The National Interest, April 6, 2021
Department of Homeland Security (DHS) Secretary Alejandro Mayorkas recently teamed up with a lower-court judge to perform an act of bureaucratic magic — they made the public charge rule disappear. The instant demise of one of the Trump administration’s signature policies illustrates how immigration advocates have so effectively allied with the judiciary to frustrate enforcement.
Some quick background: Refugees and others admitted for humanitarian reasons are allowed to access government benefits immediately. However, ordinary immigrants applying for family- or employment-based visas are supposed to be self-reliant. To help ensure self-reliance, federal law bars applicants who are “likely at any time to become a public charge” from receiving a visa or becoming permanent residents.
Until the Trump administration, no formal regulation defined a public charge. DHS had been relying instead on Clinton-era guidance that specified only cash welfare and long-term institutional care as assistance that could render someone a public charge. Receiving other forms of welfare was allowed under the theory that immigrants had to be “primarily” dependent on government benefits to count as public charges.
The “primarily” interpretation lacked statutory support. In the same year that it reiterated the public charge exclusion, Congress declared “a compelling government interest ... that aliens be self-reliant.” People who rely even partially on means-tested anti-poverty benefits are not “self-reliant” by any reasonable definition of that term.
Under President Trump, DHS issued a formal regulation aimed at better aligning the public charge exclusion with the goal of self-reliance. Under the final rule, the government would consider the likelihood of receiving not only cash payments and long-term care, but also food stamps, housing assistance, and Medicaid. The rule change was sensible. In fact, it should have gone further to include additional benefits, such as the refundable portion of the EITC.
A flurry of litigation ensued. In keeping with the forum-shopping strategy they cultivated during Trump’s tenure, immigration advocates filed lawsuits against the public charge rule with several different courts across the country, hoping to find a district judge who would issue a nationwide injunction. Eventually they found one, and the administration had to appeal the injunction to the Supreme Court. In January 2020, the Court lifted the injunction by a 5-4 vote, allowing the rule to go into effect while the litigation continued. In concurring with the majority, Justice Neil Gorsuch lamented that when any judge can issue a nationwide injunction, the government needs to win every time, while the plaintiffs need to win only once:
There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. ... [T]here is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. ... And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice — possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. [Citations omitted.]
Note the phrase “until ... one side gives up” in the justice’s last sentence, as that will be important later.
Despite the ongoing litigation in lower courts throughout 2020, supporters of the public charge rule had reason for optimism. It seemed that the merits of the case would eventually reach the Supreme Court, and the fact that five justices had previously lifted the injunction was a strong sign that they would rule for the government on the merits as well. Even if one of the five switched sides, some backup came in the form of new Justice Amy Barrett. As a Seventh Circuit judge in 2019, she had dissented from her panel’s ruling against the public charge rule. After she was promoted to fill the seat of the late Justice Ginsburg, there were likely six votes on the Supreme Court to preserve Trump’s rule.
Some optimism remained even after the election of Joe Biden to the presidency. Although the Biden administration would surely oppose the public charge rule, getting rid of it would not be so easy. The new administration would need to go through the entire rulemaking process again, including a notice and comment period, and it would need to offer a compelling reason under the Administrative Procedure Act to make the change. Supporters of the public charge rule anticipated a “sauce for the goose, sauce for the gander” situation in which they would do their own judge-shopping to secure an injunction against Biden’s attempt to get rid of it. No matter what happened in the end, it was going to be a fight.
Or so it was thought. On March 9, Trump’s public charge rule disappeared, not with a bang but with a whimper. How did it happen? Biden’s administration simply declined to continue Trump’s appeals of lower-court rulings. Biden told these courts, in effect, “Oh, you’re right. You got us. The public charge rule is illegal. We give up.” Keep in mind that the Supreme Court was almost certainly going to uphold Trump’s rule as legal. Nevertheless, because Biden pulled out of the litigation, the rulings of the lower courts stand, and the old Clinton-era guidance is back in force. Also keep in mind that, although multiple cases were pending, only one lower-court ruling against the public charge rule was needed for the Biden administration to pull off this trick. One lower court can effectively overrule the Supreme Court.
It gets worse. If a future administration that is committed to immigration enforcement wants to reinstate Trump’s public charge rule, the process must start all over again. And, as The National Review’s Ed Whelan has pointed out, the fact that Trump’s rule has been deemed illegal will weigh heavily on any attempt to bring it back. The lawsuit from immigration advocates practically writes itself.
There is still a way out of this mess. A coalition of 14 states is seeking to “intervene” in the case, meaning to become the defendants in place of the federal government. If the Supreme Court grants their petition, the case may eventually proceed to the merits, forcing the Biden administration to go the route of conventional rulemaking rather than magic tricks.
Unfortunately, the Roberts Court has at times taken a minimalist approach, bordering on passivity. One can imagine the Court quietly rejecting the states’ petition, perhaps without comment at all. Hopefully that doesn’t happen. Lower courts should not be able to overrule the Supreme Court, and the executive branch should not be able to do an end-run around the regulatory process. The time is ripe for the Court to assert itself.