Noah Bunnell, CLS ’21
Amid a flurry of increasingly aggressive immigration actions by the Trump administration, a number of lawsuits challenging the new DHS “public charge” rule, governing the admissibility of immigrants into the United States, continue to wend their way through the courts.
On January 27, 2020, the Supreme Court granted a stay pending appeal of a preliminary injunction issued by a federal district court in New York, lifting the nationwide injunction — except in Illinois, where a statewide injunction remained in place — and allowing the “public charge” rule to go into effect.[1] But on February 21, 2020, by way of another 5-4 vote, the Court granted an additional stay with respect to the State of Illinois,[2] giving leave to U.S. Citizenship and Immigration Services (USCIS) to begin implementing the final rule in all 50 states on February 24, 2020.[3]
What’s at stake here, most immediately, is immigrants’ eligibility for permanent legal status. Under the Immigration and Nationality Act, an individual seeking permanent resident status is inadmissible if he, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”[4] The new rule — which defines “public charge” as an “alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)”[5] — amounts to a significant expansion of DHS’s previous interpretation of the statute.
For the past 20 years, the federal government defined “public charge” as someone who had become or was likely to become “primarily dependent on the government for subsistence.”[6] The guidance issued in 1999 “specified that the federal government would not consider use of Medicaid, CHIP, or other supportive programs in public charge determinations, with the exception of use of Medicaid for long-term institutional care.”[7] DHS’s redefinition now permits USCIS to deny residency to anyone it deems likely to receive any of a wide range of cash or non-cash benefits.[8]
In their challenge to the rule, three states, New York City, and a number of immigrant rights groups have argued, among other things, that the administration’s interpretation of the rule is in excess of its statutory jurisdiction and arbitrary and capricious under § 706(2) of the Administrative Procedure Act.[9] It remains to be seen whether the Court will end up facing any of these issues on the merits, but the 5-4 grants of stay in Department of Homeland Security v. New York and Wolf v. Cook County, Illinois surfaced broader doctrinal issues that continue to agitate some members of the Court.
Along with the January 27 grant of stay, Justice Gorsuch[10] filed a concurring opinion, joined by Justice Thomas, in which he decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”[11]
Relying on a 2017 law review article by Samuel Bray,[12] Gorsuch argued that nationwide injunctions are constitutionally suspect,[13] expressing hope that the Court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions” raised by their use.[14] Echoing Bray, Gorsuch also contended that as a matter of judicial policy such injunctions are “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected.”[15] Specifically, Gorsuch argued, they facilitate forum shopping,[16] increase the risk of conflicting injunctions,[17] prevent legal questions from percolating up through multiple circuits,[18] and “tend to force judges into making rushed, high-stakes, low-information decisions.”[19]
The other side of the argument, left largely untouched by Gorsuch’s concurring opinion, counsels that universal injunctions play an important role in “preventing widespread harm.”[20] Forcing plaintiffs to wait for a lawsuit to reach the Supreme Court before an injunction can be issued ignores the fundamental reality that injunctions are issued to prevent “irreparable harm.” And in the immigration context in particular, nationwide injunctions may be the only means of affording complete relief to plaintiffs.[21] The alternative — permitting federal courts only to grant injunctions of limited geographical scope — would potentially create massive administrability problems, rendering agency rules enforceable in one place and unenforceable in another.[22]
Sounding a very different note to Gorsuch in her dissent from the Court’s February 21 grant of stay, Justice Sotomayor took aim at the government’s increasing willingness to seek — and the Court’s increasing willingness to grant — stays pending appeal that overrule lower court injunctions.[23] The Court has historically recognized that such stays represent “extraordinary relief,” and should only be offered where a party can demonstrate a likelihood of irreparable harm.[24] Recently, however, as Sotomayor’s dissenting opinion emphasized, the government has made an “unprecedented number of requests for emergency or extraordinary relief from the Justices.”[25]
Indeed, over the first two and a half years of the Trump administration, the DOJ filed over 20 applications for stays at the Supreme Court, compared to eight total applications during the prior 16 years under Bush and Obama.[26] And, as Sotomayor argued, the Court has recently granted these requests in a number of high-profile immigration cases, despite being forced “to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”[27]
To hear and grant an application for stay, in Sotomayor’s view — particularly here, with the Seventh Circuit scheduled to hear oral argument on February 26, 2020 — frustrates the ability of lower courts to fully consider these questions and asks the Court to review them prematurely. An injunction preserving “a 20-year status quo” immigration policy in one state, on the other hand, hardly rises to the level of irreparable harm.[28]
Whether the Justices will have occasion to consider these issues squarely anytime soon remains uncertain, but as federal courts continue to issue nationwide injunctions and as the DOJ continues to seek emergency stays, the Court may not be able to refrain from addressing these questions for long.
[1] Department of Homeland Security v. New York, 140 S.Ct. 599 (mem.) (2020).
[2] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (mem.) (Feb. 21, 2020).
[3] Press Release, U.S. Citizenship and Immigration Services, USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions (Jan. 30, 2020), https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions.
[4] Immigration and Nationality Act § 212(a)(4), 8 U.S.C. § 1182(a)(4)(A) (2012). In making that determination, the statute requires the consular officer or Attorney General to consider the applicant’s age, health, family status, assets, resources, financial status, education, and skills. §1182(a)(4)(B). The statute does not define “public charge.”
[5] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292, 41295 (Aug. 14, 2019) (codified at 28 C.F.R. Pts. 103, 212, 213, 214, 245, 248).
[6] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (Mar. 26, 1999).
[7] Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.
[8] The rule “defines public benefits to include federal, state, or local cash benefit programs for income maintenance and certain health, nutrition, and housing programs that were previously excluded from public charge determinations, including non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs.” Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.
[9] Complaint at 112–114, Make the Road New York v. Cuccinelli, 2019 WL 5484638 (S.D.N.Y. 2019) (19 Civ. 7993 (GBD)).
[10] Notably, Justice Gorsuch’s doctrinal opposition to the modern administrative state stands in some tension with his hostility to the nationwide injunction — the former position tending to empower federal judges and the latter tending to restrain them. For Gorsuch’s views on the administrative state, see, e.g., Kisor v. Wilkie, 139 S.Ct. 2400, 2446 n.114 (2019) (Gorsuch, J., concurring in judgment) (“To be sure, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we sometimes defer to an agency’s construction of a statute. But there are serious questions, too, about whether that doctrine comports with the APA and the Constitution.” (emphasis in original)).
[11] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020). For more on the distinction between “nationwide” and “universal” injunctions, see Amanda Frost, In Defense of Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it relates to the plaintiff; rather, the dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced. For that reason, some scholars refer to injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ ‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted)).
[12] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). For a response to Bray, see Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49 (2017).
[13] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay) (When a district court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”).
[14] Id. at 601.
[15] Id. at 600.
[16] Id. at 601 (“Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”).
[17] Id. at 600.
[18] Id. (“The traditional system of lower courts issuing interlocutory relief limited to the parties at hand . . . encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process.”).
[19] Id.
[20] Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49, 50 (2017) (“Indeed, the Supreme Court has recently suggested that sometimes ‘the equitable balance’ in a case will favor extending injunctive relief to ‘parties similarly situated to’ the plaintiffs” (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam)).
[21] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1090–94 (2018).
[22] Id. at 1098–1101.
[23] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (Feb. 21, 2020) (Sotomayor, J., dissenting from grant of stay); see also Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3, 4 (2019) (Sotomayor, J., dissenting from grant of stay) (“Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”).
[24] Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in chambers).
[25] Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 124 (2018). Vladeck argues that the uptick in grants of stay can be attributed less to a rise in nationwide injunctions than to a shift in the Court’s conception of irreparable harm. “[A] majority of the Justices now appear to believe that the government suffers an irreparable injury militating in favor of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling — or the harm the statute or policy would cause if allowed to go into effect.” Id. at 126.
[26] Id. at 125.
[27] Wolf, 2020 WL 858799, at *3.
[28] Id.