January 29, 2020

SCOTUS allows 'public charge' rule to take immediate effect

Daily Briefing

    The Supreme Court on Monday issued a 5-4 decision allowing the Trump administration to enforce its so-called "public charge" rule, meaning federal officials can 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 originally was scheduled to take effect on Oct. 15, 2019—broadens 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 can 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 can 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 are 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.

    The plaintiffs have argued that 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, Washington, D.C., and three other states.

    However, 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. But a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan this month refused to lift the nationwide injunction that was issued in New York, making it the only nationwide injunction still in effect.

    In response, the Department of Justice (DOJ) filed an emergency appeal asking the Supreme Court to lift the nationwide injunction and allow the public charge rule to take immediate effect while cases challenging the policy continue to work their way through lower courts.

    SCOTUS allows public charge rule to take effect

    The Supreme Court on Monday issued 5-4 decision granted DOJ's request, meaning the Trump administration can begin enforcing the public charge rule while cases challenging the rule proceed in lower courts.

    However, the administration cannot enforce the rule in Illinois, where a lower court ruling blocking the rule remains in effect.

    While the Supreme Court did not explain its decision, Justice Neil Gorsuch wrote a concurring opinion that explained the ruling in part took aim at lower courts' ability to issue nationwide injunctions and for plaintiffs to game the system.

    Gorsuch wrote, "The stakes are asymmetric." In an environment where nationwide injunctions flourish, "[t]he 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."

    And while the ruling benefits the Trump administration, Vox notes that, in the long-run, "Democrats would actually do well to listen to Gorsuch," as the ruling also would work in the favor of a Democratic president looking to pass liberal policies.

    According to Reuters, a spokesperson for U.S. Citizenship and Immigration Services said the agency will "determine the most appropriate method to implement the public charge rule" and release more details soon.

    Experts raise health concerns

    Axios' "Vitals" reports that the rule could present "a real obstacle to a significant number of immigrant families" and pose "health risks" for individuals affected by the policy.

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

    According to Modern Healthcare, leaders of various health care organizations—including the American Academy of Family Physicians, the American Academy of Pediatrics, America's Essential Hospitals, and the American Hospital Association—have cautioned that the rule could harm public health, as well as access to care among low-income immigrants and their families.

    Joan Alker, executive director of Georgetown University's Center for Children and Families in a tweet posted Monday wrote that it will be "important" for advocates "to spread the word that children's enrollment in/eligibility for Medicaid is NOT impacted by this decision—even for immigrant families" (Cohrs, Modern Healthcare, 1/27; Winfield Cunningham, "PowerPost," Washington Post, 1/28; Owens, "Vitals," Axios, 1/28; Chung, Reuters, 1/27; Millhiser, Vox, 1/29).

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