Who runs the federal government of the United States? Is it the elected President and members of Congress? Or is it a permanent bureaucracy committed to expansion of its own size and power, together with a critical mass (potentially well less than a majority) of sympathetic federal judges who can be called upon as necessary to strike down any disfavored policy initiative from the elected branches? Or, in an even more cynical formulation, is it that the elected officeholders can run policy when they are Democrats, but when Republicans are elected the bureaucrats get to rule with the assistance of select members of the judiciary?

To view the dynamics of this process at work, there is perhaps no more striking example than what has occurred on the question of the extent to which the U.S. can exclude immigrants on the ground that they are likely to become “public charges.” We last visited this subject back in October 2019, in a post titled “Maneuvering To Force The U.S. To Accept Immigrants Who Will Become Public Charges.” This post is a sequel to that one.

The relevant context is that the U.S. immigration law as passed by Congress, since the enactment of the first statute on the subject back in the 1880s, has explicitly sought to preclude the admission as immigrants of individuals likely to become “public charges.” Although the statutory language has changed somewhat over the years in immaterial ways, one provision of the current statute ( 8 U.S.C. Section 1182(a)(4)) contains the following language:

Aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: . . . (4) Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

And then there is this language, added to the statute (8 U.S.C. Section 1601) in 1996:

Self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration statutes. . . . It continues to be the immigration policy of the United States that . . . aliens within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and . . . [that] the availability of public benefits not constitute an incentive for immigration to the United States.

Now consider how a cynical bureaucracy can eviscerate such plain language to implement effectively the opposite policy. In May 1999, the Immigration and Naturalization Service, under Clinton, issued something called Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. That document purported to define the term “public charge” in the statutes as including only “receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense,” as opposed to any other government assistance or benefits. Readers of this blog know that “cash assistance for income maintenance” is only a small — indeed tiny — portion of the vast web of public benefits now provided by the federal government. Today, there are some 83 federal “need based” welfare and handout programs, of which 76 are in-kind and only 7 are cash. The annual total of the in-kind distributions approaches $1 trillion. Annual federal spending on TANF — the main federal cash distribution program — is a paltry $16.5 billion, well less than 2% of the total distributions. Go here to my June 2, 2018 post for lots of details. In other words, the Clinton INS, through a so-called “guidance” document, had managed to define the “public charge” restriction so narrowly that it covered almost nothing, thereby essentially reading it right out of the statute. Shall we bring in millions of impoverished immigrants who will go right onto Medicaid and food stamps? No problem.

By contrast, in 2018 the Trump administration proposed a Rule that would change the Clinton INS “guidance,” and allow the consular officer, or other official making a determination on a visa or immigration application, to take into account existing or prospective receipt of benefits from at least three non-cash programs: Medicaid, housing assistance, and food stamps. That Rule was then scheduled to take effect in October 2019.

The occasion for my October post was that Judge George Daniels of the Southern District of New York had just issued a nationwide injunction striking down that Trump administration Rule on the eve of its taking effect. But at the time of the post, Judge Daniels’s Opinion was not yet available in the public court file. It now is. (You will need a PACER login to follow the link.) Subsequently, the Second Circuit Court of Appeals denied a stay of Judge Daniels’s ruling; but yesterday, the Supreme Court granted the stay in an Order that contained a remarkable concurrence from Justice Gorsuch, joined by Justice Thomas.

So — in the face of statutory language quoted above — how is it that Judge Daniels could decide that he had the authority to enjoin any consideration of in-kind distributions like Medicaid or food stamps or housing vouchers when an immigration officer evaluates whether an applicant is likely to be a “public charge”? Here are a few excerpts:

Plaintiffs argue that the new Rule’s definition of “public charge” is a drastic deviation from the unambiguous and well-established meaning of the term. . . . They assert that the term has consistently been interpreted narrowly to mean “an individual who is or is likely to become primarily and permanently dependent on the government for subsistence.” . . . According to Plaintiffs, federal agencies have . . . consistently viewed “public charge” to mean someone who is “primarily dependent on the government for cash assistance or on long-term institutionalization,” as evidenced by (1) INS’s 1999 Field Guidance, which formally codified this definition; (2) INS’s “extensive[]” consultations with other agencies prior to issuing the guidance; and (3) the Department of Justice’s use of the “primarily dependent” standard in the deportation context.”

Translation: No reasonable person could possibly think that someone living on food stamps and public housing and Medicaid is a “public charge.” And if some bureaucracy under a Democratic administration puts out an “interpretation” of a statute that is completely ridiculous, and that interpretation gets applied by the administrators for some years, then no newly-elected administration can ever get us back to the plain meaning of the statute. Hey, the meaning has become “well-established,” besides which, they consulted with all the “other agencies.”

And note: Judge Daniels made his injunction apply nationwide. That means that it explicitly applies to states and plaintiffs who were not before him and sought no relief.

But Daniels’s decision has now been stayed, so the administration’s Rule now goes into effect (at least in jurisdictions that don’t have their own separate stays arising from other cases).

The Gorsuch concurrence in the Supreme Court’s stay order is remarkable for many things. First, here is his description of the blizzard of litigation and injunctions that greeted this new “public charge” Rule:

The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fash- ioning its own injunction, this one limited to enforcement within the State of Illinois. . . .  [And] we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit.

And those are developments in just five of the cases that had been brought challenging the new rule. The New York Times on October 11 had reported that there were actually at least 21 such cases that had been brought by that date. What happened to the other 16? A good inference would be that the plaintiffs drew judges thought less likely to rule favorably, so they just never pursued their injunction motions. That’s how this game is played. Here is Gorsuch describing some of the gamesmanship:

Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. . . . And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.

With the Supreme Court’s order and Justice Gorsuch’s scathing concurrence, do you think that it is now clear sailing for the administration on this “public charge” rule? Far from it. All this ruling does is stay Judge Daniels’s preliminary injunction. The case now goes back to the same guy to conduct a “trial” and issue a final order. What is the chance that the final order he issues will be anything other than a permanent injunction against the Rule? I would say, about zero. The issuance of that permanent injunction will then start another round of applications for a stay (likely to be denied by the Second Circuit and then granted by the Supreme Court), followed by a round of appeals on the merits — first to the Second Circuit (which, depending on how many appointments Trump has had by that time, will likely affirm Daniels’s ruling, whatever it may be), and then to the Supreme Court. Meanwhile, the other four cases where preliminary injunctions have been granted will all be following the same tortuous series of procedural steps. If the Supreme Court conservative majority remains in place, it is likely that all this will end up with the administration finally able to enforce its Rule nationwide without the threat of injunction somewhere around the end of Trump’s second term.

Note that in the Supreme Court’s order of yesterday was 5-4. The bloc of four liberal Justices (Ginsberg, Breyer, Kagan and Sotomayor) all voted to deny the stay. If Merrick Garland had been on the Supreme Court, the administration’s public charge Rule would have died right then and there, probably with little to no hope of revival.

UPDATE, January 29: It occurs to me to remind readers of the end game in all these complicated litigation procedures. Recall if you will the attempt of the administration to add a citizenship question to the Census form which will now be distributed in a few months. That attempt was greeted by a blizzard of litigation very similar to what occurred with the “public charge” issue. The District Court in the Southern District of New York held an expedited trial, and enjoined the citizenship question unless the Secretary of Commerce could give some better rationale for the change than he had theretofore provided, in order to satisfy the court. The Supreme Court took an expedited appeal of that matter, issuing a ruling in June 2019. In a 5-4 decision, the Supremes affirmed the District Court in remanding to the Secretary for him supposedly to have another chance to provide a better rationale. In this 5-4 ruling, Chief Justice Roberts joined the four Justices of the liberal bloc.

Even though the ruling was a seeming trifle — just give us a better write-up of your reasoning! — the administration promptly gave up. Why? Just look at the gauntlet they were facing: no matter what rationale they might give, there would be multiple new litigations, multiple new injunctions, requests for stay, appeals, and so forth — and at the end of the road, what is the chance that anything they would ever say would satisfy Roberts? Without a good basis to believe that there would be five justices to stand up for the administration at the end of the road, the whole effort isn’t worth it. And thus, policy is determined by a handful of activist judges.