A federal appeals court in New York has refused to set aside a nationwide block on a new “public charge” rule, which restricts the eligibility of new immigrants who are deemed to likely become “public charges” to obtain visas.
“Oral argument will be scheduled promptly thereafter,” the judges said in the order. “As always, the merits panel as soon as constituted has full authority to consider the scope of the existing injunction.”
The White House did not immediately respond to our request to comment, while the Justice Department declined to comment. Meanwhile, the media office of New York Attorney General Letitia James, who led a group of states to oppose the rule in one lawsuit, did not immediately respond to our request to comment.
Ninth Circuit Ruling
In early December last year, the Ninth Circuit ruling stayed two preliminary injunctions, ruling 2-1 that Congress did not provide direction on how the phrase “public charge” should be interpreted and the DHS has the discretion to do so, within its authority.“Yet Congress chose not to define ‘public charge’ and, instead, described various factors to be considered ‘at a minimum,’ without even defining those factors. It is apparent that Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of ‘public charge’ as necessary,” they added.
Judge John Owens, an Obama appointee, dissented, saying that he would leave the injunctions in place while the appeals court reviews the case, while factoring in a number of considerations such as the “lack of irreparable harm to the government at this early stage” and “opaqueness of the legal questions.”
Meanwhile, Bybee wrote an additional reasoning, pointing out that Congress had not fulfilled its responsibilities.
“By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress,” Bybee wrote.
“And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges,” he continued. “Yet we have seen little engagement and no actual legislation from Congress.”
“It is time for a feckless Congress to come to the table and grapple with these issues,” he added. “Don’t leave the table and expect us to clean up.”