Supreme Court weighs whether states may continue fight over Trump-era 'public charge' rule

WASHINGTON – Several conservative Supreme Court justices indicated Wednesday they may allow Arizona to intervene in a lawsuit challenging the way President Joe Biden ended a Trump-era policy intended to curb legal immigration. 

President Donald Trump’s "public charge" rule, approved in 2019, denied green cards to immigrants if officials determine they may benefit from safety net programs, such as rental assistance or food stamps. The Biden administration decided last year it would no longer defend lawsuits that attempted to block the rule's implementation. 

The substantive policy stated in rule wasn't at issue Wednesday: The question for the high court is about how the Biden administration circumvented the usual requirements necessary to roll back another administration's policy. A win for Arizona and the dozen other states that filed suit would allow litigation over the Trump rule to continue. 

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Agencies are usually required by law to conduct thorough reviews and seek public comment to unwind a policy or set aside a regulation. In this case, the Biden administration chose not to appeal a court order blocking the rule. That had the effect of allowing Biden to kill the immigration rule without going through the Administrative Procedure Act process. 

"It's really quite a license for collusive action for any incoming administration," Chief Justice John Roberts told the attorney representing the Biden administration. "I'm questioning anybody's motives. I'm questioning the ease with which a decision in your favor will make it for the incoming administration to avoid notice and comment review."

But several of the court's liberal justices pushed back by suggesting that a win for Arizona would allow any state to jump in to continue an appeal in any lawsuit where the federal government loses in a lower court and decides not to appeal. And that, Associate Justice Elena Kagan suggested, could tie up changes to federal regulations in court for years. 

"Whoever the federal government is, there's always going to be a state that thinks it's done the wrong thing," Kagan told Arizona Attorney General Mark Brnovich. "You're essentially saying there shall be no further federal government acquiescence in court decisions."

The public charge rule is one of the last major immigration issues pending in federal courts from Trump, who ran for president in 2016 largely on stricter rules for legal and illegal immigration. Biden has unwound many but not all of those policies over the past year. In another case, the Supreme Court recently agreed to decide whether the administration properly ended a Trump policy requiring migrants seeking asylum to remain in Mexico while their claims are processed. 

Though focused on procedural questions, the high court's decisions in this area could have enormous implications for Americans. Particularly as gridlock has made it far harder for presidents of either party to move legislation through Congress, administrations tend to accomplish as many of their priorities as they can through regulations and other agency actions, which do not require input from lawmakers. The court's decision in the public charge and other pending cases could severely limit how much leeway administrations have to do that.    

An opinion in the public charge case is likely this spring.