SAN FRANCISCO (CN) — A Trump administration rule preventing immigrants from qualifying for permanent residency if they are likely to become dependent on government benefits will do wholesale damage to public health, lawyers for the attorneys general of several states insisted Tuesday during arguments before a three-judge panel in the Ninth Circuit.
The “Inadmissibility on Public Charge Grounds” final rule essentially seeks to discourage non-citizens from using welfare but has had the attendant effect of driving many immigrants and current green card holders away from public assistance altogether, even if the rule doesn’t apply to them.
It’s also had a circuitous and bewildering journey through the courts since it was enacted last year.
The Fourth Circuit upheld it in August after a challenge from an immigrants rights organization in Maryland. The Seventh Circuit barred its enforcement in Illinois. Chief U.S. District Judge Phyllis Hamilton, a Bill Clinton appointee, blocked it in California, Oregon, the District of Columbia, Maine and Pennsylvania, while another judge in Washington issued a sweeping universal injunction.
Last Friday, the Second Circuit issued an order allowing the Department of Homeland Security to impose the rule nationwide, overturning a federal judge in New York’s ruling that enjoined its enforcement for the duration of the Covid-19 pandemic.
The Sept. 11 decision was actually the second time the panel had taken up U.S. District Judge George Daniels’ injunction. The panel had previously narrowed an initial injunction he issued in October 2019 to apply only to Vermont, New York, and Connecticut.
But its most recent opinion on Sept. 11 reinstated the rule, partly because two of the circuit panelists believe the government is likely to succeed on the merits, and partly in deference to the U.S. Supreme Court, which temporarily halted all initial preliminary injunctions back in January.
At Tuesday’s hearing on the California and Washington injunctions, even the Ninth Circuit judges were confused about the rule’s current status. U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, asked the government’s attorney Gerard Sinzdak to allay all doubt.
“As of yesterday the rule is back in effect nationwide,” Sinzdak said, after a brief recounting of its history.
Sinzdak argued that Congress never specifically said what the term “public charge” actually means, leaving it to the discretion of other governmental branches.
The rule now defines public charge as a non-citizen who uses federal health care, food stamps, or housing assistance “for more than twelve months in the aggregate within any 36-month period.” The rule counts each benefit separately, so a person receiving health care and food assistance for six months has actually used 12 months of benefits.
“The executive branch has the discretion to define the term and to apply it,” Sinzdak said.
“There are limits to its discretion,” Senior U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, said. “The Seventh Circuit seemed to agree at least to some extent that there's no fixed meaning but the definition that you have chosen is simply beyond the pale, what is your response to that?”
“We disagree of course,” Sinzdak replied. “The Seventh Circuit seemed to think that the government’s definition had no limit. As the agency made clear, the limit here is self-sufficiency and self-reliance and whether an individual can be deemed to rely on the government benefits. It depends on the nature of the benefits and the length of time. They narrowed it down to three non-cash benefits, and it even excluded people who use them on a temporary or intermittent basis.”
Hannah Luke Edwards, counsel for a number of Bay Area cities and counties challenging the rule, said the rule seems to pose a draconian public charge definition.