Arizona AG ‘Nunchucks’ Gets DIG-ed By SCOTUS On Immigration Case

In the sixth and final opinion announced  today by the U.S. Suprem Court, Arizona v. City and County of San Francisco, The Court dismissed as improvidently granted (DIG) the appeal from Arizona Attorney General Mark Brnovich aka “Nunchucks” (or is it numbnuts?) and 12 other attention-seeking Republican Attorneys General who wanted to step in and defend the Trump administration”s “public charge rule” in immigration against the Biden administration.

“Dismissed as improvidently granted” means that the Court after granting the case (and in this case hearing oral argument) finds a reason why it shouldn’t have taken the case afterwards.

In an opinion by Chief Justice Roberts, joined by Justices Thomas, Alito, and Gorsuch, the Chief writes:

We granted certiorari in this case not to address the merits of that argument, but to decide whether the petitioners—13 States which support the Rule—should have been permitted to intervene in this litigation to defend the Rule’s legality in the Court of Appeals.

When this and other suits challenging the Rule were first brought in 2019, the Government defended it. And when multiple lower courts, including the District Court here, found the Rule unlawful, the Government appealed those decisions. After a change in administrations, though, the Government reversed course and opted to voluntarily dismiss those appeals, leaving in place the relief already en- tered.

A new administration is of course as a general matter entitled to do that. But the Government then took a further step. It seized upon one of the now-consent judgments against it—a final judgment vacating the Rule nationwide, issued in a different litigation—and leveraged it as a basis to immediately repeal the Rule, without using notice-and- comment procedures.

[As] part of this tactic of “rulemaking-by-collective-acquiescence,” City and County of San Francisco v. United States Citizenship and Immigration Servs., 992 F. 3d 742, 744 (CA9 2021) (VanDyke, J., dissenting), the Government successfully opposed efforts by other interested parties—including petitioners here—to intervene in order to carry on the defense of the Rule, including possibly before this Court.

These maneuvers raise a host of important questions. The most fundamental is whether the Government’s actions, all told, comport with the principles of administrative law. But bound up in that inquiry are a great many issues beyond the question of appellate intervention on which we granted certiorari, among them standing; mootness; vacatur under United States v. Munsingwear, Inc., 340 U. S. 36 (1950); the scope of injunctive relief in an APA action; whether, contrary to what “[t]he government has long argued,” the APA “authorize[s] district courts to vacate regulations or other agency actions on a nationwide basis,” Brief for Federal Respondents 5, n. 3; how the APA’s procedural requirements apply in this unusual circumstance, cf. §551(5); FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009); and more.

It has become clear that this mare’s nest could stand in the way of our reaching the question presented on which we granted certiorari, or at the very least, complicate our resolution of that question. I therefore concur in the Court’s dismissal of the writ of certiorari as improvidently granted. But that resolution should not be taken as reflective of a view on any of the foregoing issues, or on the appropriate resolution of other litigation, pending or future, related to the 2019 Public Charge Rule, its repeal, or its replacement by a new rule. See Cook County v. Mayorkas, 340 F. R. D. 35 (ND Ill. 2021), appeal pending, No. 21–2561 (CA7); 87 Fed. Reg. 10571 (2022) (new proposed rule that would “implement a different policy than the 2019 Final Rule”).

Pete Williams of NBC News explains, Supreme Court won’t let states defend Trump ‘public charge’ immigration rule abandoned by Biden:

The Supreme Court on Wednesday declined to let states step in to defend a change in immigration rules, rejected by the Biden administration, that would impose new limits on the admission of immigrants considered likely to become overly dependent on government benefits.

Under former President Donald Trump, the Department of Homeland Security announced that it would expand the definition of “public charge,” applied to people whose entry could be denied because of a concern that they would primarily depend on the government for their income.

In the past, the designation was largely based on an assessment that an immigrant would be dependent upon cash benefits. But the Trump administration proposed to broaden the definition to include non-cash benefits, such as Medicaid, supplemental nutrition and federal housing assistance.

Anyone likely to require that level of help for more than 12 months in any three-year period could be swept into the expanded definition and denied admission.

Adoption of the rule in August 2019 touched off a series of lawsuits. Five separate federal courts blocked its immediate enforcement, so it never took effect. While those cases were pending, the Biden administration cancelled the rule and said the Justice Department would no longer defend it in court.

Arizona and a dozen other states stepped in, saying the federal government ended the program without following the proper administrative steps, such as seeking public comment. They sought to carry on defense of the public charge rule.

But on Wednesday, the Supreme Court dismissed the case, which left the states with no legal ability to defend the Trump restriction.

Even if they had won the case, however, their prospects for getting the rule revived faced long odds. If the lower courts then ruled that the government didn’t follow the rules in shutting it down, the Biden administration could simply relaunch the effort to end the program and seek public comment.

In fact, Principal Deputy Solicitor General Brian Fletche at the oral argument in February stressed that the Biden administration was soliciting comments on a proposed rule to replace the 2019 rule issued by the Trump administration.

So what we had here is a baker’s dozen of Republican AG’s desperate for attention trying to look tough on immigration for their GQP primary elections in 2022.




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