Monday, February 28, 2022

The Confusing Public Charge Oral Argument in SCOTUS

 by Michael C. Dorf

On Wednesday of last week, SCOTUS heard oral argument in Arizona v. San Francisco. After providing an account of the case, I'll raise a question that was suggested but not fully explored during the argument: Can a new administration acquiesce in a judicial ruling it believes is wrong as a legal matter but consistent with its policy druthers in order to short-circuit notice-and-comment rule making? So yes, today's essay is an 11 on a 1 to 10 scale of wonkishness.

A federal statute makes a noncitizen inadmissible to the U.S. if they are "likely at any time to become a public charge." In 2018, the Department of Homeland Security (DHS) adopted a rule (via the notice-and-comment rule making procedure) defining "public charge" broadly, in line with the restrictive immigration policies of the Trump administration. Numerous lawsuits followed, with various district courts issuing preliminary injunctions and appeals following. Shortly after taking office, President Biden's administration dropped the appeals and acquiesced in the injunctions in place.

Arizona and other (red) states that liked the expanded definition of public charge in the Trump rule sought to intervene in some of the appeals, including the case then pending in the Ninth Circuit. Because the Biden Administration wouldn't defend the Trump rule, Arizona wanted the opportunity to do so. Arizona and the other states claim a stake in the outcome because, they say, abandonment of the broader definition of public charge will impose financial costs on them. They also say that they satisfy the requirements for intervention under Federal Rule of Civil Procedure 24.

The problem, as Justices Thomas, Kavanaugh, and others noted during last week's oral argument, is that whenever there's a change in administration, it's fairly routine for changes in policy to result in the government acquiescing in rulings that blocked actions of the prior administration. Thus, Arizona is wrong to suggest that the administration has engaged in an "unprecedented" action.

To be sure, Justice Kagan and others noted that there is a possibility of circumvention here. Ordinarily, for an agency to rescind a rule that was adopted by notice-and-comment rulemaking, it must undertake a new notice-and-comment rulemaking. Simply acquiescing in a potentially reversible decision by a district court that invalidated the prior administration's rule looks like a shortcut around that process. However, Kagan and other Justices said, if that's the problem, then the remedy should be to challenge the agency's new policy as arbitrary and capricious or otherwise in violation of the Administrative Procedure Act (APA) via a new lawsuit in federal court in DC, not to intervene in the pre-existing litigation.

Indeed, further confusion arose out of the fact that Arizona is seeking to intervene in the Ninth Circuit. There's a superficial logic there, of course, given that the Ninth Circuit includes Arizona, but as Justice Sotomayor and others noted, there's no current ruling adverse to Arizona in the Ninth Circuit. The ruling to which Arizona mostly objects comes from a federal district court in Illinois, which issued (the equivalent of) a nationwide injunction against the Trump-era rule. While Arizona has also sought to intervene in the Seventh Circuit litigation over that decision, the case before SCOTUS comes from the Ninth Circuit rather than the Seventh.

So at least with respect to the case in the Supreme Court, Arizona has made a doubly dubious set of choices: seeking to defend the rule by standing in the shoes of the administration in existing litigation rather than separately suing the administration for the procedural shortcut around the APA; and seeking to defend in the wrong court. As I've indicated above by noting that Arizona got tough questions from Justices across the ideological spectrum, there's a decent chance that Arizona will lose badly. I only counted Justice Alito as sympathetic to its position.

It's hardly surprising that the procedural stakes here are not easily categorized in ideological terms. The Illinois federal district court's nationwide injunction (technically not an injunction but that's irrelevant for present purposes) helps the Biden administration in this particular case, but the Deputy Solicitor General stated that the government believes district courts generally don't have the power to issue nationwide injunctions against the government in non-class-action cases. Democrats tend to favor broad injunctive relief against Republican administrations, while Republicans tend to favor broad injunctive relief against Democratic administrations, but a lawyer for the government cannot stand up and tell the Justices that the rule of law should be so nakedly partisan. The result we're most likely to see is that Justice Department lawyers will argue against broad injunctive relief in just about every case because they'll be supporting the current administration.

A twist in this case is that even as the Deputy SG says that the federal district court in Illinois went too far in granting nationwide relief, he also says that the adverse ruling--and the government's acquiescence in it--justifies the Biden administration's rescission of the Trump DHS rule without going through notice and comment rulemaking. In questioning about this seeming contradiction from Justice Gorsuch, the Deputy SG more or less said that even if the government disagrees with a court ruling invalidating an agency rule, it can treat the court's decision as the basis for not pursuing notice-and-comment. Given the immediate controversy, he and the Justices pivoted to how that argument might affect the intervention question, but we might want to pause over the broader issue raised.

The Deputy SG wanted to protect the government's prerogative to acquiesce in a ruling regardless of whether it agrees with that ruling, but I question whether that's a supportable position because it still leaves open the possibility of circumvention. Suppose the best analysis by the DOJ is that the Trump DHS rule was bad policy but not illegal. Allowing the Biden DHS to acquiesce in a ruling holding it invalid as the basis for dispensing with notice-and-comment rulemaking to rescind it does seem like circumvention. It's one thing to acquiesce in a ruling because you think that it's unlikely to be reversed; it's quite another to acquiesce in a ruling you think is wrong on the law, even though it could be reversed on appeal, simply because you like the policy outcome.

Let me qualify that last point. It's not obvious to me that the administration thinks the district court rulings in which it is acquiescing are wrong to invalidate the Trump DHS rule. In the colloquy with Justice Gorsuch, the Deputy SG said he thought that the district court in Illinois erred by granting nationwide relief, but it's possible, indeed likely, that the Biden administration thinks that the district court was right on the merits--i.e., that the Trump DHS rule actually is substantively invalid and that therefore it shouldn't be enforced.

Having said that, I hasten to add that the crucial question should not be whether the administration believes the prior administration's rule is invalid but whether the rule is invalid.  I imagine that Jeff Sessions and other Trump administration officials believed that DACA was invalid, but that belief did not give the Trump DHS carte blanche to rescind DACA, as the Supreme Court held. True, the Court there explained that part of the error was that the Trump DHS and DOJ sought to extend the reasoning of a Fifth Circuit opinion beyond its specific holding. However, even if an administration relies squarely on a lower court opinion that it could but chooses not to appeal, that should not by itself justify an agency decision purporting to be based strictly on the unlawfulness of a prior administration's policy.

To be clear, I don't think any of the foregoing means Arizona wins in the current case. The proper vehicle for challenging the Biden administration's abandonment of the Trump DHS public charge rule is a separate lawsuit in DC. But if and when such a lawsuit materializes, if the only ground that the Biden DHS offers for rescinding the Trump DHS rule is that the latter was illegal, then the government should have to show that the Trump DHS rule actually was illegal, not simply that a lower court ruling it did not appeal said so.

Finally, I reiterate that the foregoing analysis is non-ideological. The issue is not what does a Democratic administration need to do to rescind a prior Republican administration's rule or vice-versa. The issue is what does an agency need to do to change policy.