Supreme Court to Consider Trump-Era Public Charge Rule That Biden May Dump

February 24, 2021 Updated: February 24, 2021

The Supreme Court has agreed to hear the federal government’s appeal of a lower court decision against a Trump-era public-charge rule that requires prospective immigrants to be able to support themselves financially—while the Biden administration is considering rescinding the rule.

The case, known as U.S. Department of Homeland Security (DHS) v. New York, court file 20-449, began when Donald Trump was president. The petition of certiorari was granted on Feb. 22. Apart from the state of New York, the other governmental respondents are Connecticut, Vermont, and New York City. Several advocacy groups, including Make the Road New York and Catholic Legal Immigration Network Inc. also are respondents.

New York Attorney General Letitia James, a Democrat, told The Epoch Times she was optimistic the rule would be changed.

“Our immigrant neighbors seeking to make a better life for themselves deserve more than living in the shadows and on the streets,” James said in an emailed statement.

“Yet, the former administration’s efforts to only allow those who meet narrow economic criteria to gain a path to citizenship is a clear violation of our laws and our values. We look forward to working with the Biden Administration to end this Trump era policy that changes the definition of public charge.”

Jonathan Hillel Hurwitz, counsel of record for the advocacy groups, told The Epoch Times, “We will not be commenting.”

The public-charge principle, that is, the idea that immigrants should have to demonstrate they can get by without becoming wards of the government, has been part of the American experience for centuries, as The Epoch Times previously reported.

Public-charge provisions have been part of U.S. immigration law since at least 1882. One of the earliest known public-charge laws in colonial Massachusetts was enacted in 1645. By the end of the 1600s, many American colonies screened would-be immigrants and required bonds for those believed likely to become public charges.

But left-wing advocacy organizations attacked the Trump administration for formally defining the concept of the “public charge,” which they consider to be cruel and xenophobic, and aimed at drastically curtailing the flow of immigrants to the United States.

The rule didn’t affect those who already possessed green cards or who have become U.S. citizens. Asylees, as well, were exempt from the rule.

The rule as presently constituted may not exist much longer and the high court case rendered moot if the Biden administration decides to change course and rescind the rule.

Earlier this month, President Joe Biden issued Executive Order 14012, which directs three lead agencies—the State, Justice, and Homeland Security departments—to review the rule and consult with the Agriculture, Health and Human Services, and Housing and Urban Development departments about “the effects and implications of public charge policies.”

Within 60 days of the order, the lead agencies are required, among other things, to “recommend steps that relevant agencies should take to clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities,” and produce a report for the president.

The Supreme Court recently granted Biden administration requests to cancel scheduled hearings on Trump’s border wall and the “remain in Mexico” asylum policy.

The current legal case, which was one of many lawsuits filed across the country against the rule, dates back to 2019.

District Judge George B. Daniels of New York, a Clinton appointee, issued a nationwide injunction against the rule on Oct. 11, 2019, after determining that it was “repugnant to the American Dream,” “unlawful, arbitrary, and capricious,” and that the parties challenging it “have raised at least a colorable argument” that the rule may discriminate against individuals with disabilities.

He wrote that the federal government failed to “articulate why they are changing the public charge definition, why this new definition is needed now, or why the definition set forth in the Rule—which has absolutely no support in the history of U.S. immigration law—is reasonable.”

On Dec. 2, 2019, the federal district judge denied a request by DHS to lift the injunction, pending appeal. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit refused to lift the injunction on Jan. 8, 2020.

But the Supreme Court voted 5–4 on Jan. 27, 2020, to stay the injunction issued by Daniels and allow the public-charge rule to be enforced, pending disposition of the government’s appeal in the 2nd Circuit.

In an opinion concurring with the decision, Justice Neil Gorsuch used the opportunity to criticize the practice of granting nationwide injunctions, as happened in the case at hand, and express hope that courts will address the practice in the future.

“The real problem here is 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,” Gorsuch wrote.

“Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering 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” of the Constitution, he wrote.