By Aryana Thompson
In late January, the U.S. Supreme Court voted 5 to 4 to allow a Department of Homeland Security rule change denying green cards and other temporary visas to noncitizens deemed a “public charge.” Under the new immigration rule, the government can consider whether a noncitizen is likely to become reliant on government assistance (or become a “public charge”) for more than 12 months over a three-year period, based on factors such as finances, employment history, and age.
The January 27 ruling in Department of Homeland Security, et al. v. New York, et al. is temporary, pending “the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.”
The rule affects all states except Illinois. A number of states, organizations, and individual plaintiffs filed suit in New York challenging the constitutionality of the rule and alleging the rule violates the Administrative Procedure Act and immigration law. The plaintiffs argued that a “public charge” has previously been defined as a noncitizen who is largely dependent on the government for “long-term subsistence” and that the government did not indicate that enforcing the rule is necessary to preserve national security.
In October, 2019 a district judge in New York issued an injunction prohibiting application of the new rule to anyone, regardless of where they lived or their participation in the lawsuit. Injunctions with this scope are sometimes called “nationwide injunctions.” The Government requested a stay pending appeal arguing that if it could not implement the new rule it and the public “will suffer irreparable harm.” On December 2, 2019, George Daniels, the federal district judge, denied the stay. The Government then appealed to the United States Court of Appeals for the Second Circuit. But the Second Circuit supported the injunction, citing “the irreparable injury that Plaintiffs, noncitizens, and the general public would suffer in the absence of an effective injunction.” Subsequently, the Government filed an application for stay with the Supreme Court, which the Supreme Court has now granted.
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan supported denying the stay, while Justice Neil Gorsuch and Justice Clarence Thomas concurred in the grant of stay. Justice Gorsuch argued that nationwide injunctions are themselves flawed because “it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies” when it issues nationwide injunctions because the nationwide injunctions “direct how the defendant must act toward persons who are not parties to the case” (589 U.S. __ 2020). Since this decision was limited to granting the stay, Justice Gorsuch concludes by saying he hopes to have the opportunity to address the constitutional questions raised by nationwide injunctions in the future.