On Monday, the U.S. Supreme Court voted 5-4 to lift preliminary injunctions issued by two federal judges that had prohibited the Trump administration from enforcing its new “public charge” immigration regulation.
That regulation requires immigrants to demonstrate, as a condition of getting permanent resident status (“green cards”), that they will not be reliant on food stamps, Medicaid, or housing vouchers if they stay here. Prior to the new Trump rules, these forms of assistance were not included in the definition of “public charges.”
According to one report, more than 500,000 immigrants apply for green cards each year and an estimated two-thirds of those would be affected by the new rules. The regulation can now be enforced pending the completion of all appeals on the question of whether the new regulation is consistent with federal immigration law.
While the “public charge issue” is obviously an important one, it has taken on even greater significance in the context of the political war between President Trump and Congressional Democrats. The split vote in the Supreme Court pitted the five-justice conservative majority against the four-justice liberal minority. But even more than that, it reflected the recent trend of turning what are fundamentally policy disagreements into artificial legal confrontations over the current president’s governing prerogatives.
For good or for bad, the new regulation was consistent with the policy agenda that President Trump laid out during his 2016 presidential campaign. Needless to say, he faced much opposition from those – mostly liberal Democrats – who disagree with him about the wisdom behind admitting numerous immigrants from poor countries into this country. Yet, a president ordinarily enjoys enormous discretion over immigration policy (and legislative remedies require long and tedious efforts).
So Trump’s opposition turned to the courts – as it has done in several other instances involving immigration – to seek rulings enjoining the implementation of his initiatives from sympathetic federal judges who reached considerably to find that they were inconsistent with congressional mandates.
Several states and groups joined in lawsuits seeking rulings to invalidate the public charge regulation. Two courts agreed with them and enjoined its implementation. The Trump administration appealed but, significantly, neither the lower court judges nor the appellate courts agreed to stay their injunctions pending a final appellate ruling on the merits.
Furthermore, the two judges, as has become routine in the Trump years, invested their injunctions with nationwide application. So even if an enjoined regulation is ultimately upheld at the end of a long appeals process, its enforcement will have been stymied, at least in the short term.
The reaction of an immigration advocacy group to the 5-4 ruling is instructive. Javier Valdes, co-executive director of Make the Road New York, one of the plaintiffs in one of the lawsuits, said in a statement:
“This decision will hurt immigrant communities.… The Trump administration’s public charge rules attack our loved ones and neighbors by imposing a racist wealth test on the immigration system. We will continue our fight in the courts to stop this policy in its tracks.”
This sort of thing has even gotten a name: rule by injunction. In his concurring opinion in the ruling, Justice Neil Gorsuch honed in on this problem, noting, “A single loss and the policy goes on ice.”
There can be honest differences as to policy. But they should be the stuff of legislative advocacy, not grist for the judicial mill.