UPDATED 2.25.2020 to reflect decision in Wolf v. Cook County, Illinois
Last summer, we wrote about the Department of Homeland Security’s (DHS) public charge rule. As a reminder, that rule added some definition to the grounds of inadmissibility to the United States because of the likelihood that an applicant for an immigration benefit – such as a green card applicant or an individual seeking a visa to enter the United States – is likely to become a “public charge.” We’re interested in that here at the Medicaid and the Law Blog because one of the factors that the final regulation would consider is whether the applicant has ever used Medicaid in the past or was likely to do so.
Well today, a major development: the Supreme Court of the United States decided, by a 5-4 margin, that a series of lower court injunctions across the United States that had blocked the rule from taking effect should be lifted and that the rule should be allowed to go into effect. As a result of the decision, the United States Citizenship and Immigration Services (USCIS), a branch of DHS, should be able to begin to enforce the rule.
First, a quick reminder about what the rule did. In general, under U.S. immigration law, there are several grounds for a consular officer or DHS official to determine that an alien is “inadmissible to the United States.” Most of these grounds are focused on the possibility that the applicant seeking an immigration benefit is a threat to the national security of the United States – because, for example, they have engaged in money laundering, or terrorist activity. But one basis for inadmissibility is the likelihood that the applicant is “likely at any time to become a public charge.”
The public charge basis for inadmissibility has existed in U.S. immigration law for well over 100 years but, ironically, has never really been particularly defined. During the Clinton Administration, the term was defined to include individuals who used Medicaid for long-term care. But it wasn’t until last August that the term was the subject of extended rulemaking. Under last August’s rule, DHS set forth a series of “positive” and “negative” factors that could be used to determine whether or not an individual was likely to become a public charge. One such negative factor was the prior receipt of public benefits – such as Medicaid – for more than 12 months in a 36-month period. The final rule exempted receipt of Medicaid by pregnant women, children, and for the payment of emergency medical services. It also did not apply to refugees or individuals who were granted asylum in the United States. But for most other green card applicants, the prior receipt of Medicaid would have been a serious negative factor.
The issuance of the final rule led to a series of lawsuits across the United States seeking to invalidate the rule. Here at the Medicaid and the Law blog, we are aware of at least the following lawsuits:
- The United States District Court for the Northern District of California ordered the government not to enforce the rule in California, Oregon, Maine, Pennsylvania and the District of Columbia.
- The U.S. District Court for the Eastern District of Washington enjoined the rule nationwide.
- Both of these decisions, however, were stayed by the United States Court of Appeals for the Ninth Circuit.
- The U.S. District Court for the District of Maryland also blocked the rule from taking effect across the nation, but that decision was blocked by the United States Court of Appeals for the Fourth Circuit.
- The United States District Court for the Northern District of Illinois blocked the rule from taking effect in the state of Illinois.
- Finally, a federal district court in New York State enjoined the rule from taking effect on a nationwide basis, and the United States Court of Appeals for the Second Circuit affirmed this decision. It was this decision that was the subject of the Supreme Court’s decision today.
That decision – agreeing to stay the Second Circuit’s decision – effectively allows immigration officials to begin to enforce the rule everywhere but within the state of Illinois. It was a close vote: four justices (Justices Ginsburg, Kagan, Sotomayor and Breyer) did not agree with the decision to issue the stay and five justices did (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh). Not only that: Justices Gorsuch and Thomas filed a supplemental opinion in which they chastised the lower courts for the practice of issuing nationwide injunctions.
On February 21, 2020 the U.S. Supreme Court disposed of the last outstanding case that had invalidated the rule. In Wolf v. Cook County, Illinois, the Supreme Court granted a stay of the litigation in Illinois that had blocked the public charge rule from going into effect in that state. As a result of the January 27 decision and last Friday’s decision, the Department of Homeland Security (DHS) is now free to apply the public charge rule on a nationwide basis: and in fact, the rule has now gone into effect and is being applied by DHS complete with a series of new forms. Like last month’s decision, the vote in the Supreme Court was 5 – 4 with the same five justices in favor of granting the stay (Roberts, Thomas, Alito, Gorsuch and Kavanaugh) and the same four justices opposing the stay (Ginsburg, Breyer, Sotomayor, and Kagan). And also like last month’s decision, one justice issued a scathing opinion, this time criticizing the majority for granting the stay at all. Justice Sotomayor said that the majority was “upending the normal rules of appellate procedure” in granting the stay and that doing so “benefited one litigant over all others.” Once again, we re-emphasize that last week’s action by the court is not a decision on the merits of the public charge rule; it merely is allowing the rule to go into effect for the time being. Here at the Medicaid and the Law Blog, we will be keeping our eyes on the status of this rule, which deeply involves the Medicaid program.
So: what does it all mean? Most importantly, the action by the Supreme Court is not a decision on the merits of the litigation. The Supreme Court may well agree that the public charge rule was improperly issued under the Administrative Procedures Act or is unconstitutional. We won’t know until the actual substance of the rule is pending before the Supreme Court – which may not happen for a couple of years. But the decision also means that the rule can be enforced. Green card applicants to whom the rule applies and individuals seeking a visa to enter the United States at an Embassy or Consular office abroad can have the rule applied against them. It’s an important development and one that we intend to stay on top of here at the Medicaid and the Law blog.
 Immigration and Nationality Act § 212(a).