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Justices probe states’ effort to defend Trump immigration rule after Biden stopped defending it in courtAmy Howe

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The Supreme Court heard oral argument on Wednesday in a case involving whether a group of states can defend a contentious Trump-era immigration policy known as the “public charge” rule after the Biden administration refused to do so. After nearly 90 minutes of debate in Arizona v. City and County of San Francisco, several of the justices seemed troubled by the Biden administration’s conduct and the prospect that the states may be left without any options in their effort to defend the rule’s legality. But they did not necessarily agree on what those options should be.

The 2019 rule at the center of the case broadened the definition of “public charge,” a term in immigration law for people who are ineligible for a green card if the government believes that they are likely to rely too heavily on government aid. Representing Arizona and 12 other states with Republican attorneys general, Arizona Attorney General Mark Brnovich contended that the refusal by the U.S. Court of Appeals for the 9th Circuit to allow the Republican-led states to defend the 2019 rule “capped an unprecedented effort” by the Biden administration, which decided to stop defending the rule, dismissed a challenge to the rule that was pending in the Supreme Court, and then rescinded the rule without seeking comments on its decision to do so. Allowing the states to intervene to defend the 2019 rule, which was projected to save the states more than a billion dollars, Brnovich stressed, is the only way to ensure that the case “does not become a blueprint for evading” the federal law governing administrative agency procedures in the future.

Justice Samuel Alito left little doubt that he thought the states should be able to intervene. He described the “military precision” with which the Biden administration had moved to take the original challenge to the 2019 rule off the Supreme Court’s docket and emphasized how novel the administration’s conduct was. Why, Alito asked, shouldn’t the states be allowed to intervene? It doesn’t mean that the case will be revived, but why doesn’t fairness argue in favor of at least allowing the states to join the case?

Justice Clarence Thomas challenged Brnovich’s suggestion that the Biden administration’s conduct was “unprecedented.” Noting that the White House had now changed hands five times while he has been on the Supreme Court, Thomas pressed Brnovich to explain how his case is any different from any other case in which a new administration comes into office and changes its position.

Brnovich again asserted that the Biden administration had engaged in an “unprecedented legal maneuver.” It hadn’t simply abandoned the government’s appeal in the Supreme Court, he emphasized, but it had also simultaneously dismissed four other appeals while leaving in place a ruling by an Illinois district court that invalidated the rule. The Biden administration then relied on that Illinois district court ruling, Brnovich continued, to rescind the rule without going through the notice-and-comment procedures that would normally be required. “All the state is asking for,” Brnovich concluded, “is to allow the states to step in and defend” the 2019 rule when the federal government won’t.

Justice Amy Coney Barrett also challenged Brnovich to explain what else the Biden administration should have done in this case. Everyone, Barrett suggested, agrees that it is entitled to change position. When Brnovich countered that the Biden administration could have continued to defend the rule, Barrett pushed back. Assuming that it didn’t have to do so, she queried, what should it have done?

In that case, Brnovich reiterated, the Biden administration “should not have objected and they should have allowed the states to step in and defend the rule when they wouldn’t.”

But Brnovich’s answer prompted a different line of questioning, this time from Chief Justice John Roberts and Justice Elena Kagan. Those justices seemed sympathetic to the idea that the Biden administration should not be able to avoid the requirements imposed by federal law for repealing the 2019 rule, but they appeared skeptical that allowing the Republican-led states to intervene in the 9th Circuit is the solution.

Kagan agreed that the state’s argument that the Biden administration was trying to circumvent the notice-and-comment requirements imposed by federal administrative laws is “a very reasonable position.” But as a result, she continued, the correct course of action for Arizona would be to file a lawsuit in federal court in Washington, D.C., alleging that the repeal of the law violated federal administrative law. Arizona’s decision to try to defend the law in the 9th Circuit instead, Kagan told Brnovich, created “a kind of mismatch … between what you’re saying went wrong and what you’re saying you want.” If the allegation is that the Biden administration violated federal administrative law, Kagan repeated, file a lawsuit to that effect instead of “trying to intervene in a lawsuit that’s completely dead that never applied to you in the first place.”

Brian Fletcher, the principal deputy solicitor general who argued on behalf of the federal government, told the justices that the Biden administration had not tried to circumvent notice-and-comment requirements. Rather, he pointed out, the federal government is currently soliciting comments on a proposed rule to replace the 2019 rule.

Principal Deputy Solicitor General Brian Fletcher arguing for the federal government. (Art Lien)

Fletcher’s assurances did not mollify Kagan, who observed that by rescinding the 2019 rule the government had “bought itself a bunch of time where the rule was not in effect.” Assuming, Kagan continued, “that that is a problem and that we shouldn’t be green-lighting that behavior for your administration or any other administration,” “what should be the remedy?”

Roberts followed up a few minutes later, asking Fletcher to look at the problem from Arizona’s perspective. Is there anything that the Republican-led states can do once the federal government decides it will no longer defend the 2019 rule? When Fletcher responded that the states have no real recourse, Roberts pounced. “So then it’s really quite a license for collusive action for any incoming administration to change rules” that normally can be repealed only through the strict procedures of federal administrative law, Roberts said.

Justice Brett Kavanaugh, who worked in the George W. Bush White House before becoming a judge, took a different view of the government’s actions. In his view, it is not at all unprecedented for the government to agree to a court’s judgment against it. And “it would be a big deal” to require the government to go through notice-and-comment proceedings whenever it wants to repeal a rule after it agrees to a judgment invalidating the rule, Kavanaugh suggested. Indeed, Kavanaugh continued, it “would hamstring new administrations.”

Instead, Kavanaugh suggested, the Republican-led states wanted to intervene in the 9th Circuit appeal so that they could seek to have the 9th Circuit’s decision, which upheld district court rulings putting the 2019 rule on hold temporarily, vacated because the case became moot. Then, Kavanaugh theorized, once the 9th Circuit’s decision and other appeals court rulings were no longer in place, so that the federal government could not rely on them, Arizona could bring a challenge under federal administrative law to the repeal of the 2019 rule. The “chain of logic seem pretty straight to me,” Kavanaugh told Helen Hong, California’s deputy solicitor general who argued on behalf of mostly Democratic-led states in defense of the 9th Circuit’s decision.

California Deputy Solicitor General Helen Hong arguing on behalf of mostly Democratic-led states. (Art Lien)

Justices Sonia Sotomayor and Stephen Breyer were more sympathetic to the argument that, as a practical matter, Arizona and the other Republican-led states do not have a right to intervene because this case does not affect them. Sotomayor stressed that the preliminary injunctions that the 9th Circuit upheld did not bar the federal government from enforcing the 2019 rule in any of the states that are now trying to intervene in the 9th Circuit. And the question of whether the 2019 rule was illegally repealed will not be litigated in the 9th Circuit, Sotomayor added. As a result, she told Brnovich, “I’m so totally confused about why this suit is here and not either” a suit under federal administrative law or instead in the 7th Circuit, where a district court had invalidated the rule.

Breyer echoed Sotomayor’s concerns, noting that “if you win, you’ve got something set aside that applies only” in California and Washington. Breyer added that he had “never seen anything like this,” and he all but threw up his hands. “The simplest thing,” Breyer concluded, “would be to wait for the 7th Circuit” to rule on Arizona’s motion to intervene in that case. When, Breyer asked, is that going to happen?

Breyer appeared to inadvertently give away the ruling in another case, involving a similar issue, in which the court has not yet issued its decision. In October, the justices heard oral argument in Cameron v. EMW Women’s Surgical Center, in which the justices have agreed to decide whether Kentucky’s attorney general can intervene to defend a state law restricting abortion after another state official declined to do so. After outlining the facts of Wednesday’s case, Breyer suggested that it was “[p]retty similar to what we just allowed in that case of the attorney general” in Kentucky.

As the end of the argument drew near, the justices continued to look for possible solutions to a thorny problem. Justice Neil Gorsuch asked Fletcher to outline a narrow path to victory for Arizona. Fletcher resisted Gorsuch’s suggestion that Arizona might be able to intervene, even if it did not have a right to, because of the unique circumstances of this case. Instead, he suggested, the Republican-led states could seek to have the 9th Circuit’s decision vacated because it had become moot.

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.

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