Public Charge at SCOTUS: The Gorsuch Concurrence and Sotomayor Dissent

By Alexander Somodevilla and Morgan Handley

The Trump administration’s final rule “Inadmissibility on Public Charge Grounds,” finalized in August of 2019, would expand the list of benefits that can be considered by immigration officials in a public charge determination of immigrants seeking legal permanent status, also known as a green card.  Under previous public charge policy, immigration officers could only consider receipt of cash benefits and long-term institutionalization in public charge determinations.  The new policy would allow officials to also consider receipt of other benefits, such as Medicaid, SNAP and housing assistance.  The final rule was quickly challenged in courts across the country by cities, states and immigrant advocacy groups, which led to rulings that halted implementation of the rule.  Two such cases recently made their way to the Supreme Court on an emergency basis, as the administration sought to lift the injunction so that it could put the rule into effect even as the full merits are litigated across the country. 


In the first case, DHS v. New York, the federal government requested the Court to stay a nationwide injunction of the rule issued by a district court in New York.  The federal government's original request for stay to the United States Court of Appeals for the Second Circuit was denied. The administration then filed this emergency appeal to the Supreme Court.  In a 5-4 vote, with all 5 conservative justices making up the majority, the Court granted the federal government’s request to stay the nationwide injunction.  Notable in this order was Justice Neil Gorsuch’s concurring opinion, in which Justice Gorsuch criticized lower courts’ use of nationwide injunctions.

Justice Gorsuch rejects nationwide injunctions, which “by their nature … tend to force judges into making rushed, high-stakes, low information decisions” and instead prefer the traditional system of lower courts issuing relief limited to the parties at hand.  According to Justice Gorsuch, this more traditional, deliberative approach “permits the airing of competing views” that aids the Supreme Court’s decision-making process.

In making the argument, Justice Gorsuch appears to express sympathy for the government, in that nationwide injunctions, make it incredibly difficult to effectively implement new policies.  Any given policy may be challenged in multiple courts around the country.  With these injunctions, the government could succeed in 9 out of 10 challenges and still have its new policy halted on a nationwide basis. 

Note that both liberals and conservatives have railed against nationwide injunctions.  Recent examples include Judge Reed O’Connor’s nationwide injunctions issued from Fort Worth, particularly in the case of his nationwide injunction halting implementation of the ACA’s 1557 rule in 2016.

Wolf v Cook County

In the second case, Wolf v. Cook County, the federal government also sought an emergency Supreme Court stay.  But in this case, the lower court ruling applied only to the rule’s applicability in the state of Illinois, where plaintiffs had, taking a more conservative tack, sought their own injunction applicable to that state only.  The vote to set aside the injunction and thus stay the ruling was again divided by ideological line, with the 5 conservative justices in the majority. 

This second order prompted a scathing dissent by Justice Sonia Sotomayor, who very pointedly criticized the Court’s willingness to hear emergency appeals from the administration, even in the case of decisions that were conservative in nature in terms of their applicability and did not raise any of the nationwide injunction concerns.

Justice Sotomayor commented on what she sees as a larger trend of the government seeking emergency relief from the Supreme Court, as well as the frequency with which the Court grants such relief.  She wrote, “[i]t is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”  According to Justice Sotomayor, the government is transforming the “exceptional relief” of an emergency stay into “a new normal.”  Beyond an objection in principle, Justice Sotomayor also highlights the strain on the Court and its resources when the government contends that all of its losses demand the Court’s immediate attention as well as the inherent lack of a fully developed record upon which the Court traditionally relies.

Justice Sotomayor also juxtaposed the government’s increased use of the emergency appeal with another area where emergency relief is frequently sought but often denied: death penalty litigation.  There, despite the obvious irreparable harm that may justify an emergency stay, the Court looks unfavorably upon undeveloped claims with little evidence that the appellant will ultimately prevail.  However, when it is the federal government seeking the emergency petition, the Court has shown itself to be much more sympathetic to the government’s claim for relief.

What’s Next?

This is not the end of litigation surrounding the final rule. Challenges on the merits of the final rule’s legality will be fully developed in the Second, Fourth, Seventh and Ninth Circuits.  In the meantime, however, the two Supreme Court orders allow the final rule to go into effect nationwide.

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