Yesterday the Supreme Court heard the case of Arizona v. San Francisco, part of an attempt by the state of Arizona to preserve the Trump-era public-charge rule until the Biden administration formally replaces it. There was cross-ideological sympathy on the Court for the state’s complaint that, by summarily dropping Trump’s public charge rule, the administration has improperly evaded the notice-and-comment process required by law. However, the oral argument became so bogged down in procedural matters that it’s difficult to predict an outcome.
This case has a complicated history, but it’s worth studying to understand how effectively immigration advocates team with federal courts to frustrate enforcement. Even Justice Alito yesterday felt moved to “congratulate whoever it is in the Justice Department or the executive branch who devised this strategy and was able to implement it with military precision.”
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 wanted to eliminate Trump’s rule, it should have followed the rule-changing process specified by the Administrative Procedure Act (APA). 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 stood, 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.
Arizona and other states are seeking to “intervene” in the various lower-court cases, meaning replace the AWOL federal government as defendants. Their goal is to force the Biden administration to follow proper regulatory procedures rather than let one federal judge make policy for the entire nation. If Arizona is allowed to intervene, it might (eventually) secure the repeal of the lower-court injunctions against the Trump rule. Such a repeal would render Biden’s instant revocation of the rule plainly illegal. Trump’s rule would be back in force until the Biden administration completes the lengthy regulatory process that is required to replace it.
Yesterday’s Supreme Court Hearing
The sole question presented in Arizona v. San Francisco is whether Arizona has the right to intervene, and the state needs to win this Supreme Court case in order to have any hope of proceeding with its grander plans to reinstate the Trump rule.
First, the good news for Arizona. Alito pointed out, and the Biden administration lawyer conceded, that there are no formal rules that govern the right to intervene at the appellate level. The justices are entitled to consider the balance of the equities — i.e., to make a subjective decision about what they think is best in this case.
To that end, several justices, most notably Justice Kagan, were clearly uncomfortable with the administration’s end-run around the APA: “The real issue to me is the evasion of notice and comment,” she remarked. “And, I mean, basically, the government bought itself a bunch of time where the [Trump] rule was not in effect.”
Chief Justice Roberts added that “we have to think long and hard before adopting a rule that allows anybody, any administration, to circumvent notice-and-comment rulemaking before the repeal ... of a rule.”
Now the bad news for Arizona. The argument was mired in procedural issues. Arizona’s Attorney General, Mark Brnovich, was peppered with various accusations that he should have intervened in a different circuit, should have intervened earlier, or should have filed an APA claim instead of an intervention motion. His responses often fell back on unsatisfactory talking points. At least three justices, probably including Kagan, seemed prepared to dismiss Arizona’s case on procedural grounds. Meanwhile, Justice Kavanaugh focused on a possible compromise path, while only Alito seemed all-in for Arizona.
The outcome is anyone’s guess, but time could be running out either way. The Biden administration has already proposed a new regulation to replace the Trump rule. When the Biden rule is finalized, it will be difficult for Arizona to continue its litigation. Nevertheless, securing a ruling in favor of intervention may at least discourage future shenanigans by the executive branch.