UPDATE: Justice Ruth Bader Ginsburg has directed the challengers to file a response to the government’s application by Wednesday, January 22, at 3 p.m.
This afternoon the federal government called on the Supreme Court to intervene in a dispute over a new rule, known as the “public charge” rule, governing the admission of immigrants to the United States. In an emergency filing by U.S. Solicitor General Noel Francisco, the government asked the justices to allow it to enforce the rule while it appeals a pair of orders by a federal district court in New York. The government told the justices that if the district court’s orders remain in place and it cannot implement the rule, it will suffer “effectively irreparable harm.”
The rule at the heart of the dispute was issued by the Department of Homeland Security in August of this year. Under federal immigration law, noncitizens should not be allowed to enter the United States if the government believes that they are likely to become a “public charge” – that is, reliant on government assistance. The rule issued last year defined “public charge” to mean any noncitizen who receives either cash benefits or some noncash benefits, such as housing or health care, from the government for more than 12 months during a three-year period. The rule also looks at factors such as the noncitizen’s age, employment history, health and finances to determine whether he is likely to become a public charge in the future.
Three states – New York, Connecticut and Vermont – challenged the rule, as did New York City and several groups that provide services to immigrants, arguing (among other things) that the rule is not a reasonable interpretation of the statute. The district court temporarily blocked the government from enforcing the rule, agreeing with the challengers that they were likely to win on this claim, and both the district court and the U.S. Court of Appeals for the 2nd Circuit denied the government’s request to allow it to implement the rule while it appealed.
In its filing today, the government argued that a stay of the lower court’s orders is warranted. If the 2nd Circuit upholds the district court’s ruling, the government contended, the Supreme Court is likely to take up the case, particularly because other lower courts have concluded that the government will probably win. Such a ruling by the 2nd Circuit would also give the Supreme Court the opportunity to address what the government characterizes as the “problems” posed by nationwide injunctions like the district court’s orders. The government stressed that “multiple courts of appeals have been rendered effectively meaningless within their own territorial jurisdiction because of a single district court’s nationwide injunctions.”
If the Supreme Court does eventually grant review, the government continued, it is likely to overturn the district court’s injunctions. As an initial matter, the government suggested, the challengers lack a legal right to sue, known as standing, but in any event the rule is a reasonable interpretation of federal immigration law: It “gives the statute its most natural meaning by specifying that an alien who depends on public assistance for necessities such as food and shelter for extended periods may qualify as a ‘public charge’ even if that assistance is not provided through cash benefits or does not provide the alien’s sole or primary means of support.” At a minimum, the government concludes, the justices should narrow the scope of the injunctions, so that they only apply to immigrants whom the challengers “identify as receiving services in the jurisdictions in which they operate.”
The government’s filing will go first to Justice Ruth Bader Ginsburg, who handles emergency requests from the geographic area that includes New York. Ginsburg can rule on the request alone or – as is more likely – refer it to the full court.