CHICAGO (CN) — The Trump administration’s controversial public charge rule was at the center of a debate in the Seventh Circuit on Wednesday, at the behest of over a dozen GOP-dominated states.
The rule is a more draconian refinement of immigration screening provisions outlined in the Immigrant Fund Act of 1882. Implemented under Trump by executive order in 2019, the rule made it harder for immigrants to find and keep legal residence in the U.S. if they were deemed “public charges,” or someone who relies on public benefits such as food stamps or housing vouchers. Civil rights groups criticized the policy as a “racist wealth test,” and in March 2021 the Biden administration allowed the rule to be vacated across the country.
The move followed a fraught legal drama passing through several levels of court.
A federal judge in Illinois first blocked the rule’s implementation in 2019, alongside federal courts in New York, Maryland, California and Washington. That first round of holds on the rule was then lifted by the Supreme Court in early 2020, and the Department of Homeland Security began enforcing the rule in February of that year. It didn’t last long.
Over the course of 2020, the Second, Seventh and Ninth Circuits all upheld the lower court injunctions, and U.S. District Judge Gary Feinerman in Illinois vacated the rule in a November 2020 merits decision. He found the policy violated the Administrative Procedure Act, which governs how the federal government can enact regulations.
“The ambiguity in the public-charge provision does not provide [the Department of Homeland Security] unfettered discretion to redefine ‘public charge.’ We find that the interpretation reflected in the rule falls outside the boundaries set by the statute,” wrote Feinerman, a Barack Obama appointee.
The Seventh Circuit stayed that decision one last time pending an appeal from the federal government under the Trump administration, only for the Biden administration to drop the appeal once it came to power in 2021. In doing so, it allowed Feinerman’s vacatur to take effect nationwide. The administration then instructed the DHS to abide by the 1999 field guidance of its predecessor, the Immigration and Naturalization Service, in not considering a person’s use of Medicaid, public housing or SNAP benefits when assessing their residency status.
“The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them,” Homeland Security Secretary Alejandro Mayorkas said in April 2021.
Now the Republican-led governments of Texas, Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina and West Virginia seek to pick up the federal government’s abandoned litigation against the vacatur.
Arguing before the Seventh Circuit on Wednesday morning, the states’ counsel Benjamin Wilson avoided touching on the morality or practicality of the public charge rule itself. Instead he stuck to procedural arguments, asking the Chicago-based appeals court to let the states pursue Rule 60b relief, effectively negating Feinerman’s order within their territory.
“Our path to relief is fairly straightforward… What we’d like to do is intervene in the district court for the purposes of seeking Rule 60b relief,” Wilson said. “As a party we would be entitled to seek that relief. It’s clearly sort of a difficult standard but I think that’s the remedy that remains available to us.”
Wilson’s argument was based on the premise, advanced by the conservative states in their brief to the court, that the Biden administration dropping the appeal of Feinerman’s judgment was itself a violation of the Administrative Procedure Act. They specifically objected to the administration not holding a notice and comment period for state governments to weigh in before abandoning the litigation.
“Less than a week after abandoning its defense of the public charge rule, the federal government issued a final rule immediately removing the public charge rule from the Code of Federal Regulations without going through the notice-and comment process generally required by the APA… The public charge rule thus has become unenforceable in any state,” the states’ appellant brief says.
All three members of Wednesday’s panel – U.S. Circuit Judges Diane Wood, Ilana Rovner and Amy St. Eve, appointed by Bill Clinton, George H. W. Bush and Donald Trump, respectively – expressed skepticism of Wilson’s arguments. Like Wilson, they largely avoided touching on the morality of the rule itself, but questioned why the states wanted to revive old litigation instead of starting fresh with a new APA claim against the federal government.
“Why isn’t the thing to do, to give up this defunct case and… bring an action, assert the rights that you believe will be impacted by all of this?” asked Wood. Rovner agreed with the sentiment.
Wilson said pursuing a new APA action against the federal government would be less likely to succeed than simply gaining relief for the intervenor-appellant states in the existing case, citing arguments from their brief.
“As a general matter, promulgation of new rules is a largely discretionary enterprise, and such a request would certainly be denied by the federal government (as the extraordinary actions the federal government took here to rescind the public charge rule make clear),” the brief states. (Parentheses in original.)
Beyond this line of argumentation, Wood also expressed skepticism that the states were harmed enough by the rule’s vacatur to warrant legal relief. She dismissed Trump-era DHS predictions that the rule’s vacatur could cost states billions of dollars a year in public benefits spending as just that – predictions.
“The record is very thin on whether there is in fact – put [DHS] predictions to one side – in fact any impact,” Wood said.
The judges were much more sympathetic to the arguments presented by the Department of Justice’s counsel Gerard Sinzdak, who agreed with Wood’s sentiment that the GOP states were trying to revitalize dead litigation.
“Here it’s clear what the states are doing – they, in their rule 60b motion, didn’t ask the district court to alter its judgment or amend it any way… It’s clear what they’re seeking is a second bite at the apple,” Sinzdak said. “Or it’d be a third bite I suppose, if it went back to the district court.”
Sinzdak pointed out that if the states truly sought to reinstate the public charge rule, the comment period is still open for a new version of it that was proposed by the DHS in February. As to the states’ claim that the nationwide vacatur order deprived them of their procedural rights, he argued that the solution was to take up litigation limiting the ability of district courts to vacate federal rules nation-wide.
“The solution is in holding that nationwide injunctions… in the appropriate case, that that’s improper. Not to conclude that intervention should be expanded,” Sinzdak said.
The panel took the attorneys’ arguments under advisement and did not say when they would issue a ruling.
from Courthouse News
