State Attorneys General Demand That The Court Reconsider The Public Charge Rule In Light Of The Pandemic

The attorneys general of New York, Connecticut, and Vermont have asked the U.S. Supreme Court to reconsider the decision early this year to allow the Trump Administration to rollout its “public charge rule.”  The Court split along ideological lines to lift the nationwide injunction.  The decision was clearly influenced in part by the strong opposition of some members to lower courts binding the entire country through national injunctive orders.  However, it also reflected the view of conservative justices on the inherent authority of the President in the area.  The effort to get a reconsideration of the decision based on the pandemic is likely to be viewed by a number of justices as seeking a policy judgment.

What is clear is that the public charge rule could have a broader scope and costs for immigrant families since a huge percentage of the population is receiving forms of public support in the crisis.  The Administration can use its discretionary authority to curtail enforcement for immigrants during this period. It should do so on humanitarian grounds. However, the question is whether the Court should intervene in light of such changed circumstances.

The question of lifting an injunction often balances the harm to parties in allowing a policy or program to continue.  However, it also turns on the likelihood of prevailing on the merits.  In the earlier filing, the parties argued that the application of the rule would cause irreparable harm but the Court still lifted the injunction.

Given the earlier decision, it is likely that most if not all of the conservative justices will be reluctant to intervene. There is the danger of looking like a superlegislature.

The order granting of the motion said nothing but a result. However, Justice Neil Gorsuch expressed a strong opposition to these injunctions, a view that is unlikely to change with the renewed motion:

“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate Cite as: 589 U. S. ____ (2020) 5 GORSUCH, J., concurring period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of?”