
    This argument is misguided. There is an obvious explana-
tion for why Congress required supporting affidavits from
family-based immigrants and not from employment-based
immigrants or green card lottery winners: that is the only con-
text in which it makes sense to demand this assurance. A con-
nection to a citizen or lawful permanent resident is the basis
for a family-based green card. 8 U.S.C. §§ 1151(b)(2), 1153(a).
The same is not true for immigrants who obtain diversity or
employment-based green cards, neither of which is based on
a personal relationship—much less a relationship close
enough that someone would be willing to take on ten years’
worth of potentially significant liability. Moreover, in the con-
text of an employment-based green card, a supporting affida-
vit would add little. The affidavit is a means of providing the
Executive with assurance that the green card applicant will
not become a public charge if admitted. The stringent criteria
for an employment-based green card provide similar assur-
ance. Employment-based green cards are reserved largely for
those with “extraordinary ability in the sciences, arts, educa-
tion, business, or athletics which has been demonstrated by
sustained national or international acclaim”; “outstanding
professors and researchers” who are “recognized internation-
ally”; “multinational executives and managers”; those who
hold advanced degrees and have job offers; and entrepre-
neurs prepared to invest a minimum of $1,000,000 in a ven-
ture that will benefit the United States economy and employ
“not fewer than 10 United States citizens or [lawful perma-
nent residents].” Id. § 1153(b)(1)–(5). Someone who meets
these criteria is unlikely to have trouble supporting herself in
the future. That said, if an employment-based applicant will
No 19-3169                                                    65

be working for a relative, and therefore has a family connec-
tion, the statute still requires her to obtain a supporting affi-
davit—demonstrating that the affidavit is not uniquely appli-
cable to those applying for family-based green cards. See id.
§ 1182(a)(4)(D).
    Despite the plaintiffs’ effort to show otherwise, it doesn’t
make sense to treat the affidavit provision as an anomalous
carve-out rather than compelling evidence of the scope of the
public charge inquiry. In fact, trying to categorize the sup-
porting affidavit as limited by virtue of its application to fam-
ily-based immigrants is a sleight of hand, because, as the
plaintiffs surely know, the family-based category is not
simply one among several to which the public charge exclu-
sion applies. As a practical matter, it is the category for which
the exclusion matters most. The number of lottery winners is
considerably smaller than the number of family-based immi-
grants, and employment-based immigrants—also a smaller
category than the family based—have other means of demon-
strating self-sufficiency.
   In short, the 1996 amendments to the public charge provi-
sion—most notably, the addition of factors to guide the public
charge determination and the insertion of the affidavit re-
quirement—were material. What’s more, the affidavit provi-
sion reflects Congress’s view that the term “public charge”
encompasses supplemental as well as primary dependence on
public assistance. To establish that a family-based applicant is
not excludable as a public charge, a sponsor must promise to
pay for the noncitizen’s use of any means-tested benefit out-
side the itemized exclusions. Without such an affidavit, the
noncitizen is inadmissible. Congress’s attempt to aggressively
66                                                 No. 19-3169

protect the public fisc through the supporting-affidavit re-
quirement is at odds with the view that it used the term “pub-
lic charge” to refer exclusively to primary and permanent de-
pendence.
                              C.
    Switching gears, the plaintiffs—with the support of the
House of Representatives, appearing as amicus curiae—ad-
vance a creative structural argument for why the term “public
charge” must be interpreted narrowly: they say that interpret-
ing the term to include the receipt of supplemental benefits is
inconsistent with Congress’s choice in the Welfare Reform
Act to make such benefits available to lawful permanent resi-
dents. According to the plaintiffs, Congress would not have
authorized lawful permanent residents to receive supple-
mental benefits if it did not expect them to use those benefits.
And it is inconsistent with Congress’s generosity to deny
someone a green card because she is likely to take advantage
of benefits for which Congress has made her eligible. The stat-
utory scheme therefore forecloses the possibility of interpret-
ing “public charge” to mean anything other than primary and
permanent dependence.
   There are several problems with this argument. To begin
with, its logic would read the public charge provision out of
the statute. The premise of the public charge inquiry has al-
ways been that immigrants in need of assistance would have
access to it after their arrival—initially through state poor
laws and later through modern state and federal welfare sys-
tems. Indeed, it is difficult to imagine how someone could be-
come a public charge under any conception of the term if it
were impossible to receive public aid. For example, on the
plaintiffs’ logic, DHS could not exclude an applicant even if it
No 19-3169                                                     67

predicted that the applicant would eventually become perma-
nently reliant on government benefits, because the future use
of those benefits would, after all, be authorized. Barring the
Executive from considering a green card applicant’s potential
use of authorized benefits would render the statutory public
charge exclusion a dead letter.
    Moreover, the plaintiffs’ position assumes that tension ex-
ists between the public charge exclusion and the availability
of benefits to lawful permanent residents—and that this ten-
sion can be resolved only by limiting the scope of the exclu-
sion. In fact, the public charge exclusion and the availability
of benefits are easily reconcilable. Immigration law has long
distinguished between one who becomes a public charge be-
cause of a condition preexisting her arrival and one who be-
comes a public charge because of something that has hap-
pened since. See, e.g., id. § 1227(a)(5) (“Any alien who, within
five years after the date of entry, has become a public charge
from causes not affirmatively shown to have arisen since en-
try is deportable.”); Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat.
1084, 1086 (”[A]ny alien who becomes a public charge within
one year after his arrival in the United States from causes ex-
isting prior to his landing therein shall be deemed to have
come in violation of law and shall be returned as aforesaid.”).
Providing benefits to immigrants who have been here for a
designated period of time—generally five years under current
law—takes care of immigrants in the latter situation. Life con-
tains the unexpected: for instance, a pandemic may strike,
leaving illness, death, and job loss in its wake. A lawful per-
manent resident who falls on hard times can rely on public
assistance to get back on her feet. Congress’s willingness to
authorize funds to help immigrants who encounter unex-
68                                                    No. 19-3169

pected trouble is perfectly consistent with its reluctance to ad-
mit immigrants whose need for help is predictable upon arri-
val.
    In any event, the plaintiffs’ argument is inconsistent not
only with the statutory exclusion, but also with the Welfare
Reform Act. As the plaintiffs tell it, Congress has generously
supported noncitizens, thereby implicitly instructing the Ex-
ecutive to ignore a green card applicant’s potential usage of
supplemental benefits in the admissibility determination. But
that is a totally implausible description of the Welfare Reform
Act. The stated purpose of the Act is to ensure that noncitizens
“within the Nation’s borders not depend on public resources
to meet their needs, but rather rely on their own capabilities
and the resources of their families, their sponsors, and private
organizations,” and that “the availability of public benefits
not constitute an incentive for immigration to the United
States.” 8 U.S.C. § 1601(2). To this end, the Act renders lawful
permanent residents ineligible for most benefits until they
have lived in the United States for at least five years. Id.
§ 1613(a). The Act’s dramatic rollback of benefits for nonciti-
zens sparked vociferous criticism. See Isabel Sawhill et al.,
Problems and Issues for Reauthorization, in WELFARE REFORM
AND BEYOND: THE FUTURE OF THE SAFETY NET 20, 27 (Isabel
Sawhill et al. eds., 2002) (referring to the five-year aid eligibil-
ity restriction as one of the Act’s “most contentious features”).
It blinks reality to describe the Welfare Reform Act as a
“grant” of benefits, as the plaintiffs do, or to say that the Act
No 19-3169                                                                  69

took an immigrant’s potential use of supplemental benefits
off the table for purposes of the admissibility determination. 14
                                     ***
    Given the length and complexity of my analysis of the
plaintiffs’ arguments at Chevron step one, a summary may be
helpful. In my view, the plaintiffs can’t show that the term
“public charge” refers narrowly to someone who is primarily
and permanently dependent on government assistance. The
term “public charge” was broad when it entered federal im-
migration law in 1882, and it has not been pinned down since.
IIRIRA, Congress’s latest word on the public charge provi-
sion, cuts in the opposite direction of the plaintiffs’ argument,
as does the Welfare Reform Act, which, contrary to the plain-
tiffs’ argument, hardly reflects a congressional desire that im-
migrants take advantage of available public assistance. In fact,
the amendments that IIRIRA and the Welfare Reform Act to-
gether made to the INA reflect more than Congress’s view
that the term “public charge” is capacious enough to include
supplemental dependence on public assistance. They reflect

    14  As the plaintiffs point out, Congress softened some of these re-
strictions in subsequent legislation. Perhaps most notably, in 2002 Con-
gress passed the Farm Security and Rural Investment Act, which made
adults eligible for SNAP after 5 years of residency (it had previously been
10) and children eligible for SNAP immediately after becoming lawful
permanent residents. Pub. L. No. 107-171, § 4401, 116 Stat. 134, 333 (2002)
(codified as amended at 8 U.S.C. § 1612(a)(2)). Yet these minor adjust-
ments, even if slightly more generous than the original restrictions, did
not overhaul immigration policy—nor, as I have already explained, is it
unreasonable in any event for the Executive to consider whether a green
card applicant is likely to use benefits if she is permitted to stay. That’s the
point of the public charge determination.
70                                                 No. 19-3169

its preference that the Executive consider even supplemental
dependence in enforcing the public charge exclusion.
                              III.
    While the term “public charge” is indeterminate enough
to leave room for interpretation, DHS can prevail only if its
definition is reasonable. The majority holds that DHS is likely
to lose on the merits of that argument; I disagree. My dissent
from the majority on this score is inevitable, given how differ-
ently we analyze the statute at Chevron step one. The majority
seems to understand “public charge” to mean something only
slightly broader than “primarily and permanently depend-
ent,” but I understand it to be a much more capacious term—
not only as a matter of history, but also by virtue of the 1996
amendments to the public charge provision. On my reading,
in contrast to the majority’s, the statute gives DHS relatively
wide discretion to specify the degree of benefit usage that ren-
ders someone a “public charge.” Thus, the majority and I ap-
proach Chevron step two from different starting points.
   The plaintiffs challenge the reasonableness of the rule’s
definition in two respects. First, they object to the particular
benefits that DHS has chosen to designate in its definition of
“public charge.” According to the plaintiffs, DHS has unrea-
sonably interpreted the statute insofar as the rule counts in-
kind aid. Second, they argue that DHS has set the relevant
benefit usage so low that the definition captures people who
cannot reasonably be characterized as “public charges.” I will
address these arguments in turn.
                              A.
   The plaintiffs don’t contest DHS’s authority to account for
the receipt of state and federal cash assistance (like SSI and
No 19-3169                                                       71

TANF) in the definition of “public charge.” But they insist
that in-kind benefits (like SNAP, public housing, and Medi-
caid) are off-limits. Their argument in support of that position
is difficult to grasp. In their brief, the plaintiffs vaguely assert
that in-kind benefits shouldn’t be counted because they are
categorically different from cash payments; they imply that
the term “public charge” does not encompass someone who
relies on in-kind public assistance. At oral argument, the
plaintiffs wisely abandoned that position. For one thing, they
could not articulate why it mattered whether the government
chose to give someone $500 for groceries or $500 worth of
food. For another, that argument is inconsistent with history:
everyone agrees that someone living permanently in a late
nineteenth-century poorhouse qualified as a public charge,
and shelter in a poorhouse is in-kind relief.
    At least rhetorically, a great deal of the plaintiffs’ argu-
ment involves their repeated emphasis on the fact that the
1999 Guidance directed officers “not [to] place any weight on
the receipt of non-cash public benefits (other than institution-
alization) or the receipt of cash benefits for purposes other
than for income maintenance.” 1999 Guidance, 64 Fed. Reg. at
28,689. The implication is that the 1999 Guidance reflects the
only reasonable interpretation of the statute.
    Of course, the fact that a prior administration interpreted
a statute differently does not establish that the new interpre-
tation is unreasonable—the premise of Chevron step two is
that more than one reasonable interpretation of the statute ex-
ists. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 863–64 (1984) (“An initial agency interpretation is
not instantly carved in stone. On the contrary, the agency, to
72                                                  No. 19-3169

engage in informed rulemaking, must consider varying inter-
pretations and the wisdom of its policy on a continuing ba-
sis.”). Moreover, the focus on cash benefits in the 1999 Guid-
ance flowed from the Immigration and Naturalization Ser-
vice’s decision to interpret “public charge” to mean “primar-
ily dependent on the government for subsistence.” 1999 Guid-
ance, 64 Fed. Reg. at 28,692. As the Guidance explained, INS
had decided “that the best evidence of whether an alien is pri-
marily dependent on the government for subsistence is either
(i) the receipt of public cash assistance for income mainte-
nance, or (ii) institutionalization for long-term care at govern-
ment expense.” Id. DHS has now taken a different approach—
it has decided that projected reliance on government benefits
need not be primary to trigger the public charge exclusion.
And once DHS made that baseline choice, a broader range of
benefits became relevant. Thus, the plaintiffs’ fundamental
objection to the counting of benefits like Medicaid, housing,
and SNAP—that they are supplemental—is really just a re-
packaging of their argument under Chevron step one.
    The plaintiffs also advance a legislative-inaction argu-
ment: in 2013—twenty years after Congress enacted IIRIRA—
the Senate Judiciary Committee, while debating the Border
Security, Economic Opportunity, and Immigration Moderni-
zation Act, voted down a proposal to require applicants for
lawful permanent resident status “to show they were not
likely to qualify even for non-cash employment supports such
as Medicaid, the SNAP program, or the Children’s Health In-
surance Program (CHIP).” S. REP. NO. 113-40, at 42 (2013). But
the failure of this proposal is neither here nor there. As the
Supreme Court has cautioned, “Congressional inaction lacks
‘persuasive significance’ because ‘several equally tenable in-
No 19-3169                                                     73

ferences’ may be drawn from such inaction, ‘including the in-
ference that the existing legislation already incorporated the
offered change.’” Pension Benefit Guar. Corp. v. LTV Corp., 496
U.S. 633, 650 (1990) (citation omitted). This rejected pro-
posal—which would have overridden the 1999 Guidance—is
a case in point: the rejection is as consistent with the choice to
leave the matter within the Executive’s discretion as it is with
the choice to force the Executive’s hand. The plaintiffs’ argu-
ment has other problems too. Why should the views of the
2013 Senate Judiciary Committee be attributed to Congress as
a whole? See Thompson v. Thompson, 484 U.S. 174, 191–92
(1988) (Scalia, J., concurring in the judgment) (“Committee re-
ports, floor speeches, and even colloquies between Congress-
men, are frail substitutes for bicameral vote upon the text of a
law and its presentment to the President.” (citation omitted)).
And how could the unenacted views of the 2013 Congress set-
tle the meaning of language chosen by a different Congress at
a different time? See United States v. Price, 361 U.S. 304, 313
(1960) (“[T]he views of a subsequent Congress form a hazard-
ous basis for inferring the intent of an earlier one.”).
    Thus, the plaintiffs are wrong to insist that DHS is barred
from considering the receipt of a particular benefit simply be-
cause the benefit is in-kind rather than cash. There is no such
bar. Rather, the list of designated benefits is reasonable if re-
ceiving them is consistent with the lack of self-sufficiency con-
veyed by the term “public charge.”
    Answering this question requires fleshing out what it
means to lack self-sufficiency for purposes of the public
charge exclusion. As the majority observes, no one is self-suf-
ficient in an “absolutist” sense because everyone relies on
74                                                  No. 19-3169

some nonmonetary government services—for example, pub-
lic snow removal and emergency services. Maj. Op. at 13, 37.
Importantly, the term “public charge” does not implicate self-
sufficiency in this absolutist sense. Throughout its centuries-
long history, “public charge” has always been associated with
dependence on a particular category of government pro-
grams: those available based on financial need. In the nine-
teenth and early twentieth centuries, these were “poor relief”
programs; now, they are the need-based programs of the
modern welfare system. And what has always been implicit
in the term “public charge” was made explicit by the 1996
amendments. The statutory exclusion requires the Executive
to consider the noncitizen’s age; health; family status; assets,
resources, and financial status; and education and skills—fac-
tors plainly designed to determine whether a noncitizen will
be able to support herself, not whether she will use generally
available services like snow removal. In the same vein, the
sponsor’s reimbursement obligation covers only those bene-
fits that are “means tested”—that is, available to those whose
income falls below a certain threshold. As a matter of both
history and text, a “public charge” lacks self-sufficiency in the
sense that she lacks the financial resources to provide for her-
self.
    The benefits designated in DHS’s definition are all con-
sistent with this concept of self-sufficiency. Recall that DHS
has designated the following benefits: cash assistance for in-
come maintenance (including SSI, TANF, and state cash assis-
tance), SNAP, the Section 8 Housing Choice Voucher Pro-
gram, Section 8 project-based rental assistance, housing ben-
efits under Section 9, and Medicaid (with some explicit excep-
tions). 8 C.F.R. § 212.21. These benefits are all means tested;
No 19-3169                                                                 75

they are also squarely within the Welfare Reform Act’s defi-
nition of “public benefit.” 8 U.S.C. §§ 1611(c), 1621(c) (defin-
ing “public benefit” to include welfare, food, health, and pub-
lic-housing benefits funded by the federal, state, or local gov-
ernments). It is consistent with the term “public charge” to
consider the potential receipt of cash, food, housing, and
healthcare benefits—all of which fulfill fundamental needs—
in evaluating whether someone is likely to depend on public
assistance to get by.
    It is also worth noting some of the benefits that the rule
does not include: significantly, the rule’s definition accommo-
dates the reimbursement limitations in the affidavit provi-
sion. Under the affidavit provision, the following benefits,
even if means tested, are not subject to reimbursement: certain
forms of emergency medical assistance; short-term, in-kind
emergency disaster relief; school-lunch benefits; benefits un-
der the Child Nutrition Act of 1966; public-health assistance
for immunization, as well as treatment for the symptoms of
communicable disease; certain foster-care and adoption pay-
ments; certain in-kind services such as soup kitchens and cri-
sis counseling; student assistance for higher education; bene-
fits under the Head Start Act; means-tested programs under
the Elementary and Secondary Education Act of 1965; and
certain job-training benefits. Id. § 1183a note.15
   These exemptions under the affidavit provision are ex-
cluded from the rule too. The rule’s definition provides “an

    15 By virtue of a notice issued by the Department of Housing and Ur-
ban Development, housing benefits are excluded from the reimbursement
obligation. See 8 C.F.R. § 213a.1; Eligibility Restrictions on Noncitizens, 65
Fed. Reg. 49,994 (Aug. 16, 2000). But that exemption is not statutory, and
here, I’m concerned only with DHS’s interpretation of the statute.
76                                                  No. 19-3169

exhaustive list of public benefits,” Inadmissibility on Public
Charge Grounds, 84 Fed. Reg. at 41,296, so any benefit not
mentioned in the list is by implication excluded from the def-
inition. And the list does not mention any of the benefits ex-
empted in the affidavit provision of the statute. 8 C.F.R.
§ 212.21; see also Inadmissibility on Public Charge Grounds, 84
Fed. Reg. at 41,312 (noting that the rule’s “definition does not
include benefits related exclusively to emergency response,
immunization, education, or social services”); id. at 41,482 (ex-
plaining that the rule’s definition “does not include emer-
gency aid, emergency medical assistance, or disaster relief”);
id. at 41,389 (excluding benefits under the National School
Lunch Act, the Child Nutrition Act, and the Head Start Act).
Indeed, to highlight just how carefully the rule tracks the stat-
utory exemptions to the affidavit of support, consider the
rule’s exclusion of Medicaid for those under the age of 21 and
pregnant women. Id. at 41,367. These benefits do not appear
in the list of exemptions to the affidavit of support, but they
are exempted from the sponsor’s reimbursement obligations
under a different statutory provision. 42 U.S.C.
§ 1396b(v)(4)(B). The rule captures that exclusion even though
it appears elsewhere; in other words, DHS did not simply
copy and paste the statutory note.
    In sum, the designated benefits are not only consistent
with the term “public charge,” but they also fit neatly within
the statutory structure. Considering the potential receipt of
these benefits to gauge the likelihood that a noncitizen will
become a public charge is therefore not an unreasonable in-
terpretation of the statute.
No 19-3169                                                      77

                                B.
    The closer question is whether DHS’s benefit-usage
threshold stretches the meaning of “public charge” beyond
the breaking point. The rule defines “public charge” to mean
a noncitizen who receives one or more of the designated ben-
efits “for more than twelve months in the aggregate within
any 36-month period.” One month of one benefit counts to-
ward the twelve. As a result, an applicant expected to live in
Section 8 housing for a year would be denied admission as
someone who is likely to become a public charge, as would an
applicant who is expected to receive three months’ worth of
housing, TANF, Medicaid, and SNAP.
    The plaintiffs have a legislative-inaction argument for this
feature of the rule too. They point out that during the enact-
ment of IIRIRA, the Senate Judiciary Committee, while nego-
tiating the House-passed version of the bill, dropped lan-
guage that “would have clarified the definition of ‘public
charge’” in the deportation provision to provide for deporta-
tion if a noncitizen “received Federal public benefits for an
aggregate of 12 months over a period of 7 years.” 142 Cong.
Rec. S11,872, S11,882 (daily ed. Sept. 30, 1996) (statement of
Sen. Kyl). Thus, they say, Congress has foreclosed the possi-
bility that 12 months’ worth of benefit usage renders someone
a public charge. Whatever the statutory floor is, it must be
higher than that.
    I’ve already identified some of the problems with legisla-
tive-inaction arguments, so I won’t belabor them here. It’s
worth noting, though, that this legislative-inaction argument
is even worse than the plaintiffs’ other. So far as the plaintiffs’
citation reveals, the proposal dropped out of the statute in the
course of committee negotiations, not by a vote, and there is
78                                                  No. 19-3169

no explanation for why it did. See Thompson, 484 U.S. at 191
(Scalia, J., concurring in the judgment) (“An enactment by im-
plication cannot realistically be regarded as the product of the
difficult lawmaking process our Constitution has pre-
scribed.”). Moreover, the dropped proposal involved the pub-
lic charge deportation provision, not the public charge admissi-
bility provision. See 8 U.S.C. § 1227(a)(5). Drawing general
conclusions from a committee’s decision to drop this lan-
guage in a context with much higher stakes is a particularly
dubious proposition. Despite the plaintiffs’ effort to demon-
strate otherwise, the statute doesn’t draw a bright line requir-
ing something more than 12 months of benefit usage to meet
the definition of “public charge.”
    At oral argument, DHS declined to identify any limit to its
discretion, implying that it could define public charge to in-
clude someone who took any amount of benefits, no matter
how small. It may have been grounding its theory in the affi-
davit provision, which triggers the sponsor’s liability once the
noncitizen receives “any means-tested public benefit” that
falls within the sponsor’s reimbursement obligation. Id.
§ 1183a(b)(1)(A) (emphasis added).
    That may well overread the affidavit provision, which
does not purport to define “public charge.” Enforcement of
the public charge exclusion has waxed and waned over time
in response to economic conditions, immigration policy, and
changes in the programs available to support the poor. The
amendments made by IIRIRA and the Welfare Reform Act,
including the affidavit provision, reflect Congress’s interest in
vigorous enforcement. Yet Congress left the centuries-old
term in the statute, and that term has always been associated
No 19-3169                                                     79

with a lack of self-sufficiency. So that’s the principle that gov-
erns here: if it’s reasonable to describe someone who takes one
or more of the designated benefits “for more than twelve
months in the aggregate within any 36-month period” as lack-
ing in self-sufficiency, then DHS’s definition falls within the
permissible range.
    In deciding this question, it is wrong to focus exclusively
on the durational requirement—duration must be viewed in
the context of the benefits measured. Three features are par-
ticularly important in this regard: the designated benefits are
means tested, satisfy basic necessities, and are major welfare
grants. To see the importance of these features, consider how
different the durational threshold would look without
them—for example, if the rule measured the usage of benefits
that are not means tested (e.g., public education), that are
means tested but don’t satisfy a basic necessity (e.g., Pell
grants), or that satisfy a basic necessity but are not major wel-
fare grants (e.g., need-based emergency food assistance). Re-
lying on the government to provide a year’s worth of a basic
necessity (food, shelter, medicine, or cash assistance for in-
come maintenance) implicates self-sufficiency in a way that
funding a year of college with the help of a Pell grant does
not.
    The plaintiffs particularly object to the rule’s stacking
mechanism, which can reduce the durational requirement
from 12 months to as little as 3 months. But here, too, the con-
text matters: all of the designated benefits supply basic neces-
sities, and the reduction is triggered in proportion to the de-
gree of reliance on the government. The more supplemental
the reliance, the longer it can go on before crossing the “public
charge” threshold. The briefest durational threshold—three
80                                                    No. 19-3169

months of benefit usage—meets the definition only when the
recipient relies on the government for all basic necessities
(food, shelter, medicine, and cash assistance for income
maintenance). In other words, such short-term reliance only
counts if it’s virtually total. The rule measures self-sufficiency
along a sliding scale rather than by time alone.
    It is not unreasonable to describe someone who relies on
the government to satisfy a basic necessity for a year, or mul-
tiple basic necessities for a period of months, as falling within
the definition of a term that denotes a lack of self-sufficiency.
To be sure, the rule reaches dependence that is supplemental
and temporary rather than primary and permanent. But the
definition of “public charge” is elastic enough to permit that.
The rule’s definition is exacting, and DHS could have exer-
cised its discretion differently. The line that DHS chose to
draw, however, does not exceed what the statutory term will
bear.
                                IV.
    This case involves more than the definition of “public
charge.” The plaintiffs raised a host of objections to the rule in
their complaint, and the majority addresses some of them. It
concludes that the plaintiffs are likely to succeed in their chal-
lenge to the factors that DHS uses to implement its definition
(the list of factors includes health, family size, and English
proficiency), as well as in their argument that the rule is arbi-
trary and capricious. See 5 U.S.C. § 706(2)(A); Motor Vehicle
Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (explaining that the agency must “articulate
a satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made’” (ci-
tation omitted)).
No 19-3169                                                       81

     I wouldn’t reach these issues. The district court didn’t ad-
dress them, and on appeal, the parties devoted their briefs al-
most entirely to the definition of “public charge.” Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course,
that a federal appellate court does not consider an issue not
passed upon below.”); see also Ctr. for Individual Freedom v. Van
Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (remanding to the
district court for arbitrary-and-capricious review when the
district court resolved a case at Chevron step one without
reaching the issue and when the agency’s position was not
well developed). And while it’s generally prudent to refrain
from deciding difficult issues without the benefit of argu-
ments from the parties, the procedural posture of this case of-
fers a particularly good reason to stop where the parties did.
We are reviewing the issuance of the “extraordinary remedy”
of a preliminary injunction. Whitaker ex rel. Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th
Cir. 2017). Based on the record developed thus far, the plain-
tiffs have not shown that they are entitled to this extraordi-
nary remedy. I would remand so that the district court can
assess whether the plaintiffs’ remaining challenges to the rule
are likely to succeed.
                               ***
    The many critics of the “public charge” definition charac-
terize it as too harsh. But the same can be said—and has been
said—of IIRIRA and the Welfare Reform Act. The latter dra-
matically rolled back the availability of aid to noncitizens, and
both statutes linked those cuts to the public charge provision
by making the affidavit of support a condition of admissibil-
ity. The definition in the 1999 Guidance tried to blunt the force
of these changes; now, DHS has chosen to exercise the leeway
82                                                   No. 19-3169

that Congress gave it. At bottom, the plaintiffs’ objections re-
flect disagreement with this policy choice and even the statu-
tory exclusion itself. Litigation is not the vehicle for resolving
policy disputes. Because I think that DHS’s definition is a rea-
sonable interpretation of the statutory term “public charge,” I
respectfully dissent.