In a decision yesterday (in Cook County v. Wolf), a divided panel of the Seventh Circuit left in place a district court’s preliminary injunction that prevents the Department of Homeland Security from enforcing its newly adopted “public charge” rule. In DHS’s summary, its rule “requires most aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend or change, they have not received public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period beginning Oct. 15, 2019.” (In enforcing its rule, DHS has explained that, due to litigation-related delays, it won’t look to public benefits received before February 24, 2020.) The district court’s preliminary injunction applies only within Illinois; it is in force pending the resolution of the litigation, at which time it will presumably be replaced by a permanent injunction.
Seventh Circuit chief judge Diane Wood wrote the majority opinion, which was joined by Judge Ilana Rovner. Judge Amy Coney Barrett penned a powerful dissent (which runs from pages 42 to 82 of the slip opinion). For those keeping score at home, Wood is a Clinton appointee; Rovner, a Bush 41 appointee, is among the court’s most liberal members; and Barrett is a Trump appointee and a prominent contender for his next Supreme Court nomination.
The majority and the dissent agreed that, under so-called step one of the Chevron framework of review of agency rules, Congress had not spoken directly to the meaning of the Immigration and Nationality Act’s provision that a noncitizen may be denied admission or adjustment of status if the noncitizen “is likely at any time to become a public charge.” But, as Barrett explains, they disagree significantly on how that provision should be read, and that disagreement largely explains why they divide on Chevron’s step-two question, whether DHS’s interpretation of that provision is reasonable. Here is the opening paragraph of Barrett’s dissent:
The plaintiffs have worked hard to show that the statutory term “public charge” is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance. That argument is belied by the term’s historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination. When the use of “public charge” in the Immigration and Nationality Act is viewed in the context of these amendments, it becomes very difficult to maintain that the definition adopted by the Department of Homeland Security is unreasonable. Recognizing this, the plaintiffs try to cast the 1996 amendments as irrelevant to the meaning of “public charge.” That argument, however, flies in the face of the statute—which means that despite their best efforts, the plaintiffs’ interpretive challenge is an uphill battle that they are unlikely to win. [Abbreviations omitted.]
Barrett also explains at some length (pp. 43-49) that “[t]here is a lot of confusion surrounding the public charge rule”: “Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future.” It’s very unfortunate that immigrants who will never be subject to the public-charge rule are (in Barrett’s words) “dropping or forgoing aid out of misunderstanding or fear.” I wonder how much those who have been engaged in hyperbolic attacks on the rule have been responsible for that result.