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Government gets green light to implement “public charge” rule pending appeals

Today a divided Supreme Court granted the Trump administration’s request for permission to enforce a rule known as the “public charge” rule, governing the admission of immigrants to the United States. The government had argued that it would suffer “effectively irreparable harm” if it could not implement the new rule while it appeals a pair of orders by a federal district court in New York. In a brief order, the court temporarily put the lower court’s rulings on hold until the government’s appeals to the U.S. Court of Appeals for the 2nd Circuit and, if necessary, the Supreme Court, are resolved.

The rule that the government will now be able to enforce interprets a provision of federal immigration law that bans noncitizens from receiving a green card if the government believes that they are likely to become a “public charge” – that is, reliant on government assistance. In August 2019, the Department of Homeland Security defined “public charge” to refer to noncitizens who receive a variety of government benefits, including cash, health care or housing, for more than 12 months over a three-year period. The rule also considers factors such as age, employment history and finances to determine whether a noncitizen might become a public charge in the future.

A group of states and immigration groups went to court to challenge the rule, arguing that DHS’s interpretation of the law is not a reasonable one. The district court agreed with the challengers that they were likely to prevail and temporarily blocked the government from enforcing the rule, setting up the government’s request for the Supreme Court to intervene.

Last week the challengers filed briefs urging the justices to turn down the government’s request. They emphasized that the kind of relief that the government was seeking is normally intended to “preserve the status quo,” but allowing the government to enforce the rule would have exactly the opposite effect, because the rule is a “vast expansion” of what it means to be a public charge. Previously, they explained, the term “public charge” had applied only to “individuals who are primarily dependent on the government for long-term subsistence.” Moreover, they added, the government has not suggested that it needs to be able to enforce the rule for public safety or national security reasons.

Justice Neil Gorsuch filed a concurring opinion that was joined by Justice Clarence Thomas. Gorsuch focused primarily on the common practice, illustrated in this case, of district courts issuing what are known as “nationwide injunctions” – relief that goes beyond the parties to a particular dispute and bars the government from enforcing a law or regulation against anyone in the country. Nationwide injunctions, Gorsuch emphasized, “have little basis in traditional equitable practice” and “hardly seem an innovation we should rush to embrace,” because they “tend to force judges into making rushed, high-stakes, low-information decisions.” And so although Gorsuch agreed with the court’s decision to allow the government to implement the public charge rule while it appeals, he also expressed hope that the court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”

The court’s four more liberal justices – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicated that they would have denied the government’s request for a stay.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Government gets green light to implement “public charge” rule pending appeals, SCOTUSblog (Jan. 27, 2020, 2:59 PM),