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January 16, 2020

Trump admin asks SCOTUS to let 'public charge' rule take effect

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    The Department of Justice (DOJ) on Monday filed an emergency appeal asking the Supreme Court to lift a nationwide injunction blocking the Trump administration's so-called "public charge" rule, which 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.

    Your cheat sheets for understanding health care's legal landscape

    Final rule details

    The 837-page final rule—which was scheduled to take effect on Oct. 15, 2019—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., last year filed lawsuits challenging the final rule.

    Thirteen state AGs in one lawsuit claimed the rule "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.

    Last October, district court judges in New York and Washington issued separate preliminary injunctions blocking the final rule nationwide as lawsuits challenging the policy proceeded, and a district court judge in California issued a preliminary injunction temporarily blocking the final rule in California, Maine, Oregon, Pennsylvania, and Washington, D.C. Other judges also issued injunctions blocking the final rule.

    DOJ appealed several of the judges' rulings, including the nationwide injunctions, and requested that appeals courts stay the injunctions so the policy could take effect while cases challenging the final rule continue. In response, a three-judge panel of the 9th Circuit Court of Appeals in a 2-1 ruling issued last December lifted the regional injunction issued in California, as well as the national injunction issued in Washington.

    However, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan last week refused to lift the nationwide injunction that was issued in New York. The New York injunction is the only nationwide injunction that currently is in effect.

    Trump admin asks SCOTUS to let public charge rule take effect

    In response, DOJ on Monday filed an emergency appeal asking the Supreme Court to lift the nationwide injunction and allow the public charge rule to take effect immediately. Lifting the injunction would allow to final rule to take effect while cases challenging the policy continue to work their way through lower courts, Modern Healthcare reports.


    Georges Benjamin, executive director of the American Public Health Association, said allowing the public charge rule to take effect could "result in immediate harm by denying people access to needed health services."

    The Legal Aid Society of NYC, one of the litigants in the case, said the "Trump administration is grasping at straws" with the emergency appeal, adding that they hope "the Supreme Court sees [the] motion for what it truly is and immediately denies it."

    The litigants in a statement in response to the Trump administration's emergency appeal said "it is critical that the public charge policy, which the lower courts called 'repugnant to the American Dream of prosperity and opportunity through hard work and upward mobility,' continues to be blocked," adding that the injunction "protects millions of hard-working immigrant families across the nation" (Meyer, Modern Healthcare, 1/14; de Vogue, et al., CNN, 1/13; Kruzel, The Hill, 1/13).

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