Judges to hear complaints from GOP-led states over Biden’s refusal to defend legality of Trump-era immigration rule
By Amy Howe
February 22, 2022
at 8:13 p.m.
On Wednesday, the Supreme Court will hear oral argument in a dispute over whether a group of states, led by Arizona, can defend a controversial Trump-era immigration policy known as the Rule of “public charge” after the Biden administration refused to do so. The pleading in Arizona v. City and County of San Francisco comes less than a week after judges agreed to decide during the current term whether the Biden administration should continue with another controversial Trump-era immigration policy known as the ‘stay in Mexico’ policy. which forces asylum seekers to stay in Mexico while they await a hearing in US immigration court.
The 2019 rule that Arizona (along with 12 other states with Republican attorneys general) wants to step in to defend expanded the definition of “public charge,” an immigration law term for people who are ineligible to a green card if the government feels that they are likely to depend too much on government assistance. Several challenges to the new rule followed, and three different federal appeals courts ruled in favor of the challengers in those cases. The judges agreed in February 2021 to review a decision by the United States Court of Appeals for the 2nd Circuit. But weeks later, the Biden administration — which had pledged to untie the Trump policy and was unwilling to defend its legality — told the court that it and the challengers had agreed to drop the case, along with two others with the same question.
Shortly after, relying on an Illinois district court ruling that struck down the rule, the Biden administration removed the rule from the federal register. The administration at the time did not follow the so-called notice-and-comment process, which provides stakeholders with an opportunity to provide feedback on policy changes. A notice and comment period is generally required when a jurisdiction seeks to rescind a regulation issued by a previous jurisdiction.
In April 2021, judges rejected an attempt by Republican-led states to immediately revive the 2019 rule. However, the court left open the possibility that states could return to lower courts to argue that the Biden administration had acted improperly in his attempt to quickly drop the rule.
States have done just that. They attempted to intervene in the litigation in the United States Court of Appeals for the 9th Circuit, hoping to defend the rule there in an effort to have it reinstated. States say that without the rule in place, more immigrant families are likely to rely on programs like Medicaid, increasing costs for states. Opponents of the rule say that while it was in place, the rule stoked fear in immigrant communities and caused many people who were not even subject to the rule to shun all forms of violence. public benefits.
The 9th Circuit rejected Arizona’s attempted intervention, following a dissent from Judge Lawrence VanDyke. VanDyke called the Biden administration’s conduct “utterly extraordinary.” The administration, he wrote, “did not simply stop defending the previous administration’s rule and ask the courts to stay legal challenges.” Instead, he pointed out, the administration put in place “a plan to end the rule instantly with extreme prejudice.”
Arizona returned to the Supreme Court, this time asking the justices to review the 9th Circuit’s decision. The judges agreed to rule on whether Arizona had the right to intervene to defend the 2019 rule, but declined to rule on the validity of the rule itself or whether overturn the lower court’s decision prohibiting the government from enforcing it.
Arizona and the other states insist they have the right to step in to defend the 2019 rule and that the 9th Circuit’s ruling preventing them from doing so is “completely unreasonable.” Because the 2019 rule would save states about $1 billion each year, Arizona says, they have “obvious interests to protect” in order for the public charge rule to stand. Forcing them to intervene earlier in the litigation “would lead to glaring inefficiencies,” Arizona warns: States would try to intervene in challenges to agency actions they supported whenever a change in administration was imminent. The best course of action, suggests Arizona, would be to wait and allow intervention when it becomes clear that the new administration will no longer defend the rule.
Because states cannot regulate immigration on their own, Arizona argues, barring them from intervening in cases like this “effectively precludes one of the few (or only) ways for states to protect their interests”. Without states like Arizona in the case to defend the rule, Arizona observes, the Biden administration and the challengers agreed to dismiss the litigation, allowing the administration to strike down the rule. The federal government clearly failed to represent the interests of the states, as shown by its decision to stop defending the rule and later opposing Arizona’s intervention efforts. And the states could not have protected their interests through the rulemaking process, Arizona argues, because the administration did not follow the traditional practice, used by previous incoming administrations, of seek to “stay pending litigation challenging the notice and comment rules they provide”. to be repealed through new regulations. Instead, Arizona notes, the Biden administration dismissed all pending appeals and reinstated district court rulings; he later overturned the rule based on the district court judgment.
Even if Arizona and the other states had no right to intervene, Arizona continues, the appeals court should have allowed them to do so anyway. After all, Arizona reasons, they made their request in a timely manner, and they want to intervene so they can argue that the 2019 rule is valid, which is the crux of the matter.
The case is also not debatable, adds Arizona. There was a live dispute when the states first tried to intervene in the case, and the case is still not moot, either because the appeals court could uphold the rule of 2019, or because it could overturn lower court rulings that struck down the rule. And if states are allowed to intervene, Arizona writes, they will seek to have district court rulings overturned or set aside, which would force the Biden administration to reinstate the rule until it repeals it by rule-making by notice and comment. (The administration recently started this process.)
The federal government along with a group of majority Democratic-led states and two local governments are defending the 9th Circuit’s decision. (Democrat-led states and localities were among the earliest challengers to the 2019 rule.) States (California-led) and local governments (City and County of San Francisco and Santa Clara County, Calif. ) echo a common theme: Arizona and other Republican-run states have no right to intervene because, in practice, this case does not affect them. First, California says, the preliminary injunctions the 9th Circuit upheld, blocking the application of the 2019 rule, did not apply to any of the states now seeking to intervene. Second, the real source of any harm to Arizona and other states would be the Illinois federal district court ruling that struck down the 2019 rule, prompting the Biden administration to strike down the rule. As a result, even if Arizona were allowed to intervene in this case and the 9th Circuit’s decision were reversed or reinstated, the 2019 rule would still not be reinstated.
With respect to Arizona’s argument that even though it does not have the right to intervene, it should nevertheless be allowed to do so, California and local governments point out that the decision to authorize the Intervention is “entirely discretionary” and can only be undone when she was clearly wrong. Contrary to Arizona’s argument that the Biden administration’s conduct was “unprecedented,” California and local governments say the administration simply decided that “continuing to defend the public charge rule n was neither in the public interest nor an efficient use of government resources”. “launched a new rule-making process to remedy the infirmities identified by the court.” Notably, the Biden administration has solicited comments from groups likely to be interested in the rule — which Arizona and other Republican-run states have not provided.
Like California and local governments, the Biden administration agrees that Arizona and other states have no right to intervene in this matter (or, indeed, the administration seems to suggest, any further challenge to the 2019 rule). To do that, argues Solicitor General Elizabeth Prelogar, Arizona would have to show a vested interest in the case. Prelogar rejects the states’ suggestion that they would benefit indirectly if the 2019 rule were reinstated because fewer people would use state welfare programs, freeing up money that states could use elsewhere, as “highly speculative.” But in any event, continues Prelogar, allowing anyone who has suffered indirect economic damage to intervene “would be totally impractical”. For example, she observes, the 2019 rule would affect a wide range of entities — from state and local governments to health care providers, grocery stores, landlords and drug companies.
The Biden administration also rejects Arizona’s claim that it and other states should be allowed to intervene because the federal government chose not to seek further review after the rule was overturned. These types of decisions, Prelogar points out, “are hardly unprecedented.” But these are complicated decisions that Congress and the executive branch have entrusted to the solicitor general, she notes. Allowing states to intervene in a case like this would override those decisions and give states the power to appeal decisions against the federal government, Prelogar writes.
This article has been originally published at Howe on the Court.