SCOTUS Permits Public Charge Regulation to Go into Effect

By Heather Ham-Warren | FAIR Take | January 2020

The Trump administration’s decision to expand the definition of a “public charge” has been given the green light by the nation’s highest court. After mixed decisions by appellate courts throughout the country, Solicitor General Noel Francisco urged the Supreme Court of the United States (SCOTUS) to lift the lower court’ injunctions while the appeals process continued. On Monday, in a 5-4 decision, the Court ruled in favor of the government, permitting the regulation to go in effect as the case worked its way through the judicial process.

To recap, in August of last year, the government released their final rule on public charges. Under the new regulations, United States Citizenship and Immigration Services (USCIS) will evaluate applicants using many factors such as: age, health, family status, financial status, educational attainment, and skills. These factors will be reviewed by a totality of the circumstances test to determine if an individual could become primarily dependent on a designated list of state and federal programs including, but not limited to, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Supplemental Nutrition Assistance Program (SNAP), and public housing. Some of the programs that will not be considered by the final rule include disaster relief, school lunch programs, and the Child Health Insurance Program (CHIP).

While not ruling on the merits of the case, Justice Neil Gorsuch issued a concurring opinion criticizing the abuse of nationwide injunctions by federal judges. Gorsuch, joined by Justice Clarence Thomas, stated that the “real problem” in the case is the “increasingly common practice of trial courts ordering relief that transcends the cases before them.” In those situations, he wrote, “it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.”

Lower courts will continue to hear lawsuits on the public charge rule in the coming months. As such, it is likely that the Supreme Court will review the issue again.

The regulation is expected to go into effect on February 24.