WASHINGTON, DC — April 26, 2021 — The Supreme Court on Monday declined to immediately resolve an attempt by 14 states to revive litigation over a controversial Trump-era immigration rule after the Biden administration declined to defend it in court. In a brief, unsigned order, the justices said the states must first make their arguments in the lower courts, but they left open the possibility that the states could eventually return to the Supreme Court on this issue.
The so-called “public charge” rule is one with which the justices have become very familiar recently. Under federal law, people who are not U.S. citizens cannot receive a green card if the government believes that they are likely to rely too heavily on government assistance – that is, become a public charge.
After the Trump administration in 2019 defined the term “public charge” more expansively than in the past, to include anyone who received government benefits such as Medicaid or food stamps for more than 12 months over a three-year period, several challenges followed. When two federal courts of appeals ruled in favor of the challengers, the Trump administration went to the Supreme Court, asking the justices to weigh in. The justices agreed in February to do so. In the meantime, however, newly inaugurated President Joe Biden ordered a review of the rule, and Biden’s acting solicitor general, Elizabeth Prelogar, told the justices that both the challengers and the administration had agreed that the case should be dismissed.
Ten days after the court dismissed the case, it was the states’ turn to come to the Supreme Court. Led by Texas, the states told the justices that the decision not to defend the rule would cost them “many millions of dollars” because they would have to provide additional Medicaid services to immigrants. The states asked the justices to effectively reinstate the rule by putting on hold a federal trial court’s ruling that invalidated it. The states also asked the justices to allow them to join the case to defend the rule themselves. By voluntarily dismissing the case, the states argued, the Biden administration was essentially trying to rescind the rule without going through the normal notice-and-comment procedures that are typically required for formal rule changes.
The Biden administration urged the justices to turn down the states’ request, calling it “truly extraordinary.” Congress tasked the executive branch with making decisions like the one at the heart of this case, Prelogar wrote; allowing the states “to revive litigation that the Executive Branch has determined not to pursue would frustrate that constitutional and congressional choice.”
Cook County, Illinois, and the Illinois Coalition for Immigrant and Refugee Rights, two of the original challengers who sued the Trump administration over the rule, echoed the administration’s opposition. They stressed that the rule had already been vacated “following an adversarial process in which the former administration vigorously defended the rule,” so there was no need for the states to step in now. Although the states may disagree with the Biden administration’s changes, they concluded, “that does not give them license to prolong this litigation regarding the” now-vacated rule.
In an order issued on Monday morning as part of the order list from the justices’ April 23 conference, the court – in a somewhat unusual move for a summary order – briefly recounted the procedural history and denied the states’ request to immediately intervene in the litigation at the Supreme Court. The court also denied the states’ request for an emergency order to temporarily put the rule back into effect. But it indicated that the states could return to the district court to make the same arguments that it had made in the Supreme Court, including the argument that the Biden administration terminated the rule without following notice-and-comment requirements. After the district court rules on those arguments, the Supreme Court noted, the states can appeal again to the 7th Circuit and, if necessary, seek further emergency relief from the Supreme Court.
This post is also published on SCOTUSblog.