WASHINGTON (CN) — No one was safe from the ire of the justices during oral arguments on Wednesday morning as they peppered Republican-led states and the Biden administration over the rescission of a controversial Trump-era immigration rule and the ensuing challenge to revive it.
Known as the public-charge rule when it was adopted in 2019, the policy denies permanent U.S. residency to any immigrant at risk of becoming dependent on government assistance. Litigation challenging the rule sprang up around the country, occupying suits in five district courts in four circuits, all of which determined that the rule was likely unlawful. Each of the district courts entered preliminary injunctions against the law in October 2019, barring it from taking effect. The Trump administration applied for and secured stays on the injunctions from the Fourth and Ninth Circuits, greenlighting the rule to begin implementation in February 2020.
That implementation nevertheless proved short lived after President Joe Biden directed his administration upon taking office to review the public charge rule. While the Supreme Court had been set to hear arguments on injunctions on the policy issued by the Southern District of New York, it dismissed the case when the Biden administration announced it would not be in the public interest to continue defending the rule. The government filed additional motions to dismiss other related cases in the lower courts.
In the case before the high court on Wednesday, it is not the policy itself but its termination that is at issue. It pits the government on one side against a group of 12 states not involved in the previous litigation.
Arizona, leading the pack, claims it has a basis to intervene — something the Ninth Circuit denied.
“The Ninth Circuit's refusal to let Arizona and other states intervene to defend the public charge rule tapped an unprecedented effort by the United States to unlawfully disregard a prior administration's rule,” Arizona Attorney General Mark Brnovich said in arguments this morning.
Brnovich did not respond to requests for comments after the hearing, which saw many of the justices appearing to credit the Biden administration, that its actions did not mark a change in precedent.
“Let me just interrupt — you’ve used that word a lot — it's very much not unprecedented, as Justice Thomas says, for the government to acquiesce in an adverse judgment invalidating a rule,” said Justice Brett Kavanaugh, who is himself a Trump appointee. “That is not unprecedented at all.”
The justices also took issue with the argument that the Biden administration did something erroneous by changing positions on a policy from the Trump administration.
“One administration is not obliged to defend the rule adopted by the prior administration,” said Justice Amy Coney Barrett, another Trump appointee. “The Biden administration was entitled to change positions.”
Seemingly confused with the states’ motive in the current suit, the justices repeatedly questioned why Arizona would not be pursuing relief under the Administrative Procedure Act.
“I'm not sure what your interest is,” Justice Sonia Sotomayor said. “First of all, the preliminary injunction didn't run against you, correct? So as far as you were concerned, outside of the Seventh Circuit's injunction, there was no preliminary injunction against enforcement of the rule in your jurisdiction.”
The Obama appointee continued, referring to the Administrative Procedure Act: “Didn't you have the right to file an APA action in the appropriate D.C. court fighting the fact that they had improperly rescinded the rule?”
On this point — whether the government’s process of rescinding the rule was improper — the justices turned their attacks on the government. When the Biden administration got rid of the public charge rule, it did not follow the typical notice and comment process.
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