December 11, 2019

Two federal appeals courts have lifted lower court injunctions blocking a final rule that would allow federal officials to consider whether immigrants are receiving or are likely to receive Medicaid or other public benefits when reviewing their residency applications, but separate injunctions blocking the rule nationwide remain in effect.

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Final rule details

The 837-page final rule, which was scheduled to take effect on Oct. 15, would broaden the criteria immigration officials can take into account when considering whether an immigrant is likely to become a so-called "public charge" while reviewing his or her immigration status or application for permanent residency. Under the final rule, officials would be able to consider whether immigrants receive:

  • Housing assistance;
  • Medicaid—with a few exceptions for pregnant women, new mothers, children, and adults under age 21, as well as whether the individual is receiving Medicaid benefits to cover an "emergency medical condition" or disability services related to education;
  • Supplemental Nutrition Assistance Program benefits, which often are referred to as "food stamps"; and
  • Welfare.

Officials under the final rule would be able to deem an individual a public charge if he or she receives one of the qualifying public benefits for 12 months or more in a 36-month period. The final rule states that immigrants who are not citizens or legal residents and who receive or are likely to receive public benefits above a specific threshold generally would be ineligible for a change of their status or an extension of stay.

States file suit, and judges block the final rule

Attorneys general (AGs) from several states and Washington, D.C., filed lawsuits challenging the final rule. For example, 13 state AGs in one lawsuit claimed the rule "is arbitrary, capricious, and an abuse of discretion because—among other reasons—it reverses a decades-old, consistent policy without reasoned analysis."

In a separate lawsuit, AGs from four states and Washington, D.C., claimed the final rule exceeds the Trump administration's authority under federal immigration law and violates the Constitution's equal protection guarantee, as well as the states' rights to protect their residents.

U.S. District Judge George Daniels in the Southern District of New York and U.S. District Judge Rosanna Malouf Peterson in the Eastern District of Washington in October issued separate preliminary injunctions blocking the final rule nationwide as the lawsuits challenging the policy proceed. In addition, U.S. District Judge Phyllis Hamilton in Oakland in October issued a preliminary injunction temporarily blocking the final rule in California, Maine, Oregon, Pennsylvania, and Washington, D.C. Other judges also have issued injunctions blocking the final rule.

The Department of Justice (DOJ) has appealed the several of the judges' rulings and requested that appeals courts stay the injunctions, which would mean the policy could take effect, while cases challenging the final rule continue.

Two federal appeals courts lift injunctions—but policy remains blocked nationwide

A three-judge panel of the 9th Circuit Court of Appeals in a 2-1 ruling issued Thursday lifted preliminary injunctions blocking the final rule that were issued by federal judges in California and Washington.

Judges Jay Bybee and Sandra Ikuta in a 73-page majority ruling wrote that the administration likely would prevail in lawsuits challenging the final rule based on DOJ's arguments that the administration has the legal authority to issue regulations broadening the definition of who is considered a public charge. "We find that the history of the use of 'public charge' in federal immigration law demonstrates that 'public charge' does not have a fixed, unambiguous meaning," the judges wrote. "Rather, the phrase is subject to multiple interpretations, it in fact has been interpreted differently, and the executive branch has been afforded the discretion to interpret it," they added.

However, Judge John Owens, the third judge on the panel, dissented, arguing that the injunctions should stay in place pending a more thorough review by the federal appeals court.

Separately, a three-judge panel of the 4th Circuit Court of Appeals in a 2-1 ruling issued Monday lifted another lower court's injunction that blocked the final rule nationwide. The judges in a short ruling indicated that the 9th Circuit's decision had influenced their ruling.

But the panels' rulings do not apply to a nationwide injunction issued by a New York court, which falls under the 2nd Circuit Court of Appeals' jurisdiction, meaning that injunction remains in place. As such, the final rule has not yet taken effect.

Reaction

A DOJ spokesperson welcomed the decision from the 9th Circuit Court. The spokesperson said, "The [DOJ] is pleased with … [the] decision to lift the injunction and respect the legal authority vested in the administration by the U.S. Congress."

White House press secretary Stephanie Grisham, said, "The 4th Circuit's lifting of the lawless nationwide injunction imposed against the administration's public charge immigration regulation is a major step forward for the rule of law." She added, "It is our hope that the 2nd Circuit will, like the 9th and 4th Circuits have already done, lift the meritless nationwide injunction a New York District Court has imposed against the rule so that it can be enforced, consistent with the plain letter of the law, for the benefit of all citizens and lawful residents of this country" (Frazin/Kruzel, The Hill, 12/6; Gerstein, Politico, 12/5; Kruzel, The Hill, 12/9; Romoser, Inside Health Policy, 12/6 [subscription required]).

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