Fourth Circuit Shows the Way Forward on Nationwide Injunctions in 'Public Charge' Case

The decision 'is not about the propriety of any policy, but rather about the power of the federal courts.'

By Andrew R. Arthur on August 12, 2020

  • The Immigration and Nationality Act (INA) renders aliens inadmissible if, in the opinion of a government official, they are "likely at any time to become a public charge".
  • "Public charge" has been a ground of inadmissibility in federal law since 1882, and although the public-charge ground has been amended on numerous occasions since, Congress has largely left it up to the executive branch to interpret the term.
  • Following amendments to the public-charge ground by Congress in 1996 intended to beef up its application, the Clinton administration issued field guidance to the then-INS doing the opposite, narrowly defining a "public charge" as an alien "likely to become ... 'primarily 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-term care at government expense.'"
  • In 2018, the Trump administration announced that it intended to tighten up and more explicitly define the class of aliens who would be considered to be public charges.
  • After receiving hundreds of thousands of comments on its proposals, last August DHS issued new regulations that expanded the coverage of the "public charge" ground of inadmissibility, to include aliens who had received both cash and non-cash benefits — including food stamps, housing vouchers, and, in certain instances, Medicaid.
  • Various district courts issued injunctions of the new public-charge rule. While the Ninth Circuit rejected an injunction issued in its jurisdiction, the Second and Seventh Circuits upheld injunctions issued by their lower courts. Those injunctions have subsequently been stayed by the Supreme Court.
  • In November, a federal district court judge in Maryland issued a nationwide injunction blocking implementation of the new public-charge rule, at the behest of an immigrant advocacy group and two of its members (who are DACA recipients), finding that the new public-charge rule violated the Administrative Procedure Act (APA).
  • DOJ appealed, and on Wednesday, August 5, the Fourth Circuit reversed that decision, in a well-reasoned and bluntly worded opinion.
  • The circuit court held that the lower court had erred in finding the organization had standing, in concluding that the final rule failed to comply with the APA, and in granting nationwide injunctive relief.
  • That decision makes important points about the role of the judiciary in review of immigration policy decisions, and calls into question the propriety and the very legality of nationwide injunctions in our judicial system.
  • It provides a roadmap for the Supreme Court to follow in limiting such nationwide injunctions, by which a single, unelected (former) lawyer — who likely has little or no expertise in immigration law — can block major immigration policy changes by the administration.

* * *

On Wednesday, August 5, the Court of Appeals for the Fourth Circuit issued an opinion in Casa de Maryland v. Trump, reversing a nationwide preliminary injunction, issued on November 14 by a Maryland district court judge blocking the so-called "public charge rule", which was promulgated by DHS last August. The Fourth Circuit's well-reasoned opinion is a roadmap out of the legal gridlock created by opponents of the president's immigration initiatives. In the long run, many may not like the route, but (if the Supreme Court follows suit) it is best for the Republic, and the principle of separation of powers.

The Public-Charge Ground of Inadmissibility

As I noted in a May 2018 post, "public charge" is one of the oldest grounds of inadmissibility in federal law (dating from 1882), reflecting the fact that: "The United States has always been a country both of opportunity and of immigrants, but there is an expectation that foreign nationals who come to this country 'pull their own weight.'" While Congress has amended that ground on numerous occasions, it has largely left it to the executive branch to define "public charge", the key point in the Fourth Circuit's opinion.

Currently, subparagraph 212(a)(4)(A) of the Immigration and Nationality Act (INA) renders inadmissible "[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General ["AG" or the Secretary of DHS] at the time of application for admission or adjustment of status, is likely at any time to become a public charge."

In subparagraph (B) of that section, Congress provided consular officers, the AG, and DHS with a non-exhaustive list of factors for determining whether an alien is likely to become a public charge: the alien's age; health; family status; assets, resources, and financial status; and education and skills. Aside from that, again, Congress left it up to the executive branch to flesh out the parameters of who is a "public charge".

Those subparagraphs were included in an amendment of section 212(a)(4) of the INA by Congress in section 531 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 531 did not make many substantive changes to subparagraph (A), but the list of factors in subpargraph (B) was new. As the conference report for that bill explained with respect to this amendment: "Self-reliance is one of the most fundamental principles of immigration law."

Clinton Administration Interpretation of the New Public-Charge Ground

In 1999, the Clinton administration's INS issued new field guidance interpreting IIRIRA's public charge amendments, as well as section 212(a)(4)'s deportation counterpart, section 237(a)(5) of the INA (which is even more terse and was not amended by IIRIRA). Contrary to Congress's clear direction to apply the public-charge ground of inadmissibility more broadly, that field guidance instead applied it extremely narrowly.

Pursuant to that guidance, an alien would only be considered a "public charge" if the alien "is likely to become ... 'primarily 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-term care at government expense.'" Keep that "primarily dependent" language in mind.

I describe this as a narrow interpretation because there are plenty of other programs that an alien could access other than "cash assistance" — such as food stamps, Medicaid, or housing vouchers — and not be considered a "public charge" under the 1999 INS field guidance. It is difficult to understand how an alien seeking a green card could be on Medicaid and food stamps and still be considered "self-reliant", but that was the Clinton administration's policy choice.

The New Public Charge Rule

To address this inconsistency, on October 10, 2018, DHS issued a Notice of Proposed Rulemaking (NPRM) in which it proposed to amend the regulations governing inadmissibility on public-charge grounds "to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations."

Specifically, the NPRM proposed amending the regulations to define the term "public charge", "and to identify the types, amount, and duration of receipt of public benefits that would be considered in public charge inadmissibility determinations." The proposed amendments were exceptionally specific, and included within the definition of "public charge" aliens who received certain non-cash benefits — a departure from the 1999 INS field guidance.

DHS sought comments on the amendments in the NPRM, and it got them: 266,077 in the 60-day comment period according to the final rule. That rule was published on August 14, 2019, and addressed those thousands of comments in excruciating detail. And, notably, certain changes to the proposed regulations were made in response.

Under the regulations as amended by the final rule, a "public charge" is an alien who receives one or more defined public benefits for more than 12 months in the aggregate in a 36-month period (receipt of two benefits in the same month would be counted as two months). That list includes both cash benefits and non-cash benefits, including food stamps, housing vouchers, and (with limitations) Medicaid. It also includes exceptions for aliens in the armed forces and their spouses and children.

Litigation and Injunctions of the New Public Charge Rule

The promulgation of those regulations resulted in a flood of subsequent litigation to block enforcement of the new public-charge rule. The Ninth Circuit stayed two of those injunctions issued by district courts in its jurisdiction in December, finding that DHS had "shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay."

Two other circuits in which injunctions of the public charge rule had been issued — the Second and Seventh Circuits — declined to follow suit, allowing preliminary injunctions of the rule to stand. In January, the Supreme Court stayed the preliminary injunction issued within the Second Circuit and on February 21, it stayed a preliminary injunction issued within the Seventh Circuit, in separate orders.

Casa de Maryland v. Trump

Which brings me back to the Fourth Circuit. Its well-written, researched, and reasoned opinion is 71 pages long (with a 42-page dissent), so even an overbroad summary would run pages, but here goes.

CASA (a non-profit offering "a wide variety of social, health, job training, employment, and legal services to the immigrant communities in Maryland" and neighboring jurisdictions), and two members of the organization who are DACA members planning to seek adjustment of status in the future, filed suit against the new public charge rule in the U.S. District Court for the District of Maryland, and requested an injunction of that rule pending a decision.

Those plaintiffs claimed that the public-charge rule violated the Administrative Procedure Act (APA) , and the Fifth Amendment due process and equal protection clauses. The APA claim alleged that the rule was arbitrary and capricious and "not in accordance with the law", as (they claimed) the "unambiguous" meaning of "public charge" in this context "means primarily dependent on the government for subsistence". For that reason, they asserted, DHS lacked authority under the INA to reinterpret the public charge ground "in a way that is contrary to that definition".

The district court held that the plaintiffs had standing to bring this case, and that the public-charge rule violated the APA as alleged because it was "not in accordance with law". It did not rule on the plaintiffs' constitutional challenges.

Decision of the Fourth Circuit

DOJ appealed that decision, and, as noted, the Fourth Circuit reversed the district court's injunction. It found that the lower court had erred in finding CASA had standing, in concluding that the final rule failed to comply with the APA, and in granting nationwide injunctive relief. That decision makes important points about the role of the judiciary in reviewing immigration policy, and called into question the propriety and the very legality of nationwide injunctions in our judicial system.

Most importantly, however, it stated some plain facts that reflect concerns many (not on the bench) have expressed concerning how judicial activism has stymied the Trump administration's immigration initiatives.

CASA's Standing to Bring Suit

The Fourth Circuit first concluded that CASA lacked standing under both Fourth Circuit and Supreme Court precedent.

The district court had held that the organization had standing because the rule forced it to reallocate resources and shift from its "affirmative advocacy posture" to a "defensive one", in which it advised its members on the impact of the rule.

The circuit court disagreed, finding that the rule "forced CASA to do absolutely nothing as a matter of law". It also concluded the group lacked standing as an organization because "[o]rganizational injury, properly understood, is measured against a group's ability to operate as an organization, not its theoretical ability to effectuate its objectives in its ideal world." Put simply, CASA's disagreements with DHS's policy and the group's expenditure of resources to combat it failed to give it such standing.

The circuit concluded that the two DACA recipients did have standing (they were "forgoing specific financial resources (such as applying for student loans) ... out of concern that doing so would render them 'public charges'" in the future), but nonetheless concluded that preliminary injunctive relief was improper.

Plaintiffs' APA challenges

Turning to the two remaining plaintiffs' APA challenges, the circuit crucially held that the term "public charge" was not fixed and static as the district court had held (the "primarily dependent on the government for subsistence" definition above), but rather was "broad and elusive enough to accommodate multiple views and meanings" — including that set forth in the latest public-charge rule — "as indeed it has since it first appeared in immigration law" (both statutory and adjudicatory, which the circuit examined in detail).

Specifically, it found that Congress in IIRIRA had "made a conscious choice" to keep the phrase "'public charge' undefined", thereby giving the executive branch broad discretion in implementing the term, consistent with the ever-changing "national interest".

All of this would simply be interesting analysis of administrative law principles (if that is possible). What makes it exceptional is the following holding, recognizing courts' limitations in immigration cases:

All told, the text, purpose, and structure of the INA make clear that the DHS Rule is premised on a permissible construction of the term "public charge." To hold otherwise is a serious error in statutory interpretation. More fundamentally, though, it is also a broadside against separation of powers and the role of Article III courts.

The circuit court provided strong support for this holding, citing precedent establishing that when it comes to interpreting the provisions of the INA, the executive branch is operating at the height of its authority, and that the role of reviewing courts is accordingly limited.

In that vein, showing a modesty that has been sorely lacking in many (many) recent court decisions reviewing the current administration's immigration initiatives, and admitting the limitations of reviewing courts, the Fourth Circuit stated:

Immigration policy concerns not only the physical security of the country, but also the character and identity of the nation. Federal judges, drawn from one profession and lacking even a patina of democratic sanction, are ill-suited to supervise these issues and the difficult balances that inhere in them. Accordingly, we should be reluctant to disturb the authority expressly delegated to executive officials by Congress in this field.

Similarly, the court concluded:

At bottom, [the Seventh C]ircuit's and dissenting colleague's claim of statutory unreasonableness is really a claim of policy unreasonableness, designed to position the courts as singular arbiters in a field for which their expertise is limited and their democratic imprimatur is non-existent.

In combination, these drawbacks confirm every fear that the judiciary is on its way to projecting a major voice in a field of law that has long been reserved to the politically accountable branches the Founders established in Articles I and II. [Emphasis added.]

Ask yourself, how many times have you heard those in favor of immigration enforcement — let alone reduction — make the argument that courts are out of their league and pushing their own agendas in enjoining Trump-administration immigration programs? Then ask yourself how many courts have the temerity to recognize that judicial overreach in such blunt terms? I cannot think of any, at all. Until now.

Further, in the course of assailing the "speculation" inherent in the dissent and in the Seventh Circuit's decision (which, as noted, the Supreme Court has stayed), the Fourth Circuit rejected out of hand its sister circuit's "suggest[ion] without a shred of evidence that the executive will apply the" enumerated statutory factors in subparagraph 212(a)(4)(B) of the INA "on the basis of racial or ethnic stereotypes." (Emphasis added.)

If there were such discrimination in immigration enforcement, I have no doubt that the Fourth Circuit would respond, in the harshest terms (as it suggests it will). Preemptively doing so on the basis of rank speculation is, however, improper, as the court recognizes.

Limits on Nationwide Injunctive Relief

And then, the opinion gets even more interesting. The circuit found that the district court erred in issuing a nationwide injunction — "a drastic remedy", which it described in an understated manner as "overbroad".

Recognizing that federal courts "exercise 'the judicial power of the United States'", and that this power is circumscribed by both the Constitution and Congress (particularly the INA, which limits judicial review of removal decisions), the circuit court found that such injunctions — pursuant to which "a single district court judge completely blocks the enforcement of a federal policy against everyone" — contravenes the bounds on that authority in three ways.

First (and noting their novelty) nationwide injunctions "seriously contravene[] traditional notions of the judicial role", and in particular the role of federal courts to resolve cases and controversies involving specific parties. As the court (again, bluntly) explains: "Indeed, by issuing such an injunction, a single district court, whose decisions are non-precedential in its own circuit, does not simply resolve a given lawsuit, but rather decides a general question for the entire nation." (Emphasis added.)

Second, injunctions are equitable (as opposed to legal) relief, and nationwide injunctions "run afoul of the prescribed scope of" federal courts' equitable power. In essence, the court explains, federal courts' equitable power is understood to exist as it did in the English Court of Chancery at the time of our nation's independence.

As a primary point (and needless to say, but the circuit says it anyway): "In eighteenth-century English equity 'there were no injunctions against the Crown,' or anything like a nationwide injunction." Rather, the chancellor (the adjudicator in a court of chancery) would grant injunctions to protect the parties in a case, or "a 'small and cohesive' group of persons who shared a common interest"; injunctive relief that protected "scores of non-parties" not only was "not contemplated", but instead was "resolutely avoided".

Given the fact that these limitations on equitable power have been incorporated by the Constitution and in federal statute, "[i]t is unsurprising" nationwide injunctions were not issued until recently by federal courts. The Fourth Circuit concludes:

The recent proliferation of nationwide injunctions plainly cannot be squared with these longstanding precepts, which are meant to cabin our discretion and limit application of the judicial power to actual legal disputes rather than overarching policy questions. And their widespread use also cannot be squared with the constitutional and statutory limitations on our equitable authority.

Third, the court finds, nationwide injunctions rub up against other doctrines related to "judicial power", including standing (which is "not a clown car into which all interested parties may pile, provided the driver-cum-plaintiff has met its requirements"), "the well-recognized bar against litigants raising the rights of others", and the conjoined but mirror-opposite concepts of "ripeness" and "mootness" ("Once again, nationwide injunctions allow non-parties to slip the bonds of these requirements, as a single plaintiff who obtains nationwide relief has done so on behalf of innumerable non-parties whose claims may very well have been premature or long stale.").

Plus, the court noted, there is already a legislatively created remedy for a class of individuals to seek relief: class actions under Federal Rule of Civil Procedure 23, which "have a clear analogue in traditional equity practice." The Fourth Circuit finds (with its characteristic bluntness):

Only those who can satisfy the rigorous requirements Congress imposed for class certification are eligible to avail themselves of Rule 23 injunctions. But nationwide injunctions allow plaintiffs to obtain the benefits of class-wide relief without ever satisfying these criteria. ... This makes no sense.

All of that said, the court held, even assuming courts can issue nationwide injunctions, they should only be issued in "the most exceptional of circumstances" as they are "beginning to take a toll on the federal court system"; prevent the crucial percolation of legal issues in the lower court system; "promote sprints to the courthouse and rushed judicial decisionmaking" on tight deadlines and with the weakest of records; and "wreak havoc on the executive's agenda" by "blocking the implementation of a federal policy", thereby "incentiviz[ing] immediate, emergency stay requests" — often ultimately to the Supreme Court.

"Government by injunction"

Turning to more practical considerations, and with stunning frankness, the circuit court, again, admits:

Perhaps most importantly, the growth of the nationwide injunction ... risks the perception of the federal courts as an apolitical branch. The availability of this sweeping remedy has enabled litigants to challenge nearly every major executive branch policy in federal court. In effect, nationwide injunctions have 'turn[ed] every individual plaintiff into a roving private attorney general,' ... which has, in turn, left the executive beholden to the whim of any single district judge, freed even from the constraints of collegial deliberation.

Unsurprisingly, given the enormous stakes associated with such lawsuits, plaintiffs seeking to block executive action via nationwide injunction are incentivized to forum shop with abandon. ... This patently political manipulation of the judiciary undermines the public's confidence in the federal courts and casts judges as advocates for their favored policy outcomes. [Emphasis added.]

Again, how many times have you heard people complain about "results-oriented" decisions out of the courts, in which "Republican" judges or "Democratic" judges issue decisions that suit their own whims and advance their own (unexpressed) agendas? Respectfully, there is a reason so many immigration litigants seek relief in the District of Maryland and the Northern District of California.

And, without saying so expressly, the Fourth Circuit admits as much, attempting to soften its criticisms by describing the District of Maryland as "a court that on its own terms and in its own right has earned the greatest respect".

The majority also notes that this system has created a scheme in which the government has to win every case brought against its policies, whereas "prospective plaintiffs need only find a single sympathetic audience of one in order to secure complete victory."

This result is akin (in concept, not effect) to the sentiments of the Irish Republican Army when it failed to kill then-British Prime Minister Margaret Thatcher in October 1984: "Today we were unlucky. ... But remember, we have only to be lucky once — you will always have to be lucky." The same is true of the Trump administration in district courts, and the Fourth Circuit recognizes that.

The circuit court, describing this as "nothing more than 'government by injunction'", predicts (aptly): "Among the greatest victims of this unfortunate practice will be the courts themselves." They already are — only this court has the self-awareness to admit it.

The Fourth Circuit saves the best for last, noting that CASA de Maryland ultimately "is not about the propriety of any policy, but rather about the power of the federal courts." It explains:

Immigration is a complex and controversial topic that arouses intense emotions on the part of many. On the one hand, immigration is indispensable to cultural diversity and national renewal, an economic engine that can serve to rejuvenate an aging workforce and to fulfill critical societal needs. On the other hand, it can in unrestricted numbers overwhelm the nation's capacity for assimilation and, if unlawful, undermine an indispensable sense of national sovereignty and a commitment to the rule of law. Where to strike the balance between these two valid and competing perspectives is no easy task — but a task that the Constitution principally assigns to the political branches.

Changes in the Fourth Circuit

This decision likely reflects some significant changes in the Fourth Circuit itself.

Keep in mind, this is the same court that issued International Refugee Assistance Project [IRAP] v. Trump (which I analyzed in a May 2017 post), likely one of the most self-serving, results-oriented decisions I have ever read — and a preliminary injunction case, itself.

That said, IRAP was an en banc decision (by the whole court), rather than a three-judge panel decision like Casa de Maryland. But, since IRAP, President Trump has subsequently appointed three judges to that 15-judge court.

While none of those new judges were on the opinion in Casa de Maryland (a Reagan and a George H.W. Bush appointee on the decision, with a Clinton appointee in the dissent), the court now has eight Republican-appointed judges, and seven Democratic-appointed judges (six by President Obama, alone).

Actually, to be fair, the judicial makeup of the Fourth Circuit is more balanced: seven, seven, and one split — Chief Judge Roger L. Gregory, given a recess appointment by President Clinton, was subsequently nominated by President George W. Bush (harkening back to a bygone era). Any circuit panel's decision risks en banc review, but the addition of new judges with new perspectives likely embolden the more senior members to simply state the truth — which the court did — and expect it to be upheld.

A Roadmap for the Supreme Court on Injunctive Relief

I earnestly hope that by restoring balance to the Fourth Circuit, the president has restored a sense of logic — and modesty — to it as well. We could soon find out, as the plaintiffs may well request en banc review. In the interim, however, the majority on the panel has provided a roadmap and a legal framework for the Supreme Court to follow in limiting the abuse of nationwide injunctions.

All that said, however, those who are cheering for such limitations may come to miss the status quo. Imagine that a future president issues immigration policies you don't like (the current one may likely have already done so). Forum-shopping for a pliable district-court judge to block that president's more extreme actions may not be an option for long — not if this court has its way.

For the good of the Republic, and the doctrine of separation of powers, let's hope so. Come what may.