Changing Your Mind At the Supreme Court

Fair warning: the conclusion of this article may not be what you expect.

Presidents are free to establish their own priorities and policies, often through administrative rulemaking or executive order. Predictably, It is not unusual for the more dramatic of these orders or rulemaking to be challenged in court. With the exception of emergency matters, it takes a lot of time for cases to run their course.

While the legal process is unfolding, a new president may take office with priorities of his own. When that happens, the new administration must decide whether to continue to defend the legal position taken in those existing cases. 

That situation unfolded in the case of State of New York v. U.S. Department of Homeland Security. Here, the prior administration attempted to severely limit the ability of immigrants to enter the country and obtain legal status by obtaining a “green card.”

The prior rule (that had been in effect for nearly 150 years) prohibited legal status if people were likely to become a “public charge.” Congress described these as people who were likely to become long-term residents of “poor-houses and alms-houses.” The common day equivalent would be people who were institutionalized and wholly dependent on the government for their care. The same law recognized that new immigrants might need public assistance early on and even established an “immigrant fund” to provide temporary relief. This rule, then, allowed immigrants who were currently poor to enter the country and make a new life for themselves—a definition that included a great number of our ancestors.

The proposed rule from the Trump administration attempted to change the definition of “public charge” to allow rejection of applicants if, in the opinion of DHS personnel, they are “likely at any time to become a public charge.” It also stated that accepting ANY form of temporary government assistance could be disqualifying, again leaving this to the discretion of DHS officials. The legal challenge to this proposed rule suggested that the new definition was arbitrary and would allow the targeting of immigrants coming from particular locales.

This case had just arrived at the U.S. Supreme Court when President Biden was elected. Biden had made it clear that he would be returning “public charge” to the definition that had been in place for 150 years.

The Supreme Court knew that the position of the administration might change but it was understandably not going to second guess what the incoming administration might do. The parties were allowed to file their legal briefs in December.

The Trump administration in its reply brief acknowledged that the new administration had the right to change policy (and probably would) but that the Court should still rule that their new public charge rule was legitimate.

As expected, the Biden administration revoked the new public charge rule and advised the Supreme Court that, due to the administration’s different position on the matter, all parties to the litigation now believed that the appeal should be dismissed. The Supreme Court agreed and dismissed the suit yesterday. (Parenthetically, this is the third immigration-related appeal that has been dismissed in this manner.)

This is where it gets interesting. If the Trump administration knew that their public charge rule was going to be reversed, why press the Supreme Court to issue a ruling anyway? The answer is all about advancing the narrative. Had the Supreme Court ruled in favor of the public charge change, Trump would have proclaimed that his position was vindicated. Had it been defeated, he could continue his well-documented attacks on the Court as being cowardly. By dismissing the case without opinion, The Court silenced both sets of talking points.