By:  Adam Liptak
Source: The New York Times

Supreme Court Allows Trump’s Wealth Test for Green Cards

The Supreme Court on Monday allowed the Trump administration to move forward with plans to deny green cards to immigrants who are thought to be likely to make even occasional and minor use of public benefits like Medicaid, food stamps and housing vouchers.

The vote was 5 to 4, with the court’s conservative justices in the majority. The court’s brief order gave no reasons for lifting preliminary injunctions that had blocked the new program. Challenges to the program will continue to move forward in courts around the nation.

The administration announced in August that it would revise the so-called public charge rule, which allows officials to deny permanent legal status, also known as a green card, to immigrants who are likely to need public assistance. In the past, only substantial and sustained monetary help or long-term institutionalization counted, and fewer than 1 percent of applicants were disqualified on public-charge grounds.

The administration’s revised rule broadened the criteria to include “noncash benefits providing for basic needs such as housing or food” used in any 12 months in a 36-month period. Use of two kinds of benefits in a single month counts as two months, and so on.

The new rule was challenged in courts around the country, and five trial judges entered injunctions blocking it. Appellate courts stayed some but not all of the injunctions while appeals moved forward, and the appeals themselves have been placed on fast tracks.

The Supreme Court considered two cases brought in New York, one by groups that provide services to immigrants and the other by New York, Connecticut, Vermont and New York City. The United States Court of Appeals for the Second Circuit, in Manhattan, denied the administration’s request for a stay of two nationwide injunctions issued by a trial judge, and it scheduled arguments in the first week of March.

Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, issued on Monday a concurring opinion addressing what they said was the growing problem of nationwide injunctions.

“It has become increasingly apparent that this court must, at some point, confront these important objections to this increasingly widespread practice,” Justice Gorsuch wrote. “As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”

“I concur in the court’s decision to issue a stay,” Justice Gorsuch continued. “But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”

Kenneth T. Cuccinelli, the acting deputy secretary for the Department of Homeland Security, on Monday praised the Supreme Court decision.

“It is very clear the U.S. Supreme Court is fed up with these national injunctions by judges who are trying to impose their policy preferences instead of enforcing the law,” Mr. Cuccinelli said.

He noted that the Supreme Court has permitted the administration to move forward with other aspects of its immigration policy. In September, the court let the administration bar most Central American migrants from seeking asylum in the United States.

In July, the court allowed the administration to begin using $2.5 billion in Pentagon funds for construction of a wall along the southwestern border. In 2018, the court upheld Mr. Trump’s ban on travel from several majority Muslim countries.

Ghita Schwarz, a lawyer with the Center for Constitutional Rights, which represents groups challenging the new program, said in a statement that “the court’s decision to lift the injunction is very disappointing, but our challenge to the draconian public charge rule is still moving forward.”

In asking the Supreme Court to lift the injunctions in the new case, Solicitor General Noel J. Francisco wrote that the new rule was authorized by a federal statute that made immigrants inadmissible if “they are likely at any time to become a public charge.” The new rule, Mr. Francisco wrote, was a permissible interpretation of that phrase.

“An alien who depends on public assistance for necessities such as food and shelter for extended periods may qualify as a ‘public charge’ even if that assistance is not provided through cash benefits or does not provide the alien’s sole or primary means of support,” Mr. Francisco wrote.

Barbara D. Underwood, the New York solicitor general, responded that the new policy “would radically disrupt over a century of settled immigration policy and public-benefits programs.”

“The rule’s vast expansion of ‘public charge’ — to include employed individuals who receive any amount of certain means-tested benefits for even brief periods of time — is a stark departure from a more-than-century-long consensus that has limited the term to individuals who are primarily dependent on the government for long-term subsistence,” she wrote.

“‘Public charge’ has never included,” Ms. Underwood wrote, “employed persons who receive modest or temporary amounts of government benefits designed to promote health or upward mobility.”

Lawyers for the private groups challenging the new policy, relying on estimates published by the Department of Homeland Securitywrote that “the rule will cause hundreds of thousands of individuals and households, in many cases noncitizens not even subject to public charge scrutiny, to forego public benefits for which they are eligible, out of fear and confusion about the consequences for their immigration status of accepting such benefits.”

That could lead, they wrote, summarizing the department’s findings, to “increased malnutrition (especially for pregnant or breastfeeding women, infants, or children) and increased prevalence of communicable diseases, increased poverty and housing instability.”

Sara Rosenbaum, a professor of health law and policy at George Washington University, said the new program has “already had a measurable effect on Medicaid enrollment,” adding that “we have documented evidence of people just disappearing off the rolls.”

Mr. Francisco told the Supreme Court that discouraging immigrants seeking green cards from using public benefits was a lawful goal.

“And to the extent that the rule might cause disenrollment by aliens who are not subject to the rule, such disenrollment is unwarranted, easily corrected and temporary,” he added. “It does not outweigh the long-term harms the government will experience while the rule is enjoined.”