SCOTUS Allows Public Charge Rules to Go into Effect Temporarily

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The Supreme Court has stayed a nationwide injunction which disallowed the public charge rule from going into effect anywhere in the United States. For now, the public charge rule will remain in effect across the country (except in Illinois) until the Second Circuit, and the Supreme Court, if it decides to get involved, rules in this case.

Since 1882, when Congress enacted the first comprehensive immigration statute, it prohibited the admission to the United States of “any person unable to take care of himself or herself without becoming a public charge.” The most recent definition of “public charge,” adopted in 1999, included immigrants who demonstrated a need for “institutionalization for long-term care at government expense” or “receipt of public cash assistance for income maintenance.”

In 2019, the Trump administration adopted a new definition of public charge that considers not only cash benefits, but also certain non-cash benefits including:

  • Supplemental Nutrition Assistance Program (SNAP),
  • Section 8 housing,
  • Section 8 project-based rental assistance,
  • Medicaid (with certain exceptions), and
  • Section 9 public housing.

Some states, local governments and other entities sued the federal government over this rule. The results were mixed. Two federal district courts in the Ninth Circuit ruled against the federal government, but the Ninth Circuit stayed those orders, determining that the government was likely to succeed on the merits. A district court in Maryland likewise ruled against the federal government, but the Fourth Circuit overturned its decision. All of the district court rulings described above would have made the public charge rule unenforceable in some or all of the United States.

In Department of Homeland Security v. New York, a federal district court in New York “enjoined the government from applying the new definition to anyone, without regard to geography /or participation in this or any other lawsuit.” The Second Circuit declined to stay that injunction, and the federal government appealed to the Supreme Court. The Supreme Court has now issued a stay effective everywhere but Illinois. A federal district court in Illinois has enjoyed enforcement of the rule—only within the state of Illinois.

The federal government argues it should win because the “text and structure [of federal immigration law] make clear that receipt of public benefits, including non-cash benefits that are not intended to serve as primary means of support, is an important consideration in determining whether an alien is inadmissible on public-charge grounds.”

The challengers responded that the rule is a “stark departure from a more-than-century-long consensus that has limited the term to individuals who are primarily dependent on the government for long-term subsistence.”

Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the stay.

Justice Gorsuch wrote a concurring opinion criticizing the use of “universal injunctions,” which apply to persons who are not parties to a lawsuit. For example, the injunction at issue in this case, which was brought by New York State and a number of non-profits, disallowed the federal government from enforcing the public charge rule against anyone in any state. As of late, lower courts have regularly issued such injunctions against the federal government.

The National League of Cities previously submitted comments in response to the Department of Homeland Security’s (DHS) notice of proposed rulemaking to expand the definition of a “public charge.” NLC has been active on the public charge issue for many years, including engaging with other state and local government organizations on the impact of the current proposed changes. At City Summit in Los Angeles, language was added to the 2019 National Municipal Policy specific to public charge in anticipation of this proposed change from the administration; that policy still holds today.

Upon the ruling from SCOTUS, NLC’s executive director and CEO, Clarence Anthony, tweeted that this ruling will preempt cities from providing services to all of their residents. NLC will continue to monitor the “public charge” case.

lisa_soronen_new_125x150About the authors: Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

SMRStephanie Martinez-Ruckman is the Legislative Director for Human Development at the National League of Cities. Follow Stephanie on Twitter @martinezruckman.