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High court headwinds ruffle red states fighting to revive immigration deterrent

No one was safe from the ire of the justices during oral arguments on Wednesday morning as they peppered Republican-led states and the Biden administration over the rescission of a controversial Trump-era immigration rule and the ensuing challenge to revive it. 

Known as the public-charge rule when it was adopted in 2019, the policy denies permanent U.S. residency to any immigrant at risk of becoming dependent on government assistance. Litigation challenging the rule sprang up around the country, occupying suits in five district courts in four circuits, all of which determined that the rule was likely unlawful. Each of the district courts entered preliminary injunctions against the law in October 2019, barring it from taking effect. The Trump administration applied for and secured stays on the injunctions from the Fourth and Ninth Circuits, greenlighting the rule to begin implementation in February 2020. 

That implementation nevertheless proved short lived after President Joe Biden directed his administration upon taking office to review the public charge rule. While the Supreme Court had been set to hear arguments on injunctions on the policy issued by the Southern District of New York, it dismissed the case when the Biden administration announced it would not be in the public interest to continue defending the rule. The government filed additional motions to dismiss other related cases in the lower courts. 

In the case before the high court on Wednesday, it is not the policy itself but its termination that is at issue. It pits the government on one side against a group of 12 states not involved in the previous litigation.

Arizona, leading the pack, claims it has a basis to intervene — something the Ninth Circuit denied.

“The Ninth Circuit's refusal to let Arizona and other states intervene to defend the public charge rule tapped an unprecedented effort by the United States to unlawfully disregard a prior administration's rule,” Arizona Attorney General Mark Brnovich said in arguments this morning. 

Brnovich did not respond to requests for comments after the hearing, which saw many of the justices appearing to credit the Biden administration, that its actions did not mark a change in precedent. 

“Let me just interrupt — you’ve used that word a lot — it's very much not unprecedented, as Justice Thomas says, for the government to acquiesce in an adverse judgment invalidating a rule,” said Justice Brett Kavanaugh, who is himself a Trump appointee. “That is not unprecedented at all.” 

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The justices also took issue with the argument that the Biden administration did something erroneous by changing positions on a policy from the Trump administration.  

“One administration is not obliged to defend the rule adopted by the prior administration,” said Justice Amy Coney Barrett, another Trump appointee. “The Biden administration was entitled to change positions.” 

Seemingly confused with the states’ motive in the current suit, the justices repeatedly questioned why Arizona would not be pursuing relief under the Administrative Procedure Act.

“I'm not sure what your interest is,” Justice Sonia Sotomayor said. “First of all, the preliminary injunction didn't run against you, correct? So as far as you were concerned, outside of the Seventh Circuit's injunction, there was no preliminary injunction against enforcement of the rule in your jurisdiction.” 

The Obama appointee continued, referring to the Administrative Procedure Act: “Didn't you have the right to file an APA action in the appropriate D.C. court fighting the fact that they had improperly rescinded the rule?” 

On this point — whether the government’s process of rescinding the rule was improper — the justices turned their attacks on the government. When the Biden administration got rid of the public charge rule, it did not follow the typical notice and comment process. 

“The government doesn't have to come up here and defend something that it no longer believes in,” Justice Elena Kagan said. “The real issue to me is the evasion of notice and comment.” 

The Obama appointee continued, “We shouldn't be green-lighting that behavior for your administration or any other administration.” 

Chief Justice John Roberts also challenged the government on this point, pondering what their ruling could mean for future administrations. 

“I'm questioning the ease with which a decision in your favor will make it for the incoming administration to avoid notice and comment review,” the Bush appointee said. 

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Disagreeing with the justices’ characterization that the government circumvented the comment and rule process, Brian Fletcher, principal deputy solicitor general at the Department of Justice, urged the justices to not treat the case differently because of the controversy surrounding it. 

“There are a bunch of decisions of DOJ deciding not to seek further review of decisions vacating the rule; you could call each of those circumventing the APA if you wanted to because they have the same effect of taking a notice and comment rule off the books without the opportunity for further notice and comment,” Fletcher said. “I think it's hard. I understand that because this is a change-of-administration thing, this was a controversial case. There's a temptation to view it differently, but I don't think we can have different principles of intervention for what petitioners in the reply brief called run-of-the-mill cases where the government decides not to seek further review and different rules for intervention for cases that are have attracted a lot of controversy.” 

The government attacked Arizona’s claims that adjusting the citizenship status of immigrants would have financial consequences for states. 

“During the year that the 2019 rule was in effect, we know that it affected only about five of the approximately 50,000 adjustment of status applications for which it was applied, for about 0.0001%,” Fletcher said. “The states do not have a legally protectable interest in preserving that negligible indirect effect.” 

Fletcher urged the justices to view this case outside of the case proceeding in the Seventh Circuit. 

“What you shouldn't do is do what they're asking you to do, which is sort of decide this case as a way of telling the Seventh Circuit what to do in that case — which presents different issues and additional arguments,” Fletcher said. “So we would urge you not to sort of decide this case with a view towards what the right answer in the Seventh Circuit case is.” 

California Deputy Solicitor General Helen Hong told the justices they could resolve the case in a straightforward manner because there was no rule left for the states to defend. 

“The central problem with that motion is that there's no practical sense in which the Ninth Circuit proceedings threatened to impair petitioners' asserted interests,” Hong said. “The 2019 public charge rule was vacated through a final judgment in a separate case and a different circuit, and there is no rule left for petitioners to defend in the courts below. This case can be resolved on that straightforward basis alone.” 

California Attorney General Rob Bonta predicted defeat for the GOP-led states.

“Despite what Arizona might like to suggest, there is nothing in this case that will bring back the Trump-era public charge rule," Bonta said after the hearing. "The rule no longer exists and numerous courts across the country have already ruled against it. Here in California, we stand in support of our immigrant communities and we look forward to continuing to advocate on their behalf.”

Representatives for the Department of Justice did not respond to a request for comment.

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Asylum seekers and supporters ask for the Biden administration to end Title 42 during a protest on Sept. 25, 2021, in Nogales, Sonora.