Litigation continues over public charge immigration rule

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Last term, the court dismissed as improvidently granted, or “DIG”ed, a case brought by Republican-controlled states challenging the government’s repeal of a Trump-era immigration policy known as the “public charge” rule. In a concurring opinion, Chief Justice John Roberts noted that the court’s DIG did not reflect “the appropriate resolution of other litigation, pending or future, related to” the rule. This week, we highlight cert petitions that ask the court to consider, among other things, the ongoing public charge litigation.

Under federal law, immigration officials may not admit someone to the United States if they deem that person likely to become a public charge, or dependent on government benefits. In 2018, the Trump administration issued a rule that expanded the qualifying benefits to include Medicaid, food stamps and housing assistance. A host of lawsuits held up the implementation of the new public charge rule through the 2020 election, during which Joe Biden campaigned on a promise to roll back the rule if elected.

Two months into the Biden administration, the government took an unusual step. After initially maintaining that it was still deciding whether to continue the prior administration’s defenses of the public charge rule, the government used a March 2021 district court order in one of those lawsuits that vacated the rule nationwide to rescind the rule and end the various lawsuits. A group of conservative states asked to intervene in those lawsuits to defend the rule. The U.S. Court of Appeals for the 9th Circuit denied one of those requests, concluding that the states should have asked to intervene sooner given Biden’s campaign promises to end the public charge rule.

Those states, led by Arizona, appealed to the Supreme Court. The justices granted the states’ petition in Arizona v. City and County of San Francisco but eventually DIGed the case this spring, after briefing and argument raised a host of complicated issues that prevented the court from addressing the timing of the states’ intervention. This summer, the U.S. Court of Appeals for the 7th Circuit again refused to let the states, this time led by Texas, intervene in another suit over the public charge rule. Even if Biden’s campaign promises weren’t enough to put the states on notice that they needed to intervene, the 7th Circuit concluded, his administration’s court filings that that it was unsure whether it would continue to defend the rule were sufficient.

In Texas v. Cook County, Illinois, the states insist that the justices try to finally resolve this issue with full awareness of its complexity. Allowing the states to intervene is necessary to hold the government accountable for its unexplained decision to end the rule based on one district court order, and without the public notice and comment for substantive rule changes required under administrative law. In his concurrence in Arizona, the chief justice noted his worry “whether the Government’s actions, all told, comport with the principles of administrative law.” Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch joined that concurrence. It takes four votes to grant a petition.

A list of this week’s featured petitions is below:

Texas v. Cook County, Illinois
22-234
Issues: (1) Whether petitioner states were entitled to intervene in defense of the Inadmissibility on Public Charge Grounds rule when they sought to do so within days of the federal government’s rescindment of the rule by acquiescing in a district court’s nationwide vacatur; and (2) whether petitioners are entitled to either relief from the district court’s judgment under Federal Rule of Civil Prodecude 60(b)(6) or equitable vacatur of that judgment.

Brach v. Newsom
22-250
Issue: Whether a case is moot under Article III’s case-or-controversy requirement when the governor rescinds the offending policy after it is challenged in court, but the declaration of emergency remains in place and the governor retains the authority to reinstate the policy.

Howmedica Osteonics Corp. v. DePuy Synthes Sales, Inc.
22-252
Issue: Whether, under Erie Railroad Co. v. Tompkins, federal courts sitting in diversity should apply federal or state law to determine the validity of forum-selection clauses.

Caputo v. Wells Fargo Advisors
22-265
Issues: (1) Whether this court’s public policy exception is inapplicable to an arbitral award enforcing contractual provisions that are expressly illegal, void, and unenforceable under applicable statutes, on the supposition that such statutes do not embody sufficiently well-defined and dominant public policy; (2) whether this court’s public policy exception to judicial deference toward arbitral awards is displaced by a deferential manifest-disregard-of-law standard of judicial review where, as here, the public policy issue was presented to the arbitrators; and (3) whether this court’s public policy exception is applicable under the Federal Arbitration Act in light of Hall Street Associates v. Mattel, holding that grounds set out in the FAA for vacating arbitral awards are exclusive.