Federal Appeals Court Allows Trump Admin’s ‘Public Charge’ Rule for Immigrants

Federal Appeals Court Allows Trump Admin’s ‘Public Charge’ Rule for Immigrants
United States Court of Appeals for the 9th Circuit, San Francisco, Calif. (Map data @2018 Google)
Janita Kan

A federal appeals court has lifted two injunctions blocking the Trump administration from implementing a rule that restricts the eligibility of new immigrants who are deemed to likely become “public charges” if they receive visas.

“Public charges” means an individual who is likely to become primarily dependent on the government for subsistence, by receiving assistance such as food stamps or Medicaid.

The ruling, delivered on Thursday, grants a stay on preliminary injunctions issued by federal judges in California and Washington, but the Department of Homeland Security’s (DHS) rule will still not go in effect because of injunctions imposed by judges in other parts of the country.

The case stems from a new rule adopted by the DHS in August that has expanded the definition of “public charges” in the Immigration and Nationality Act (INA). The new rule requires the DHS to consider cash benefits and certain non-cash benefits when determining whether an immigrant is admissible in the United States.

In the 2-1 ruling, the judges found that Congress did not provided direction on how the phrase “public charge” should be interpreted and the DHS has the discretion to do so, within its authority.

“We find that the history of the use of ‘public charge’ in federal immigration law demonstrates that ‘public charge’ does not have a fixed, unambiguous meaning. Rather, the phrase is subject to multiple interpretations, it, in fact, has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it,” Judges Jay Bybee and Sandra Ikuta, both appointed by George W. Bush, wrote in the majority opinion (pdf).

“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,’” the judges also wrote.

“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.

They also ruled that the DHS’s interpretation of “public charge” in the new rule was permissible.

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, Judge 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.”

The Justice Department welcomed the decision, saying that it was “pleased with today’s decision to lift the injunction and respect the legal authority vested in the administration by the U.S. Congress,” according to a statement sent to media outlets.

The White House also issued a statement following the decision, saying that the Ninth Circuit court “has rightly recognized the Administration’s authority to adopt an interpretation of the ‘public charge’ restriction more faithful to and consistent with the scope of the statute passed by Congress.”

But they added that the ruling has “accomplished nothing” as a practical matter to lift the nationwide injunction.

“Although the Ninth Circuit lifted the two injunctions issued by district courts within the Ninth Circuit, two other nationwide injunctions have been issued by individual district judges in New York and Maryland—and those orders prevent the regulation from being applied anywhere—even in the Ninth Circuit,” the White House statement said.

“In practical effect, nationwide injunctions give any district judge the power to tell a panel of a Federal court of appeals that its ruling does not matter and that it cannot affect the actual implementation of the law. Such subversions of the rule of law must come to an end,” the statement said.

“The judicial system must address the grave danger that nationwide injunctions present and ensure that district courts do not grossly overstep the role the Founders intended in our careful system of checks and balances.”

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