The Volokh Conspiracy

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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.