The Supreme Court decided on January 27, 2020, to issue a stay of an injunction against the “public charge rule.” What does all that mean? Essentially, the Trump Administration created a new rule that would have applied to many immigrants in the United States, particularly those seeking green cards. The rule was announced on August 14, 2019 and was set to become effective on October 15, 2019. Before that could happen, several federal district courts issued what are called “injunctions” against the rule, preventing it from going into effect. Since that time, immigration has not been able to start applying the rule.
The Supreme Court’s decision is not a final decision on the rule itself, which will likely work its way through the federal court system first. This decision is only related to an application for a “stay,” which is essentially a court order to temporarily stop a lower court’s action. Put another way, the Supreme Court undid the decisions of the lower courts, and since those decisions were all that held back the new rule, that rule will likely go into effect soon.
Why did the Supreme Court do this? The Court issued a decision explaining it’s reasoning, but not a full decision as is done at the end of a case. These kinds of decisions rarely involve a thorough discussion of the legal issues involved; rather, they deal with whether a rule goes into effect while it is challenged in the courts. You can read the decision below:
The decision was made on a 5-4 split, meaning that it was very divisive. The sole opinion reflects growing concerns about court injunctions which have nationwide impact. The four dissenting justices did not write to explain their reasoning, which is typical. Justice Gorsuch wrote a concurring opinion, joined by Justice Thomas, which sheds some light on what at least two of the Justices were thinking. A short summary of the key points is:
- Justice Gorsuch is clearly annoyed by district court judges preventing the government from implementing a rule, applying that relief to everyone without regard to where they live or whether they were part of the lawsuit in question
- The decision is an outcome of the increasing use of injunctions, which follows directly from the Trump Administration’s push to modify the immigration system via regulations to the greatest extent possible, often pushing the boundaries of the law and always creating litigation
- Justice Gorsuch appears to believe that only the parties to a case should be implicated in an injunction of a rule such as this one, and seems to yearn for an opportunity to curb the practice in general
These are interesting issues, and there is no doubt that future cases might present an opportunity for the Supreme Court to cut back on the lower courts’ ability to issue injunctions. At the same time, the practice of injunctions seems to follow directly from the increased use of substantive rule-making by various administrations, including Trump and Obama, which also have nationwide impact and affect millions of people.
There is a very good reason to prevent the government from implementing a controversial new rule while the issue is reviewed in the courts – the rule might be unconstitutional. It may in practice frustrate an administration’s ability to implement its will, as it did preventing Obama from implementing his DAPA program. But there is nothing preventing the Circuit Courts of Appeals from issuing their own stays, as happened here in several cases, nor the Supreme Court from stepping it on its own. The federal government is certainly in a better position to litigate these matters than the millions of people who would otherwise have to sue individually to get individual injunctions, as Justice Gorsuch seems to favor. Despite his concerns, this does seem more efficient than the alternative he appears to favor.
What is the practical effect of this decision? At the moment, nothing has changed. But it is likely that USCIS will announce a date to begin implementing the rule, with all of its substantive changes, within days or weeks. That is significant. That announcement will likely appear on USCIS’ website. It appears that the decision does not extend to the injunction that applies in the state of Illinois, for the moment, but since the rule has not yet been implemented anywhere it’s best to wait and see how immigration interprets it with regard to the geographic impact.
What should attorneys and applicants be doing now? File your applications. If you are sitting on any adjustment of status that might be affected by this rule, it likely needs to be mailed immediately. The rule’s implementation will mean that many forms need to be redone, entirely new forms and fees will be required, and some people might even be denied based on the public charge grounds. Anyone who is still in the process of preparing an application needs to re-evaluate their eligibility, what forms are likely to require changes, and discuss those things with an attorney.