By Suzanne Monyak

Law360 (April 20, 2020, 7:53 PM EDT) -- The Trump administration urged the U.S. Supreme Court on Monday not to "second-guess" the executive's response to the coronavirus pandemic, after the high court was asked to pause the government's controversial wealth test for immigrants to protect public health.

U.S. Solicitor General Noel Francisco urged the justices on Monday to preserve their 5-4 ruling temporarily greenlighting the so-called "public charge" rule, which allows the U.S. Department of Homeland Security to deny green cards to immigrants found likely to use public benefits in the future.

New York City and a trio of states had pressed the justices earlier this month to reconsider that January decision in light of the spread of the novel coronavirus, warning that the immigration rule deters immigrants from seeking out health benefits and threatens public health.

The states had also submitted declarations from nonprofits and doctors claiming that immigrants had resisted treatment out of fear that it would weigh against a future green card application.

But in Monday's filing, Francisco insisted that the executive branch has responded "aggressively" to the pandemic and "has made clear" in guidance that immigrants won't be penalized for using federal assistance for COVID-19 testing and treatment. He also accused the states, led by New York, of causing even more confusion with its filing.

"Movants' attempt to discount that guidance is more than incorrect; it is unhelpful by creating confusion about the rule and the government's COVID-19 response in an effort to advance this litigation," Francisco wrote.

Moreover, those declarations of reported confusion within immigrant communities "provide no basis for this Court to second-guess the Executive's response to the COVID-19 pandemic," he said.

The contested immigration rule, finalized in August, allows DHS to consider an immigrant's likelihood of needing to use public benefits when weighing a green card application by a number of factors, including past usage of certain cash and noncash public benefits as well as age, education and health.

Following a flurry of legal challenges to the policy, five federal judges held that the rule is likely illegal, and three blocked the rule nationwide. But in January, the Supreme Court gave DHS permission to enforce the rule while those legal challenges continued, and the department started implementing the rule in February, weeks before the coronavirus would spread across the U.S.

As confirmed coronavirus cases in the U.S. cleared half a million, New York asked the high court to take a second look at its order pausing the nationwide injunction in light of the pandemic on April 13.

According to the government's latest filing, the high court has never lifted or vacated a contested stay order that had been issued by the full court.

A spokesperson for the New York Attorney General's Office deferred comment to New York Attorney General Letitia James' previous comments on April 13 when the states filed their request with the high court.

"Every person who doesn't get the health coverage they need today risks infecting another person with the coronavirus tomorrow," James said in that statement. 

A spokesperson for U.S. Citizenship and Immigration Services, the DHS component agency implementing the rule, declined to comment on pending litigation. 

The federal government is represented by U.S. Solicitor General Noel J. Francisco.

The states are represented by the attorneys general of New York, Connecticut and Vermont. New York City is represented by James E. Johnson, corporation counsel.

The case is Department of Homeland Security et al., Applicants v. New York et al., case number 19A785, in the U.S. Supreme Court.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.