Supreme Court mulls Republican bid to defend Trump immigration rule

By Andrew Chung

U.S. Supreme Court justices on Wednesday struggled over whether to let Republican state officials defend an immigration rule crafted by former President Donald Trump’s administration to bar permanent residency for immigrants deemed likely to need government benefits.

The justices heard oral arguments in an appeal by 13 Republican state attorneys general led by Arizona Attorney General Mark Brnovich of a lower court’s ruling that rejected their bid to defend Trump’s rule, which expanded the scope of those considered likely to become a “public charge.”

President Joe Biden’s administration dropped the government’s defense of the policy, prompting the action by the states. The rule took effect in February 2020.

Liberal and conservative justices questioned why the administration rescinded the policy in March 2021 based on a federal judge’s November 2020 decision in Illinois ordering it vacated nationwide in another case, rather than undertaking a formal rulemaking process to replace it while it remained in effect.

Liberal Justice Elena Kagan suggested that the administration evaded requirements under a U.S. law called the Administrative Procedure Act and expressed doubt that the court should be “green-lighting” such behavior. Conservative Chief Justice said circumventing that statute “is a pretty big deal.”

Some justices noted that presidential administrations often stop defending in court certain policies they oppose.

“It’s very much not unprecedented,” conservative Justice Brett Kavanaugh said.

Since much of the argument dealt with the Illinois case, liberal Justice Stephen Breyer wondered why the justices were not directly dealing with that one instead.

The Supreme Court in a separate dispute is weighing whether to let Kentucky’s Republican attorney general defend a restrictive abortion law in his state that was struck down by lower courts, after its Democratic governor dropped the case.

The immigration case reached the justices six days after Biden’s administration announced a new “fair and humane” public charge rule that it said would avoid penalizing people for seeking medical attention and other services.

The fact that a new federal rule already has been devised raises questions about what type of remedy would be available to the state officials even if they win and get to defend Trump’s policy.

Brnovich was joined by officials from Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas and West Virginia.

U.S. guidelines in place for the past two decades had said immigrants likely to become primarily dependent on direct cash assistance or long-term institutionalization, in a nursing home for example, at public expense would be barred from legal permanent residency, known as a “green card.”

Trump’s policy expanded this to anyone deemed likely to receive a wider range of even non-cash federal benefits such as the Medicaid healthcare program, housing and food assistance for more than an aggregate of 12 months over any 36-month period.

The San Francisco-based 9th U.S. Circuit Court of Appeals decided in 2020 that Trump’s policy impermissibly expanded the definition of who counts as a “public charge.” Other courts around the country made similar rulings.

Brnovich and the other Republican officials argued that they should be able to defend Trump’s rule, saying it has been estimated to save all states about $1 billion annually.

During the time the policy was enforced, the government issued only three denials of admission under it, according to court filings, all of which have since been reversed.

Reuters