Supreme Court Tosses Appeal Seeking to Revive Trump’s Immigrant Self-Sufficiency Rule

Supreme Court Tosses Appeal Seeking to Revive Trump’s Immigrant Self-Sufficiency Rule
Arizona Attorney General Mark Brnovich in a file photograph. (Courtesy of Mark Brnovich)
Matthew Vadum

The Supreme Court reversed itself on June 15, deciding it had been wrong when it previously agreed to hear an appeal by 13 states to defend the so-called public charge rule that screens out potentially government-dependent immigrants, after the Biden administration declined to do so.

The public charge rule, which had fallen into disuse, was revived by the Trump administration in 2019, over vehement left-wing opposition. The rule allows the U.S. government to reject would-be immigrants who were deemed likely to consume public benefits such as food stamps, housing aid, and Medicaid.

Critics claim the extensively litigated pro-taxpayer rule is xenophobic and discriminates against poor aliens, although the public-charge principle—the idea that immigrants should have to prove they can survive without becoming wards of the government—has been part of the American experience for centuries.

The Biden administration changed course, dropping the immigrant self-sufficiency rule, though it said it was drafting a new version.

But after hearing oral arguments in the case on Feb. 23, the Supreme Court changed course and ruled it made a mistake when it granted the petition for certiorari, or review, on Oct. 29, 2021.

The opinion issued June 15 (pdf) in Arizona v. San Francisco, court file 20-1775, consisted of two sentences: “The writ of certiorari is dismissed as improvidently granted. It is so ordered.”

The opinion doesn’t indicate which justices voted for the opinion, but Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch filed an opinion concurring in the court’s judgment.

Arizona Attorney General Mark Brnovich, a Republican, told the justices during oral arguments that the Biden administration had unlawfully stopped enforcing the Trump administration’s rule after the U.S. Department of Justice “had spent more than a year successfully fighting the rule’s challengers in four different circuits.”

“Every injunction against the rule had been stayed, and this very court had granted certiorari,” agreeing to consider the rule, Brnovich said.

“But the new Biden administration suddenly abandoned its defense of the rule [and] coordinated with the rule’s challengers, and dismissed the granted petition by this court, all of the pending appeals in the lower courts as well, and it left one final nationwide injunction against the rule in place.”

The Biden administration rescinded the rule without participating in the normal notice-and-comment rulemaking, Brnovich said, but “within days of these legal maneuvers, Arizona and other states tried to intervene in ... every circuit court to defend the rule.”

In addition to Brnovich of Arizona, the attorneys general of Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, and West Virginia are also petitioners in the case. According to Brnovich, the rule saved the states, collectively, more than $1 billion per year—a figure the Biden administration disputes—and killing the rule would reimpose these costs on the states.

In his concurring opinion, Roberts wrote that the court “granted certiorari in this case not to address the merits of that argument, but to decide whether the petitioners—13 States which support the Rule—should have been permitted to intervene in this litigation to defend the Rule’s legality in the Court of Appeals.”

The Biden administration’s legal maneuvering in the case muddied the waters, making it difficult to flesh out the myriad complex issues involved, Roberts wrote.

Bound up in the inquiry over whether the administration’s actions are consistent with administrative law “are a great many issues beyond the question of appellate intervention on which we granted certiorari, among them standing; mootness; vacatur ... [and] the scope of injunctive relief.”