Justices clear Trump’s ‘Public Charge’ rule. Poor immigrants to be hit hard

The Supreme Court of the United States. Washington Post photo by Ricky Carioti.

WASHINGTON – The Supreme Court on Monday allowed the Trump administration to begin implementing new “wealth test” rules making it easier to deny immigrants residency or admission to the United States because they have used or might use public-assistance programs.

The decision, issued in response to an emergency petition by the administration, lifts a nationwide injunction imposed by a district judge in New York. That means the government can begin applying the new standards, which critics say would place a burden on poor immigrants from non-English-speaking countries, while legal challenges continue in lower courts.

The order supporting the Trump administration was handed down as Chief Justice John Roberts was presiding over President Donald Trump’s impeachment trial in the Senate. He was joined by conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh in lifting the injunction.

All four of the court’s liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – noted their disagreement. Neither side explained its reasoning, which is not uncommon in such emergency motions.

The decision echoed past orders in which the court’s conservatives allowed implementation of administration objectives – restricting transgender service members, for instance, or shifting Defense Department funds to build a border wall – while legal challenges continued.

“This decision allows the Government to implement regulations effectuating longstanding Federal law that newcomers to this country must be financially self-sufficient and not a ‘public charge’ on our country and its citizens,” White House press secretary Stephanie Grisham said in a statement.

The rules establish new criteria for who can be considered dependent on the U.S. government for benefits – “public charges,” in the words of the law – and thus ineligible for green cards and a path to U.S. citizenship. They were proposed to start in October but were delayed by the lower-court decisions.

Under the new policy, immigrants would be suspect if they are in the United States legally and use public benefits – such as Medicaid, food stamps or housing assistance – too often or are deemed likely to someday rely on them. The new criteria provide “positive” and “negative” factors for immigration officials to weigh as they decide on green-card applications. Negative factors include if a person is unemployed, dropped out of high school or is not fluent in English.

Immigrant groups have protested the rules and denounced the Supreme Court’s action.

“It’s a sad day in America when the U.S. Supreme Court affirms a completely discriminatory policy that measures the worth of a person – not by the strength of his or her character – but by the size of the person’s bank account,” said a statement from the National Partnership for New Americans.

Added David Leopold, a former president of the American Immigration Lawyers Association: “This rule is an all-out assault on legal immigration.”

Opponents of the rule argue that punishing legal immigrants who need financial help endangers the health and safety of immigrant families – including U.S. citizen children – and will foist potentially millions of dollars in emergency health-care and other costs onto local and state governments, businesses, hospitals, and food banks.

Federal officials say the rule ensures that immigrants can cover their food, housing and other expenses without burdening taxpayers. U.S. officials note that the change is not retroactive and exempts refugees and asylees who fled persecution for safety in the United States.

Ken Cuccinelli, acting deputy secretary at the Department of Homeland Security, cheered the high court’s action.

“It is very clear the U.S. Supreme Court is fed up with these national injunctions by judges who are trying to impose their policy preferences instead of enforcing the law,” Cuccinelli said at a media briefing.

“I hope some of these activist district court judges will finally get the message that they need to deal with the law and not their policy preferences. If they want to do that, they can get out and run for Congress.”

The rules change brought legal challenges filed around the country. The only thing standing in the way of implementing the new regulations was the nationwide injunction imposed by U.S. District Judge George Daniels in New York. (An injunction issued in a separate case means they still cannot be applied in Illinois.)

Daniels sided with challengers who said the changes upend 130 years of how the “public charge” definition has been interpreted. Generally, the term has been used to cover an individual “who is or is likely to become primarily and permanently dependent on the government for subsistence.”

Daniels declared that the proposed change would be “repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”

Several judges imposed injunctions such as Daniels’s, but two courts of appeals – for the 9th and 4th circuits – overturned them. U.S. Solicitor General Noel Francisco noted in his brief to the Supreme Court that the 9th Circuit “held that the rule ‘easily’ qualified as a permissible interpretation of the Immigration and Nationality Act.”

The Trump administration said the ruling by Daniels, and a decision by the U.S. Court of Appeals for the 2nd Circuit not to stay it, means that “decisions by multiple courts of appeals have been rendered effectively meaningless within their own territorial jurisdictions because of a single district court’s nationwide injunctions.”

Francisco has complained to the Supreme Court before about such nationwide injunctions, and he is finding at least some of the justices receptive.

Gorsuch filed a separate opinion, joined by Thomas, that said lawyers are racing to courts around the country hoping to get a stay from one judge that can shut down an entire program.

“As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,” Gorsuch wrote.

But Leopold said he worried that “the Supreme Court has become a virtual agency of the Trump administration” on immigration, by allowing the policy to take hold – and potentially harm thousands of people – before it is decided on its merits in court.

“This rule is a huge change in legal immigration without Congress changing a word of the law,” he said. “The Supreme Court just acquiesces to the Trump administration. That’s what’s shocking.”

Among those affected will be people of color and people with disabilities, lawyers said.

Claudia Center, a senior staff attorney at the American Civil Liberties Union, said the rule could discriminate against disabled people or penalize those who rely on Medicaid to pay for wheelchairs or respirators.

New York Attorney General Letitia James described the rules as a “stark departure from a more-than-century-long consensus” and said the status quo should remain until the legal challenges are decided.



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