The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Court Punts By Granting Cert on QP 1 in Arizona v. San Francisco

The Court will only decide if the states can intervene, but not decide if the public charge rule should be reimposed.


On Friday afternoon, the Court issued an order list. Jon Adler blogged about the cert grants involving the EPA's authority to regulate greenhouse gasses. The Court also granted cert in Arizona v. San Francisco. This case has a tortured posture.

In 2019, the Trump Administration issued the "public charge" rule. This rule would have deemed inadmissible immigrants who accepted certain public benefits. Litigants across the country challenged the rule and several district courts entered preliminary injunctions. Eventually, the Trump DOJ appealed those cases to the Supreme Court. And in February 2021–after the inauguration–the Court granted cert in DHS v. New York. However, the Biden Administration switched positions. It would no longer pursue the appeal. And on March 9, 2021, the Biden DOJ filed a joint stipulation to dismiss the case. That same day, the Court dismissed the petition under Rule 46. At that point, the Biden DOJ left in place a nationwide injunction that vacated the public charge rule. Arizona and other states tried to intervene to protect their interests. But the Ninth Circuit denied the motion to intervene.

Arizona filed a cert petition in June 2021. Arizona's petition presented three questions:

1. Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend.

2. Whether the Rule is contrary to law or arbitrary and capricious.

3. Alternatively, whether the decision below as to the Rule should be vacated as moot under Munsingwear.

The case was distributed for conference on 9/27/2021, and again on 10/8/2021, 10/15/2021, and 10/29/2021. These relists were a signal that something was afoot. Finally, on 10/29/21, the Court granted cert–but limited to the first question presented. As a result, the Court will only decide whether Arizona can intervene. The Court will not decide if the public charge rule was lawful. Nor will the Court decide if the lower court preliminary injunction should be Munsingwear'd. Thus, even if Arizona prevails, the public charge rule will remain enjoined for the foreseeable future. In theory at least, the Ninth Circuit could decide to reimpose the public charge rule. But in reality, that likely will not happen. And the rule will not be reimposed.

The cert grant in Arizona closely parallels the cert grant in Cameron v. EMW Women's Surgical Center. That case involves a challenge to a Kentucky abortion law. During the pendency of the appeal, a Democrat was elected as Governor, and his administration declined to defend the statute. The Republican Attorney General attempted to intervene. A Sixth Circuit panel declined permission to intervene. The Attorney General filed a cert petition. The Court granted review, limited to the question cert on whether the Attorney General could intervene. The Court refused to assess the constitutionality of the Kentucky law. The Court could have even held the issue pending Dobbs. But it didn't. At the time, I wrote that this limited cert grant was a punt, and will keep the case in limbo till 2025 or so.

Now, in two cases, the Court has granted cert about intervention. And, in both cases, the Court declined to address the underlying merits. In May, I observed that limiting and reframing questions presented is the last bulwark of the Chief Justices's moderation. I think we are seeing that moderation once again.

I will write about the Court's other Friday-night flight in another post.