Arizona Attorney General Mark Brnovich urged a seemingly sympathetic Supreme Court on Feb. 23 to allow a group of 13 states to defend the so-called public charge rule that screens out potentially government-dependent immigrants, after the Biden administration declined to do so.
The public charge rule, which had fallen into disuse, was revived by the Trump administration in 2019, over vehement left-wing opposition. The rule allowed the U.S. government to reject would-be immigrants who were deemed likely to consume public benefits such as food stamps, housing aid, and Medicaid.
The Biden administration changed course, dropping the immigrant self-sufficiency rule, though it announced recently that it was drafting a new version.
“Through it, they attempted to execute simultaneous, strategic surrenders in all pending appeals involving the Rule. That included the Second Circuit appeal that this Court had already agreed to hear, as well as the pending petitions for writs of certiorari in this case and the Seventh Circuit case.”
In addition to Brnovich of Arizona, the attorneys general of Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, and West Virginia are also petitioners in the case. According to Brnovich, the rule saved the states, collectively, more than $1 billion per year–a figure the Biden administration disputes; killing the rule would reimpose these costs on the states.
Brnovich told the justices during oral arguments that the Biden administration had unlawfully stopped enforcing the Trump administration’s rule after the U.S. Department of Justice “had spent more than a year successfully fighting the rule’s challengers in four different circuits.”
“Every injunction against the rule had been stayed, and this very court had granted certiorari,” agreeing to consider the rule, Brnovich said.
“But the new Biden administration suddenly abandoned its defense of the rule” and “coordinated with the rule’s challengers, and dismissed the granted petition by this court, all of the pending appeals in the lower courts as well, and it left one final nationwide injunction against the rule in place.”
The Biden administration rescinded the rule without participating in the normal notice-and-comment rulemaking, he said, but “within days of these legal maneuvers, Arizona and other states tried to intervene in ... every circuit court to defend the rule.”
In the case at hand, the U.S. Court of Appeals for the 9th Circuit denied intervention “without any reasoning.”
Responding to Justice Clarence Thomas, Helen H. Hong of the California solicitor general’s office said the case shouldn’t go forward because “there is no rule to litigate.”
“There’s nothing that the 9th Circuit can do to restore the rule, so the petitioners’ motion really achieves nothing of significance. That’s why we think that petitioners’ motion was properly denied in the court of appeals here in the 9th Circuit,” she said.
Principal Deputy U.S. Solicitor General Brian H. Fletcher said the states are wrong.
“The 2019 public charge rule did not regulate or confer any rights on the petitioner states,” he said. “Instead, petitioners assert an indirect economic interest in the rule’s downstream consequences.”
“The states do not have a legally protectable interest in preserving” that indirect effect, Fletcher said.
Congress decided to leave it to the Department of Justice “whether to seek further review of decisions against the United States.”
The 9th Circuit “did not abuse its discretion in declining to allow petitioners to prolong appeals that no longer have any practical consequence. And petitioners’ criticisms of the government’s litigation conduct do not call for a different result.”
Justice Elena Kagan took Fletcher to task for the Biden administration skipping the notice-and-comment process when rescinding the rule, instead of seeking input from states and interested parties as it is supposed to do when changing a regulation.
“The government doesn’t have to come up here and defend something that it no longer believes in,” Kagan said. “The real issue to me is the evasion of notice and comment.”
The Supreme Court “shouldn’t be green-lighting that behavior,” she said.
Addressing Fletcher, a sarcastic Justice Samuel Alito said: “I 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 to effect the removal of the issue from our docket, and to sidestep notice-and-comment rulemaking.
“I’m not aware of a precedent where an incoming administration has done anything quite like this.”
Chief Justice John Roberts told Fletcher the federal government here made it easier for future administrations to short-circuit the legally required regulatory process.
The administration provided “really quite a license for collusive action for any incoming administration to change rules that were enacted pursuant to the APA [Administrative Procedure Act] and, therefore, can only be repealed under the APA. It’s a way to avoid that burden across the board.”
