Back to the District Court for Defenders of the Public Charge Rule

By Jason Richwine on April 27, 2021

The Supreme Court on Monday told a group of states seeking to defend the public charge rule to make their arguments at a district court first, then appeal to higher courts if necessary.

We are following this case closely not only because the public charge rule is an important part of U.S. immigration policy, but also because it’s an egregious example of judicial-bureaucratic mischief. My recent article in The National Interest tells the full story, but the Cliffs Notes version is below.


Federal law bars applicants who are “likely at any time to become a public charge” from receiving a visa or becoming a permanent resident. The Trump administration issued a regulation that defined a public charge more broadly than did the informal Clinton-era guidance that DHS had been relying on. In response, immigration advocates kept suing until they found a judge who would issue a nationwide injunction against Trump’s rule. The Supreme Court lifted that injunction while the case worked its way through the lower courts, and that’s where things stood when Joe Biden assumed the presidency.

Since the Biden administration opposes Trump’s rule, it should follow the rule-changing process specified by the Administrative Procedure Act. That would mean a full notice-and-comment period in which the administration would have to justify its rule change, and any such change would be subject to judicial review.

That’s not what happened. 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.” The Supreme Court was almost certainly going to uphold Trump’s rule as legal, since it had already lifted the nationwide injunction. Nevertheless, because Biden pulled out of the litigation, the ruling of the lower court stands, and the old Clinton-era guidance immediately went back into force. Only one lower-court ruling against the public charge rule was needed for the Biden administration to do an end-run around the rulemaking process. And if a future administration wants to reinstate the public charge rule, the process must start all over again, inevitably followed by more nationwide injunctions.

A group of states led by Texas sought to “intervene” in the case, meaning replace the AWOL federal government as defendants. If they can intervene, the public charge rule could be preserved until the Supreme Court issues a final decision on the merits. And if the Court ultimately okays the rule, it would force the Biden administration to follow proper regulatory procedures rather than let one Illinois judge make policy for the entire nation.

The Supreme Court’s Order

On Monday the Supreme Court rejected the states’ petition to intervene, but only on the grounds that the states’ arguments should be heard at the district court first:

In 2019, the Department of Homeland Security promulgated through notice and comment a rule defining the term “public charge.” The District Court in this case vacated the rule nationwide, but that judgment was stayed pending DHS’s appeal to the United States Court of Appeals for the Seventh Circuit. On March 9, 2021, following the change in presidential administration, DHS voluntarily dismissed that appeal, thereby dissolving the stay of the District Court’s judgment. And on March 15, DHS relied on the District Court’s now-effective judgment to remove the challenged rule from the Code of Federal Regulations without going through notice and comment rulemaking.

Shortly after DHS had voluntarily dismissed its appeal, a group of States sought leave to intervene in the Court of Appeals. When that request was denied, the States filed an application for leave to intervene in this Court and for a stay of the District Court’s judgment. The States argue that DHS has prevented enforcement of the rule while insulating the District Court’s judgment from review. The States also contend that DHS has rescinded the rule without following the requirements of the Administrative Procedure Act.

We deny the application, without prejudice to the States raising these and other arguments before the District Court, whether in a motion for intervention or otherwise. After the District Court considers any such motion, the States may seek review, if necessary, in the Court of Appeals, and in a renewed application in this Court. [Emphasis added.]

The order is a mixed bag for defenders of the public charge rule. On one hand, the Court could have confronted the case today rather than send it back down. Indeed, when the Ninth Circuit rejected one of the states’ petitions, a dissenting judge suggested multiple ways in which the Supreme Court could provide relief. On the other hand, the Court could have denied the states’ petition with no comment at all. The fact that it reiterated the states’ concerns (in bold above) and suggested a different path forward is a positive sign. Perhaps the justices do want to reinstate the public charge rule — eventually.