Federal Court Denies Motions to Allow Trump Admin to Start Enforcing ‘Public Charge’ Rule

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 8, 2020 Updated: January 8, 2020

A federal appeals court in New York has refused to set aside a nationwide block on a new “public charge” rule, which restricts the eligibility of new immigrants who are deemed to likely become “public charges” to obtain visas.

A three-judge panel at the U.S Court of Appeals for the Second Circuit denied motions on Wednesday to stay an injunction (pdf) issued by a district judge in New York (pdf) to halt the Department of Homeland Security’s (DHS) rule while the appeal is heard in court. The court’s decision is the latest in the Trump administration’s fight to enforce the immigration law aiming to expand the definition of “public charges” in the Immigration and Nationality Act (INA).

“Public charge” refers to an individual who is likely to become primarily dependent on the government for subsistence, by receiving assistance such as food stamps or Medicaid. The new rule provides clarification about what factors would be considered when determining whether someone is likely at any time in the future to become a public charge.

The rule was challenged in several states, leading to injunctions that prevented the rule from going into effect on Oct. 15. Two federal appeals courts—the Fourth Circuit and Ninth Circuit—lifted similar injunctions last month. Despite the partial wins, the rule still cannot be implemented because the injunction from New York will continue to apply across the country. The New York injunction falls under the Second Circuit’s jurisdiction.

The judges—Judges Amalya L. Kearse, Guido Calabresi, Susan L. Carney—all appointees of Democratic presidents, also said in their brief order (pdf) that the court has set up an expedited briefing schedule on the merits of the government’s appeals, adding that the last brief was due on Feb. 14.

“Oral argument will be scheduled promptly thereafter,” the judges said in the order. “As always, the merits panel as soon as constituted has full authority to consider the scope of the existing injunction.”

The White House did not immediately respond to our request to comment, while the Justice Department declined to comment. Meanwhile, the media office of New York Attorney General Letitia James, who led a group of states to oppose the rule in one lawsuit, did not immediately respond to our request to comment.

In a Twitter post following the Second Circuit’s decision, James vowed to continue to fight against the rule while calling the rule “dangerous, disruptive, and unlawful.”

Along with the states, a coalition of organizations fighting for immigrant rights also filed a separate lawsuit last year over the rule. The judges addressed both cases in their order.

Ninth Circuit Ruling

In early December last year, the Ninth Circuit ruling stayed two preliminary injunctions, ruling  2-1 that Congress did not provide direction on how the phrase “public charge” should be interpreted and the DHS has the discretion to do so, within its authority.

“Congress simply has not spoken to how ‘public charge’ should be defined. We must presume that when Congress enacted the current version of the INA in 1996, it was aware of the varying historical interpretations of ‘public charge,’” Judges Jay Bybee and Sandra Ikuta, both appointed by George W. Bush, wrote in the majority opinion (pdf).

“Yet Congress chose not to define ‘public charge’ and, instead, described various factors to be considered ‘at a minimum,’ without even defining those factors. It is apparent that Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of ‘public charge’ as necessary,” they added.

Judge John Owens, an Obama appointee, dissented, saying that he would leave the injunctions in place while the appeals court reviews the case, while factoring in a number of considerations such as the “lack of irreparable harm to the government at this early stage” and “opaqueness of the legal questions.”

Meanwhile, Bybee wrote an additional reasoning, pointing out that Congress had not fulfilled its responsibilities.

“By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress,” Bybee wrote.

“And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges,” he continued. “Yet we have seen little engagement and no actual legislation from Congress.”

“It is time for a feckless Congress to come to the table and grapple with these issues,” he added. “Don’t leave the table and expect us to clean up.”

Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.