Ninth Circuit Blocks 'Public Charge Rule' — with Limitations

But the court's language fails to clear up confusion about the rule

By Andrew R. Arthur on December 4, 2020

On Wednesday, the Court of Appeals for the Ninth Circuit in City and Cty. of San Francisco v. USCIS affirmed two preliminary injunctions of DHS's "public charge rule" issued by separate district courts within its jurisdiction, while limiting the nationwide scope of one of those injunctions (from the U.S. District Court for the Eastern District of Washington). Simply put, the circuit court enjoined the implementation of that rule in 18 states and the District of Columbia, while leaving it to its sister circuits to rule on other challenges elsewhere. The language used, however, was less than helpful in resolving the confusion among many about that rule.

I examined the rule (and prior interpretations thereof) in depth in an August 12 post, and the various injunctions of the rule (and stays thereof) on September 25. To summarize where the rule stood as of that latter date, it had been enjoined by the Second and Seventh Circuits (injunctions that were stayed by the Supreme Court in January and February, respectively), while injunctions had been stayed by a separate panel of the Ninth Circuit and by the Fourth Circuit. A subsequent injunction by the U.S. District Court for the Southern District of New York had also been stayed by the Second Circuit.

In the most recent Ninth Circuit opinion, two judges on the three-judge panel found that DHS's promulgation of the rule was "arbitrary and capricious" and contrary to law, and therefore in violation of the Administrative Procedure Act (APA). Specifically — in the court's opinion — DHS had "adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare."

It took a pass on whether the rule also violated the Rehabilitation Act — banning "discrimination on the basis of disabilities" — which had been a ground for the Seventh Circuit's opinion.

With respect to that "longstanding public policy", Wednesday's Ninth Circuit opinion examined how the term "public charge" had been interpreted from "from the Victorian Workhouse through" Clinton-era guidance issued in 1999 (Dickens' Oliver Twist got a shout-out in the first paragraph).

As noted, that opinion was not unanimous. Circuit-Court Judge Lawrence VanDyke offered a brief dissent, relying on the prior Ninth Circuit opinion, that of the Fourth Circuit, and the dissent (by then-Judge, now Justice Amy Coney Barrett) from the Seventh Circuit's opinion (which VanDyke deemed "particularly notable for its erudition").

In any event, the Ninth Circuit's latest opinion tees the matter up for another stay application by DOJ to the Supreme Court, which may or may not grant it. President-elect presumptive Joe Biden has come out against DHS's latest iteration of the rule, so it is doubtful that the next attorney general will vigorously defend it — or defend it at all. That will likely mean the end of DHS's regulations interpreting the rule in the not-too-distant future.

Interestingly, however, Wednesday's opinion referenced the Supreme Court's decision in an indecency case (FCC v. Fox Television Stations, Inc.) for the proposition that: "An agency reversing a prior policy must show that there are good reasons for the new policy and provide a reasoned explanation for disregarding facts and circumstances that underlay or were engendered by the prior policy." (Internal punctuation omitted.) That precedent may hinder any future administration's attempts to undo regulatory changes or policy determinations of the current administration.

It is difficult to say, however, just how that Supreme Court opinion would affect attempts to undo the current public-charge rule, given the uncertainty (to say the least) of its viability in the face of numerous court challenges. On other immigration-related questions, however, simple reversal by a new administration may not be so simple.

Respectfully, though, the Ninth Circuit could — and should — have been more precise in its use of language in its opinion, which would have dispelled confusion over the applicability of the public-charge rule. I refer (as Judge VanDyke did) to the dissent of then-Judge Barrett in the Seventh Circuit case, Cook Cty. v. Wolf, by way of comparison.

As she explained:

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 forgoing 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. [Emphasis added.]

That is an extremely apt summary — akin to a "public service announcement". Regrettably, however, the Ninth Circuit did not follow her lead. The words "non-immigrant" or "nonimmigrant" do not appear anywhere in its 47-page opinion, nor is there any practical assessment of how the public charge rule applies (or not) to "immigrants" already in the United States — as opposed to "nonimmigrants" on the one hand and naturalized citizens on the other.

Instead, that opinion refers to "non-citizen(s)" largely when referring to aliens generally. In fact, the word "alien" only appears six times in that opinion — five times in quotes or direct references from elsewhere, and once in the summary that was prepared by court staff (and which plainly states "constitutes no part of the opinion of the court").

Regrettably, this is part of a larger trend. "Alien" is a legal term defined in section 101(a)(3) of the Immigration and Nationality Act (INA) ("any person not a citizen or national of the United States"). In section 101(a)(15) of the INA, "immigrant" and "nonimmigrant" are defined as well: "'[I]mmigrant' means every alien except an alien who is within one of" various paragraphs and subparagraphs defining "classes of nonimmigrant aliens".

The term "non[-]citizen" is not a legal term, nor is it a harmless euphemism, as the INA does not apply in the ordinary course to nationals of the United States (defined in section 101(a)(22) of the INA) who are not also citizens of this country. But, as the otherwise helpful quote from Barrett shows, it has become the go-to phrase in judicial opinions where courts mean "alien". No wonder there is "confusion surrounding the public charge rule".

One could contend that this is part of a trend to elide and thereby eliminate the differences between citizens and nationals on the one hand and aliens on the other (which is likely in some instances true).

But consider what federal courts do in assessing whether the executive branch has faithfully carried out Congress's statutory directions (the essence of the Ninth Circuit's opinion). They look at the actual words in the INA and assess how the executive's actions conform to the meaning of those words. Put plainly, if you are going to cite Dickens for a legal proposition, you should at least quote Congress, too.

Sometimes, courts let this pretense slip. In the recent oral argument in Trump v. New York — better known as the "census case" — the words "illegal alien" were used one or more times by Chief Justice Roberts, Justice Thomas, Justice Breyer, Justice Sotomayor, Justice Barrett, and Justice Alito.

As an aside, Alito and Thomas have bucked the "noncitizen" trend, most recently in the Court's June opinion and Thomas's concurrence in Thuraissigiam v. DHS, and Roberts did as well in DHS v. Regents (the June DACA case), as did Breyer in Guerrero-Lasprilla v. Barr, in March.

Returning to the oral argument, it could be argued that those justices used the term "illegal alien" because they were interpreting a presidential memorandum that used it, as well. But Justice Kavanaugh stuck to his script and used "non-citizen" to mean "alien" exclusively.

And, consistent with his judicial philosophy of originalism, Justice Thomas asked DOJ Acting Solicitor General Jeffrey Wall to "give us your idea of what the President means generically by 'illegal alien.'" Like "noncitizen", "illegal alien" is shorthand — not a term defined in the INA. Using the correct language is what courts are supposed to do — and Thomas did.

In any event, the implementation of the public charge rule is now enjoined in 18 states and D.C. The Supreme Court may stay that injunction as it has others, but may not. In the near future, it will likely not make much difference if the incoming administration halts its defense of the rule and pulls it. That latter part may not be as easy as it sounds — and may not be for other Trump administration immigration regulations and policies either.