Supreme Court

Supreme Court Refuses to Intervene in "Public Charge" Case—For Now

The Biden Administration's effort to moot challenges to the Trump Administration's "public charge" rule scores an initial (yet potentially temporary) victory.


In 2019, the Trump Administration adopted the so-called "public charge rule," which imposed more stringent requirements on those seeking visas to enter the country to demonstrate that they would not become dependent upon public assistance in the United States. The rule prompted numerous legal challenges, one of which made its way to the Supreme Court.

The justices initially accepted the Trump Administration's petition for certiorari in February, only to dismiss the case two weeks later once the Biden Administration had the opportunity to reverse course and have the case voluntarily dismissed. Other cases remained pending in lower courts, however, so the Biden Administration withdrew government appeals of adverse decisions, leaving a district court ruling in place that had vacated the rule as a basis for rescinding the "public charge" regulation without having to go through notice–and-comment rulemaking under the Administrative Procedure Act.

States that had supported the Trump Administration rule cried foul, and sought to have the Supreme Court ensure their ability to intervene to stay the lower court injunction and defend the rule. In today's orders list, the Court denied that request, but also left open the possibility of revisiting the question.

The relevant order reads:

In 2019, the Department of Homeland Security promulgated through notice and comment a rule defining the term "public charge." The District Court in this case vacated the rule nationwide, but that judgment was stayed pending DHS's appeal to the United States Court of Appeals for the Seventh Circuit. On March 9, 2021, following the change in presidential administration, DHS voluntarily dismissed that appeal, thereby dissolving the stay of the District Court's judgment. And on March 15, DHS relied on the District Court's now-effective judgment to remove the challenged rule from the Code of Federal Regulations without going through notice and comment rulemaking. Shortly after DHS had voluntarily dismissed its appeal, a group of States sought leave to intervene in the Court of Appeals. When that request was denied, the States filed an application for leave to intervene in this Court and for a stay of the District Court's judgment. The States argue that DHS has prevented enforcement of the rule while insulating the District Court's judgment from review. The States also contend that DHS has rescinded the rule without following the requirements of the Administrative Procedure Act. We deny the application, without prejudice to the States raising these and other arguments before the District Court, whether in a motion for intervention or otherwise. After the District Court considers any such motion, the States may seek review, if necessary, in the Court of Appeals, and in a renewed application in this Court.

Although the states' effort failed, the degree of detail in the Court's order is somewhat curious. It suggests the states' petition–filed against the background of an unusual number of cases in which the federal government has altered its position in light of the change in Administration–caught the eye of at least a few of the justices. This suggests the lower courts might want to give the states' motions some extra consideration.

Somewhat relatedly, in American Medical Association v. Becerra, the Court also asked the Acting Solicitor General to "file a letter brief addressing the following question: Whether the Government intends to continue to enforce the challenged rule and regulations outside the State of Maryland until the completion of notice and comment; and, if further litigation is brought against the challenged rule and regulations outside of Maryland, how the Government would intend to respond." More evidence the Court is paying close attention to the federal government's sudden change in positions.

NEXT: Webinar on the Economics and Law of Climate Adaptation

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Oh, good grief. We don’t need doctrinal incoherence on this point.

    Almost an exact same sequence of events happened on a rule relevant to my practice. It was challenged and upheld at the district court level, but then was vacated at the appellate level. The Trump administration (approving of the result, which it had failed to obtain in other circuits), opted not to appeal. The circuit denied en banc review and denied a request to intervene by certain states and interested parties, thereby insulating its holding from review. And then, under the APA, the vacatur was generally understood to have national effect. The regulating agency subsequently abided by the vacatur, clarified that it would not enforce the old rule, and struck the rule from the codebooks without notice and comment rulemaking.

    I don’t know how much sense it makes to argue that an agency has an obligation to go through notice and comment rulemaking in order to “rescind” a rule that has been vacated and rendered unenforceable by judicial fiat. What would that even look like? “We are proposing to rescind the rule because it was illegally issued in the first place, comments plz.” It just seems like it’s a tactic to draw out the process so some future administration can reverse course yet again. But if the Supreme Court is prepared to announce that the APA somehow requires that absurd result, it’ll show how ends-motivated it has now become.

    1. Its simple, violating the APA causes the courts to strike it down and void the regulation, and violating the APA in the process of repealing the regulation that was already struck down causes you to … um … well, see, you need notice for people to understand the stuck down law is actually disappearing I think so failure to provide such notice will … um … the courts will make the reg double unenforceable! Yes let’s go with that.

      Tbh, this all seems like a made up thing for politically motivated judges to use to achieve certain ends. The whole point of the APA was to avoid this political gamesmanship, and yet here we are.

    2. I would prefer that they issue public notice, even if it’s a bit silly. Following the procedure is important to avoid absurd objections and confusion.

      We should do it right the first time to avoid these problems.

      1. Implementations of vacaturs are publicly posted in the Federal Register. That’s what the excerpt, above, is referring to as happening on March 15. 86 FR 14221. The publication even runs down the procedural posture and explains why it’s doing it without notice and comment rulemaking or further delays.

  2. Nothing will stop the ride to Venezuela the Democrat Party is taking the nation.

  3. So much for the idea that the new APA jurisprudence was anything other than Trumplaw, as conservatives said all along.

  4. If there’s anything we need more of these covid days, its welfare cases. Genius! Why cant dumb conservatives understand?

    1. Why not? Every low IQ immigrant will likely sire three or four illegitimate crotch droppings, which three or four more Democrat Party votes in the future.

  5. “And on March 15, DHS relied on the District Court’s now-effective judgment to remove the challenged rule from the Code of Federal Regulations without going through notice and comment rulemaking.”

    I’m a process-is-as-important-as-results kinda guy so for this case, just figure out if DHS followed the law/rules/process.

    This cannot be the first time this situation has ever come up.

    1. I’ve seen expedited rule changes before when the agency believed it had no discretion.

      1. See also 5 USC 553(d): “The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule.” Sample notice when statutory authority for a rule had been repealed: ” The agencies find that prior notice and opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(B) because the agencies are not exercising discretion in a way that could be meaningfully affected by public comment.”

  6. Biden didn’t disagree with the power, just who it was used against. If he let the court take that power away, that is a bad thing, so hide the power behind his back, until no-one is looked anymore.

  7. The ruling makes sense. Ar this point the original parties are in agreement and there’s no live case or controversy. The parties in disagreement are the complaining states.

    It makes complete sense that the complaining states need to intervene by filing their objections in the district court rather than in the Supreme Court. It’s essentially a new case. If they don’t have standing to intervene, there is no case. And the district court, not the Supreme Court, should be making the initial call on questions like whether they have standing.

Please to post comments