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Amy L. Howe, Feb. 22, 2022
"On Wednesday, the Supreme Court [heard] oral argument in a dispute over whether a group of states, led by Arizona, can defend a contentious Trump-era immigration policy known as the “public charge” rule after the Biden administration declined to do so. The oral argument in Arizona v. City and County of San Francisco comes less than a week after the justices agreed to decide during the current term whether the Biden administration must continue to enforce another controversial Trump-era immigration policy known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. [Link to the transcript here.]
The 2019 rule that Arizona (as well as 12 other states with Republican attorneys general) want to intervene to defend broadened the definition of “public charge,” a term in immigration law for people who are ineligible for a green card if the government believes that they are likely to rely too heavily on government aid. Several challenges to the new rule followed, and three different federal courts of appeals ruled in favor of the challengers in those cases. The justices agreed in February 2021 to review a ruling by the U.S. Court of Appeals for the 2nd Circuit. But a few weeks later, the Biden administration – which had pledged to unwind the Trump policy and did not wish to defend its legality – told the court that both it and the challengers had agreed to dismiss the case, as well as two others presenting the same question.
Shortly afterward, relying on the ruling of an Illinois district court that invalidated the rule, the Biden administration removed the rule from the Federal Register. The administration at the time did not go through the so-called notice-and-comment process, which provides stakeholders a chance to offer input on policy changes. A notice-and-comment period is typically required when one administration seeks to rescind a regulation issued by a prior administration.
In April 2021, the justices rejected an effort by Republican-led states to immediately revive the 2019 rule. However, the court left open the possibility that the states could go back to the lower courts to argue that the Biden administration had acted improperly in its attempt to quickly scrap the rule.
The states did just that. They attempted to intervene in the litigation in the U.S. Court of Appeals for the 9th Circuit, hoping to defend the rule there with the goal of getting it reinstated. The states say that, without the rule in place, more immigrant families are likely to rely on programs like Medicaid, thereby increasing costs for the 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 avoid all forms of public benefits.
The 9th Circuit rejected Arizona’s attempt to intervene, over a dissent by Judge Lawrence VanDyke. VanDyke characterized the Biden administration’s conduct as “quite extraordinary.” The administration, he wrote, “didn’t just stop defending the prior administration’s rule and ask the courts to stay the legal challenges.” Instead, he stressed, the administration put in place “a plan to instantly terminate the rule with extreme prejudice.”
Arizona returned to the Supreme Court, this time asking the justices to review the 9th Circuit’s decision. The justices agreed to weigh in on whether Arizona has a right to intervene to defend the 2019 rule, but they declined to weigh in on the validity of the rule itself or whether to vacate the lower court’s decision barring the government from enforcing it.
Arizona and the other states insist that they have a right to intervene to defend the 2019 rule, and that the 9th Circuit’s decision preventing them from doing so is “completely unreasoned.” Because the 2019 rule would save the states approximately $1 billion each year, Arizona says, they have “obvious protectable interests” in having the public-charge rule upheld. Requiring them to intervene earlier in the litigation would “invite gross inefficiencies,” Arizona warns: States would try to intervene in challenges to agency actions that they supported whenever a change in administration was imminent. The better course of action, Arizona suggests, 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 alleges, barring them from intervening in cases like this one “effectively forecloses one of the few (or only) avenues for the 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 vacate the rule. The federal government clearly did not represent the states’ interests, as shown by its decision to stop defending the rule and later to oppose Arizona’s efforts to intervene. And the states could not have protected their interests through the rulemaking process, Arizona asserts, because the administration did not follow the traditional practice, used by prior incoming administrations, of seeking “to stay pending litigation challenging notice-and-comment rules that they plan to repeal via new rulemakings.” Instead, Arizona notes, the Biden administration dismissed all of the pending appeals and reinstated the district court’s rulings; it then vacated the rule based on the district court’s judgment.
Even if Arizona and the other states didn’t have a right to intervene, Arizona continues, the court of appeals still should have allowed them to do so. After all, Arizona reasons, they made their request in a timely manner, and they want to intervene so that they can argue that the 2019 rule is valid, which is at the heart of the case.
Nor is the case moot, Arizona adds. 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 court of appeals could uphold the 2019 rule or because it could vacate lower-court rulings that had invalidated the rule. And if the states are allowed to intervene, Arizona writes, they will seek to have district-court rulings reversed or vacated, which would require the Biden administration to reinstate the rule until it repeals it through notice-and-comment rulemaking. (The administration recently began that process.)
Defending the 9th Circuit’s decision are the federal government as well as a group of mostly Democratic-led states and two local governments. (Democratic-led states and localities were among the original challengers to the 2019 rule.) The states (led by California) and the local governments (the city and county of San Francisco and the county of Santa Clara, California) echo a common theme: Arizona and the other Republican-led states have no right to intervene because, as a practical matter, this case does not affect them. First, California says, the preliminary injunctions that the 9th Circuit upheld, blocking enforcement of the 2019 rule, did not apply in any of the states that now seek to intervene. Second, the true source of any injury to Arizona and the other states would be the ruling by the federal district court in Illinois that vacated the 2019 rule, prompting the Biden administration to rescind 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 still would not be reinstated.
Turning to Arizona’s argument that, even if it does not have a right to intervene, it should nonetheless be permitted to do so, California and the local governments stress that the decision to permit intervention is “wholly discretionary” and can be reversed only when it was clearly wrong. Contrary to Arizona’s argument that the Biden administration’s conduct was “unprecedented,” California and the local governments say the administration simply decided that “continuing to defend the public charge rule was neither in the public interest nor an efficient use of government resources,” and it “initiated a new rulemaking process to address the infirmities identified by the court.” Notably, the Biden administration sought comments from groups that might be interested in the rule – which Arizona and the other Republican-led states did not provide.
Like California and the local governments, the Biden administration agrees that Arizona and the other states do not have a right to intervene in this case (or, indeed, the administration seems to suggest, any other challenge to the 2019 rule). To do so, Solicitor General Elizabeth Prelogar argues, Arizona would have to show a direct interest in the case. Prelogar dismisses the states’ suggestion that they would benefit indirectly if the 2019 rule were reinstated because fewer people would use the states’ social-welfare programs, freeing up money that the states could use elsewhere, as “highly speculative.” But in any event, Prelogar continues, allowing anyone who has suffered an indirect economic injury to intervene “would be utterly unworkable.” 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 pharmaceutical companies.
The Biden administration also rejects Arizona’s contention that it and the other states should be allowed to intervene because the federal government opted not to seek further review after the rule was struck down. These kinds of decisions, Prelogar stresses, “are hardly unprecedented.” But they 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 determinations and give the power to appeal rulings against the federal government to the states, Prelogar writes." [Audio of oral argument here.]