The US Supreme Court heard oral argument Wednesday in a dispute over whether a group of states, led by Arizona, can intervene to defend an immigration policy known as the “public charge” rule after the Biden administration declined to do so.
Under the “public charge” rule, also known as 8 USC § 1182(a)(4)(A), the government may deny noncitizens admission or adjustment to immigration status if they are likely to become public charges. Between 1999 and 2019, public charges were defined as individuals likely to receive cash assistance for income maintenance or institutionalization for long-term care at government expense. However, in August of 2019, the Trump Administration issued a final rule further defining public charges after notice-and-comment rulemaking. The rule altered the definition of public charges to now mean someone more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36 months.
The rule change caused discord in several states. Multiple states sought preliminary injunctions in the Second, Fourth, Seventh, and Ninth Circuits, alleging that they were injured when noncitizens, confused by the rule’s implications, unenrolled unnecessarily from state public benefits. The Ninth Circuit stayed the injunctions issued in its circuit, while the Second and Seventh Circuits denied the stays.
In March 2021, the US Department of Homeland Security announced that it would no longer appeal court rulings enjoining the 2019 rule’s enforcement. As a result, the Seventh Circuit granted the federal government’s motion to dismiss Cook County v. Wolf, a case pertaining to the enforcement of the 2019 rule. This dismissal led to the Department of Homeland Security announcing that the Cook County v. Wolf ruling, which vacated the 2019 rule, would be in effect nationwide and that the 1999 rule would control.
In response to this, fourteen states collectively filed motions to intervene, arguing that because the US announced its intuition to stop defending the rule and the cases were dismissed so abruptly after the announcements, the states were going to defend the rule themselves. The Fourth and Seventh circuit dismissed the fourteen states’ motions, and the Department of Homeland Security issued a final rule removing the 2019 rule.
In June, Arizona and twelve other states filed a petition for writ of certiorari in the Supreme Court. The Court granted certiorari.
During oral arguments on Wednesday, several justices seemed troubled by the Biden Administration’s decision and the prospect that the states may be left without additional options in an effort to defend the legitimacy of the rule. Justice Samuel Alito described the Biden Administration’s move to take the original challenge to the 2019 rule off of the Supreme Court’s docket as “military precision.” He emphasized how “novel” the administration’s conduct was. Justice Elena Kagan seemed sympathetic to this idea but also appeared skeptical to allowing the Republican-led states to intervene in the Ninth Circuit as a solution.
Justices Sonia Sotomayor and Stephen Breyer also pushed back on the idea that Arizona and other Republican-led states had the right to intervene because, according to the justices, this does not affect them. Sotomayor stressed that the preliminary injunctions that the Ninth Circuit upheld did not bar the federal government from enforcing the 2019 rule in any of the states that are now trying to intervene in the Ninth Circuit.
A decision in the case is expected by summer.