On Wednesday, the Supreme Court will hear a plea by a group of conservative state governments seeking to revive a Trump Administration anti-immigrant policy that actually has its origins in a dark era in American history, 140 years ago. The case is the only one scheduled for hearing tomorrow.
The “live” audio (no video) can be heard at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
Wednesday’s case: Arizona v. San Francisco The hearing, to begin at 10 a.m., is scheduled for one hour.
Background: In the 1880s, much of America – and definitely, the U.S. Congress – had begun worrying about a growing wave of immigrants, especially from China and parts of Europe. The fears were grounded mainly in prejudice, a deep-seated anxiety that people who were “different” would not mix well in American society.
In 1882, Congress passed two major immigration control laws. The first was the Chinese Exclusion Act, stopping all entry of Chinese laborers into the United States. This was driven by outright ostility to Asians, but it also sought to end the arrival of Chinese people willing to work for little pay, believed to be a threat to the U.S. labor market.
The second law was the Immigration Act of 1882, designed not to keep out those arriving from supposedly undesirable countries, but those who were deemed to be undesirable themselves.
A key feature of that second law gave government officials the authority to go to U.S. ports, to inspect the passengers on arriving ships. If, among the passengers, they found those who were a “convict, lunatic, idiot, or any person unable to take care of him or herself without becoming a public charge,” those were barred from entry.
That “public charge rule” is still a part of U.S. immigration law, but its language has been moderated somewhat. It now reads: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment in status, is likely at any time to become a public charge is inadmissible.”
Congress has never defined what the phrase “public charge” means, so it has been up to federal immigration officials to decide how to enforce it. For decades, the rule operated mainly as guidance for immigration officials, rather than a hard-and-fast ban on entry of anyone in the excluded categories.
However, the Trump Administration moved in August 2019 to harden the rule, and to make it considerably more difficult for foreign nationals to obtain visas to enter or for those already living here to seek permanent resident status, if they were going to apply for government benefits or had received them. Among the programs listed were government-paid Medicaid health care for the poor, children’s health insurance, food stamps, housing assistance, educational benefits, and a wide variety of other forms of subsidies or assistance.
The new approach was controversial from the beginning. Challengers argued that the 2019 rule was part of the Trump Administration’s embrace of “white replacement theory” which, critics said, harkened back to the late 19th Century.
The rule was promptly challenged in federal courts across the nation by 21 states and several local governments, led by liberal officials, along with immigrants’ rights groups. Federal courts reached conflicting rulings, with some blocking the new rule, others deciding to allow it.
The Trump Administration persuaded the Supreme Court to put the rulings against the 2019 rule on hold, so the restrictions did go into effect in February 2020. The Trump team also asked the Supreme Court to hear its appeal defending the rule’s validity.
The Court did not act on that appeal until a month after the Biden Administration had come into office in January of last year. The Justices granted review of one case testing the rule. Two weeks later, however, the Biden Administration decided to abandon altogether the defense of the Trump rule.
With President Biden declaring a new era on immigration policy, his Administration’s basic argument against the “pubic charge” rule was that it would deprive non-citizens already here or seeking to enter access to benefits that they need, and for which it wanted them to remain eligible.
The new Administration also had been urged to walk away from the rule, with immigrants’ rights organizations arguing that it discriminated against the poor and against people of color.
The Administration completed its abandonment of the rule by withdrawing the prior appeal by Trump’s team to the Supreme Court, and then moved, in courts across the country, to close remaining cases – except for a single one that had banned the rule nationwide; that order was left intact, but the case was closed, thus heading off any appeal. The Administration also acted quickly to formally erase the 2019 rule from government regulatory records.
However, shortly after the withdrawal of the dispute from the Supreme Court, 13 states with governments controlled by conservative officials asked a federal court in California to let them enter the case there, to defend the rule as a valid exercise of federal authority. Up to that point, those states had not taken part in the cases across the country. They were in favor of the restrictions, but depended upon the Trump Administration to defend the rule in court.
Those states argued that, without the rule, they would face significant financial burdens on their state budgets, perhaps more than $1 billion for them as a group. They argued that they were thus entitled to step in to revive the rule, and also contended that the Biden Administration had ended the rule in a procedurally flawed way, without asking the public for comment before eliminating an existing federal rule without any option left for its review by the Supreme Court.
A federal appeals court denied those states’ entry into the dispute, although they did win the vote of one judge on that court, who argued in dissent that the Biden Administration had used its power over immigration and “colluded” with sympathetic state and local governments to make it almost impossible for any future government to revive the rule.
The states then filed their own appeal to the Supreme Court, asking the Justices not only to let them become the legal defenders of the rule, but also to grant review of the underlying issue of the rule’s legality. The Biden Administration urged the Court not to hear the appeal at all.
The Court agreed to take on the case, but said it would decide only whether to let the 13 states enter the case. If they do win the right to intervene, the states could then make their defense in the lower courts first and then, later, pursue a new appeal to the Supreme Court.
The question now before the Court: If the federal government changes its mind and refuses to continue defending a rule that it had itself adopted, do states that favor the rule and claim they would be harmed without it have a right to become its defenders in court?
Significance: One of the defining characteristics of the Trump Administration was its aggressive policy toward immigrants. That ranged from building a wall on the border with Mexico, to separating children from parents at border entry points, to attempts to undo protection from deportation for young foreigners who came to the U.S. as children, to the ban on immigration from Muslim nations, to the “return to Mexico” policy for foreign nationals while they seek asylum to enter the U.S., to denying federal law enforcement funds to local governments that refused to help enforce such policies, to the more restrictive “public charge” rule.
In many of those new policy initiatives, the Trump team had energetic support from conservative-led state governments. Now, with the Trump Administration out of power, the only way the legacy of the Trump era could be prolonged is for sympathetic state governments to take up the cause.
The 13 states’ appeal to the Court is in a highly unusual legal posture: the federal government clearly has the dominant power to make and enforce immigration policy, but those states are essentially asking the Court to let them stand in the federal government’s place to implement immigration restrictions.
Because the Supreme Court has chosen, over the Biden Administration’s opposition, to grant review of at least part of the 13 states’ appeal, it may already have signaled some inclination to rule for those states – at least to give them a chance to try to revive the rule in some way.
Under federal court rules, those not yet parties to a pending case but interested in it can seek to join and be in a position to help shape the outcome. They may have a legal right to do so, if Congress has so specified or if they have a strong enough interest, or they may seek permission to enter if that is not a specific right. As this case is unfolding before the Supreme Court, it appears that the 13 states are seeking to enter it as a matter of legal right.
While this will mean that the Court’s review will be primarily on a procedural point, the fact that the controversial “public charge” rule still is clinging to a thread of opportunity to be put back into effect – at least temporarily – adds more significance to the case.
Meanwhile, the Biden Administration is tentatively moving to write some new rules to interpret the law that still retains the “public charge” restriction, and that might be affected by what the Justices do with the pending case.
One option that could make a difference was actually suggested by the dissenting judge in the appeals court, when the 13 states’ intervention was denied. That judge said the Supreme Court should itself declare all of the lower court actions to be “moot” (legally dead), and that would then mean that no court ban on the Trump rule would still technically in effect. In addition, it would mean that the public would have to be given a full opportunity to have input in any new interpretation of the “public charge” language.
(Later in the current Term, another anti-immigrant policy of the Trump Administration that is still in effect will come up in the Court, when it considers whether the Biden Administration must keep intact the controversial “return to Mexico” policy for foreign nationals until their asylum requests can be decided. Lower courts required that the policy continue.)
The Supreme Court will continue the current round of public hearings next week, with four cases on the schedule. Those will be discussed in advance in this space, beginning next Sunday.