High Court Won't Pause 'Public Charge' Rule During Pandemic

By Dorothy Atkins
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Law360 (April 24, 2020, 8:37 PM EDT) -- The U.S. Supreme Court ruled Friday that it won't pause the so-called "public charge" rule that allows the Trump administration to implement a wealth test for immigrants, despite arguments by three states and New York City that the rule threatens public health during the coronavirus pandemic.

In a one-sentence decision, the high court denied a request by New York state, New York City, Vermont and Connecticut that would temporarily lift or modify a stay of a nationwide injunction that would block the public charge rule from going into effect. The order does not preclude a filing in the district court "as counsel considers appropriate," the high court said.

In a separate appeal before the Supreme Court on Friday, the high court also refused to issue a stay that would lift a similar injunction blocking the public charge rule in Illinois. Again, the Supreme Court clarified that the order does not bar the state from filing a request in the district court.

The rule, which the U.S. Department of Homeland Security announced in August, penalizes green card applicants who are found likely to use public assistance programs.

The high court gave the DHS the green light earlier this year to carry out the new immigration rule in the face of an onslaught of legal challenges, despite five federal court orders that found the measure was likely illegal.

DHS started implementing the policy in all 50 states in February, allowing it to deny green cards to immigrants who have used certain public benefits in the past or are considered likely to use them in the future based on factors like age, education level and health.

But earlier this month, the states and city asked the high court to rethink its January decision and argued that the policy could deter immigrants from seeking out health care or medical testing if they feel sick, increasing the chances that they could die from COVID-19 or spread the virus inadvertently.

They also expressed concerns that the federal government's stance on the public charge rule may have increased confusion, and doctors and nonprofits have observed immigrants refusing coronavirus testing out of fear of being labeled a "public charge."

The federal government has previously defended its implementation of the rule during the pandemic, saying that most immigrants who don't yet have green cards aren't eligible for most federal public benefits like Medicaid anyway.

U.S. Citizenship and Immigration Services has also issued a statement saying that the public charge rule "does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19," and that immigrants won't be penalized for any benefits used to seek testing or treatment for the coronavirus.

New York Attorney General Letitia James said in a statement Friday that she believes the Supreme Court's order allows the states and the city to continue the fight to halt the public charge rule in New York federal court.

"We will soon file an emergency motion in the Southern District of New York because our country cannot afford to wait," the statement says. "The public charge rule threatens the public's health, our economy, and all New Yorkers — citizens and non-citizens alike."

Representatives for the U.S. Department of Justice didn't immediately respond to a request for comment Friday.

The states are represented by the attorneys general of New York, Connecticut and Vermont.

New York City is represented by James E. Johnson of the city's law department.

The federal government is represented by Noel Francisco.

The cases are U.S. Department of Homeland Security et al. v. New York et al., case number 19A785, and Chad Wolf, Acting Secretary of Homeland Security et al., v. Cook County, Illinois, et al., case number 19A905, both before the U.S. Supreme Court.

--Additional reporting by Suzanne Monyak. Editing by Adam LoBelia.

Update: This story has been updated to clarify that the high court's order doesn't preclude the states and city from filing in the district court and to include additional details regarding the order in the Illinois appeal.

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

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