Justices weigh if Republican AGs can defend Trump immigration rule

The Supreme Court on Wednesday grappled with an effort by Republican attorneys general to mount a legal defense of a Trump-era immigration restriction that the Biden administration has since rescinded and declined to defend in court.

The issue in Wednesday’s case was procedural in nature, but at its heart was Trump’s “public charge rule,” a 2019 measure that had imposed new restrictions on poorer immigrants to the U.S. — until the Biden administration ended the policy last spring.

Trump’s measure sparked a number of legal challenges across the country that were in various stages of litigation when Biden took the White House after campaigning on a pledge to roll back Trump’s hard-line immigration stance. Each of five federal courts that addressed Trump’s public charge rule either found it unlawful or in likely violation of the law.

President Biden’s Department of Homeland Security rapidly rescinded the rule last March, forgoing the usual public comment period that often precedes the unwinding of major regulations and citing the negative court treatment of the program as its reason for ending it so swiftly. 

His administration also abandoned the legal defense of the program that had been advanced by Trump’s Department of Justice, effectively allowing the legal preservation effort to die. 

In response, Republican attorneys general sought to defend the measure in court by essentially taking up the now defunct legal position held by Trump’s Department of Justice. The Biden administration opposed this move, and courts have so far rebuffed the Republican attorneys’ request to intervene.

At issue in Wednesday’s case was whether the San Francisco-based U.S. Court of Appeals for the 9th Circuit should have permitted the GOP litigants to step into the shoes of the Trump administration and defend the public charge rule.

Arizona Attorney General Mark Brnovich (R) told the justices that the Biden administration’s failure to permit public comment before rescinding Trump’s public charge was unlawful. If the 9th Circuit’s ruling barring Republicans’ intervention in the case is allowed to stand, he argued, it would effectively bless the administration’s allegedly unlawful maneuver. 

“The 9th Circuit’s refusal to let Arizona and other states intervene to defend the public charge rule capped an unprecedented effort by the United States to unlawfully disregard a prior administration’s rule,” he said.

Members of the court’s conservative and liberal wings expressed some sympathy for Arizona’s position. Still, some wondered why the Republican attorneys general had not simply filed a separate lawsuit in Washington, D.C., where alleged violations of the Administrative Procedure Act (APA) are usually litigated, rather than try to revive a defunct lawsuit in a California federal court, whose connection to Arizona’s interests in the case are questionable.  

“I mean, if there’s been circumvention of the APA, like rather than go through this quadruple bank shot, I mean why don’t we just say, ‘you know, you have a good point about circumvention of the APA, go bring an APA action?’” Justice Elena Kagan asked at one point during argument.

The Trump-era rule directed federal immigration authorities to deny U.S. entry and green card requests from immigrants who were likely to become reliant on government assistance. It also broadened the criteria for determining the likelihood that an immigrant would become reliant on taxpayer-funded aid, otherwise known as a “public charge.”

Under the policy, an immigrant would be considered a public charge if they receive at least one public benefit for more than 12 months within any three-year period. These benefits include Medicaid, food stamps, welfare or public housing vouchers. The Trump administration rule also examined the likelihood of an immigrant using such benefits in the future.

Supporters of Trump’s rule, which updated an existing Clinton-era regulation, say it’s a commonsense way to ensure that U.S.-bound immigrants are self-sufficient, and to prevent welfare programs from being overburdened. Led by Arizona, the Republican attorneys general say the rule stands to save states $1 billion a year.

The Department of Justice, which argued Wednesday on behalf of the Biden administration, pushed back on the claim that the rule had had a large impact, arguing that, in practice, it applied to very few people when it was in effect during Trump’s presidency.