Yahoo News! 28-Jan-20
By Caitlin Dickson
The Supreme Court said Monday it will allow the Trump administration to begin enforcing a controversial new policy making it harder for low-income legal immigrants to obtain green cards or visas.
The administration's new, expanded “public charge” rule, which makes it easier for officials to bar immigrants who use, or are deemed likely to use, non-cash government benefits such as Medicaid or food stamps, is one of the most consequential policy changes by the Trump administration to date in its efforts to curtail legal immigration. (Under previous practice, the public charge rule was only applied to immigrants who were considered likely to receive cash welfare payments.)
Like a number of controversial rules, it has been challenged in federal court by immigration advocates and several states. The lawsuits are still making their way through the judicial system, but a stay on enforcing the change imposed by a federal judge in the Southern District of New York was lifted by the high court Monday in a 5-4 decision that broke along familiar ideological lines. Other rules that have also been allowed to take effect pending a final resolution in the courts — a process that can take years — include the travel ban for nationals of several majority-Muslim countries, a change in asylum rules affecting Central American migrants who arrive at the southern border and the diversion of military appropriations for border wall construction.
The Trump administration’s approach of imposing its hard-line views by presidential proclamation, executive orders and regulatory changes rather than through Congress, has been met with lawsuits across the country — and resulted in a much larger role for the courts in shaping immigration policy.
Judges in federal district courts in Washington State, California, Hawaii and elsewhere have granted emergency requests for nationwide injunctions to block the government from implementing the policies in question while the case plays out in court. The administration has responded by asking higher courts to overturn the injunctions, and in cases that have reached the Supreme Court has generally prevailed.
The first time the Supreme Court took the unusual step of weighing in on an immigration-related case during the Trump administration was in December 2017, when the court ruled that a third version of Trump’s travel ban, which restricted entry to the U.S. for nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen could fully take effect while legal challenges continued to make their way through the courts. The decision, issued nearly six months before the Supreme Court would actually hear arguments in the travel ban case, overturned earlier orders by federal judges in Maryland and Hawaii to block parts of the updated ban while the lawsuits against it proceeded.
In June 2018 the Supreme Court ruled in the administration’s favor on the merits of the travel ban.
Since then, the Supreme Court has overturned injunctions by federal judges in a number of other immigration-related cases, granting the Trump administration permission to implement other policies amid ongoing litigation, including a requirement that asylum seekers who arrive at the U.S. southern border after traveling through another country — in practice, Central American migrants by way of Mexico — must show that they requested and were denied asylum in the country they transited. In another ruling over the summer, the justices once again voted along ideological lines to allow the Trump administration to continue using military funds to build sections of the border wall.
The conservative justices of the Supreme Court aren’t the only ones ruling in Trump’s favor. Last May, the Ninth Circuit Court of Appeals ruled that the administration could continue forcing asylum seekers to remain in Mexico while awaiting hearings in the U.S., overturning a lower court’s injunction blocking implementation of the policy formally known as the Migration Protection Protocols amid ongoing lawsuits.
Karen Tumlin is a longtime civil and immigrant rights litigator who has served as counsel in a number of high-profile legal challenges to Trump administration actions on immigration, including the effort to terminate legal protections for so-called Dreamers and the various iterations of the Muslim travel ban. She told Yahoo News that the history of the travel ban case, in which the Supreme Court overturned an injunction that had been upheld by multiple lower courts and then eventually ruled in favor of the policy, raises concerns about the future of policies like the public charge rule.
In the travel ban case, Tumlin said, “It turned out the stay result was 100 percent predictive of what the Supreme Court ultimately did.” In the public charge case, she admits it may be hard to find a justice among the five who voted to allow the rule to take effect to change his mind when the case finally reaches the court, especially if the government can show that “the sky isn’t falling.”
“It shouldn’t be that way,” she told Yahoo News. “Just because a divided court allows something to take effect, that shouldn't be the writing on wall for [the] ultimate decision.”
Justice Neil Gorsuch, one of the five justices in the majority, wrote in a separate concurrence explaining his vote to allow implementation of the public charge rule that “the real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.”
“By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions,” Gorsuch argued, writing that the “increasingly widespread” use of such orders in recent years “is not normal.”
“He’s right,” said Jesse Bless, director of the litigation department at the American Immigration Lawyers Association. “It's not normal because the administration’s policies and the way they’re issuing them are not normal.”
“I’m not a historian, I’m a trial lawyer, but I’ve never seen a period in time when courts have been asked to do so much not as a result of legislation, but as a result of executive power,” Bless told Yahoo News. He suggested that Gorsuch’s comments reflect “a growing frustration, by everyone, on the way in which [immigration policy] is being settled in the courts.”
Ultimately, the absence of congressional action on immigration has enabled the executive branch to push the boundaries of what is legal, said Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank. This trend began under President Barack Obama, whose administration faced legal challenges over a number immigration policies including the Deferred Action for Childhood Arrivals program, a work authorization extension for foreign students post-graduation, and the use of family detention. But, Pierce said, “the amount the Obama administration was entangled in the court system is laughably small compared to the Trump administration.”
Pierce suggested that the new public charge rule could be “one of the most problematic policies to go into place while legality is being questioned.” Studies predict that the proposed changes will have serious impacts on many legal immigrants as well as their U.S. citizen children and spouses, giving it the potential to dramatically reshape who is allowed to immigrate to the United States.
The White House praised the Supreme Court’s decision on Monday as a “massive win for American taxpayers, American workers and the American Constitution. This decision allows the government to implement regulations effectuating longstanding federal law that newcomers to this country must be financially self-sufficient.”
Bless argued that such victories “emboldens an administration who wants to build an invisible wall in this country” and “sets the stage for immigration to become a very big part of the November election.”
