The Supreme Court agreed last week to decide whether the state of Arizona will be allowed to replace the federal government as defenders of the Trump-era public-charge rule. It’s a small but welcome step for those of us who see the Biden administration’s instant revocation of the Trump rule as a lawless maneuver designed to evade the Administrative Procedure Act.
The background section below is an abbreviated version of the story I told in The National Interest back in April. It’s recommended for anyone interested in understanding how immigration advocates team up with judges to frustrate enforcement. I discuss new developments afterward.
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. 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.
Several states have sought to “intervene” in the case, meaning replace the AWOL federal government as defendants. In April the Supreme Court told a group of states led by Texas that they had to take their motion to intervene back to the district court first, effectively punting on the issue. But now the state of Arizona has worked its way through a separate line of lower-court cases and offered its own petition to intervene. The Supreme Court last Friday agreed to decide whether the state can do that.
Arizona’s 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, the Supreme Court may (eventually) proceed to the merits and find that Trump’s public charge rule is legal. Such a ruling would render Biden’s instant revocation of the rule plainly not legal. Trump’s rule would be back in force until the Biden administration completes the lengthy regulatory process that is required to replace it.
It’s frustrating that the Supreme Court agreed to consider only the motion to intervene rather than the merits of the case at this time as well. Even if Arizona wins the right to intervene, it will be some time before it is back to the Supreme Court to debate the legality of the Trump rule, and Biden’s proposed rule may be in force by then. Nevertheless, a ruling in favor of intervention will at least discourage future lawless conduct by the executive branch. Presidents are not allowed to simply disappear any regulation they don’t like, and the Supreme Court has a duty to say so.