A new immigration-restricting regulatory initiative from the Justice Department that has been tied up in the federal courts got at least a temporary green light from the Supreme Court in a 5-4 ruling putting aside a lower-court hold on its implementation pending full court review. SCOTUS’s five conservative justices (Chief Justice Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) voted for the ruling, while its liberal bloc (Breyer, Ginsburg, Sotomayor, and Kagan) voted against it.
The initiative in question expands the official definition of what makes applicants for immigration “public charges,” i.e., too dependent on public-assistance programs to support themselves. As I explained when it was first promulgated, it’s a big deal for Trump’s broader nativist agenda:
In a long-proposed and highly controversial policy change sure to attract a host of lawsuits, the Trump administration is moving ahead with a proposed new regulation expanding restrictions on federally funded cash benefits for large groups of legal immigrants to include non-cash benefits like food stamps, health-care benefits, and housing assistance. The new “public charge” rule (a reference to the empowerment of immigration officials to bar otherwise legal immigrants’ visas or green cards if they are likely to become a “public charge” dependent on government benefits) is apparently the apple of Trump policy adviser Stephen Miller’s eye, central to the administration’s strategy of reducing legal as well as illegal immigration.
As the New York Times reports, the rule was on hold pending an appeal being heard in the Second Circuit Court of Appeals:
The Supreme Court considered two cases brought in New York, one by groups that provide services to immigrants and the other by New York, Connecticut, Vermont, and New York City. The United States Court of Appeals for the Second Circuit, in Manhattan, denied the administration’s request for a stay of two nationwide injunctions issued by a trial judge, and it scheduled arguments in the first week of March.
Now SCOTUS’s five conservative justices have jumped into the fray and killed the stays, even as the appeal moves on. This doesn’t mean the administration wins the ultimate decision, but it’s a good sign that a majority of the Supreme Court thinks it is more likely than not.
There is a potentially complicating issue, however: Accompanying the 5-4 decision was an opinion from Justice Gorsuch (joined by Justice Thomas) complaining about the growing tendency of federal district-court judges issuing nationwide injunctions as the New York judge did in this case:
The real problem here is the increasingly common practice of trial courts ordering relief that transcends the concurring cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case …
It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice
So it’s possible the full case would get a different disposition on review by the Supreme Court, if it ever arrives there, but it would not be wise to bet on it. So immediately, and perhaps for the long term, the administration will have a new tool to reduce legal immigration by exclusions and inhibit the use of perfectly legitimate public benefits by intimidation. As I noted earlier, the new rule is “spicy red meat for Trump’s MAGA electoral base.”