Casa De Maryland, Incorporated v. Donald Trump ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2222
CASA DE MARYLAND, INC.; ANGEL AGUILUZ; MONICA CAMACHO
PEREZ,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States;
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security;
U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T.
CUCCINELLI, II, in his official capacity as Acting Director, U.S. Citizenship and
Immigration Services; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants – Appellants.
------------------------------
IMMIGRATION REFORM LAW INSTITUTE,
Amicus Supporting Appellants.
104 BUSINESSES AND ORGANIZATIONS; AMERICAN ACADEMY OF
PEDIATRICS; MARYLAND CHAPTER, AMERICAN ACADEMY OF
PEDIATRICS; VIRGINIA CHAPTER, AMERICAN ACADEMY OF
PEDIATRICS; AMERICAN MEDICAL ASSOCIATION; MARYLAND STATE
MEDICAL SOCIETY; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN
COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; INSTITUTE FOR
POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW;
UNITED STATES HOUSE OF REPRESENTATIVES; LEGAL HISTORIANS;
CENTER FOR REPRODUCTIVE RIGHTS; MEMBERS OF CONGRESS; JUDY
CHU, Chair of the CAPAC; ADRIANO ESPAILLAT, CHC Whip; YVETTE D.
CLARKE, Chair of the CBC Immigration Task Force; JOAQUIN CASTRO, Chair
of the CHC; KAREN BASS, Chair of the CBC; PRAMILA JAYAPAL, Chair of the
CAPAC Immigration Task Force; BARBARA LEE, Co-Chair of the CAPAC
Healthcare Task Force; NONPROFIT ANTI-DOMESTIC VIOLENCE AND
SEXUAL ASSAULT ORGANIZATIONS; IMMIGRATION LAW PROFESSORS;
FISCAL POLICY INSTITUTE; PRESIDENTS’ ALLIANCE ON HIGHER
EDUCATION AND IMMIGRATION; PUBLIC JUSTICE CENTER,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:19-cv-02715-PWG)
Argued: May 8, 2020 Decided: August 5, 2020
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in
which Judge Niemeyer joined. Judge King wrote a dissenting opinion.
ARGUED: Gerard Joseph Sinzdak, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Jonathan Backer, GEORGETOWN UNIVERSITY
LAW CENTER, Washington, D.C., for Appellees. Adam A. Grogg, UNITED STATES
HOUSE OF REPRESENTATIVES, Washington, D.C., for Amicus Curiae. ON BRIEF:
Joseph H. Hunt, Assistant Attorney General, Daniel Tenny, Joshua Dos Santos, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K.
Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellants. Amy L. Marshak, Joshua A. Geltzer, Mary B.
McCord, Institute for Constitutional Advocacy and Protection, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for Appellees. Michael M. Hethmon,
Lew Olowski, IMMIGRATION REFORM LAW INSTITUTE, Washington, D.C., for
Amicus Immigration Reform Law Institute. Paul W. Hughes, Michael B. Kimberly,
Matthew A. Waring, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Amici
104 Businesses and Organizations. Susan M. Krumplitsch, Elizabeth Stameskin,
Priyamvada Arora, COOLEY LLP, Palo Alto, California, for Amici American Academy
of Pediatrics; Maryland Chapter, American Academy of Pediatrics; Virginia Chapter,
American Academy of Pediatrics; American Medical Association; Maryland State Medical
Society; American College of Physicians; American College of Obstetricians and
Gynecologists. Richard L. Revesz, Jack Lienke, Max Sarinsky, INSTITUTE FOR
POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW, New York,
2
New York, for Amicus Institute for Policy Integrity at New York University School of
Law. Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, Emily Green, Washington, D.C.,
Rene Kathawala, Jessica Edmundson, Allison Epperson, New York, New York, M. Todd
Scott, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco, California; Douglas
N. Letter, General Counsel, Todd B. Tatelman, Principal Deputy General Counsel, Megan
Barbero, Josephine Morse, Adam A. Grogg, William E. Havemann, Office of General
Counsel, UNITED STATES HOUSE OF REPRESENTATIVES, Washington, D.C., for
United States House of Representatives. Alexandra Wald, COHEN & GRESSER LLP,
New York, New York; Elizabeth B. Wydra, Brianne J. Gorod, Dayna J. Zolle,
CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amici
Legal Historians. Jenny Ma, Pilar Herrero, Amy Myrick, Elyssa Spitzer, CENTER FOR
REPRODUCTIVE RIGHTS, New York, New York, for Amicus Center for Reproductive
Rights. Gare Smith, Kristyn DeFilipp, Andrew London, Emily J. Nash, FOLEY HOAG,
LLP, Boston, Massachusetts; Justin Lowe, Wendy Parmet, HEALTH LAW
ADVOCATES, INC., Boston, Massachusetts, for Amici Health Law Advocates, Inc. and
Other Organizations Interested in Public Health. Nilda Isidro, Amanda Burns, Christine
Armellino, New York, New York, Caroline H. Bullerjahn, GOODWIN PROCTOR LLP,
Boston, Massachusetts, for Amici Members of Congress Judy Chu, Chair of the CAPAC;
Adriano Espaillat, CHC Whip; Yvette D. Clarke, Chair of the CBC Immigration Task
Force; Joaquin Castro, Chair of the CHC; Karen Bass, Chair of the CBC; Pramila Jayapal,
Chair of the CAPAC Immigration Task Force; Barbara Lee, Co-Chair of the CAPAC
Healthcare Task Force, et al. Paul J. Lawrence, Alanna E. Peterson, PACIFICA LAW
GROUP LLP, Seattle, Washington, for Amici Nonprofit Anti-Domestic Violence and
Sexual Assault Organizations. Harry Lee, Mary Woodson Poag, Johanna Dennehy,
STEPTOE & JOHNSON LLP, Washington, D.C., for Amici Immigration Law Professors.
Monisha Cherayil, Sally Dworak-Fisher, Tyra Robinson, PUBLIC JUSTICE CENTER,
Baltimore, Maryland, for Amicus Public Justice Center. Sadik Huseny, Brittany N.
Lovejoy, Joseph C. Hansen, Tess L. Curet, Alexandra B. Plutshack, LATHAM &
WATKINS LLP, San Francisco, California, for Amici Fiscal Policy Institute & Presidents’
Alliance on Higher Education and Immigration, et al.
3
WILKINSON, Circuit Judge:
The Immigration and Nationality Act (“INA”) says that any alien who is “likely at
any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). 1 Congress
has included some version of a “public charge” provision in the nation’s immigration laws
since 1882, but it has never defined the term, instead leaving its implementation to the
executive branch. Recently, the Department of Homeland Security (“DHS”) sought via
rulemaking to define “public charge” as an alien who was likely to receive certain public
benefits, including many cash and noncash benefits, for more than 12 months in the
aggregate over any 36-month period (“DHS Rule” or “Rule”). The district court here
enjoined the Rule nationwide.
In this case, statutory interpretation meets the separation of powers. To invalidate
the Rule would visit palpable harm upon the Constitution’s structure and the circumscribed
function of the federal courts that document prescribes. Striking the Rule would also entail
the disregard of the plain text of a duly enacted statute, all in an area where the Constitution
commands “special judicial deference” to the political branches in light of the intricacies
and sensitivities inherent in immigration policy. Fiallo v. Bell, 430 U.S. 787, 793 (1977).
Finally, we are asked here to endorse a particular remedy—a nationwide injunction of the
Rule—that reaches expansively beyond any proper conception of the judicial role.
1
Consistent with the INA, the DHS Rule, and our dissenting colleague, we employ
the term “alien” throughout this opinion. See 8 U.S.C. § 1101(a)(3) (defining the term
“alien” as “any person not a citizen or national of the United States”); Inadmissibility on
Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019).
4
The above does not mean that the plaintiffs’ view of the public charge provision is
definitively wrong. Nor does it mean that the government’s view of the public charge
provision is definitively right. Rather, the public charge provision has led for almost a
century and a half a long and varied life, with different administrations advancing varied
interpretations of the provision, depending on the needs and wishes of the nation at a
particular point in time. To be sure, the public charge provision ties alien admissibility to
prospective alien self-sufficiency. But within that broad framework, Congress has charged
the executive with defining and implementing what can best be described as a purposefully
elusive and ambiguous term. Congress has assiduously resisted giving the term the kind
of fixed and definite meaning that the plaintiffs to this lawsuit seek, and we are reluctant
to step in and perform that task ourselves, thus transferring primacy in national immigration
policy from the democratically accountable branches where it has long been thought to
reside.
There is a further and daunting obstacle to invalidating the Rule. In the course of
prolonged litigation in the lower federal courts, the Second and Seventh Circuits declined
to stay injunctions issued by trial courts precluding enforcement of the Rule. See New York
v. Dep’t of Homeland Sec., No. 19-3591, 2020 WL 95815 (2d Cir. Jan. 8, 2020); Order,
Cook Cty., Illinois v. Wolf, No. 19-3169 (7th Cir. Dec. 23, 2019). The Supreme Court
thereupon granted the government’s emergency request to stay the preliminary injunctions,
an action which would have been improbable if not impossible had the government, as the
stay applicant, not made “a strong showing that it was likely to succeed on the merits.” See
Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020); Dep’t of Homeland Sec. v. New York,
5
140 S. Ct. 599 (2020); see also Nken v. Holder, 556 U.S. 418, 434 (2009). We may of
course have the technical authority to hold that, notwithstanding the Supreme Court’s view,
the plaintiffs are likely after all to succeed on the merits of their challenge. But every
maxim of prudence suggests that we should decline to take the aggressive step of ruling
that the plaintiffs here are in fact likely to succeed on the merits right upon the heels of the
Supreme Court’s stay order necessarily concluding that they were unlikely to do so. Such
a step would require powerful evidence that the Supreme Court’s stay was erroneously
issued. Such evidence is absent here.
It is surprising that the dissenting opinion makes light of the Supreme Court’s action
in these parallel cases. See Dissenting Op., post at 107 n.16. The Supreme Court does not
ordinarily issue such stays. See Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013,
1014 (1993) (O’Connor, J., concurring) (finding the case not “one of those rare and
exceptional cases in which a stay pending appeal is warranted”). Moreover, those two
cases were more than ordinary cases. They involved the exact same issue before us today.
It is curious, to say the least, that we might even suggest that the Supreme Court gave scant
attention to the stay request and thus treat the stay order as merely “perfunctory.”
Dissenting Op., post at 108 n.16.
The stays here were granted by the whole court, not a single Justice. See Cook Cty.,
140 S. Ct. at 681 (referring stay application presented to Justice Kavanaugh to whole
court); New York, 140 S. Ct. at 599 (referring stay application presented to Justice Ginsburg
to whole court). In such cases, “the affirmative votes of a majority of the participating
Justices are required to grant it.” Stephen M. Shapiro et al., Supreme Court Practice 892
6
(10th ed. 2013) (collecting cases). Thus, this case is not a situation in which “matters
cannot be predicted with certainty,” such that one Justice must weigh whether “it is more
likely than not that at least five Justices will agree with the” judgment below. Araneta v.
United States, 478 U.S. 1301, 1304 (1986) (Burger, C.J., in chambers). Rather, five
Justices necessarily “conclude[d] there [wa]s a ‘fair prospect’ that a majority of this Court
w[ould] decide the issue in favor of the applicants” in order to grant the stay. Id. This stay
gives us a window into the Supreme Court’s view of the merits. Our court should not
cultivate the appearance of denying the Supreme Court action its obvious and relevant
import.
We are of course duty-bound to give this appeal a thorough and conscientious
review. For the reasons that follow, we think the Rule is a permissible interpretation of the
public charge provision, and that to hold otherwise would be a stark transgression of the
judiciary’s proper role. Accordingly, we reverse the judgment and remand for further
proceedings consistent with this opinion.
I.
A.
We begin with a brief overview of the public charge provision’s long history.
Though, as discussed below, the provision has been amended numerous times over the past
138 years, its motivating purpose has remained the same—to prevent the admission of
aliens who, to one degree or another, would depend on the public for their support and care.
Congress first enacted a public charge provision in 1882. See Act of Aug. 3, 1882,
ch. 376, § 2, 22 Stat. 214. The 1882 Immigration Act specified in relevant part that no
7
“person unable to take care of himself or herself without becoming a public charge” would
“be permitted to land” in the United States. Id. The 1882 Act did not define the term
“public charge,” nor did it specify the amount or type of public support that would render
an alien inadmissible on that basis.
Instead, the interpretation and application of the public charge provision was
entrusted to the executive branch. The 1882 Act charged the Secretary of the Treasury
“with the duty of executing the provisions of this act and with supervision over the business
of immigration to the United States,” 22 Stat. 214, and vested him with the power to
“establish such regulations and rules . . . for carrying out the provisions of this act and the
immigration laws of the United States,” id.In 1891, Congress revised the federal immigration laws, including the public charge
provision. See Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084. Specifically, the 1891
amendment divided the 1882 Act’s general bar on admitting public charges into two
complementary provisions, the “inadmissibility provision” and the “deportation
provision.” The inadmissibility provision called for a prospective assessment of whether
an alien seeking to enter the United States was “likely to become a public charge” and
prohibited the admission of all such aliens. Id. § 1. The deportation provision, on the other
hand, required a retrospective assessment of whether an alien who had already been
admitted to the United States had “become[] a public charge within one year after his
arrival in the United States from causes existing prior to his landing therein.” Id. § 11. If
so, the Act provided that such an alien could be deported. These two provisions were
designed to work hand-in-hand: the latter served as a backstop when immigration officials
8
applying the former failed to accurately predict that a given alien was likely to become a
“public charge.” And this bifurcation in the law persists today. 8 U.S.C. §§ 1182(a)(4),
1227(a)(5). The 1891 amendment, like the 1882 Act, did not define the term “public
charge.” But the 1891 amendment, like the 1882 Act, confirmed that the executive would
be responsible for enforcing this component of national immigration policy. See § 8, 26
Stat. 1084, 1085.
Between 1891 and 1917, Congress amended the federal immigration statute three
times. See Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213; Act of Feb. 20, 1907, ch. 1134,
34 Stat. 898; Act of Mar. 26, 1910, ch. 128, 36 Stat. 263. Three points bear noting. First,
none of these amendments provided a definition of “public charge.” Second, Congress
retained both the inadmissibility and deportation provisions in each amendment. Third,
Congress continued to afford the executive wide latitude in enforcing the relevant grounds
for inadmissibility, including interpretation of the public charge provision. See, e.g., §16,
34 Stat. 898, 903.
In 1915, a Supreme Court decision prompted yet another set of amendments. That
year, the Court issued its first decision directly interpreting the public charge provision.
See Gegiow v. Uhl, 239 U.S. 3 (1915). The “single question” presented in Gegiow was
“whether an alien can be declared likely to become a public charge on the ground that the
labor market in the city of his immediate destination is overstocked.” Id. at 9–10. The
Supreme Court said no. It noted that “[t]he statute deals with admission to the United
States, not to” a particular locality. Id. at 10. And it reasoned that the term “public charge”
should “be read as generically similar to the others mentioned before and after” it in the
9
1910 Act, which then included “paupers and professional beggars.” Id. As such, the Court
concluded that public charge determinations should be made “on the ground of permanent
personal objections” to the alien, rather than “local [labor] conditions.” Id. at 10.
In 1917, Congress responded to the Gegiow decision. Specifically, it moved the
public charge provision to the end of a list of factors rendering an alien inadmissible. The
revised statute made inadmissible, among others,
persons . . . who are . . . mentally or physically defective, such physical defect
being of a nature which may affect the ability of such alien to earn a living;
persons who have been convicted of or admit having committed a felony or
other crime or misdemeanor involving moral turpitude; polygamists, or . . .
persons likely to become a public charge.
Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875–76.
The legislature amended the statute in this manner “in order to indicate the intention
of Congress that aliens shall be excluded upon [the public charge] ground for economic as
well as other reasons” and did so, specifically, “to overcome[e] the decision of the Supreme
Court in [Gegiow].” See 70 Cong. Rec. 3620 (1929). While Congress moved the
placement of the public charge provision to respond to Gegiow, it still did not define the
term, leaving the application of the provision in the hands of immigration officials and the
executive branch.
For its part, the executive branch regarded the public charge provision as a flexible
one, varying its interpretation and enforcement strategy in light of its policy objectives and
prevailing national conditions. For example, in the early 20th century, immigration officers
often utilized the provision as a “catchall,” excluding aliens on public charge grounds when
no other basis for inadmissibility seemed applicable. See Jane Perry Clark, Deportation of
10
Aliens from the United States to Europe 104 (1931). Later, in response to high levels of
unemployment brought on by the Great Depression, President Hoover ordered that the
provision be enforced more stringently, such that all aliens who would “probably be a
public charge at any time, even during a considerable period subsequent to [their] arrival”
would be inadmissible. See Roger Daniels, Guarding the Golden Door: American
Immigration Policy and Immigrants Since 1882, at 60–62 (2004). The executive
eventually began to develop more formal standards to govern public charge determinations.
For example, the Board of Immigration Appeals promulgated a three-part test for an alien
to be found deportable as a “public charge” in 1948. Matter of B-, 3 I. & N. Dec. 323 (BIA
1948). Specifically, the BIA concluded that in order for someone to be designated a
deportable public charge, “(1) the State or other governing body must, by appropriate law,
impose a charge for the services rendered to the alien . . . (2) make demand for payment of
the charges[,] . . . [and] (3) there must be a failure to pay for the charges.” Id. at 326.
In 1952, Congress comprehensively reformed federal immigration law. Since then,
“[t]he foundation of our laws on immigration and naturalization [has been] the Immigration
and Nationality Act.” Kansas v. Garcia, 140 S. Ct. 791, 797 (2020). As relevant here, the
INA included a revised public charge inadmissibility provision, which codified for the first
time what was already well-established in practice: that the executive branch is accorded
significant discretion in dealing with the provision. See Immigration and Nationality Act,
Pub. L. No. 82-414, tit. II, ch. 2, § 212, 66 Stat. 163, 183 (1952). Importantly, the INA
rendered inadmissible all aliens who “in the opinion of the Attorney General . . . are likely
at any time to become public charges.” Id. (emphasis added). The INA included a revised
11
deportation provision with similar language. See id. ch. 5, § 241(a)(8) (pegging such
decisions to the “opinion of the Attorney General”). Congress once again declined to
define the term “public charge,” “but rather . . . establish[ed] the specific qualification that
the determination of whether an alien falls into that category rests within the discretion of
the” relevant executive branch immigration officials. S. Rep. No. 81-1515, 347, 349
(1950). It is this iteration of the inadmissibility provision, as amended, that the DHS Rule
at issue here purports to interpret.
Congress subsequently amended the public charge inadmissibility provision twice
more. First, in 1990, it eliminated various antiquated bases for inadmissibility, such as
whether the alien was a “pauper[], professional beggar[], or vagrant[].” See 136 Cong.
Rec. 36844 (1990). In their place, Congress retained the single generic phrase “likely to
become a public charge.” Immigration Act of 1990, Pub. L. No. 101-649, tit. VI, § 601,
104 Stat. 4978, 5072. Then, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”). Omnibus Consolidated Appropriations
Act, tit. V, § 531, 110 Stat. 3009 (1996). That statute recodified the inadmissibility
provision in its current form, specifying that “[a]ny alien who, in the opinion of the . . .
Attorney General at the time of application for admission or adjustment of status, is likely
at any time to become a public charge is inadmissible.” Id.; see also id. tit. III, § 308; 8
U.S.C. § 1182(a)(4)(A). 2 Moreover, although the IIRIRA did not define “public charge,”
2
Specific classes of aliens, including asylum seekers and refugees, are not subject
to the public charge provision. See 8 U.S.C. §§ 1157, 1158, 1159.
12
it specified five non-exclusive factors that executive branch officials were required to take
into account when making public charge admissibility determinations: the alien’s “age;”
“health;” “family status;” “assets, resources, and financial status;” and “education and
skills.” See 8 U.S.C. § 1182(a)(4)(B).
While Congress continued to tweak the statutory language, the executive branch
continually refined its working definition of “public charge.” In 1974, the BIA announced
that the three-part test for deportation determinations set forth in Matter of B- would not
apply to public charge inadmissibility decisions. See Matter of Harutunian, 14 I. & N.
Dec. 583, 585 (1974). Instead, whether an alien was likely to become a “public charge”
for admissibility purposes would be based on the totality of the alien’s circumstances, with
an eye toward whether the alien would “need public support” to some unenumerated
degree. Id. at 589–90. Then, in 1999, the Department of Justice initiated a rulemaking in
which it sought to define the term “public charge” for purposes of both the inadmissibility
and deportation provisions. See Inadmissibility and Deportability on Public Charge
Grounds, 64 Fed. Reg. 28,676 (May 26, 1999) (to be codified at 8 C.F.R. pts. 212 & 237).
Specifically, the 1999 Rule would have defined “public charge” as “an alien who has
become (for deportation purposes) or who is likely to become (for admission/adjustment
purposes) primarily dependent on the Government for subsistence as demonstrated by
either: (i) The receipt of public cash assistance for income maintenance purposes, or (ii)
Institutionalization for long-term care at Government expense (other than imprisonment
for conviction of a crime).” Id. at 28,681. Though it proposed to adopt a unified definition
of “public charge,” the 1999 Rule retained the “totality of the circumstances” and the three
13
step Matter of B- tests for assessing inadmissibility and deportability, respectively. See id.
at 28,679–80.
The 1999 Rule was never finalized. Nevertheless, the Department of Justice issued
a “field guidance” that instructed immigration officials to apply the “primarily dependent”
definition set forth in the failed 1999 Rule to public charge determinations. Field Guidance
on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689,
28,689–91 (May 26, 1999). Prior to the Rule at issue in this case, the 1999 Field Guidance
has governed.
B.
1.
On October 10, 2018, DHS issued a notice of proposed rulemaking that signaled its
intent to abandon the 1999 Field Guidance and adopt a new definition of “public charge”
for purposes of admissibility determinations. See Inadmissibility on Public Charge
Grounds, 83 Fed. Reg. 51,114 (October 10, 2018). DHS issued a final version of the Rule
on August 14, 2019, see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292(August 14, 2019), which was initially scheduled to take effect on October 15, 2019.
The Rule made three relevant changes to the administration of the inadmissibility
prong of the public charge provision. First, it replaced the 1999 Field Guidance’s definition
of “public charge,” which asked whether an alien was likely to become “primarily
dependent” on government assistance, with a durational threshold. Specifically, under the
Rule, a “public charge” is defined as “an alien who receives one or more public benefits . . .
for more than 12 months in the aggregate within any 36-month period.” 84 Fed. Reg. at
14
41,501. Second, the Rule jettisoned the 1999 Field Guidance’s exclusive focus on cash
benefits, instead providing that both cash and certain in-kind benefits count as “public
benefits” and can be considered in making public charge determinations. See id. Thus, an
alien’s receipt of noncash benefits such as Section 8 housing, SNAP (i.e., food stamps),
and certain Medicaid benefits would each count towards the 12-month threshold. Id.
Third, the Rule enumerated a host of factors that DHS officials are to consider, in addition
to those set forth in the INA, before determining whether a given alien is likely to become
a “public charge.” See id. at 41,504.
The process that DHS followed in promulgating the Rule was both thorough and
procedurally sound. After issuing the requisite notice of proposed rulemaking in October
2018, DHS received 266,077 public comments on the Rule in just sixty days. 84 Fed. Reg.
at 41,297. DHS then spent the next ten months refining the Rule and responding to those
comments. Many of the changes implemented during this period addressed specific
comments DHS had received, and its detailed responses spanned nearly 200 pages of the
Federal Register.
Importantly, in formulating the Rule’s durationally specific definition of “public
charge,” DHS did not simply pluck the operative time period out of thin air. Instead, it
relied on several empirical analyses regarding patterns of welfare use in the United States,
including studies conducted by the Census Bureau, the Department of Health and Human
Services, and DHS itself. See id. at 41,359–62. According to DHS, those studies indicate
that a substantial portion of individuals who receive public benefits do so for fewer than
12-months, id. at 41,360, and that those who receive such benefits over a longer period are
15
more likely to become “long-term recipients” of welfare, id. at 41,360. Thus, DHS
concluded that the 12-of-36-month threshold would best effectuate its three objectives in
replacing the “primarily dependent” standard, namely “(1) provid[ing] meaningful
guidance to aliens and adjudicators, (2) accomodat[ing] meaningful short-term and
intermittent access to public benefits, and (3) . . . not excus[ing] continuous or consistent
public benefit receipt that denotes a lack of self-sufficiency.” Id. at 41,361.
Before proceeding, a few points regarding the scope of the Rule bear noting. First
off, the Rule retains the prevailing test that “[t]he determination of an alien’s likelihood of
becoming a public charge at any time in the future must be based on the totality of the
alien’s circumstances.” 84 Fed. Reg. at 41,502. Next, the Rule governs only public charge
determinations made in the context of admissibility; deportations, by contrast, would still
be decided under the 1999 Field Guidance and the three-part Matter of B- test. See id. at
41,462. And lastly, the Rule applies only to public charge inadmissibility determinations
made by DHS, not the other two executive agencies (the Department of State and the
Department of Justice) that are tasked with making public charge decisions in related
contexts. Id. at 41,294 n.3.
2.
DHS’s promulgation of a final version of the Rule launched a flurry of litigation.
The crux of most of these challenges was that the Rule violated both the Administrative
Procedure Act (“APA”) and the Fifth Amendment to the United States Constitution.
Initially, these suits met with some success. In the Ninth Circuit, two district courts
issued preliminary injunctions barring enforcement of the Rule, one of which applied
16
nationwide, see Washington v. United States Dep’t of Homeland Sec., 408 F. Supp. 3d
1191, 1224 (E.D. Wash. 2019), and the other of which applied only to persons residing in
certain California counties as well as a number of states and the District of Columbia, see
City & Cty. of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1129–30 (N.D. Cal. 2019).
A district judge in the Southern District of New York also issued two preliminary
nationwide injunctions against the Rule, see Make the Rd. New York v. Cuccinelli, 419 F.
Supp. 3d 647, 667–68 (S.D.N.Y. 2019), while another judge in the Northern District of
Illinois enjoined enforcement of the Rule only within Illinois, see Cook Cty., Illinois v.
McAleenan, 417 F. Supp. 3d 1008, 1030–31 (N.D. Ill. 2019).
But this run of preliminary injunctions did not last long. On December 5, 2019, the
Ninth Circuit stayed the injunctions within its jurisdiction, concluding that “DHS has
shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and
that the balance of the equities and public interest favor a stay” pending appeal. City &
Cty. Of San Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Though the Second
and Seventh Circuits declined to follow suit, the Supreme Court eventually granted the
government’s emergency requests to stay the preliminary injunctions issued by both the
Southern District of New York and the Northern District of Illinois. See Dep’t of Homeland
Sec. v. New York, 140 S. Ct. 599 (2020); Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020).
In so doing, five Justices of that Court necessarily concluded that the government had made
“a strong showing that [it was] likely to succeed on the merits.” Nken v. Holder, 556 U.S.
418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Such a stay
17
would have been unlikely if not impossible had that showing not been made. DHS began
enforcing the Rule on February 24, 2020.
C.
In September 2019, plaintiffs CASA de Maryland, Inc. (“CASA”), Angel Aguiluz,
and Monica Camaco Perez filed this lawsuit in the United States District Court for the
District of Maryland. CASA is a non-profit organization based in Maryland that “offers a
wide variety of social, health, job training, employment, and legal services to the immigrant
communities in Maryland, Washington, D.C., Virginia, and Pennsylvania.” J.A. 65. It
claims to be the “largest membership-based immigrant rights organization in the mid-
Atlantic region, with more than 100,000 members.” Id. Aguiluz and Perez are both CASA
members who immigrated to the United States as children. Defendants are federal officials
charged with enforcing the Rule: Donald J. Trump, President of the United States; Chad
Wolf, Acting Secretary of DHS; and Kenneth T. Cuccinelli II, Acting Director of United
States Citizenship and Immigration Services. Each is sued in his official capacity.
Plaintiffs claim that the DHS Rule violates both the APA and the Fifth Amendment.
Specifically, they assert that the Rule is “not in accordance with law” under § 706 of APA
because (1) the term “public charge” “means ‘primarily dependent on the government for
subsistence,’” (2) this meaning is “unambiguous,” and (3) as a result, “DHS lacks the
statutory authority to reinterpret public-charge admissibility in a way that is contrary to
that definition.” J.A. 63. They also state the Rule is arbitrary and capricious, and violates
the Due Process Clause and the Equal Protection Component of the Fifth Amendment.
18
In September 2019, plaintiffs moved for a preliminary injunction to block the Rule
from going into effect, or, in the alternative, for an order pursuant to APA § 705 postponing
the effective date of the Rule during the pendency of this litigation. Defendants opposed
the motion and also argued that plaintiffs could not maintain this action because they lacked
standing, fell outside the “zone of interests” protected by the public charge provision, and
because their case was not ripe for adjudication. After briefing and oral argument, the
district court granted plaintiffs’ motion and enjoined defendants from enforcing the Rule
nationwide. Casa de Maryland, Inc. v. Trump, 414 F. Supp. 3d. 760, 767 (D. Md. 2019).
At the outset, the district court concluded that CASA was an appropriate party to
challenge the Rule. The court first held that CASA had Article III standing because the
Rule could potentially harm its members, and CASA was thus forced “to divert resources
that otherwise would have been expended to improve the lives of its members” to combat
the Rule’s assertedly deleterious effects. Casa de Maryland, 414 F. Supp. 3d at 773. Since
it concluded that CASA had adequately alleged organizational standing, the district court
did not decide whether the individual plaintiffs had standing or whether CASA had
representational standing to sue on their behalf. The court also found that the case was ripe
for review and CASA fell within the relevant statutory zone of interests. Id. at 774–78.
Turning to the merits, the district court held that CASA was likely to succeed on its
APA claim that the Rule was “not in accordance with law.” 3 In reaching this decision, it
3
The district court accordingly did not consider plaintiffs’ other APA or Fifth
Amendment claims. See Casa de Maryland, 414 F. Supp. 3d at 784.
19
applied the familiar two-step Chevron framework for analyzing agency interpretations of
statutory provisions. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984). As part of this analysis, the district court considered various pieces of evidence
regarding the meaning of the term “public charge,” from the time that it first appeared in
law in 1882 to the various legislative, executive, and judicial attempts to change or to
interpret the provision in the many decades since. Casa de Maryland, 414 F. Supp. 3d at
784. According to the court, this evidence, taken together, established that “Congress has
spoken directly to the issue here and precluded DHS’s definition of Public Charge” such
that the Rule failed at the first step of the Chevron analysis or, alternatively, that “the Public
Charge Rule fails at Chevron Step II as an impermissible reading of the statute.” Id. at
778. The district court also found that CASA satisfied the other requirements for
preliminary injunctive relief under Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008); specifically, that the organization was likely to suffer irreparable harm absent
preliminary relief and, moreover, that the balance of equities and the public interest tipped
in CASA’s favor. See Casa de Maryland, 414 F. Supp. 3d at 785.
Finally, in terms of relief, the district court entered a preliminary injunction that
applied nationwide, preventing defendants from enforcing the Rule against anyone. It
provided three justifications for issuing such a broad remedy: (1) a nationwide injunction
was necessary to provide complete relief to CASA because its members could be subject
to public charge determinations outside of the district’s geographic boundaries, (2) there is
a particular need for uniformity in immigration law, and (3) that “the ordinary remedy in
APA challenges to a rulemaking is to set aside the entire rule if defective.” Casa de
20
Maryland, 414 F. Supp. 3d at 786–87. For these same reasons, the district court also
granted CASA’s request to stay the effective date of the Rule during the pendency of this
litigation. Id. at 787–88.
On motion by the government, we stayed the district court’s preliminary injunction
by order dated December 9, 2019. This appeal followed.
II.
We begin with the question of plaintiffs’ standing. “No principle is more
fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or controversies.”
Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 37 (1976)). As such, before litigants can avail themselves of the judicial
power, they must satisfy the familiar three-part test for standing. A “plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). An organization like CASA “may suffer an
injury in fact when a defendant’s actions impede its efforts to carry out its mission.” Lane
v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (citing Havens Realty Corp. v. Coleman, 455
U.S. 363, 379 (1982)); see also Warth v. Seldin, 422 U.S. 490, 511 (1975).
The district court held that CASA had alleged such an organizational injury here
and, because the other elements of standing are not in dispute, was able to bring this suit.
The court reasoned that the DHS Rule impeded CASA’s efforts to carry out its mission
because the organization was forced to reallocate resources and, in turn, shift from an
21
“affirmative advocacy posture” (i.e., advocating for certain policies) to a “defensive one”
(i.e., advising members on the Rule’s impact). Casa de Maryland, Inc. v. Trump, 414 F.
Supp. 3d 760, 771–73 (D. Md. 2019). The court also intimated that CASA’s choice to
divert these funds was not really voluntary, as the Rule’s “dramatically more threatening”
nature effectively forced its hand. Id. at 773.
This was error. Basic Article III principles as well as precedent from this circuit
and the Supreme Court all preclude the notion that CASA has organizational standing here.
In holding otherwise, the district court countenanced a virtually limitless view of Article
III injury that gives short shrift to the separation of powers values that standing doctrine
preserves. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (noting that standing
“is built on separation-of-powers principles [and] serves to prevent the judicial process
from being used to usurp the powers of the political branches”). 4
For starters, the district court’s opinion cannot be squared with our decision in Lane.
There, a gun-rights organization whose activities included advocacy as well as “education,
research, publishing and legal action,” tried to challenge a federal firearm statute. Lane,
703 F.3d at 671. The group alleged that it had suffered an Article III injury because it
needed to divert resources in order to help its members navigate the new law, and thus
could not spend those funds on other goals. Id. We disagreed for the simple reason that
4
The dissent’s suggestion that we cannot consider CASA’s standing is simply
incorrect. See Dissenting Op., post at 76 n.2. The party in Little Sisters of the Poor Saints
Peter and Paul Home v. Pennsylvania, No. 19-431, 2020 WL 3808424, at *8 n.6 (U.S. July
8, 2020), was an intervenor at the appellate stage of the litigation, not a party on whose
standing the district court erroneously predicated its jurisdiction.
22
voluntary “budgetary choices” like spending money on legal action instead of research are
not cognizable Article III injuries. Id. at 675 (internal quotation marks omitted). A
moment’s reflection reveals why. “To determine that an organization that decides to spend
its money on educating members, responding to members inquiries, or undertaking
litigation in response to legislation suffers a cognizable injury would be to imply standing
for organizations with merely ‘abstract concern[s] with a subject that could be affected by
an adjudication.’” Id. (quoting Simon, 426 U.S. at 26).
What held for the gun-rights organization in Lane holds for CASA here. Contrary
to the district court’s suggestion, the DHS Rule forced CASA to do absolutely nothing as
a matter of law. As in Lane, CASA’s unilateral and uncompelled response to the shifting
needs of its members cannot manufacture an Article III injury.
To put a finer point on it, it is not relevant for Article III purposes whether CASA
felt moved to act in a particular manner. It is axiomatic that “standing is not measured by
the intensity of the litigant’s interest or the fervor of his advocacy,” Valley Forge Christian
Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 486 (1982),
and that “a plaintiff’s voluntary expenditure of resources to counteract governmental action
that only indirectly affects the plaintiff does not support standing,” People for the Ethical
Treatment of Animals v. U.S. Dept. of Agriculture, 797 F.3d 1087, 1099 (D.C. Cir. 2015)
(Millett, J., dubitante). Accordingly, we did not bother to ask in Lane whether the gun-
rights organization’s activities changed one way or the other. Many statutes and
regulations may spur private organizations to react to them in some fashion. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561–62 (1992). And a voluntary budgetary decision,
23
however well-intentioned, does not constitute Article III injury, in no small part because
holding otherwise would give carte blanche for any organization to “manufacture standing
by choosing to make expenditures” about its public policy of choice. Clapper, 568 U.S. at
402. We have never taken the demands of standing, and the core separation of powers
principles upon which the doctrine is based, to be so easily circumvented or so readily
checked-off.
Moreover, the district court’s view of organizational standing is fundamentally at
odds with Supreme Court precedent—in particular, Havens Realty. In that case, a group
dedicated to promoting equal housing opportunities (HOME) brought a claim against an
apartment complex under the Fair Housing Act. HOME, which was covered by the Act as
an “association,” claimed that it had suffered an injury because the complex was showing
apartments only to white people. HOME averred that this directly frustrated its mission to
connect minorities with housing because the complex owner (that is, a supplier of housing)
was simply refusing to abide by the law. The Supreme Court agreed. Critically, the Court
held that HOME adequately alleged Article III injury because the complex “perceptibly
impaired HOME’s ability to provide counseling and referral services” and frustrated its
“role of facilitating open housing.” Havens Realty, 455 U.S. at 379 & n.21. While the
Court noted that HOME needed to divert resources as a result of these discriminatory
practices, it cast HOME’s injury in terms of its ability to function.
The injury in Havens Realty was different in kind from what is at issue here.
Organizational injury, properly understood, is measured against a group’s ability to operate
as an organization, not its theoretical ability to effectuate its objectives in its ideal world.
24
Quite simply, nothing in the Rule directly impairs CASA’s ability to provide counseling,
referral, or other services to immigrants. Of course, we respect the fact that CASA feels
strongly that it must reallocate resources to best serve its members amidst a changing legal
landscape and that it would prefer to operate in an environment where the Rule does not
exist. But untold numbers of organizations regularly voice dissatisfaction with public laws
and actions that may affect their ordering of priorities in some way. Resource reallocations
motivated by the dictates of preference, however sincere, are not cognizable organizational
injuries because no action by the defendant has directly impaired the organization’s ability
to operate and to function. See Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990).
The district court, by contrast, gave Havens Realty an essentially boundless reading
that wrongly brought the case into stark tension with core precepts of standing doctrine.
On its view, Havens Realty supports organizational standing any time a group (1) alleges
that a governmental action undermines its policy mission, and (2) spends some money in
response to that action. See Casa de Maryland, 414 F. Supp. 3d at 770–74. But the
Supreme Court has made clear that standing demands the same of organizations as it does
of individuals. See Havens Realty, 455 U.S. at 378–79. For this reason, “an organization’s
abstract concern with a subject that could be affected by an adjudication does not substitute
for the concrete injury required by Art[icle] III.” Simon, 426 U.S. at 40. And, just like
individuals, an organization cannot satisfy this “concrete injury” requirement through
standalone philosophical objections to a law, Sierra Club v. Morton, 405 U.S. 727, 739
(1972), gripes with how the law is enforced against other persons, Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973), or decisions to voluntarily spend money to combat the effects
25
of a given policy, Clapper, 568 U.S. at 410–14. A reading of Havens Realty focused on
operational harm—that is, the ability of an organization to function—comports with these
principles. The district court’s position, though, essentially waives them for any entity
with a policy position and a dollar.
The “duty of . . . every judicial tribunal[] is limited to determining rights of persons
or of property which are actually controverted in the particular case before it.” California
v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893). In light of the above, it is plain that
we cannot allow this case to proceed on the district court’s theory of subject matter
jurisdiction if we are to remain faithful to these fundamental principles. CASA has not
suffered an organizational injury, and thus it lacks organizational standing to bring this
case.
There remains the question of whether the two individual plaintiffs to this action
possess standing to bring it or whether CASA has standing in a representational capacity.
We could of course remand this issue for a determination on that score. That course of
action, however, imposes large costs. It would impart to this case an up-and-down-the-
ladder quality that would delay its resolution almost indefinitely on a matter where the
district court itself reached the merits and where the parties have extensively briefed the
issue and urged its timely resolution upon our court. The issue, moreover, is, as both the
parties and the amici recognize, one of large importance and one on which we presume that
we will not have the final word. The matter of the Rule’s validity should be presented to
the Supreme Court in as timely fashion as possible consistent with the considered views of
an intermediate court.
26
With that in mind, we take stock of the fact that this court “review[s] judgments, not
opinions” and therefore may affirm the district court’s jurisdictional holding on alternative
grounds. Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013) (internal quotation marks
omitted). In light of the above, we choose to do so here. The record of this case makes
plain that the two individual plaintiffs have standing to challenge the DHS Rule. They are
two Deferred Action for Childhood Arrivals (DACA) recipients who plan to adjust their
status in the future, J.A. 38, 43–44, and, more importantly, are presently forgoing specific
financial resources (such as applying for student loans), J.A. 40, 45, out of concern that
doing so would render them “public charges” at that later point. Unlike with CASA, this
is the sort of concrete and particularized harm necessary to establish an Article III injury.
The plaintiffs have also alleged sufficient facts to show that this injury is sufficiently actual
or imminent, as they have explained how the Rule is having an immediate effect on their
lives today, as they make specific plans in anticipation of adjusting their status in the future.
See Clapper, 568 U.S. at 414 n.5; see also Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 183–84 (2000). Lastly, the two plaintiffs meet the
causation and redressability prongs of standing. 5 We therefore shall proceed to address the
plaintiffs’ arguments on the merits.
5
We also find that the two plaintiffs fall within the relevant statutory zone of
interests—an inquiry that the Supreme Court has stressed is “not meant to be especially
demanding.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567
U.S. 209, 225 (2012) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). As
noncitizens presently residing in the United States who intend to adjust their status in the
future, the individual plaintiffs are persons who will be directly regulated under the DHS
Rule. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014).
27
III.
“A preliminary injunction is an extraordinary and drastic remedy; it is never
awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690–91 (2008) (internal quotation
marks and citation omitted). To obtain a preliminary injunction, a plaintiff must “establish
[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm
in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). We review a district court’s decision to grant an injunction for abuse of
discretion. Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). We believe that the district
court erred in this case because, above all else, the plaintiffs are not likely to succeed on
the merits. As explained above, the same assessment underlay the Supreme Court’s
issuance of a stay of the injunctions of the Rule, and we think after careful review that the
grounds are not there for contradicting the Supreme Court’s assessment.
A.
The INA states that any alien who the executive determines is “likely at any time to
become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). This case turns on the
meaning of “public charge” and whether the Rule is based on a permissible construction of
that term.
Plaintiffs maintain that it is not. In particular, they aver that “public charge” has
always meant someone “primarily dependent” on the government for support, and that the
DHS Rule would apply to aliens who fall well below that threshold. The government, by
contrast, maintains that “public charge” has a broad meaning that has been flexibly
28
interpreted by the executive over time and can encompass individuals who rely on public
benefits to meet their basic needs, even if those persons are not “primarily dependent” on
welfare or other public aid. As noted, the district court sided with plaintiffs, reasoning that
the Rule was “unambiguously foreclosed by Congress’s intention.” Casa de Maryland v.
Trump, 414 F. Supp. 3d 760, 784 (D. Md. 2019) (internal quotation marks omitted). We
think this was error.
Plaintiffs contend that their view of the public charge provision is the only correct
one. But that cannot be right. The term is broad and even elusive enough to accommodate
multiple views and meanings, as indeed it has since it first appeared in immigration law.
The text, structure, and history of the INA in fact all indicate that the Rule before us rests
on an interpretation of “public charge” that comports with a straightforward reading of the
Act. Moreover, fundamental separation of powers principles, and the concomitantly
limited role of the federal courts over sensitive matters of immigration policy, only buttress
what traditional tools of statutory interpretation make clear: the DHS Rule is a lawful one.
1.
As always, we start with the text. While some version of a public charge provision
has been a part of federal immigration law since 1882, Congress has never defined the
term. When phrases used in a statute are undefined, “we look to the ordinary meaning of
the term . . . at the time Congress enacted the statute.” Perrin v. United States, 444 U.S.
37, 42 (1979). Congress enacted the INA in 1952. The ordinary meaning of “public
charge” in 1952 was “one who produces a money charge upon, or an expense to, the public
for support and care.” Public Charge, Black’s Law Dictionary (4th ed. 1951) (defining as
29
used in 1917 Immigration Act); Black’s Law Dictionary (3d ed. 1933) (same); see also
Arthur Cook et al., Immigration Laws of the United States § 285 (1929) (defining as person
who needs “any maintenance, or financial assistance, rendered from public funds, or funds
secured by taxation”). And “charge,” in this context, meant a “cost” or “expense.” See,
e.g., Charge, The New Century Dictionary (2d ed. 1946); Webster’s New Century
Dictionary of the English Language (1941).
The district court, though, took up a different starting point. It looked to the meaning
of “charge” in 1882, the first year a public charge provision was included in federal law.
The court, relying mostly on two contemporary dictionaries, reasoned that “charge” meant
a “person or thing committed or entrusted to the care, custody, or management of another,”
Casa de Maryland, 414 F. Supp. 3d at 779 (quoting Charge, Webster’s Dictionary (1886
ed.)), so “public charge” therefore meant a person who “the Government has taken care,
custody, or management of,” id. at 779. Put otherwise, the district court said, a “public
charge” in 1882 meant something akin to a “pauper,” and it has meant the same thing ever
since. Id.
For starters, we strongly doubt that “public charge” has been consistently
understood as synonymous with “pauper.” See, e.g., Lam Fung Yen v. Frick, 233 F. 393,
396 (6th Cir. 1916) (“It seems clear that the term ‘persons likely to become a public charge’
is not limited to paupers or those liable to become such.”); Matter of M-, 2 I. & N. 131, 131
(BIA 1944) (holding someone was a public charge but was not a pauper); Public Charge,
Black’s Law Dictionary (4th ed. 1951) (“As so used, the term [public charge] is not limited
to paupers or those liable to become such.”); Stewart Repalje et al., Dict. of Am. and
30
English Law (1888) (defining “charge” as “an obligation or liability”); see also Richard A.
Boswell, Restrictions on Non-Citizens’ Access to Public Benefits: Flawed Premise,
Unnecessary Response, 42 UCLA L. Rev. 1475, 1486 n.40 (1995) (“[T]he term ‘public
charge,’ which was written into the statute over a hundred years ago, has had different
meanings over this entire period of time.”). Indeed, from 1891 to 1990, Congress listed
both “public charge” and “pauper” in the same statutory provision. And it is a fundamental
canon of statutory interpretation that courts, whenever possible, should give independent
statutory terms independent meaning. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004).
In all events, the present structure of the INA confirms that “public charge” should
be given its broad ordinary meaning, as understood when the INA was enacted in 1952.
See Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). Most importantly, the INA is
structured to give the executive discretion to administer the public charge provision, which
undermines the idea that the term has the sort of fixed and circumscribed definition
ascribed to it by the district court. As noted, the INA does not define the term “public
charge,” let alone contain anything like a “primarily dependent” standard within its text.
Rather, it expressly entrusts the decision of who is a “public charge” to the “opinion of the
[DHS Secretary].” 8 U.S.C. § 1182(a)(4)(A); see also id. § 1103(a)(1). Ordinarily, this
sort of language indicates that the executive has extensive discretion over the relevant
determination. See Martin v. Mott, 25 U.S. (12 Wheat.) 19, 31–32 (1827) (Story, J.).
Especially so here, where Congress has baked discretion into the statutory scheme many
times over. For instance, the INA lays out five non-exclusive factors that executive
officials should look to when making public charge determinations, but also states that such
31
factors should be considered “at a minimum.” 8 U.S.C. § 1182(a)(4)(B)(i). This reinforces
the point that it is the executive which has the ultimate discretion under the INA over who
is a “public charge” and what is most relevant to that decision. See also id. § 1103(a)(3)
(giving DHS Secretary rulemaking authority). In other words, nothing about these broad
grants of power suggests that the term must be read more narrowly than its ordinary
meaning.
Surrounding sections of the INA point in the same direction. Take the sponsorship-
and-affidavit scheme that Congress designed to work in conjunction with the public charge
provision. Under this scheme, as a necessary condition for avoiding a public charge
designation, many aliens must obtain sponsors, be it a family member or employer, who
will provide a legally-enforceable “affidavit of support” on their behalf. See 8 U.S.C.
§§ 1182(a)(4)(C)–(D), 1183a. An alien’s sponsor must pledge “to maintain the sponsored
alien at an annual income that is not less than 125 percent of the Federal poverty line,” id.§ 1183a(a)(1)(A), and reimburse the relevant government agency if the alien uses “any
means-tested public benefit,” id. § 1183a(a)(1)(B). Failing to obtain a sponsor renders a
covered alien automatically inadmissible as a public charge, no matter his personal
financial circumstances. See id. §§ 1182(a)(4)(C)(ii), (D).
This sponsor-and-affidavit scheme affirms that “public charge” should be given its
ordinary meaning. The content of what is required by the affidavit—including both its
minimum income and reimbursement guarantees—coupled with the fact it is required for
many aliens, underscores that the public charge provision is naturally read as extending
beyond only those who may become “primarily dependent” on public support. Indeed,
32
adopting plaintiffs’ definition, as the district court did, would create an odd gap between
the public charge provision and the sponsorship-and-affidavit system designed to
accompany it. The clear object and effect of the sponsorship-scheme is to guarantee that
aliens will be self-sufficient and not impose any meaningful burden on the public. But, on
plaintiffs’ view, the same Congress that fashioned this system (as well as every Congress
since 1882) also believed that the public charge provision only applied (and could only
apply) to aliens likely to become primarily dependent on public support. This does not fit;
that is, it does not make sense that Congress designed a sponsorship-scheme focused on
self-reliance as a necessary part of complying with a statutory provision concerned
exclusively with primary dependence. It would be like an amusement park having parents
sign a form attesting that their kids are five feet tall in order for them to get on rides that
only require persons to be three feet. Giving “public charge” its ordinary meaning,
however, avoids this sort of incongruity and allows both provisions to work together.
What is more, related immigration statutes support this reading of the public charge
provision. See Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.
L. Rev. 527, 539 (1947) (“Statutes cannot be read intelligently if the eye is closed to
considerations evidenced in affiliated statutes.”). When Congress last amended the public
charge provision, it also passed the Personal Responsibility and Work Opportunity Act of
1996 (“PRWOA”). The PRWOA barred most aliens from receiving many cash and
noncash benefits for five to ten years, 8 U.S.C. §§ 1611–1613, 1641, and it established that
an alien’s income would include his sponsor’s for the purposes of qualifying for other aid,
id. § 1631(a)(1). Congress passed these provisions “in order to assure that aliens be self-
33
reliant” and “not burden the public benefits system.” Id. §§ 1601(5), (4). Giving “public
charge” its ordinary meaning brings that provision into line with this surrounding program
and its stated goal that “aliens within the Nation’s borders not depend on public resources
to meet their needs.” Id. § 1601(2)(A). Adopting plaintiffs’ proposed definition, on the
other hand, would give the public charge provision a notably more limited scope, distinct
from similar provisions in related laws. We do not see anything in the text of these statutes
to indicate that Congress understood the public charge provision to be such a circumscribed
outlier.
In sum, the text, structure, and statutory context of the INA all confirm that “public
charge” should be given its ordinary meaning; that is, someone who produces a money
charge upon the public for support and care. Of course, this does not mean the public
charge provision must apply as broadly as its ordinary meaning permits. Instead, as the
text of the INA makes clear, the term enjoys, in practice, a certain ambiguity, giving the
executive discretion over the type, amount, and duration of public assistance that will
render someone a “public charge.” But, at the same time, the term is unambiguous as to
the statutory floor it sets for the executive; a floor that the judiciary is powerless to alter
sua sponte.
In practical terms, what this means is that both the DHS Rule and the 1999 Field
Guidance may be seen to rest on sound footing. While the two policies involve different
levels of public benefits at which receipt would render someone a “public charge,” both
turn on, at the end of the day, aliens producing money charges upon the public for support
and care. The fact that two administrations set this bar at different places does not bear on
34
the legality of each respective policy; rather, it underscores how the public charge
provision’s very flexibility was designed to work. In that light, the DHS Rule is plainly
permissible. The Rule defines “public charge” as someone who is likely to receive certain
public benefits for more than 12 months over any 36-month period; put otherwise, someone
who is likely to produce a money charge upon the public for support over some period of
time. This is all the INA requires.
Curiously, the district court seemed to put greater stock into what Congress did not
pass. Specifically, the court relied heavily on two failed proposals that attempted to define
“public charge”: the first, from 1996, would have defined the term as an alien who received
certain public benefits for 12 months over any 7-year period; and the second, from 2013,
would have expressly extended the provision to include the use of noncash benefits. See
Casa de Maryland, 414 F. Supp. 3d at 782–83. The DHS Rule, the court surmised, was
essentially an attempt to get into law a definition of “public charge” that two prior
Congresses had rejected. But the Supreme Court has often warned that “[f]ailed legislative
proposals are particularly dangerous ground on which to rest an interpretation of a prior
statute,” and the district court’s decision shows why. Solid Waste Agency of N. Cook Cty.
v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169–70 (2001) (internal quotation marks
omitted). The never-enacted 1996 and 2013 proposals relied upon by the district court cut
as much in the other direction. Indeed, they equally support the idea that Congress has
long resisted enumerating a fixed definition of “public charge,” and has instead preferred
to entrust the executive with implementing the provision flexibly in accordance with its
ordinary meaning and the national interest.
35
Similarly, the district court erred when it held up the Supreme Court’s decision in
Gegiow v. Uhl, 239 U.S. 3 (1915), as support for its claim that “public charge” should be
read narrowly. The court, in short, read Gegiow to stand for the proposition that “public
charge” must mean something akin to a “pauper”; that is, someone “destitute and unable
to work.” Casa de Maryland, 414 F. Supp. 3d at 781 (internal quotation marks omitted).
This reading of Gegiow is untenable. Even on its own terms, Gegiow has nothing
to do with this case. There, the Court decided a “single question,” and held that an alien
could not be designated a “public charge” based on the local labor market to which he was
headed, rather than his personal characteristics. Gegiow, 239 U.S. at 9–10. The Rule,
which involves a totality-of-the-circumstances individualized inquiry, entirely complies
with this holding. In all events, there is considerable doubt as to Gegiow’s continuing
relevance, as Congress amended the Immigration Act two years later “to nullify [Gegiow’s]
restrictive interpretation of the statute.” Matter of Harutunian, 14 I. & N. Dec. 583, 587
(BIA 1974).
We recognize that the Rule before us is controversial. As in all matters of
controversy, there are passionate pros and cons. Our inquiry, however, concerns not the
wisdom of the Rule but its legality. As to that, the text and structure of the INA yield a
clear answer: the term “public charge” is naturally read as meaning just that—someone
who produces a money charge upon the public for support or care. And the DHS Rule
comports with this reading.
36
2.
Perhaps in light of what the text and structure of the INA seem to compel, plaintiffs
urge that we take a different tack and look to the history. As touched on above, plaintiffs’
core argument is that “public charge” has meant the same thing from 1882 to present day:
someone primarily dependent, for one reason or another, on the public for subsistence.
According to plaintiffs, when Congress repeatedly reenacted the public charge provision
without adding a definition of “public charge,” it implicitly ratified this widely-shared view
of what the term meant and accordingly created an enforceable gloss upon the law’s text.
Of course, plaintiffs are right that when a statutory phrase has been “given a uniform
interpretation by inferior courts or the responsible agency, a later version of that act
perpetuating the wording is presumed to carry forward that interpretation.” Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012); see also
Stokeling v. United States, 139 S. Ct. 544, 551 (2019). But the Supreme Court has also
stressed that Congressional reenactment of a glossed term cannot alter or overcome its
plain meaning. See, e.g., Demarest v. Manspeaker, 498 U.S. 184, 190 (1991).
At any rate, these sorts of implicit ratification arguments are tall orders. See Pension
Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990). Congress has never enacted
the language plaintiffs now advance as the statute’s sole and indisputable meaning. Before
a court may infer an atextual gloss on a statute, the backdrop against which Congress was
legislating must be settled and unambiguous. Jama v. Immigration & Customs Enf’t, 543
U.S. 335, 349 (2005) (requiring, for judicial opinions, a “judicial consensus” that is “broad
and unquestioned”); FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437 (1986)
37
(requiring, for administrative practice, a “longstanding interpretation”). This condition
flows directly from the separation of powers’ command that the federal courts are to apply
statutes, not build upon or augment them in some common law manner.
The district court overlooked this threshold requirement when it accepted plaintiffs’
historical claim. The district court’s core error was that it lost sight of fact that plaintiffs
needed to show that “public charge” has had a uniform and fixed definition that amounted
to “settled law” both when Congress enacted the INA and when it most recently amended
the public charge provision. Keene Corp. v. United States, 508 U.S. 200, 212–13 (1993).
Plaintiffs cannot shoulder this concededly heavy burden. Indeed, executive and
judicial practice from 1882 to the present rebuts any idea that “public charge” has been
uniformly understood by either branch as pertaining only to those who are “primarily
dependent” on public aid. We consider the practice of each in turn.
To begin with, if “public charge” had the sort of ubiquitous definition that plaintiffs
claim, it seems that nobody told the branch tasked with implementing the provision. As
then-INS General Counsel Charles Gordon put it in 1949, the provision has always been
understood as “highly ambiguous” and, at times, has had the effect of “thrust[ing] upon the
immigration officer’s shoulders the mantle of prophecy.” Charles Gordon, “Aliens and
Public Assistance,” Immigration and Naturalization Service Monthly Review, vol. VI, no.
9 (Mar. 1949), 116; see also Kim R. Anderson & David A. Gifford, Consular Discretion
in the Immigrant Visa-Issuing Process, 16 San Diego L. Rev. 87, 124–25 (1978). And it
seems that the practical ambiguity of the phrase remained constant for the next fifty years.
For instance, even the 1999 Field Guidance, which is the rock upon which plaintiffs have
38
built their case, declared that the term was ambiguous and that guidance was “necessary”
because of “confusion over the meaning of ‘public charge.’” Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689
(May 26, 1999); see also Inadmissibility and Deportability on Public Charge Grounds, 64
Fed. Reg. 28,676, 28,677 (May 26, 1999) (referring to the term as “ambiguous”). This is
not good for plaintiffs’ argument premised on everyone being in on the same
understanding.
Further, as one would expect considering the evolving executive policies described
above, see Part I.A supra, it is not possible to glean a longstanding “primarily dependent”
standard from executive practice. For one, any express articulation of such a standard is
conspicuously absent from pre-1999 immigration opinions. See Matter of B-, 3 I. & N.
Dec. 323, 325 (1948) (noting that a definition of “public charge” was no more than
“implicit” in two federal court decisions); Matter of J-, 2 I. & N. Dec. 99, 99 (1944)
(emphasizing that an alien was “not shown to have been a recipient of public aid of any
kind in the past”); see also Matter of V-, 2 I. & N. Dec. 78, 79–80 (1944); Matter of H-, 1
I. & N. Dec. 166, 167–68 (1941). And it does not seem that any such standard has been
long followed on the ground, in the bulk of ordinary decisions that never reached judicial
or formal executive review. See S. Rep. No. 99-132, at 47–48 (1985) (observing “the State
Department and INS have interpreted ‘public charge’ to exclude persons receiving
assistance through such programs as ‘food stamps’ and ‘rent subsidies’”); Gordon, supra,
at 116 (explaining “[n]o fixed standard thus can be established” for such decisions and “the
standards applied [in 1949] are a bit more exacting, particularly during times of economic
39
dislocation”); Immigration Services, Annual Report of the Commissioner-General of
Immigration to the Secretary of the Treasury 10 (1896) (recognizing “1,946 immigrants
fell into temporary distress and became public charges”).
All in all, before a federal court may infer that Congress has silently ratified an
interpretation put forward by an executive agency, that interpretation must be discernible
and longstanding. See, e.g., Young v. Cmty. Nutrition Inst., 476 U.S. 974, 983 (1986). Here
executive practice reveals that the public charge provision has enjoyed an enduring
ambiguity, as different administrations have built upon the INA’s statutory baseline in
different ways at different times. See City and Cnty. of San Francisco v. USCIS, 944 F.3d
773, 796–97 (9th Cir. 2019).
We turn next to judicial precedent—and here too plaintiffs come up short.
Preliminarily, we note that our focus—like that of the district court, parties, and amici—is
on cases decided between the initial enactment of the public charge provision in 1882 and
the passage of the INA in 1952. See, e.g., Casa de Maryland, 414 F. Supp. 3d at 780–81;
Appellant’s Opening Br. 28–32; Appellee’s Response Br. 34–35; Brief of Immigration
Law Professors as Amicus Curiae 7–15; Brief of United States House of Representatives
as Amicus Curiae 8–9. Obviously, only those judicial opinions published prior to the
INA’s enactment would have been available to Congress when drafting that statute. As
such, for Congress to have implicitly ratified a settled judicial interpretation of “public
charge,” that interpretation must be evident in pre-1952 caselaw. What is more, very few
cases dealing with the public charge provision have been decided since 1952. Congress’s
decision to entrust public charge determinations to “the opinion of” the executive naturally
40
limited robust judicial review. See Immigration and Nationality Act, Pub. L. No. 82-414,
tit. II, ch. 2, § 212, 66 Stat. 163, 183 (1952). Likewise, Congress has stripped the federal
courts of jurisdiction to review many discretionary decisions by immigration officials, see,
e.g., 8 U.S.C. § 1252(a)(2)(B), which, in addition to limiting the number of reported
opinions interpreting the underlying provisions, further reinforces the point that Congress
intended such decisions to be made by the executive, not the courts.
That said, there is a notable absence of any express articulation of a “primarily
dependent” standard in reported decisions over the relevant time-period. See, e.g.,
Skrmetta v. Coykendall, 16 F.2d 783, 784 (N.D. Ga. 1926) (describing “public charge” as
persons who cannot “maintain themselves in society by the ordinary means”); In re
Keshishian, 299 F. 804, 805 (S.D.N.Y. 1924) (noting that “there must be evidence that [an
alien is] likely to be supported at the expense of the public”); In re Feinknopf, 47 F. 447,
447 (E.D.N.Y. 1891) (observing that an alien “ha[d] not received public aid or support” at
all). In fact, it was not uncommon for federal courts to look to dictionary definitions of
“public” and “charge” separately when interpreting the provision, which would be quite
curious if there was a settled judicial construction of the term out there, as plaintiffs insist.
See, e.g., Ex Parte Horn, 292 F. 455, 457 (W.D. Wash. 1923); Ex Parte Machida, 277 F.
239, 241 (W.D. Wash. 1921).
When courts did endeavor to define the term “public charge,” they often adopted its
ordinary meaning. See, e.g., Ex Parte Kichmiriantz, 283 F. 697, 698 (N.D. Cal. 1922)
(“[T]he words ‘public charge,’ as used in the Immigration Act [of 1917], mean just what
they mean ordinarily; that is to say, a money charge upon, or an expense to, the public for
41
support and care.”); see also Dunn v. Bryan, 299 P. 253, 256 (Utah 1931) (finding that
“public charge” has this “well-defined meaning” from Ex Parte Kichmiriantz). And many
scholars, noting these cases, followed suit. See Jane Perry Clark, Deportation of Aliens
from the United States to Europe 110 (1931) (“The words ‘public charge’ mean a financial
liability on, or expense to, the public for support and care.”); Will Maslow, Recasting Our
Deportation Law: Proposals for Reform, 56 Colum. L. Rev. 309, 340 (1956); Leo M.
Alpert, The Alien and the Public Charge Clauses, 49 Yale L.J. 18, 23 (1939).
Judicial decisions thus cut against the idea that courts have uniformly applied a
“primarily dependent” standard in practice. In fact, simpatico with the executive’s
approach, courts have often held that failure to repay upon demand a single specific
expense charged to the public fisc could render an alien a deportable “public charge.” See,
e.g., Zurbrick v. Woodhead, 90 F.2d 991, 991–92 (6th Cir. 1937) (holding someone
regularly employed without a “blot upon her character” was a “public charge” because she
could not pay hospital expenses). Moreover, for the first half of the twentieth century,
when judicial review of public charge determinations was still common, there was a circuit
split about the term’s meaning; specifically, whether someone who was imprisoned could
be designated a “public charge.” United States ex re. Lehtola v. Magie, 47 F.2d 768, 770
(D. Minn. 1931) (detailing split). This does not augur well for the notion that “public
charge” had a settled judicial meaning, let alone one focused solely on primary dependence.
Recall that for a court to infer that Congress silently adopted a judicial interpretation of a
statutory phrase, that interpretation must be the product of a “judicial consensus [that is]
42
broad and unquestioned.” Jama, 543 U.S. at 349. It is not even close whether such a
consensus existed around the standard plaintiffs champion.
While legislative history holds a precarious position as a source for statutory
interpretation, the Supreme Court has made clear that, in the context of arguments like the
one plaintiffs make here, the absence of evidence might be the evidence of absence. That
is, if Congress decided to ratify some settled administrative or judicial interpretation of a
statutory phrase, one would expect there to be some sign of it. See Zenith Radio Corp. v.
Hazeltine Research Inc., 401 U.S. 321, 336 n.7 (1971) (looking for “direct evidence” that
Congress considered the interpretation). But the legislative record—in particular, the
legislative history of the 1952 INA and the most recent public charge amendments—comes
up empty. For plaintiffs, this is the ballgame. See Brown v. Gardner, 513 U.S. 115, 121
(1994).
Of course, Congress did enact the INA against some backdrop. But it was not the
one that plaintiffs urge here, and the one that the district court adopted. Congress was
expressly aware of many of the disagreements noted above and recognized that the public
charge provision had been “left to the interpretation of the administrative officials and the
courts.” S. Rep. No. 81-1515, at 348–49 (1950). Critically, Congress understood that
“courts have given varied definitions of the phrase” and “different consuls, even in close
proximity with one another, have enforced standards highly inconsistent with one another.”
Id. at 347, 349 (internal quotation marks omitted). In light of this backdrop, the legislature
made a conscious choice: keep “public charge” undefined and vest the executive branch
with discretion as to how to best implement the provision, consistent with the national
43
interest. As the Senate Judiciary report for INA put it: “Since the elements constituting the
likelihood of becoming a public charge are varied, there should be no attempt to define the
term in the law, but rather to establish the specific qualification that the determination of
whether an alien falls into that category rests with the discretion of the consular officers or
the Commissioner.” Id. at 349. Accordingly, Congress added in the 1952 INA that public
charge determinations would turn on the “opinion” of the relevant executive officer. 8
U.S.C. § 1182(a)(4)(A).
The legislative history of the 1996 amendments to the public charge provision do
nothing more for plaintiffs. It seems that at least some sponsors of the IIRIRA affirmatively
rejected plaintiffs’ “primarily dependent” definition. See, e.g., 142 Cong. Rec. S4417
(daily ed. Apr. 30, 1996) (statement of Sen. Simpson) (“If the immigrant uses such
taxpayer-funded assistance, he or she is a public charge. How else should the term ‘public
charge’ be defined than someone who has received needs-based taxpayer-funded
assistance?”). And the prior legislative debates do not reveal any indication that Congress
was aware of plaintiffs’ proffered interpretation. See, e.g., 139 Cong. Rec. S1765 (daily
ed. Feb. 18, 1993) (statement of Sen. Mitchell) (“Provisions in the act require applicants
for visas to prove that they will not require public assistance or become a ‘public charge.’”).
Moreover, the Conference Report to the IIRIRA seems to endorse the ordinary meaning of
“public charge,” and insists that the provision had been underenforced in the context of
deportations. See H.R. Rep. No. 104-828, at 241 (1996) (Conf. Rep.) (“Aliens who access
welfare have been deportable as public charges since 1917. However, only a negligible
number of aliens who become public charges have been deported in the last decade.”). Put
44
plainly, whatever value legislative history may have here, it only reinforces the lawfulness
of the Rule.
The district court agreed with plaintiffs that “public charge” has retained a well-
known and fixed meaning for the last 138 years, so much so that DHS’s interpretation of
that term was foreclosed by the “unambiguously expressed intent of Congress”—an intent
that Congress expressed, we suppose, through repeated silence. See Casa de Maryland,
414 F. Supp. 3d at 778 (internal quotation marks omitted). We do not see it. The only
constant feature of the public charge provision seems to be its mutability, a trait that
Congress has purposefully codified as a feature of our immigration law, not a bug. Of
course, none of this means that the executive has free reign to cram whatever policy it
wishes into the public charge provision. Its discretion is still limited by the plain text of
the INA. But the executive’s discretion over this provision cannot be restrained by
adopting a fixed “primarily dependent” standard that has no basis in the text or history of
that statute.
3.
The DHS Rule thus comports with the best reading of the INA—namely that
Congress actively sought variability over time as different administrations responded to
different exigencies and circumstances. To whatever extent this appeal presents a close
question—and, again, we think it does not—Chevron makes the outcome clear. Under
Chevron, courts must uphold an agency interpretation as long as it is a “permissible
construction of the statute.” 467 U.S. 837, 843 (1984). The DHS Rule satisfies this test.
45
As noted, the Rule made two substantive changes to the 1999 Field Guidance that
was previously in place. First, it replaced the “primarily dependent” standard with a more
concrete metric, defining “public charge” as an alien who “receives one or more public
benefits for more than 12 months in the aggregate within any 36-month period.”
Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,297 (August 14, 2019).
Second, the DHS Rule incorporated for the first time certain noncash federal benefits as
part of its definition of “public benefit.” Id.These changes follow from a permissible construction of the INA. DHS’s definition
of “public charge” is clearly consistent, as mentioned, with at least “an ordinary
understanding” of the term. Babbitt v. Sweet Home Chapter of Comm’s for a Great Or.,
515 U.S. 687, 697 (1995). Further, the Rule facilitates the broader congressional policy
goals contained in the INA and related immigration statutes: in particular, Congress’s
stated desire that “aliens within the Nation’s borders not depend on public resources to
meet their needs.” 8 U.S.C. § 1601(2)(A); see also Cuozzo Speed Techs., LLC v. Lee, 136
S. Ct. 2131, 2142–44 (2016). Lastly, the DHS Rule fits comfortably with the surrounding
structure of the INA. See MCI Telecommunications Corp. v. Am. Tel. & Tel. Co., 512 U.S.
218, 228–29 (1994). For example, in addition to the sections noted above, the Rule’s
decision to cover noncash benefits is supported by the fact that another provision of the
INA bars DHS from “consider[ing] any benefits that the alien may have received” as part
of its public charge determination if an alien “has been battered or subjected to extreme
cruelty in the United States.” 8 U.S.C. §§ 1182(s), 1641(c)(1)(A). Congress’s use of “any”
here would be odd if DHS only were permitted to consider cash benefits in its analysis.
46
All told, the text, purpose, and structure of the INA make clear that the DHS Rule
is premised on a permissible construction of the term “public charge.” To hold otherwise
is a serious error in statutory interpretation. More fundamentally, though, it is also a
broadside against separation of powers and the role of Article III courts.
The separation of powers concerns underlying Chevron are at their zenith in the
context of immigration, a field that the Constitution assigns to the political branches. See
Harisiades v. Shaughnessy, 342 U.S. 580, 596–97 (1952) (Frankfurter, J., concurring).
The exercise of the federal immigration power is a “fundamental act of sovereignty,”
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), vested preeminently
in and shared by the political branches. Specifically, this fount of authority “stems not
alone from legislative power but is inherent in the executive power to control the foreign
affairs of the nation,” id., such that when “Congress prescribes a procedure concerning the
admissibility of aliens . . . it is not dealing alone with a legislative power” but is also
“implementing an inherent executive power,” id. When Congress chooses to delegate
power to the executive in the domain of immigration, the second branch operates at the
apex of its constitutional authority. United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 319–20 (1936). 6
6
To be sure, Chevron has been overused to enlarge the power of the administrative
state, Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1151–58 (10th Cir. 2016) (Gorsuch, J.,
concurring), and to incentivize open-ended delegations of power from Congress to the
Executive, Neomi Rao, Administrative Collusion: How Delegation Diminishes the
Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). But deference is plainly appropriate
here where Congress has expressly and specifically delegated power to the executive in an
area that overlaps with the executive’s traditional constitutional function.
47
The other side of this coin is that the judicial role in overseeing the political
branches’ exercise of the federal immigration power is circumscribed. The Supreme Court
has repeatedly emphasized that “[j]udicial deference in the immigration context is of
special importance, for executive officials ‘exercise especially sensitive political functions
that implicate questions of foreign relations,’” Negusie v. Holder, 555 U.S. 511, 517 (2009)
(quoting INS v. Abudu, 485 U.S. 94, 110 (1988)), while federal judges possess inherently
limited competencies over this subject matter, see Fiallo v. Bell, 430 U.S. 787, 796 (1977).
Immigration policy concerns not only the physical security of the country, but also the
character and identity of the nation. Federal judges, drawn from one profession and lacking
even a patina of democratic sanction, are ill-suited to supervise these issues and the difficult
balances that inhere in them. Accordingly, we should be reluctant to disturb the authority
expressly delegated to executive officials by Congress in this field. See Knauff, 338 U.S.
at 542. Yet plaintiffs would have us barrel ahead as if we were sub silentio exempted from
these settled axioms.
Properly evaluated, the DHS Rule is unquestionably lawful. Congress has delegated
to the executive the power to implement a purposefully undefined provision of law in an
area where the executive possesses inherent constitutional powers and unique structural
competencies. To whatever extent the federal courts are empowered to review how the
executive discharges this duty, the separation of powers demands careful deference from
the judiciary and intervention, if at all, only in truly exceptional situations. This is not one
of them.
48
B.
In his fine dissenting opinion Judge King refers warmly to the Seventh Circuit’s
recent holding that the Rule is likely contrary to law. See, e.g., Dissenting Op., post at 80
& n.4 (citing Cook Cty. v. Wolf, 962 F.3d 208 (7th Cir. 2020)). At the outset, both our
sister circuit and our dissenting colleague make a critical concession that the term “public
charge” is an ambiguous one. Dissenting Op., post at 80; Cook Cty., 962 F.3d at 226.
Ordinarily, such an acknowledgement of ambiguity would lead to considerable deference
to the agency charged with implementing the statutory directive. Chevron U.S.A. Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). Far from following the usual
course, however, those opinions declare that while the term “public charge” is ambiguous,
it is somehow not ambiguous enough. See Dissenting Op., post at 98–99; Cook Cty., 962
F.3d at 229. Our dissenting colleague’s approach suggests different categories of
ambiguity—a Chevron Step III for courts to determine whether maximum or moderate
ambiguity is present in a given case. This multi-layering of ambiguity adds an additional
element of complexity and subjectivity to a doctrinal area that has suffered no shortage of
either.
The Seventh Circuit, in proceeding to Chevron Step II, identified a litany of faults
with the Rule; but far from revealing the Rule as flawed, both our dissenting colleague’s
and the Seventh Circuit’s opinions only underscored the significant difficulties with their
own approaches. Indeed, Judge King’s praise of the Seventh Circuit’s reasoning is
unsurprising as the two opinions suffer from many of the same infirmities.
49
Those difficulties are at least three in number. The first complication is that both
opinions create more inconsistencies than they resolve and manufacture “floors” that are
untethered from the statutory text. Second, both our dissenting colleague and the Seventh
Circuit engage in sheer speculation about potential rules that do not exist, and the Seventh
Circuit imagines prejudiced implementation that has not occurred. And third, they mistake
policy unreasonableness for statutory unreasonableness. We address each of these
problems in turn.
First, both the Seventh Circuit and dissenting opinions pick and scratch at the Rule
in an effort to identify tensions with other provisions of immigration law and federal law
generally. See Dissenting Op., post at 105–06; Cook Cty., 962 F.3d at 227. Of course,
there is no end of conceivable “tensions” one may find while rummaging through the vast
and complicated array of federal enactments. Under that approach, there would never be
a perfectly seamless whole as every rule creates some conceivable “tension” that
determined judges can discover. To dig at the Rule and unearth tension is to announce that
every rule will be doomed to fall short from the start.
Worse still, both opinions, that of Judge King and the Seventh Circuit, skate blithely
over the tensions and inconsistencies that their own positions create. The dissent embraces
the Seventh Circuit’s divination of “a floor inherent in the words ‘public charge.’”
Dissenting Op., post at 98 (quoting Cook Cty., 962 F.3d at 229). But this “floor” of benefits
below which no one may be deemed a public charge is simply nowhere in the text itself.
The statute contains no threshold of benefits—quantitative, qualitative, or durational—that
one must accept before qualifying as a public charge. And even assuming that this floor
50
can be properly divined, it is unclear how an agency could determine what the floor even
is or whether an alien is “significantly dependent” on the government. The exercise our
dissenting friend envisions is one of pure guesswork.
Furthermore, the Seventh Circuit scarcely mentions what is in the text—such as the
sponsorship-and-affidavit scheme, Cook Cty., 962 F.3d at 222—which evinces Congress’s
intent “to aggressively protect the public fisc” and “is at odds with the view that [Congress]
used the term ‘public charge’ to refer exclusively to primary and permanent dependence,”
id. at 246 (Barrett, J., dissenting). In emphasizing that immigration law allows aliens to
receive some benefits at some points, both the Seventh Circuit and our dissenting colleague
rush over statutory text and nuance in a hurry to invalidate the Rule. See Dissenting Op.,
post at 105–06 (citing Cook Cty., 962 F.3d at 228 (majority opinion)). For example, aliens
are in fact barred from receiving many benefits for their first five to ten years in the country.
8 U.S.C. §§ 1611–1613, 1641; see also Cook Cty., 962 F.3d at 247 (Barrett, J., dissenting).
And the benefits available to aliens before five years of residency—that the opinions allege
create tension—are largely irrelevant to the public charge determination under the Rule.
See Cook Cty., 962 F.3d at 235 n.1.
The statutory availability of some, but not all, benefits is readily reconcilable with
the Rule: Congress tasked the executive with barring entry to those who are likely to need
public benefits but also provided a backstop for those who face setbacks that were
unforeseeable on the front end. See id. at 247 (citing 8 U.S.C. § 1227(a)(5); Act of Mar.
3, 1891, ch. 551, § 11, 26 Stat. 1084, 1086); see also id. at 235 n.1 (citing Inadmissibility
on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,312 (Aug. 14, 2019) (“[The Rule’s]
51
definition does not include benefits related exclusively to emergency response,
immunization, education, or social services. . . .”)); Inadmissibility, 84 Fed. Reg. at 41,482
(“[T]he [R]ule’s definition of public benefit does not include emergency aid, emergency
medical assistance, or disaster relief.”)). Moreover, the dissent and the Seventh Circuit
paint with far too broad a brush in defining what constitutes a benefit. See Dissenting Op.,
post at 105 n.14 (citing Cook Cty., 962 F.3d at 232 (majority opinion)). The term “charge”
has never involved government services like fire protection or public education, but rather
has “always been associated with dependence on a particular category of government
programs: those available based on financial need.” Cook Cty., 962 F.3d at 250 (Barrett,
J., dissenting).
In short, the “tensions” that the Seventh Circuit and our dissenting colleague manage
to come up with are of a decidedly tangential variety, and inconsistencies in both
approaches, not to mention the plain statutory language, are probative of the Rule’s
validity.
The second drawback to the dissent’s and Seventh Circuit’s approach lies in their
willingness to indulge in speculation. The Seventh Circuit suggests without a shred of
evidence that the executive will apply the statutory factors—“age,” “health,” “family
status,” “assets, resources, and financial status,” and “education and skills,” 8 U.S.C. §
1182(a)(4)(B)—on the basis of racial or ethnic stereotypes. Cook Cty., 962 F.3d at 232.
And both that court and our dissenting colleague speculate on the horrors of the executive
designating someone who receives “a single benefit on one occasion” as a public charge,
id. at 229; see also Dissenting Op., post at 99–100, notwithstanding the fact that the Rule
52
is both durationally and quantitatively far removed from the sort of public charge penny
recipient about which those opinions speculate in their hypotheticals. Indeed, such a rule
is not before this court, and we reserve discussion of its legality if and when it is presented.
The third difficulty with the analyses is their confidence in themselves as experts in
immigration policy. The Seventh Circuit in fact begins with a description of the values
that an ideal rule, in that majority’s view, ought to encapsulate. Cook Cty., 962 F.3d at
214–15. Both opinions fault the Rule for DHS’s ability to “stack benefits” and categorize
non-cash public aid as a public charge. Id. at 229; see also Dissenting Op., post at 101.
But there is nothing in the statutory language that precludes stacked or non-cash benefits
from counting as public assistance. And history belies the notion that the form of benefit
matters—in early twentieth-century cases, one kind of public assistance with which the
public charge provision was concerned was institutionalization, a type of non-cash benefit.
See, e.g., United States ex rel. Brugnoli v. Tod, 300 F. 913 (S.D.N.Y. 1923), aff’d, 300 F.
918 (2d Cir. 1924) (considering institutionalization in the Manhattan State Hospital).
Moreover, the Seventh Circuit feels that the Rule “unreasonably imposes substantially
disproportionate consequences for immigrants[] compared to the supposed drain on the
public fisc they cause.” Cook Cty., 962 F.3d at 229.
These observations as to the Rule’s efficacy may or may not be valid, but they are
blunt policy prescriptions that belong in a legislative hearing or notice-and-comment
rulemaking, not in a judicial assault upon the Rule’s validity. See Kerry v. Din, 135 S. Ct.
2128, 2136 (2015) (recognizing that immigration distinctions “are ‘policy questions
entrusted exclusively to the political branches of our Government’” (quoting Fiallo v. Bell,
53
430 U.S. 787, 798 (1977))). At bottom, our sister circuit’s and dissenting colleague’s claim
of statutory unreasonableness is really a claim of policy unreasonableness, designed to
position the courts as singular arbiters in a field for which their expertise is limited and
their democratic imprimatur is non-existent.
In combination, these drawbacks confirm every fear that the judiciary is on its way
to projecting a major voice in a field of law that has long been reserved to the politically
accountable branches the Founders established in Articles I and II. Cf. Chicago & Southern
Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (recognizing that “the
very nature of executive decisions as to foreign policy is political, not judicial,” and thus
they “are wholly confided by our Constitution to the political departments of the
government, Executive and Legislative”). The Seventh Circuit and the dissent envision an
immigration policy that, quite apart from its conformity to the preferred policy of a
particular court, is static rather than dynamic. They take an ambiguous term and attempt
to apply a singular meaning to it, when in fact their analyses admit multiple—and indeed
possibly revolving—meanings.
Congress envisioned that the executive would be able to adapt immigration policy
to political expressions and changing circumstances. See United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950) (describing immigration as a field requiring
“flexibility and the adaptation of the congressional policy to infinitely variable conditions”
(quoting Lichter v. United States, 334 U.S. 742, 785 (1948))). The Seventh Circuit and the
dissent ignore this arrangement and wring all flexibility out of national immigration policy.
It is difficult to think that any approach more restrictive than the “primarily dependent” or
54
“significantly dependent” standard will ever be acceptable. Only more permissive will do.
But this misses Congress’s intention that there be room for both. Instead of the term’s
ambiguity allowing for flexibility on the part of the executive, our dissenting colleague and
the Seventh Circuit artificially constrict the term and install rigidity, along with an incipient
judicial primacy, as the burgeoning hallmark of federal immigration policy.
C.
The plaintiffs are therefore unlikely to succeed on the merits because the DHS Rule
is lawful. As the Supreme Court has noted, a likelihood of success on the merits is the
most critical factor supporting issuance of a preliminary injunction, and that likelihood
simply is not present here. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020);
see also Nken v. Holder, 556 U.S. 418, 434 (2009). This is enough to reverse the district
court’s grant of a preliminary injunction. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).
It is worth noting also that the other Winter factors reinforce the conclusion that the district
court erred in granting the injunction here. See Winter, 555 U.S. at 20.
For one, CASA did not establish that it would be irreparably harmed in the absence
of an injunction. As noted, CASA’s purported injuries were not the product of the Rule’s
dictates, but of its own priorities and choices. This is not “irreparable harm” in any
judicially-cognizable sense. The final two Winter factors also did not assist CASA’s case.
When the government is a party, these factors—the balance of the equities and the public
interest—merge. The key flaw in the district court’s reasoning here was its implicit
assumption that the individual interest must always trump the general. But whether one
agrees with the Rule or not, the government is asserting the significant interest of not
55
burdening the public fisc by admitting public charges—an interest that would be
meaningfully harmed because of the difficulty, if not impossibility, of undoing the grants
of permanent resident status that both Congress and the executive have found to be against
the national interest. In this field of immigration and border integrity, the public interest
can be vitiated when the legitimate expressions of the two political branches of government
are disregarded by the branch whose experience and expertise is relatively slim and whose
policy perspectives lack any democratic imprimatur.
***
We have no doubt that the “public charge” bar has been applied more narrowly in
the past. After all, DHS engaged in an extensive notice-and-comment rulemaking to bring
about a change in extant policy. But change in whatever direction is what Congress
anticipated when it steadfastly refused to define or particularize the public charge
provision. The only question before us is not whether DHS should have used its power in
this fashion, but rather whether it could have. For the foregoing reasons, the answer to this
question is clearly yes.
IV.
Alas, we wish we could say that this was the whole megillah. But the district court
also erred in its choice of remedy. On this front, we review a decision to grant a preliminary
injunction under a “particularly exacting” version of the abuse of discretion standard.
Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) (internal quotation marks omitted).
And, critically, “an overbroad injunction is an abuse of discretion.” Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (internal quotation marks omitted).
56
The injunction issued in this case was plainly overbroad. Rather than enjoin the
defendants from applying the Rule to CASA and its members, the district judge instead
chose to enter a so-called “nationwide” injunction, preventing enforcement of the Rule
against anyone. It should not have done this.
A.
A nationwide injunction is a drastic remedy and it was plainly improper here.
The federal courts exercise “[t]he judicial power of the United States.” U.S. Const.
Art. III § 1. This is a significant but carefully circumscribed authority, the limits of which
are cabined by both the Constitution and Congress. Turner v. Bank of North America, 4
U.S. (4 Dall.) 8, 10 (1799). Nationwide injunctions, by which a single district judge
completely blocks the enforcement of a federal policy against everyone, transgress the
bounds of that authority at least thrice over. See Trump v. Hawaii, 138 S. Ct. 2392, 2424–
29 (2018) (Thomas, J., concurring); Samuel L. Bray, Multiple Chancellors: Reforming the
National Injunction, 131 Harv. L. Rev. 417, 420–21 (2017) (hereinafter “Bray”). First,
this capacious remedy, which has become common only recently, seriously contravenes
traditional notions of the judicial role. Second, nationwide injunctions likely exceed the
constitutional and statutory limits on the federal equity power. Finally, the third branch of
our government is in the end a diverse and collective enterprise. A single trial judge of
course most often makes the initial call, but to imbue that call with nationwide scope and
power, even temporarily, elevates the individual over the collective in a fashion that shuts
off other voices to the detriment of sound resolutions and decisionmaking.
57
1.
As the Supreme Court has emphasized, our “constitutionally prescribed role is to
vindicate the individual rights of the people appearing before [us].” Gill v. Whitford, 138
S. Ct. 1916, 1933 (2018). Of course, specific cases can have general implications. But the
sole duty of the federal courts is not to decide general questions for everyone, but rather to
settle particular “cases” or “controversies” between particular parties. See Ariz. Christian
Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011) (“Under Article III, the Federal
Judiciary is vested with the ‘Power’ to resolve not questions and issues but ‘Cases’ or
‘Controversies.’”); see also Summers v. Earth Island Inst., 555 U.S. 488, 492–93 (2009).
Our power to grant equitable remedies is commensurate with this duty. As Justice
Gorsuch recently explained, “[e]quitable remedies, like remedies in general, are meant to
redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Dep’t of
Homeland Security v. New York, 140 S. Ct. 599, 600 (2020) (Mem.) (Gorsuch, J.,
concurring). As such, Article III requires that injunctions be tailored to protect only the
plaintiffs in a specific case from the defendants to that suit. See Bray at 469. And while it
is true that even such plaintiff-protective injunctions may benefit non-parties, these benefits
are purely “collateral[]” because the “judicial power exists only to redress or otherwise to
protect against injury to the complaining party.” Warth v. Seldin, 422 U.S. 490, 499 (1975).
Nationwide injunctions are plainly inconsistent with this conception of the judicial
role and the proper scope of the federal courts’ remedial power. A nationwide injunction,
by its nature, extends relief far beyond the parties to an individual case. Indeed, by issuing
such an injunction, a single district court, whose decisions are non-precedential in its own
58
circuit, does not simply resolve a given lawsuit, but rather decides a general question for
the entire nation. And far from being precisely tailored to redress a particular plaintiff’s
injuries, the very purpose of a nationwide injunction is to protect everyone from the
challenged policy. It is, to put it mildly, “hard to see how the court could still be acting in
the judicial role of resolving cases or controversies” when it issues such a far-reaching and
pervasive equitable remedy. New York, 140 S. Ct. at 600 (Gorsuch, J., concurring). 7
2.
Nationwide injunctions also run afoul of the prescribed scope of our equitable
power. Since the Judiciary Act of 1789 gave the federal courts jurisdiction over “all suits
. . . in equity,” 1 Stat. 73 § 11, the Supreme Court has consistently understood general
statutory grants of equity jurisdiction to confer “authority to administer in equity suits the
principles of the system of judicial remedies which had been devised and was being
administered by the English Court of Chancery at the time of the separation of the two
countries.” Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S.
308, 318 (1999) (quoting Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568
(1939)). Any inherent equitable authority that the courts possess under Article III is likely
bounded by the same. Hawaii, 138 S. Ct. at 2425–26 (Thomas, J., concurring); 1 John N.
Pomeroy, A Treatise on Equity Jurisprudence § 294 (A.L. Bancroft & Co. 1881).
7
A geographically-focused injunction is not a sound alternative to a nationwide
injunction. See Bray at 422 n.19. A geographically-limited injunction suffers from the
same infirmities as a nationwide injunction, albeit on a smaller scale, i.e., it protects non-
parties and purports to decide a general question of law rather than a specific dispute.
59
In practice, this means that the core doctrines of American equity—namely,
principles of equity jurisdiction, procedure, and remedies—must be rooted in English
tradition. See Payne v. Hook, 74 U.S. (7 Wall.) 425, 430 (1868) (holding that “the equity
jurisdiction conferred on the Federal courts is the same that the High Court of Chancery in
England possesses”); Russell v. Farley, 105 U.S. (15 Otto.) 433, 437 (1881) (noting that
the default procedures to be applied in suits in equity are “the practice[s] of the High Court
of Chancery in England”); Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658 (1832) (holding
that remedies must link back “to the practice of courts of equity in the parent country”).
Thus, as relevant here, a federal court sitting in equity is empowered to grant only those
remedies that could have been issued by the English Chancellor in 1789 or that have some
clear analogue in traditional equity practice. See Grupo Mexicano, 527 U.S. at 318–19.
Nationwide injunctions are irreconcilable with these limitations, as they lack any
basis in traditional equity practice. New York, 140 S. Ct. at 600 (Gorsuch, J., concurring).
In eighteenth-century English equity “there were no injunctions against the Crown,” or
anything like a nationwide injunction. Bray at 425; accord 3 W. Blackstone,
Commentaries on the Laws of England 428 (1768). At the Founding, the English
Chancellor would issue injunctions to protect the immediate parties, and, at times, equity
would extend relief to a “small and cohesive” group of persons who shared a common
interest. Bray 425–27. But that was it. The thought that an injunction could extend to
protect scores of non-parties was not contemplated; indeed, it was resolutely avoided.
Conway v. Taylor’s Ex’r, 66 U.S. (1 Black) 603, 632 (1861) (noting that a court of equity
will not “go beyond the case before it”).
60
Both Article III and federal statutes incorporated these limitations on the equity
power. See Hawaii, 138 S.Ct. at 2427 (Thomas, J., concurring); see also Joseph Story,
Commentaries on Equity Pleadings § 69 (1838). It is unsurprising then that nationwide
injunctions have not existed in American jurisprudence for most of our history. Instead,
until the mid-twentieth century, federal judges recognized that their ability to grant
equitable relief was limited to the parties before them. See Bray at 428–37. And attempts
by litigants to extend the judiciary’s power to encompass universal relief were uniformly
rebuffed. See, e.g., Perkins v. Lukens Steel Co., 310 U.S. 113, 117, 123 (1940);
Frothingham v. Mellon, 262 U.S. 447, 487–89 (1923). As the Supreme Court explained in
Scott v. Donald, 165 U.S. 107, 115 (1897), “[t]he theory . . . that the plaintiff is one of a
class of persons whose rights are infringed and threatened, and that he so represents such
class that he may pray an injunction on behalf of all persons that constitute it . . . is too
conjectural to furnish a safe basis upon which a court of equity ought to grant an
injunction.”
The recent proliferation of nationwide injunctions plainly cannot be squared with
these longstanding precepts, which are meant to cabin our discretion and limit application
of the judicial power to actual legal disputes rather than overarching policy questions. And
their widespread use also cannot be squared with the constitutional and statutory limitations
on our equitable authority.
3.
The fundamental infirmity of the nationwide injunction is confirmed by how poorly
it fits alongside related doctrines that also flow from the concept of “judicial power.”
61
Take, for starters, Article III standing. To maintain a cause of action in federal
court, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is
concrete and particularized,” and that threat must be “actual and imminent, not conjectural
or hypothetical.” Summers, 555 U.S. at 493. Moreover, every plaintiff “bears the burden
of showing that he has standing for each type of relief sought.” Id. Nationwide injunctions
effectively vitiate this requirement by permitting a single plaintiff to obtain equitable relief
on behalf of countless non-parties, wholly without inquiry into whether they have suffered
or will imminently suffer any injury-in-fact. But standing is not a clown car into which all
interested parties may pile, provided the driver-cum-plaintiff has met its requirements. On
the contrary, “Article III does not give federal courts the power to order relief to any
uninjured plaintiff.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1053 (2016)
(Roberts, C.J., concurring). That nationwide injunctions almost certainly result in the
federal courts doing just that should, at a minimum, raise doubts as to their propriety.
Relatedly, nationwide injunctions are incompatible with the well-recognized bar
against litigants raising the rights of others. Pursuant to third-party standing doctrine,
“even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’
requirement, . . . the plaintiff generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights and interests of third parties.” Warth, 422
U.S. at 499. But by requesting a nationwide injunction, a plaintiff is by definition seeking
to vindicate the legal rights of all third-parties who may be subject to the challenged policy.
A similar point is true with respect to the doctrines of ripeness and mootness.
Generally, federal courts adjudicate only those cases that are ripe, in that the relevant
62
“administrative decision has been formalized and its effects felt in a concrete way by the
challenging parties,” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08
(2003) (internal quotation marks omitted), and that are not moot, which obtains “when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome,” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (internal quotation marks
omitted). Once again, nationwide injunctions allow non-parties to slip the bonds of these
requirements, as a single plaintiff who obtains nationwide relief has done so on behalf of
innumerable non-parties whose claims may very well have been premature or long stale.
But the list of doctrinal inconsistencies does not end there. Not only do nationwide
injunctions conflict with the foregoing justiciability rules, but they also cannot be
reconciled with congressional policy regarding the availability of aggregate equitable relief
in the federal courts. Congress has already created an avenue by which a group of litigants
that share a common interest can obtain an injunction protecting the entire group—a class-
action pursuant to Federal Rule of Civil Procedure 23(b)(2). Quite obviously, class actions
are the appropriate way to resolve the small subset of cases in which an injunction
protecting only the plaintiff could prove too narrow. See Easyriders Freedom F.I.G.H.T.
v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) (recognizing “injunctive relief generally
should be limited to apply only to named plaintiffs where there is no class certification”).
And, unlike nationwide injunctions, Rule 23 injunctions have a clear analogue in traditional
equity practice. Bray at 426 (analogizing to the device known as a “bill of peace”); see
also 7A Charles Alan Wright et al., Federal Practice and Procedure § 1751, at 11 (3d ed.
2005).
63
The ready availability of nationwide injunctions is difficult to square with the policy
choices embodied in Rule 23. Only those who can satisfy the rigorous requirements
Congress imposed for class certification are eligible to avail themselves of Rule 23
injunctions. But nationwide injunctions allow plaintiffs to obtain the benefits of class-wide
relief without ever satisfying these criteria. See Bray at 476. This makes no sense. Indeed,
as the Seventh Circuit aptly put it, “[a] wrong done to plaintiff in the past does not authorize
prospective class-wide relief unless a class has been certified. Why else bother with class
actions?” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997).
B.
Even if the federal trial courts somehow possessed the power to issue nationwide
injunctions, the attendant practical consequences of this drastic and extraordinary remedy
should restrict its use to the most exceptional circumstances. See Monsanto Co. v. Geertson
Seed Farms, 561 U.S 139, 165 (2010). There is no doubt that “[t]hese injunctions are
beginning to take a toll on the federal court system.” Hawaii, 138 S. Ct. at 2425 (Thomas,
J., concurring); see also New York, 140 S. Ct. at 600 (Gorsuch, J., concurring) (describing
as “patently unworkable”). A survey of some of the bad effects brought about by the rise
of nationwide injunctions shows just how ill-advised a remedy they have become.
To begin with, nationwide injunctions limit valuable “percolation” of legal issues
in the lower courts. By entering a nationwide injunction, a district judge precludes the
government’s ability to bring enforcement actions pursuant to the challenged policy and
simultaneously reduces prospective plaintiffs’ incentives to file additional suits
challenging that policy. In tandem, these effects reduce the likelihood that a given question
64
will be debated widely. But as the Supreme Court has recognized, it is generally
“preferable to allow several courts to pass on a given [issue] in order to gain the benefit of
adjudication by different courts in different factual contexts.” Califano v. Yamasaki, 442
U.S. 682, 702 (1979); see also Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J.,
dissenting). And the value of percolation is at its apex where, as here, “a regulatory
challenge involves important or difficult questions of law.” Los Angeles Haven Hospice,
Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011). Nationwide injunctions limit dialogue
in the lower courts, favoring quick and uniform answers to the more deliberate—and likely
more accurate—method of doctrinal development that is intended under our judiciary’s
very design. The class is called “The Federal Courts and the Federal System” for a reason.
Relatedly, nationwide injunctions promote sprints to the courthouse and rushed
judicial decisionmaking, often under immense time pressure, based on expedited briefing,
and in the absence of a factual record. See New York, 140 S. Ct. at 600 (Gorsuch, J.,
concurring). Nationwide injunctions are often issued early in the litigative process,
meaning that both the district judge’s initial decision to grant the injunction and any
subsequent appeals of that decision will take place without a record. See Bray at 461–62.
Moreover, an injunction completely blocking the implementation of a federal policy can
wreak havoc on the executive’s agenda, which in turn incentivizes immediate, emergency
stay requests. And the urgent need for resolution of such consequential questions often
forces the Supreme Court to initially consider a given legal issue on a stay motion. Id.
Again, this is exactly what happened on this very question. New York, 140 S. Ct. at 599
(granting stay of nationwide injunction).
65
This helter-skelter behavior is not what our legal system was designed to encourage.
Indeed, as much becomes obvious when one considers the structure of the federal judiciary
itself. For starters, Congress deliberately created a system of regional courts of appeals
whose decisions are not binding on one another. Virginia Soc’y for Human Life, Inc. v.
FEC, 263 F.3d 379, 393 (4th Cir. 2001). The Supreme Court has recognized that the
motivation behind limiting intercircuit stare decisis was to avoid the possibility that “the
indiscreet action of one court might become a precedent,” such that “the whole country
[would be] tied down to an unsound principle.” Mast, Foos & Co. v. Stover Mfg. Co., 177
U.S. 485, 488 (1900). The doctrine of intercircuit nonacquiescence, which permits
executive branch officials to continue enforcing a policy outside of a circuit in which it has
been invalidated, flows directly from this rule. See, e.g., Johnson v. U.S. R.R. Ret. Bd., 969
F.2d 1082, 1093 (D.C. Cir. 1992). The Supreme Court has likewise recognized that the
federal government is generally free to relitigate issues it has already lost, except against
parties to such prior litigation. See United States v. Mendoza, 464 U.S. 154, 160–63 (1984).
Finally, as for the district courts, a “decision of a federal district court judge is not binding
precedent in either a different judicial district, the same judicial district, or even upon the
same judge in a different case.” Camreta v. Green, 563 U.S. 692, 709 n.7 (2011) (internal
quotation marks omitted).
As should be apparent, these structural principles prioritize percolation, considered
decisionmaking, and intercircuit dialogue over haste and uniformity. But nationwide
injunctions lay waste to this finely reticulated system, transforming the non-precedential
decision of a lone district judge into the law of the land, for circuits and citizens alike.
66
Perhaps most importantly, the growth of the nationwide injunction also risks the
perception of the federal courts as an apolitical branch. The availability of this sweeping
remedy has enabled litigants to challenge nearly every major executive branch policy in
federal court. In effect, nationwide injunctions have “turn[ed] every individual plaintiff
into a roving private attorney general,” Michael T. Morley, De Facto Class Actions?, 39
Harv. J.L. & Pub. Pol’y 487, 527 (2016), which has, in turn, left the executive beholden to
the whim of any single district judge, freed even from the constraints of collegial
deliberation.
Unsurprisingly, given the enormous stakes associated with such lawsuits, plaintiffs
seeking to block executive action via nationwide injunction are incentivized to forum shop
with abandon. See Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring); Bray at 457–61.
This patently political manipulation of the judiciary undermines the public’s confidence in
the federal courts and casts judges as advocates for their favored policy outcomes. What
is more, because “plaintiffs generally are not bound by adverse decisions in cases to which
they are not a party, there is a nearly boundless opportunity to shop for a friendly forum to
secure a win nationwide.” New York, 140 S. Ct. at 601 (Gorsuch, J., concurring). In other
words, while the government must win every challenge brought against a policy to ensure
its implementation, prospective plaintiffs need only find a single sympathetic audience of
one in order to secure complete victory.
This is nothing more than “government by injunction,” Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 222 (1974) (internal quotation marks omitted), and
a clear violation of the traditional judicial understanding that we are not “continuing
67
monitors of the wisdom and soundness of Executive action,” Hein v. Freedom From
Religion Found., Inc., 551 U.S. 587, 612 (2007) (opinion of Alito, J.) (quoting Allen v.
Wright, 468 U.S. 737, 760 (1984)). And that is not all. Indeed, along with what has been
discussed, the list of negative consequences associated with nationwide injunctions seems
virtually endless. See, e.g., California v. Azar, 911 F.3d 558, 583 (9th Cir. 2018) (noting
that nationwide injunctions may harm “non-parties who are deprived the right to litigate in
other forums”); United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008)
(discussing risks to judicial comity); Getzel Berger, Nationwide Injunctions Against the
Federal Government, 92 N.Y.U. L. Rev. 1068, 1087–90 (2017) (enumerating still more
downsides). Among the greatest victims of this unfortunate practice will be the courts
themselves.
C.
In light of the above costs, it is clear that, even assuming the federal courts have the
power to issue nationwide injunctions, they should be handed down only in extraordinary
circumstances. The district court rejected this limit by issuing such a remedy in this case.
To begin with, it is plain that a nationwide injunction would be wholly unnecessary
to protect the rights of the only plaintiffs to this lawsuit who have standing, namely Aguiluz
and Perez. As the Supreme Court has repeatedly cautioned, “[a] plaintiff’s remedy must
be tailored to redress the plaintiff’s particular injury.” Gill, 138 S. Ct. at 1934. Here, it is
the real prospect of the Rule being enforced against them individually that gives rise to
Aguiluz and Perez’s Article III injuries. See Part II supra. Thus, an injunction preventing
DHS from applying the Rule to either of them would fully redress their injuries. Blocking
68
the enforcement of the Rule against everyone provides absolutely no additional protection
to the individual plaintiffs to this suit and would clearly be overbroad.
And even on the district court’s view that CASA had standing to challenge the Rule,
the decision to grant a nationwide injunction was still wrong. There is no reason—none—
that the district court, if it felt the Rule unlawful, could not have issued a narrower
injunction barring the federal government from enforcing the DHS Rule against CASA’s
members. And the arguments advanced to the contrary are unpersuasive. At bottom, the
district court justified its remedy on the ground that uniformity is important to immigration
law and anything other than a nationwide injunction would be impractical. This rationale
is unpersuasive. First off, it lacks any limiting principle; after all, if a general interest in
uniformity could sustain a nationwide injunction, then it would justify such a remedy in all
cases when federal law is implicated. Further, the district court improperly stepped into
the shoes of DHS and displaced our democratic process of governance when it insisted that
a nationwide injunction was necessary for pragmatic reasons. This would be troubling
enough in any context, but especially so in the area of immigration, where the executive
branch holds inherent constitutional powers and the judiciary does not. 8
8
Equally unpersuasive is the district court’s suggestion that the APA justifies its
choice of remedy. True, the APA authorizes courts to “hold unlawful and set aside agency
action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). But we have squarely
rejected the view that this provision mandates the issuance of a nationwide injunction
whenever a federal rule is held unlawful. See Virginia Soc’y, 263 F.3d at 393–94. In any
event, the position that § 706 even authorizes, much less compels, nationwide injunctions
is baseless. See Bray at 438 n.121; see also John Harrison, “Section 706 of the
Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal
Remedies,” Yale Journal on Regulation, Notice & Comment (Apr. 12, 2020),
69
In sum, the district court compounded its error of granting relief with its choice of
remedy. It could have awarded complete relief on its view of the merits with a far narrower
remedy. It is beyond the power of any one person to set himself up as the arbiter of law in
these entire United States. The trial court sits as the judge for the District of Maryland, a
court that on its own terms and in its own right has earned the greatest respect. But it is
not the district court for the District of the United States.
V.
This case is not about the propriety of any policy, but rather about the power of the
federal courts. Immigration is a complex and controversial topic that arouses intense
emotions on the part of many. On the one hand, immigration is indispensable to cultural
diversity and national renewal, an economic engine that can serve to rejuvenate an aging
workforce and to fulfill critical societal needs. On the other hand, it can in unrestricted
numbers overwhelm the nation’s capacity for assimilation and, if unlawful, undermine an
indispensable sense of national sovereignty and a commitment to the rule of law. Where
to strike the balance between these two valid and competing perspectives is no easy task—
but a task that the Constitution principally assigns to the political branches.
https://www.yalejreg.com/nc/section-706-of-the-administrative-procedure-act-does-not-
call-for-universal-injunctions-or-other-universal-remedies-by-john-harrison/. The APA
was passed in 1946, seventeen years before the first nationwide injunction was issued by a
federal court. That Congress would have implicitly codified such a radical departure from
settled equity practice is quite illogical. See Weinberger v. Romero-Barcelo, 456 U.S. 305,
320 (1982) (“[A] major departure from the long tradition of equity practice should not be
lightly implied.”).
70
Those representative branches of government have struck this careful balance in the
public charge provision of the INA. Congress made the decision that the executive was
best positioned to define and implement the public charge provision, consistent with the
term’s ordinary meaning and the national interest. The essence of this choice turns on
Congress’s view that the public charge provision should function, at heart, like an
accordion; to expand or contract depending on the nation’s needs and a given
administration’s policy. At times a policy like the 1999 Field Guidance might be best; and,
at other times, the DHS Rule might be preferable. But this is a call for the executive. For
the judiciary to seize this decision for itself, and insist, where Congress did not, upon a
crystalline meaning of “public charge” is not only to stretch our limited competencies
beyond their bounds, but also, more fundamentally, to nullify the careful judgments of the
people’s representatives.
Of course, we take no position on the merits of the DHS Rule. Nor could we. The
question before us today is whether the challenged action comports with law. It is plain
that the answer here is yes. For the above reasons, we reverse the judgment and remand
for proceedings consistent with this opinion.
REVERSED AND REMANDED
71
KING, Circuit Judge, dissenting:
The Massachusetts Constitution of 1780, in recognizing the critical importance of
separation of powers, coined a phrase that has become a mantra of our constitutional
republic: The government should be “of laws, and not of men.” See Mass. Const. pt. 1,
art. XXX (1780). The Constitution of the United States enshrines that indispensable ideal
by creating a three-branch government with power divided among the branches. As part
of that ingenious scheme of separated power, the Constitution vests legislative power solely
in Congress. That means Congress alone — not the President and not the judiciary —
holds the power to enact new statutes or alter existing ones.
Nevertheless, in these proceedings, the President, the Department of Homeland
Security, and the other defendants (collectively, “DHS”) have redefined the statutory term
“public charge” — far beyond the limits set by Congress — to narrow the protections
afforded by our immigration system. That executive overreach led the district court to
preliminarily enjoin the implementation of DHS’s new definition of “public charge.” See
Casa de Maryland, Inc. v. Trump, 414 F. Supp. 3d 760 (D. Md. 2019). Our panel majority,
however, has now acquiesced in DHS’s new definition of “public charge” and condemned
the district court for its efforts to keep DHS in check.
The majority expresses reticence to question DHS on this immigration matter,
decreeing that unelected federal judges lacking expertise in such matters should steer clear.
But this is not a matter of political choice regarding immigration policy; it is a matter of
statutory interpretation, which falls within the exclusive bailiwick of the judiciary. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province
72
and duty of the judicial department to say what the law is.”). And when interpreting
statutes, it is our duty to ensure that the coequal branches of our government do not
transgress the bounds of their authority. To be sure, whether the national interest is best
served by a broad or narrow reading of the term “public charge” is not our concern. But
whether the executive has ventured beyond the statutory bounds staked out by the
legislative branch is emphatically our concern. In the circumstances of this case, the
judiciary is duty bound to support the separation of powers. I therefore write separately
and dissent.
I.
In August 2019, DHS promulgated an administrative rule (the “DHS Rule” or the
“Rule”) — pursuant to its rulemaking authority under the Immigration and Nationality Act
(the “INA”) and the Administrative Procedure Act (the “APA”) — purporting to interpret
and apply an INA provision that governs the ability of an “alien” deemed “likely at any
time to become a public charge” to gain admission to the United States or to adjust an
immigration status. See 8 U.S.C. § 1182(a)(4) (the “Public Charge Statute”). 1 Historically,
public charge provisions, including the Public Charge Statute, applied only to aliens likely
to be significantly dependent on the government. In other words, the acceptance of
1
I use “Public Charge Statute” to refer to the current public charge provision in the
INA. Other references to public charge provisions relate to earlier iterations thereof. And
in keeping with the language of the INA, I use the term “alien” to describe those noncitizens
subject to the Public Charge Statute. See 8 U.S.C. § 1101(a)(3) (defining the term “alien”
as “any person not a citizen or national of the United States”).
73
temporary, supplemental benefits was insufficient to render an alien excludable as a public
charge.
But the DHS Rule changed that settled understanding by dramatically redefining the
term “public charge.” Under the Rule, an alien who might receive, at any point in his life,
certain supplemental public assistance for 12 months within a 36-month period is
excludable from this country as an alien likely to become a public charge. In addition, each
discrete benefit received is counted as a full month of benefits, so that accepting three
different types of benefits in a single month (e.g., housing, nutrition, and medical benefits)
is counted as accepting three months of benefits. Accordingly, an alien will be declared
likely to become a public charge if he might receive just a few months’ worth of
supplemental benefits at any point in his life.
In light of the DHS Rule’s 2019 redefinition of the term “public charge,” the
plaintiffs filed this case in the District of Maryland. The plaintiffs include Angel Aguiluz
and Monica Camacho Perez, two individuals who immigrated to the United States as
children, plus CASA de Maryland, Inc., an immigrant rights organization with over
100,000 members that focuses on proactive outreach to improve the quality of life in
immigrant communities of Maryland, Virginia, the District of Columbia, and
Pennsylvania. In their complaint, the plaintiffs challenge the Rule on the ground that its
redefinition of “public charge” is antithetical to the Public Charge Statute and should thus
be set aside as not “in accordance with law” under the APA. See 5 U.S.C. § 706(2)(A).
More specifically, the plaintiffs allege that all the typical tools of statutory construction
74
reveal that the term “public charge,” as used in the Public Charge Statute, has a well-
understood meaning that conflicts with the Rule.
Contemporaneous with the filing of their complaint, the plaintiffs moved the district
court to preliminarily enjoin DHS from implementing the Rule. The plaintiffs contended
that they satisfied each of the four factors essential to securing a preliminary injunction.
See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.”). After confirming
that CASA has Article III standing as an organization to pursue the plaintiffs’ APA claim,
the court determined that the Rule should be preliminarily enjoined on a nationwide basis.
DHS noted this interlocutory appeal and launches a dual attack against the
preliminary injunction. First, DHS contends that the injunction is ultra vires because
CASA lacks standing to sue and CASA’s interests fall outside of the zone of interests
protected by the Public Charge Statute. Second, DHS argues that the district court erred in
enjoining the Rule because its definition of the term “public charge” is lawful and, in any
event, the award of injunctive relief is overbroad.
The panel majority today rules that CASA lacks Article III standing to contest the
DHS Rule. On the other hand, the majority recognizes that the individual plaintiffs possess
the necessary Article III standing. The majority also reverses the preliminary injunction,
sanctioning the Rule’s redefinition of “public charge” and concluding that the plaintiffs
75
have satisfied none of the four preliminary injunction factors. Finally, after invalidating
the injunction, the majority criticizes the injunction’s nationwide scope.
II.
In reversing the district court, the panel majority erroneously decides numerous
legal issues. First, the majority has erroneously ruled that CASA lacks Article III standing.
Second, my colleagues have improperly defined the statutory term “public charge,” thereby
erroneously ruling that the plaintiffs are not likely to succeed on the merits. Third, the
majority has erroneously concluded that the plaintiffs have not satisfied the remaining
preliminary injunction factors and that the nationwide scope of the injunctive relief is
improper. As explained below, I dissent from all of those rulings.
A.
At the outset, although the panel majority is correct to rule that the individual
plaintiffs possess Article III standing, my friends err in concluding that CASA lacks
standing. 2 Simply put, by alleging in the complaint that it must spend significant resources
to counter the effects of the DHS Rule and that the Rule precludes it from undertaking its
core advocacy mission, CASA sufficiently alleges a “concrete and demonstrable injury to
[its] activities[,]” paired with a “consequent drain on [its] resources.” See Havens Realty
2
Aside from erring in its analysis of CASA’s Article III standing, the majority errs
by considering that issue at all, having recognized the individual plaintiffs’ standing. Cf.
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, No. 19-431, slip op.
at 13 n.6 (U.S. July 8, 2020) (ruling that court erred in inquiring into Article III standing
of intervenor organization, in that another party seeking same relief possessed standing).
76
Corp. v. Coleman, 455 U.S. 363, 379 (1982); see also Cook Cty., Ill. v. Wolf, 962 F.3d 208,
218-19 (7th Cir. 2020) (concluding that Illinois immigrant rights organization claiming
similar organizational injuries possessed Article III standing to challenge DHS Rule). The
Supreme Court requires nothing more — particularly at this stage of the proceedings, when
CASA’s standing-related allegations must be accepted as true. See Deal v. Mercer Cty.
Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018).
In reaching its improper conclusion that CASA lacks Article III standing, the
majority twice errs. First, the majority misconstrues the Supreme Court’s Havens Realty
decision. In so doing, the majority excoriates the district court for giving Havens Realty
an “essentially boundless reading” that would support “organizational standing any time a
group (1) alleges that a governmental action undermines its policy mission, and (2) spends
some money in response to that action.” See ante 25. But the test decried by my good
friends of the majority is the very test for organizational standing devised by the Havens
Realty Court. As the Court related, a “concrete and demonstrable injury to the
organization’s activities — with the consequent drain on the organization’s resources —
constitutes far more than simply a setback to the organization’s abstract social interests.”
See Havens Realty, 455 U.S. at 379. In such a situation, the Court explained, there is “no
question that the organization has suffered injury in fact.” Id. So, despite what the majority
says, if an organization’s core policy mission is undermined by allegedly unlawful
governmental action and it must spend money in response thereto, the organization has
suffered a cognizable Article III injury.
77
Second, the majority minimizes CASA’s injuries to bring them in line with our
decision in Lane v. Holder, 703 F.3d 668 (4th Cir. 2012). To be sure, we ruled in Lane
that the plaintiff organization did not suffer an organizational injury for purposes of
standing because its sole allegation was that a new federal law caused a drain on its
resources. Id. at 675. In so ruling, we explained that a “mere expense” resulting from the
voluntary shift in an organization’s resources is not a sufficient injury to the organization
because it “results not from any actions taken by the defendant, but rather from the
organization’s own budgetary choices.” Id. (internal quotation marks and alterations
omitted). Importantly, however, we predicated our Lane decision on the fact that the
organization had alleged only that the new law resulted in a voluntarily expenditure of its
resources. Id. at 671. Put another way, the organization did not allege that the new law
impaired its organizational mission.
In these proceedings, CASA claims that the DHS Rule both impairs its
organizational mission and causes it to divert resources from that mission. Together, those
harms yield a cognizable organizational injury sufficient for CASA’s Article III standing.
See Havens Realty, 455 U.S. at 379 (ruling that broad allegations of frustration of
organizational purpose in complaint were sufficient to establish injury-in-fact at pleading
stage). 3
3
Although the majority does not reach the issue, I am satisfied that CASA’s interests
fall within the zone of interests protected by the Public Charge Statute such that it can assert
its claim against the DHS Rule under the APA. See Ass’n of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 153 (1970); see also Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (observing that the “zone of
78
B.
I now turn to the panel majority’s reversal of the district court’s preliminary
injunction barring implementation of the DHS Rule. Like the majority, my focus today is
primarily on the most important preliminary injunction factor — the likelihood that the
plaintiffs will succeed on the merits of their claim that the Rule is “not in accordance with
law” because it defines the term “public charge” contrary to the Public Charge Statute. See
5 U.S.C. § 706(2)(A).
In evaluating the DHS Rule’s lawfulness, we employ the familiar two-step
framework for evaluating federal agency rulemaking set forth by the Supreme Court in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Step one of Chevron requires using all the tools of statutory construction to evaluate
whether the Public Charge Statute provides an unambiguous definition of the term “public
charge.” If so, we are bound to give effect to that definition and must set aside the Rule if
it conflicts therewith. If not, however, we proceed to step two of Chevron and evaluate
whether the Rule’s definition of “public charge” is reasonable.
The district court concluded that the DHS Rule fails both Chevron steps and that the
plaintiffs are thus likely to succeed on the merits of their claim that the Rule is unlawful.
The majority, however, concludes that the plaintiffs are not likely to succeed on the merits
because “[t]he term [‘public charge’] is broad and even elusive enough to accommodate
interests” test “is not meant to be especially demanding” and that Congress’s “evident
intent when enacting the APA [was] to make agency action presumptively reviewable”
(internal quotation marks omitted)).
79
multiple views and meanings,” see ante 29, and because “the text, purpose, and structure
of the INA make clear that the DHS Rule is premised on a permissible construction of the
term ‘public charge,’” id. at 47. A contrary ruling, decrees the majority, would be a
“serious error in statutory interpretation.” Id.
Since 1882, however, the statutory term “public charge” has consistently described
aliens significantly dependent on the government. Nevertheless, I am willing to assume
for this appeal that some measure of ambiguity inheres in the meaning of “public charge,”
as used in the Public Charge Statute. I thus would not resolve the plaintiffs’ challenge to
the DHS Rule at Chevron’s first step and would instead proceed directly to its second step.
There, I would rule that, in light of the statutory context and the history of the term “public
charge,” the Rule’s definition is far too broad and ventures well outside the bounds of any
reasonable construction of the term. Indeed, as the Seventh Circuit recently concluded, the
Rule’s definition of “public charge” “does violence to the English language and the
statutory context.” See Cook Cty., 962 F.3d at 229. 4
4
As related by the well-reasoned Cook County majority opinion in early June, the
DHS Rule has been contested in district courts in New York, California, Washington, and
Illinois, plus in Maryland as part of these proceedings. See 962 F.3d at 217-18. Without
exception, each district court to consider the Rule preliminarily enjoined its
implementation. Id. at 217. And the Seventh Circuit affirmed the injunction entered by
the district court in the Northern District of Illinois. Id. at 234. Against this authority, the
majority today is the first court in the nation to overturn a preliminary injunction that
prohibited implementation of the Rule.
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1.
The Public Charge Statute provides, in relevant part, as follows: “Any alien who
. . . in the opinion of the Attorney General at the time of application for admission or
adjustment of status[] is likely at any time to become a public charge is inadmissible.” See
8 U.S.C. § 1182(a)(4)(A). 5 It also specifies a non-exhaustive list of factors that
immigration officials are obliged to consider in determining whether an alien is likely to
become a public charge. Those factors include the alien’s (1) age; (2) health; (3) family
status; (4) assets, resources, and financial status; and (5) education and skills. Id.§ 1182(a)(4)(B)(i). And the Public Charge Statute allows those immigration officials to
consider whether the alien has an “affidavit of support.” Id. § 1182(a)(4)(B)(ii); see also
8 U.S.C. § 1183a(a)(1)(A) (providing that an “affidavit of support” is a legally enforceable
contract in which a “sponsor agrees to provide support to maintain the sponsored alien at
an annual income that is not less than 125 percent of the Federal poverty line”).
Although the Public Charge Statute does not explicitly define — and has never
defined — the term “public charge,” that circumstance does not give the term limitless
meaning. After all, the Supreme Court has instructed the inferior courts to survey the full
statutory landscape when seeking to discern Congress’s intention regarding a given
provision. See Chevron, 467 U.S. at 843 n.9. I now undertake that task.
5
In 2002, Congress transferred the power to make inadmissibility determinations
from the Attorney General to the Secretary of Homeland Security. See 8 U.S.C. § 1103(a).
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a.
Congress first established a public charge provision in 1882. 6 Although the 1882
statute did not define the term “public charge,” the text and history of the statute shed light
on the meaning of the term. To that end, the 1882 statute allowed the authorities to examine
vessels arriving in the United States and to prohibit from landing “any convict, lunatic,
idiot, or any person unable to take care of himself or herself without becoming a public
charge.” See Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214, 214 (1882). On its face, the
1882 statute thus excluded from our country those noncitizen immigrants who would
consume a significant amount of governmental resources — that is, noncitizen immigrants
with a condition or status that rendered them unable to care for themselves or those subject
to government confinement. As detailed below, that construction is confirmed by
contemporary dictionary definitions, other statutory provisions, legislative history, and
judicial decisions.
To begin, Webster’s 1828 American Dictionary of the English Language provides
two relevant definitions of the term “charge” — both of which indicate that the term
described someone dependent on, or under the primary care of, another. Those definitions
are: (1) “That which is enjoined, committed, entrusted or delivered to another, implying
care, custody, oversight, or duty to be performed by the person entrusted”; and (2) “The
6
The panel majority insists that a review of the statutory history should begin in
1952, the year Congress enacted the first iteration of the INA. But when Congress created
the public charge provision in that legislation, it did not write on a clean slate. By 1952,
the term “public charge” had already amassed seventy years’ worth of meaning.
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person or thing committed to anothers [sic] custody, care or management; a trust.” See
Charge, Webster’s Dictionary (1828 online ed.), http://webstersdictionary1828
.com/Dictionary/charge (last visited June 30, 2020).
Importantly, Webster’s 1828 dictionary provides the most contextually appropriate
definition of “charge” — that is, a person being the charge of someone or something (as
opposed to, for example, an individual who merely imposes a charge upon another).
Moreover, Webster’s 1828 dictionary is the gold standard, as that publication contained
“approximately 70,000 entries and definitions that were models of clarity and conciseness.”
See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress:
The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227, 238 (1999)
(internal quotation marks omitted); see also Gregory E. Maggs, A Concise Guide to Using
Dictionaries from the Founding Era to Determine the Original Meaning of the
Constitution, 82 Geo. Wash. L. Rev. 358, 389 (2014) (explaining that over time “the quality
of [Webster’s 1828 dictionary] became appreciated” and that the “Supreme Court cites this
dictionary often as evidence of the original meaning of the Constitution”).
The overall structure of the 1882 statute also indicates that the public charge
provision was meant to exclude from the United States only those unable to care for
themselves without significant government assistance, not simply those in need of some
public aid. To that end, the statute provided for the collection of “a duty of fifty cents” for
each noncitizen immigrant who arrived at a United States port. See Act of Aug. 3, 1882,
ch. 376, § 1, 22 Stat. at 214. Once collected, that duty was to be paid “into the United
States Treasury, and . . . used, [inter alia,] . . . for the care of immigrants arriving in the
83
United States, for the relief of such as are in distress.” Id. The statute also authorized the
Secretary of the Treasury to contract with state and local officials “to provide for the
support and relief of such immigrants [arriving at United States ports] as may fall into
distress or need public aid.” Id. § 2, 22 Stat. at 214. Accordingly, the prospect of needing
some public aid did not — standing alone — render an arriving immigrant an inadmissible
public charge.
Relevant legislative history further confirms that a noncitizen immigrant could not
be declared a public charge predicated solely on his acceptance of any quantum of public
aid. For example, in an 1882 debate in the House of Representatives, New York
Congressman John Van Voorhis, one of the architects of the 1882 statute, warned of a
perceived and troubling trend in immigration. See Anne Fleming, The Public Interest in
the Private Law of the Poor, 14 Harv. L. & Pol’y Rev. 159, 169 (2019). According to Van
Voorhis, the decisions of other countries to send “[t]housands of paupers, idiots, lunatics,
criminals, and accused persons [to the United States] . . . for the sole purpose of shifting
onto this country the expense of supporting them” posed a grave danger. See 13 Cong.
Rec. 5088, 5108 (June 19, 1882). But even as Van Voorhis warned of the perils inherent
in admitting such individuals into the country, he explained — in advocating for the
creation of the previously mentioned immigrant fund — that the United States has
historically provided support to arriving immigrants. More specifically, Van Voorhis said
that arriving immigrants “in distress . . . [will be] furnished with the needed aid . . . [and]
provided for in a manner suitable to their several cases . . . [because it] is not the design of
[the 1882 statute] to check immigration, but to continue the beneficent supervision
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[thereof].” Id. Van Voorhis’s statements thus explain that Congress intended the statute
to exclude from the United States those subject to confinement or unable to care for
themselves without significant dependence on the government, while simultaneously
ensuring that arriving poor immigrants received any needed assistance.
Finally, judicial decisions from the late 1800s corroborate the aforementioned
meaning of “public charge.” For example, in an 1884 decision, the Supreme Court
recognized that the 1882 statute — particularly the provision creating the immigrant fund
— was meant to help poor immigrants upon their arrival to the United States. See Edye v.
Robertson, 112 U.S. 580, 590-91 (1884) (“That the purpose of [the statute and those like
it] is humane, is highly beneficial to the poor and helpless immigrant, and is essential to
the protection of the people in whose midst they are deposited by the steam-ships, is beyond
dispute.”).
In short, the text, structure, legislative history, and judicial interpretations of the
1882 statute reveal that Congress — when it first used the term “public charge” — did not
intend to label as a “public charge” any alien in need of some public aid. If it had, the
statute would have been internally inconsistent, as numerous sources reveal that its
provisions were meant to aid poor and helpless arriving immigrants — a category of
persons highly likely to need some public aid. Rather, the term “public charge” was
reserved for those unable to care for themselves without significant government assistance.
b.
As the years passed, Congress amended the public charge provision numerous
times. For example, in 1891, Congress altered the methodology to be used in making
85
public charge determinations by adding the phrase “likely to become” before the term
“public charge.” In so doing, Congress empowered immigration officials to undertake a
prospective examination to determine whether an arriving immigrant could become a
public charge in the future. The 1891 amendments did not, however, alter the meaning of
the term “public charge.” See United States v. Lipkis, 56 F. 427, 428 (S.D.N.Y. 1893)
(ruling that a woman had become a public charge because “she became insane, and was
sent to the public insane asylum of the city . . . where only poor persons unable to pay for
treatment are received, and she was there attended to for a considerable period at the
expense of the municipality”). The court in Lipkis also explained that an immigrant who
arrives with “little ready money” should not be declared likely to become a public charge.
Id.Other judicial decisions from the late 1800s likewise confirm that, as a general
matter, the term “public charge” did not refer to those who merely accepted some public
aid. See Twp. of Cicero v. Falconberry, 42 N.E. 42, 44 (Ind. App. 1895) (“The mere fact
that a person may occasionally obtain assistance from the [local government] does not
necessarily make such person a pauper or a public charge.”); Yeatman v. King, 51 N.W.
721, 723 (N.D. 1892) (observing that a person can be kept “from becoming a public charge
by affording [him] temporary relief”).
In 1903, 1907, and 1910, Congress made additional changes to the public charge
provision. As with the amendments in the late 1800s, none of the changes in the first
decade of the 1900s altered the meaning of the term “public charge.” The public charge
provision thus continued to exclude from this country a narrow class of aliens who would
86
likely be unable to care for themselves without the government. Indeed, in 1916, only one
percent of all arriving aliens were excluded on public charge grounds. See Br. of Legal
Historians as Amicus Curiae 11-12.
In 1915, the Supreme Court assessed the 1910 version of the public charge provision
in its decision in Gegiow v. Uhl, 239 U.S. 3 (1915). But Gegiow is not particularly helpful
in the quest to discern the meaning of “public charge,” as the Court evaluated only a narrow
question: Whether an alien could be declared likely to become a public charge because
“the labor market in the city of his immediate destination [was] overstocked.” Id. at 9-10.
And although the Court answered that question in the negative, Congress amended the
public charge provision in 1917 to supersede Gegiow. See S. Rep. No. 352, at 5 (1916);
see also An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in,
the United States, ch. 29, § 3, 39 Stat. 874, 875-76 (1917).
The Supreme Court’s Gegiow decision and the congressional amendments that
followed did not, however, alter the meaning of the statutory term “public charge.” Indeed,
several contemporary judicial decisions confirm as much. See Ex parte Mitchell, 256 F.
229, 230 (N.D.N.Y. 1919); see also Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir.
1922) (explaining that the post-Gegiow congressional amendments “d[id] not change the
meaning that should be given [the term ‘public charge’]” and that the alien before the court
was not likely to become a public charge because no evidence existed showing any “mental
or physical disability or any fact tending to show that the burden of supporting the [alien]
is likely to be cast upon the public”). Additionally, Judge Learned Hand, writing for the
Second Circuit, explained that after the 1917 amendments, the public charge provision both
87
overlapped “other provisions; e.g., paupers, vagrants, and the like” and covered cases
“where the occasion leads to the conclusion that the alien will become destitute, though
generally capable of standing on his own feet.” See United States ex rel. Iorio v. Day, 34
F.2d 920, 922 (2d Cir. 1929). Meanwhile, the Fifth Circuit explained that even after the
post-Gegiow amendments, the public charge provision yet applied only to those with “a
condition of dependence on the public for support.” See Coykendall v. Skrmetta, 22 F.2d
120, 121 (5th Cir. 1927).
Despite the consistency of the foregoing judicial decisions, my colleagues in the
panel majority identify early decisions that they see as demonstrating the lack of an express
articulation of a “primarily dependent” meaning for the term “public charge.” See ante 40-
43. Read in toto, however, those decisions demonstrate that the term “public charge” has
always described an alien that is significantly dependent on the government. See, e.g.,
Skrmetta v. Coykendall, 16 F.2d 783, 784 (N.D. Ga. 1926) (“I agree rather with the idea
that Congress had in mind those who from infirmity, great age, or small age, want of
property, shiftless habits, profligacy, or other things, were apparently such persons as
would not maintain themselves in society by the ordinary means, and would thereby
become a public charge.”); see also Dunn v. Bryan, 299 P. 253, 257 (Utah 1931)
(explaining that the term “public charge” has a “well-defined meaning,” including a person
whom “it may be necessary to support at public expense by reason of poverty, insanity and
poverty, disease and poverty, idiocy and poverty” (internal quotation marks omitted)).
88
c.
Moving into the mid-20th century, the term “public charge” continued to describe
those significantly dependent on the government. The several sources described below
demonstrate that the term’s meaning remained unchanged.
• A 1948 decision of the Board of Immigration Appeals (the “BIA”)
explained that an alien could not be deemed a public charge based
solely on the receipt of generally available government benefits. See
Matter of B-, 3 I. & N. Dec. 323, 324-25 (BIA 1948). In so ruling, the
BIA emphasized that the “fact that the State or the municipality pays
for the services accepted by the alien is not, then, by itself, the test of
whether the alien has become a public charge.” Id. at 325. 7
• In 1952, when Congress first enacted the INA, it included a public
charge provision similar to the one still in use today. A 1950 report
from the Senate Judiciary Committee reveals that Congress, in
passing the INA, did not desire to precisely delineate the
circumstances to be considered by officials conducting a “likely to
become a public charge” inquiry. See S. Rep. No. 81-1515, at 349
(1950) (stating that there should be “no attempt to define” the phrase
“likely to become a public charge” in the statute because “the
elements constituting likelihood of becoming a public charge are
varied”). Of course, Congress’s decision in that respect did not alter
the baseline meaning of the term “public charge.”
• In 1962, the Attorney General issued an opinion confirming that the
term “public charge” continued to describe those with some level of
significant dependence on the government. See Matter of Martinez-
Lopez, 10 I. & N. Dec. 409, 421 (Op. Att’y Gen. 1964) (explaining
that, in order to declare a person a public charge, “[s]ome specific
circumstance, such as mental or physical disability, advanced age, or
other fact reasonably tending to show that the burden of supporting
the alien is likely to be cast on the public, must be present” and that a
7
Matter of B- is relevant to this appeal only insofar as it illuminates the BIA’s view
regarding the definition of the term “public charge.” That is because the BIA later clarified
that the test set forth in Matter of B- applied to deportations on public charge grounds and
not inadmissibility determinations like those covered by the DHS Rule. See Matter of
Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974).
89
“healthy person in the prime of life cannot ordinarily be considered
likely to become a public charge” (emphasis added)).
• In 1974, the BIA reiterated its longstanding view that a public charge
is an alien with significant dependence on the government. See, e.g.,
Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (ruling that the
“fact that an alien has been on welfare does not, by itself, establish
that he or she is likely to become a public charge”); Matter of
Harutunian, 14 I. & N. Dec. 583, 586 (BIA 1974) (observing that in
Matter of B-, the “words ‘public charge’ had their ordinary meaning,
that is to say, a money charge upon or an expense to the public for
support and care, the alien being destitute” (emphasis added)); id. at
589 (“Everything in the statutes, the legislative comments and the
decisions points to one conclusion, that Congress intends that an
applicant for a visa be excluded who is without sufficient funds to
support himself, who has no one under any obligation to support him
and who, being older, has an increasing chance of becoming
dependent, disabled and sick.”); id. (suggesting that although the
receipt of “individualized public support to the needy” could render
someone a public charge, acceptance of “essentially supplementary
benefits, directed to the general welfare of the public as a whole,”
should not).
In short, although the public charge provision underwent several alterations in the
mid-20th century, the meaning of the term “public charge” remained unchanged. Indeed,
decision after decision — both from the BIA and the Attorney General — reiterated that
which had been apparent since the term’s initial use: An alien must be significantly
dependent on the government, as opposed to a mere recipient of some public aid, to be
considered a public charge.
d.
Arriving at the end of the 20th century, none of the various amendments to the INA
during that period reveal a congressional desire to alter the established meaning of the term
“public charge.” In 1990, Congress passed a new immigration act containing a public
90
charge provision identical to the one in the 1952 INA. See Immigration Act of 1990, Pub.
L. No. 101-649, tit. VI, § 601(a)(4), 104 Stat. 4978, 5072 (1990). Although Congress did
not alter the language of the public charge provision, it did remove several of the
enumerated classes of inadmissible persons, i.e., paupers, vagrants, and professional
beggars. In so doing, Congress intended that the public charge provision would exclude
those previously enumerated classes of inadmissible aliens. See 136 Cong. Rec. 36797,
36844 (Oct. 27, 1990).
Six years later, Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, which, inter alia, amended the INA to include the Public
Charge Statute at issue in these proceedings. See Omnibus Consolidated Appropriations
Act, Pub. L. No. 104-208, tit. V, § 531, 110 Stat. 3009, 3009-674 (1996). Simultaneous
with its passage of the 1996 amendments to the INA, Congress enacted the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, which limited the ability
of aliens living in the United States to access certain public benefits. See Pub. L. No. 104-
193, 110 Stat. 2105 (1996) (codified at 8 U.S.C. § 1601 et seq.) (the “Welfare Reform
Act”).
Although neither the Public Charge Statute nor the Welfare Reform Act altered the
meaning of the term “public charge,” Congress included a policy statement at the outset of
the Welfare Reform Act explaining that “[s]elf-sufficiency has been a basic principle of
United States immigration law since this country’s earliest immigration statutes.” See 8
U.S.C. § 1601(1). And Congress expressed its desire that “aliens within the Nation’s
borders not depend on public resources to meet their needs” and that the “availability of
91
public benefits not constitute an incentive for immigration to the United States.” Id.§ 1601(2)(A)-(B). Despite the contrary insistence of the panel majority, the Welfare
Reform Act has limited relevance to the term “public charge.” To be sure, the Welfare
Reform Act conveys that Congress aimed to curtail the widespread use of public benefits
by aliens. But the Welfare Reform Act accomplishes that goal by limiting the public
benefits for which aliens are eligible, not by redefining “public charge.”
Simply put, nothing in the 1990 Immigration Act, the Public Charge Statute, the
other 1996 amendments to the INA, or the Welfare Reform Act changed the longstanding
meaning of the term “public charge.” Accordingly, “public charge,” as used today in the
Public Charge Statute, continues to mean an alien significantly dependent on the
government.
e.
Finally, recent administrative rulemaking proceedings clearly demonstrate that the
term “public charge” has always meant an alien with significant dependence on the
government. For instance, in 1999, the Immigration and Naturalization Service (the
“INS”), then an agency of the Department of Justice, published a proposed regulation
entitled “Inadmissibility and Deportability on Public Charge Grounds.” See 64 Fed. Reg.
28,676 (May 26, 1999) (the “1999 Proposed Rule”). Confusion following the passage of
the Welfare Reform Act necessitated the 1999 Proposed Rule, as some aliens had declined
to accept public benefits for fear that they would be declared public charges.
The 1999 Proposed Rule defined the term “public charge” as, inter alia, “an alien
. . . who is likely to become . . . primarily dependent on the Government for subsistence,
92
as demonstrated by either the receipt of public cash assistance for income maintenance or
institutionalization for long-term care at Government expense.” See 64 Fed. Reg. at 28,677
(internal quotation marks omitted). The INS settled on the foregoing definition by relying
on “the plain meaning of the word ‘charge,’ the historical context of public dependency
when the public charge immigration provisions were first enacted more than a century ago,
and . . . [the] factual situations presented in the public charge case law.” Id. In addition to
defining the term “public charge,” the 1999 Proposed Rule also emphasized that the plain
meaning of the term suggests “a complete, or nearly complete, dependence on the
Government rather than the mere receipt of some lesser level of financial support.” Id.
(emphasis added).
Regarding the types of public benefits that could render an alien a public charge, the
1999 Proposed Rule explained that it has “never been [INS] policy that the receipt of any
public service or benefit must be considered for public charge purposes.” See 64 Fed. Reg.
at 28,678. Indeed, the 1999 Proposed Rule explicitly stated that because “[n]on-cash
benefits, such as [supplemental nutrition assistance programs], are by their nature
supplemental and frequently support the general welfare,” acceptance thereof should not
be considered in public charge analyses. Id. Consequently, the 1999 Proposed Rule related
that only the acceptance of “public cash assistance” or “institutionaliz[ation] for long-term
care” should be factored into the public charge analysis. Id. Finally, the 1999 Proposed
Rule adopted longstanding principles derived from the public charge precedents, such as
the requirement that immigration officials employ a “totality of the circumstances”
approach in “making a prospective public charge decision.” Id. at 28,679.
93
Although the 1999 Proposed Rule provided new details regarding public charge
determinations, nothing therein purported to change the established meaning of the term
“public charge.” On the contrary, the 1999 Proposed Rule actually sought to codify the
definition derived from the term’s historical usage. See 64 Fed. Reg. at 28,677. Ultimately,
however, the 1999 Proposed Rule was not finalized.
Notwithstanding the failure to finalize the 1999 Proposed Rule, its definition of
“public charge” was nevertheless implemented by the INS via a document entitled “Field
Guidance on Deportability and Inadmissibility on Public Charge Grounds.” See 64 Fed.
Reg. 28,689 (Mar. 26, 1999) (the “1999 Field Guidance”). The INS issued the 1999 Field
Guidance two months before the 1999 Proposed Rule as a stopgap measure to clarify
confusion surrounding the interplay between the Public Charge Statute and the Welfare
Reform Act pending finalization of the 1999 Proposed Rule. To that end, the 1999 Field
Guidance immediately adopted the definition of the term “public charge” contained in the
1999 Proposed Rule and barred immigration officials making public charge determinations
from placing “any weight on the receipt of non-cash public benefits (other than
institutionalization) or the receipt of cash benefits for purposes other than for income
maintenance.” Id. at 28,689. Importantly, like the 1999 Proposed Rule, the 1999 Field
Guidance explicitly contemplated that its definition of “public charge” would not
significantly alter public charge determinations. Id. at 28,692 (explaining that the 1999
Field Guidance’s definition should not “substantially change the number of aliens who will
be found . . . inadmissible as public charges”). After its adoption, the 1999 Field Guidance
controlled public charge determinations until the promulgation of the DHS Rule in 2018.
94
***
In sum, this review of the history of the term “public charge” reveals a simple truth
that the panel majority and DHS fail to acknowledge: since its first use in 1882, the term
has consistently described aliens who are significantly dependent on the government. The
text, structure, legislative history, and judicial interpretations of the various public charge
provisions permit no other conclusion. It is against this consistent history that the DHS
Rule must be evaluated.
2.
Turning now to the DHS Rule, DHS promulgated it on August 14, 2019, pursuant
to its rulemaking authority under the INA and the APA. See 84 Fed. Reg. 41,501 (Aug.
14, 2019). Put simply, the Rule extraordinarily expands the definition of “public charge,”
resulting in a definition of staggering breadth.
The DHS Rule’s expansive sweep can be gleaned from its definitions alone. To that
end, the Rule says that a “public charge” is “an alien who receives one or more public
benefits . . . for more than 12 months in the aggregate within any 36-month period (such
that, for instance, receipt of two benefits in one month counts as two months).” See 84
Fed. Reg. at 41,501. And the term “public benefit,” as used in the Rule, includes:
(1) “[a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than
tax credits)”; (2) “Supplemental Nutrition Assistance Program (SNAP)”; (3) “Section 8
Housing Assistance”; (4) “Section 8 Project-Based Rental Assistance”; (5) certain
Medicaid services; and (6) “Public Housing under section 9 of the U.S. Housing Act of
1937.” Id. Moreover, the Rule provides specific guidance regarding how immigration
95
officials should conduct public charge assessments. To be sure, the Rule purportedly
retains the totality-of-the-circumstances evaluation that has long applied to public charge
determinations, but that evaluation is now singularly focused on whether an alien is “more
likely than not at any time in the future to receive one or more public benefits . . . for more
than 12 months in the aggregate within any 36-month period.” Id. at 41,502. 8 Owing to
the confluence of the Rule’s various provisions, an alien can now be deemed a public
charge predicated on the potential acceptance of a small amount of government benefits
for a short period of time.
3.
Having catalogued the history of the term “public charge” and the specifics of the
DHS Rule, the question now is whether the Rule’s definition of “public charge”
contravenes the Public Charge Statute. Although I bypass Chevron’s first step predicated
on the assumption that some ambiguity inheres in the meaning of “public charge,” as used
in the Public Charge Statute, it is clear that the Rule’s definition of “public charge” is
unreasonable and thus fails at Chevron’s second step.
8
The DHS Rule instructs immigration officials, in assessing the totality of the
circumstances, to consider a panoply of factors. Some of those factors are of questionable
relevance. For example, the Rule instructs officials to consider “[w]hether the alien is
proficient in English or proficient in other languages in addition to English.” See 84 Fed.
Reg. at 41,504. English proficiency had never been considered as part of the public charge
inquiry, and the Rule does not indicate why English proficiency is now relevant. See Br.
of U.S. House of Representatives as Amicus Curiae 20-21.
96
a.
As explained, the question at step two of the Chevron inquiry is whether the DHS
Rule’s definition of “public charge” is reasonable. See Nat’l Elec. Mfrs. Ass’n v. U.S. Dep’t
of Energy, 654 F.3d 496, 505 (4th Cir. 2011). That is because a court is obliged, at
Chevron’s second step, to “afford ‘controlling weight’ to [a] . . . reasonable interpretation
even where [the court] would have, if writing on a clean slate, adopted a different
interpretation.” Id. (quoting Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998)); see also
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005).
Importantly, however, the deference afforded to an agency’s reasonable
interpretation of a statute at Chevron’s second step is not an open invitation to the agency
to conjure up any interpretation. Indeed, even statutory terms lacking an unambiguous
meaning at Chevron’s first step can have definitional limits beyond which the agency may
not venture for purposes of Chevron’s second step. See Cuomo v. Clearing House Ass’n,
557 U.S. 519, 525 (2009) (explaining that “the presence of some uncertainty does not
expand Chevron deference to cover virtually any interpretation of” the statute at issue).
The Supreme Court explained that principle in its Cuomo decision, clarifying that when
there is “necessarily some ambiguity as to the meaning of [a] statutory term,” an executive
branch agency “can give authoritative meaning to the statute within the bounds of that
uncertainty.” Id. (emphasis added). And to discern the scope of the ambiguity beyond
which the agency may not venture, a court is obliged to consider, inter alia, “[e]vidence
from the time of the statute’s enactment,” “[court] cases,” and “normal principles of
construction.” Id. Put another way, “even through the clouded lens of history,” typical
97
tools of statutory construction allow courts to “discern the outer limits of [a statutory]
term.” Id. 9
b.
Bearing in mind the principles espoused in Cuomo, the statutory context and history
of the term “public charge” reveal that the term has an outer limit beyond which DHS may
not traverse. As Chief Judge Wood of the Seventh Circuit recently put it: “There is a floor
inherent in the words ‘public charge,’ backed up by the weight of history.” See Cook Cty.,
962 F.3d at 229. That floor requires a public charge finding to be predicated on some sort
of significant dependence upon public benefits — even if the level of dependence falls
somewhere below “primary dependence.” To say otherwise simply ignores the statutory
context and extensive history of the term “public charge.”
But the panel majority, apparently content to brush aside statutory structure and
history, opts to use the most broad and generic definition of the word “charge.” In my
9
The panel majority maintains that the Public Charge Statute’s use of the phrase “in
the opinion of” confers some extraordinary discretion upon DHS regarding its ability to
define the term “public charge.” See 8 U.S.C. § 1182(a)(4)(A) (“Any alien who . . . in the
opinion of the Attorney General at the time of application for admission or adjustment of
status, is likely at any time to become a public charge is inadmissible.” (emphasis added));
see also ante 31. The location of the “in the opinion of” phrase demonstrates, however,
that it affords discretion in determining — based on the totality of the circumstances —
whether a given alien is “likely at any time to become a public charge.” See Matter of
Harutunian, 14 I. & N. Dec. at 588 (observing that “Congress inserted the words ‘in the
opinion of’ . . . with the manifest intention of putting borderline adverse determinations
beyond the reach of judicial review”); see also S. Rep. No. 81-1515, at 349 (explaining
that because there is “no definition of the term ‘likely to become a public charge’ in the
statutes, its meaning has been left to the interpretation of the administrative officials and
the courts”). The phrase clearly does not expand DHS’s authority to define the term “public
charge.”
98
colleagues’ view, any alien who is likely to produce any “money charges upon the public
for support and care” can be a public charge. See ante 34. The majority sees the word
“charge” in the Public Charge Statute as akin to the type of charge people routinely
encounter — a charge for a meal at a restaurant or for an airline ticket. The statutory
context and the weight of history, however, plainly counsel that this cannot be the proper
definition. Rather, the word “charge,” as used in the Public Charge Statute, defines a
person dependent on someone or something else — that is, a person who is the charge of
another.
Several indicators confirm that this latter meaning is the proper one. For one thing,
since its earliest appearance in the immigration statutes, the term “public charge” has
always accompanied other terms defining classes of persons — such as, “idiots, insane
persons, [and] paupers.” See An Act in Amendment to the Various Acts Relative to
Immigration, Ch. 551, § 1, 26 Stat. 1084, 1084 (1891). That circumstance strongly
suggests that the word “charge,” as used in the Public Charge Statute, should not be given
its broadest possible meaning, but rather should be read as describing a type of person —
one who is the charge of another. See S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547
U.S. 370, 378 (2006) (explaining that, in statutory interpretation, “a word is known by the
company it keeps” (internal quotation marks omitted)).
Additionally, as mentioned, the majority’s construction of the Public Charge Statute
renders any alien who imposes a charge upon the public a “public charge.” But the Public
Charge Statute does not sweep so broadly. It does not exclude from the country any alien
likely to accept a public benefit and thereby impose a charge on the public; rather, it
99
excludes aliens who are likely to become “a public charge.” If Congress wanted to exclude
the former category, it could have done so. Indeed, other INA provisions — for example,
the affidavit-of-support provision — reveal that Congress knows how to assign
immigration consequences to those who accept any public benefit. See 8 U.S.C.
§ 1183a(b)(1)(A) (stating that sponsored alien must repay government for acceptance of
“any means-tested public benefit” and specifying consequences for failure to repay). But
Congress did not exclude via the Public Charge Statute aliens who receive any public
benefit; it excluded those likely to become “a public charge.” And that choice carries
meaning. Cf. Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005) (explaining
that courts do not “lightly assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply” and that the “reluctance is even greater
when Congress has shown elsewhere in the same statute that it knows how to make such a
requirement manifest”).
At bottom, the statutory structure, when paired with the history of the term “public
charge,” confirms that the term does not extend to cover any alien who may impose a
money charge upon the government, but rather reaches only those who are significantly
dependent on the government in some manner. Accordingly, the majority’s contention that
DHS will struggle to discern the floor inherent in the term is wholly unfounded. As
heretofore explained, the floor is a conspicuous one that DHS simply chose to flout. 10
10
My colleagues criticize this dissent for concluding that the term “public charge”
has a definitional outer limit, but even they tacitly acknowledge that “public charge” has a
100
c.
Having identified the outer limits of the term “public charge” — that is, a significant
level of dependence on the government — the remaining question is whether the DHS
Rule’s definition of the term falls within those outer limits. And it plainly does not.
Accordingly, the Rule’s boundless definition of “public charge” is unreasonable and fails
at Chevron’s second step.
Initially, a cursory examination of the DHS Rule’s definition of “public charge”
makes clear that the Rule has ventured beyond the outer limits of the statutory meaning of
the term. Historically, an alien could be deemed a public charge only if that person was,
in some way, significantly dependent on the government. No longer. Under the Rule, any
alien who receives 12 months’ worth of benefits in a 36-month period is a public charge.
And those benefits stack, meaning that the acceptance of multiple discrete benefits in a
single month equals multiple months’ worth of benefits. The Rule does not stop there, as
it mandates that immigration officials consider the acceptance of supplemental public
benefits that never before played a role in public charge determinations — like SNAP
assistance, Section 8 Housing assistance, and Medicaid services. Additionally, the Rule
goes even a step further by placing no minimum requirement on the amount of benefits
accepted. The various features of the Rule thus work in concert to render any alien who
receives a de minimis amount of public benefits for a de minimis period of time a “public
definitional floor. See ante 52-53 (reserving for another day question of precise floor of
term).
101
charge.” See Cook Cty., 962 F.3d at 229. But an alien who receives such a miniscule
amount of benefits cannot reasonably be declared significantly dependent on the
government. Id. at 232 (explaining that the benefits covered in the Rule “are largely
supplemental and not intended to be, or relied upon as, a primary resource for recipients”
and that “[m]any recipients could get by without them, though as a result they would face
greater health, nutrition, and housing insecurity”). 11
Additionally, the consequences of the DHS Rule’s redefinition of “public charge”
underscore its unreasonableness. See Cuomo, 557 U.S. at 529 (“The consequences of the
regulation also cast doubt upon its validity.”). To capture the scope of the change caused
by the Rule, consider the following real-world example regarding SNAP benefits. In order
to qualify for the SNAP program, an individual must make less than $16,248 per year. 12
Individuals who qualified for the program in 2019 — approximately 35.7 million people
per month — received an average monthly benefit of $129.83. 13 Accordingly, under the
11
The majority insists that it is fanciful to conclude that an alien who is likely to
receive a small amount of supplemental public benefits for a short period of time will be
declared likely to become a public charge under the DHS Rule. See ante 52-53. But that
conclusion flows directly from the plain text of the Rule. See 84 Fed. Reg. at 41,501. In
reality, it is my friends who have resorted to speculation in predicting that DHS will not —
for reasons left unexplained — apply the Rule according to its plain text.
12
For additional context, according to calculations from the Center for Poverty
Research at the University of California, Davis, an individual in the United States working
full-time for minimum wage earns $15,080 per year. See https://poverty.ucdavis.edu/faq/
what-are-annual-earnings-full-time-minimum-wage-worker (last visited June 30, 2020).
13
The data regarding SNAP benefit usage was obtained from the website of the
Food and Nutrition Service, an agency of the Department of Agriculture. The full data set
can be found at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNAP
summary-6.pdf (last visited June 30, 2020).
102
Rule, any alien applying for admission or adjustment of status who is more likely than not,
at any point in his lifetime, to receive a monthly benefit of $129.83 for 12 out of 36 months
is excludable from the country on public charge grounds. And if that alien happens to also
receive housing and Medicaid assistance, in any amount, it would only take that person a
mere four months to become a public charge. Such a person, however, cannot reasonably
be declared significantly dependent on the government.
The DHS Rule’s unreasonableness is further compounded by the fact that the Rule’s
definition of “public charge” is cut from whole cloth. DHS and the panel majority assure
us, however, that the Rule’s definition is actually based on data demonstrating that “a
substantial portion of individuals who receive public benefits do so for fewer than 12-
months and that those who receive such benefits over a longer period are more likely to
become ‘long-term recipients’ of welfare.” See ante 15-16 (citation omitted); see also 84
Fed. Reg. 41,292, 41,359-41,362 (Aug. 14, 2019). But the Rule does not define a public
charge as an individual who receives public benefits for 12 months or more; the Rule
defines a public charge as any alien who receives 12 months’ worth of public benefits —
in the aggregate — in a 36-month period. Accordingly, under the Rule’s definition, an
alien who receives a miniscule amount of three supplementary public benefits for four
months is a public charge. So, data indicating that the likelihood of long-term benefit usage
increases for those persons who receive public benefits for 12 months or more are quite
beside the point. If anything, the mismatch between the data DHS relied on to craft the
Rule and the provisions of the Rule itself only underscore the unreasonableness of the
Rule’s “public charge” definition. See Cook Cty., 962 F.3d at 229-33 (declaring Rule likely
103
arbitrary and capricious because of serious mismatch between Rule and both data DHS
relied upon in crafting Rule and text of Public Charge Statute); see also Judulang v. Holder,
565 U.S. 42, 52 n.7 (2011) (explaining overlap between arbitrary and capricious evaluation
and inquiry at Chevron’s second step).
The majority also seeks to justify the DHS Rule by way of the Welfare Reform Act,
which restricts the public benefits that aliens may receive. In the majority’s view, the
Rule’s definition of “public charge” must be reasonable because it harmonizes with the
policy statement at the outset of the Welfare Reform Act, which expresses Congress’s
desire that aliens be self-sufficient. My good friends are mistaken. To begin, a policy
statement is always of limited persuasiveness. Cf. Comcast Corp. v. F.C.C., 600 F.3d 642,
654 (D.C. Cir. 2010) (“Policy statements are just that — statements of policy.”). And that
persuasive power further fizzles when considering that this policy statement accompanies
the Welfare Reform Act, which is not at issue in these proceedings and says nothing about
the Public Charge Statute or the term “public charge.” See Cook Cty., 962 F.3d at 228.
Additionally, to the extent that Congress expressed its concern about the self-sufficiency
of aliens in the Welfare Reform Act, it addressed that concern therein by restricting the
benefits for which aliens are eligible. Id. Accordingly, relying on the Welfare Reform
104
Act’s policy statement to justify a boundless construction of the term “public charge,” or
to countenance the Rule’s cavernous definition thereof, is inappropriate. 14
Finally, the unreasonableness of the DHS Rule is plainly apparent when considering
the overall statutory context, as the Rule “creates serious tensions, if not outright
inconsistencies, within the statutory scheme.” See Cook Cty., 962 F.3d at 228.
Specifically, the Rule allows DHS to consider an alien’s acceptance of benefits that he is
eligible to receive under both the Welfare Reform Act, see 8 U.S.C. §§ 1611, 1621, and
the Farm Security and Rural Investment Act of 2002, see Pub. L. No. 107-171, 116 Stat.
134 (2002). Accordingly, under the Rule, an alien can be deemed likely to become a public
14
In its recent Cook County decision, the Seventh Circuit explained the proper
interplay between the Welfare Reform Act, the Public Charge Statute, and the DHS Rule.
As Chief Judge Wood related:
The INA does not call for total self-sufficiency at every moment; it uses the
words “public charge.” DHS sees “lack of complete self-sufficiency” and
“public charge” as synonyms: in its view, receipt of any public benefit,
particularly one related to core needs such as health care, housing, and
nutrition, shows that a person is not self-sufficient. This is an absolutist sense
of self-sufficiency that no person in a modern society could satisfy; everyone
relies on nonmonetary governmental programs, such as food safety, police
protection, and emergency services. DHS does not offer any justification for
its extreme view, which has no basis in the text or history of the INA. As we
explained earlier, since the first federal immigration law in 1882, Congress
has assumed that immigrants (like others) might face economic insecurity at
some point. Instead of penalizing immigrants by denying them entry or the
right to adjust status, Congress built into the law accommodations for that
reality.
See Cook Cty., 962 F.3d at 232 (citation omitted).
105
charge because that alien might accept public benefits that Congress explicitly authorized
him to receive. To put it mildly, that result verges on the absurd. See Cook Cty., 962 F.3d
at 228 (explaining that the Rule sets a “trap for the unwary by penalizing people for
accepting benefits Congress made available to them” (internal quotation marks omitted)).
And it provides strong evidence that the Rule’s definition of “public charge” is
unreasonable. Cf. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)
(explaining that “interpretations of a statute which would produce absurd results are to be
avoided if alternative interpretations consistent with the legislative purpose are
available”). 15
At bottom, the Public Charge Statute does not exclude from the country any alien
who is likely to need public assistance during his time in the country, it excludes those
“likely at any time to become a public charge.” See 8 U.S.C. § 1182(a)(4)(A). And the
history of the term “public charge” reveals that the term means an alien who is somehow
15
The majority attempts to minimize the tension between the DHS Rule and the
federal immigration laws by accusing this dissent of “pick[ing] and scratch[ing] at the
Rule” to unearth tangential inconsistencies. See ante 50. But discerning that the Rule is
in outright conflict with both the Public Charge Statute and the Welfare Reform Act does
not require any mental gymnastics. Indeed, a careful, straightforward examination of the
statutory context and history of the term “public charge” — an examination free from the
taint of any grand pronouncements about a preferred policy outcome — lays bare the
irreconcilable conflict between the Rule and our immigration statutes. And that conflict
dooms the Rule. See Dixon v. United States, 381 U.S. 68, 74 (1965) (“The power of an
administrative officer or board to administer a federal statute and to prescribe rules and
regulations to that end is not the power to make law . . . but the power to adopt regulations
to carry into effect the will of Congress as expressed by the statute. A regulation which
does not do this, but operates to create a rule out of harmony with the statute, is a mere
nullity.” (internal quotations marks omitted)).
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significantly dependent on the government. See Cook Cty., 962 F.3d at 229. If Congress
wanted to expand the exclusion by declaring inadmissible not just those likely to be
significantly dependent on the government, but also those who might receive any quantum
of public assistance, it could have done so. But DHS cannot unreasonably interpret a
statutory term so that it may do by executive fiat what Congress has declined to do. The
DHS Rule is a textbook example of executive branch overreach that is forbidden in our
constitutional system. Cf. ante 70 (“It is beyond the power of any one person to set himself
up as the arbiter of law in these entire United States.”).
In the face of the extensive history accompanying the term “public charge,” to
conclude that the DHS Rule’s definition of “public charge” is reasonable makes a mockery
of the term “public charge,” “does violence to the English language and the statutory
context,” and disrespects the choice — made consistently by Congress over the last century
and a quarter — to retain the term in our immigration laws. See Cook Cty., 962 F.3d at
229. For those reasons, the Rule’s “public charge” definition ventures far beyond any
ambiguity inherent in the meaning of the term “public charge,” as used in the Public Charge
Statute, and thus fails at Chevron’s second step. In light of the foregoing, the plaintiffs are
likely to succeed on the merits of their claim that the Rule is unlawful, and the majority is
wrong to conclude otherwise. 16
16
During the pendency of this appeal, the Supreme Court — on emergency request
of the government — stayed injunctions entered by district courts in the Northern District
of Illinois and the Southern District of New York that prohibited implementation of the
DHS Rule. See Wolf v. Cook Cty., Ill., 140 S. Ct. 681 (Feb. 21, 2020); Dep’t of Homeland
Sec. v. New York, 140 S. Ct. 599 (Jan. 27, 2020). Although my colleagues in the majority
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C.
1.
Having concluded that the plaintiffs are likely to succeed on the merits of their claim
against the DHS Rule, the next assessment is whether the other preliminary injunction
factors weigh in favor of preliminarily enjoining implementation of the Rule. Those factors
are whether (1) CASA is “likely to suffer irreparable harm in the absence of preliminary
relief”; (2) “the balance of equities tips in [CASA’s] favor”; and (3) “an injunction is in the
believe that the Court’s stay orders put a thumb on the scale in favor of DHS, see ante 5-
7, I do not agree. In my view, assigning such significance to perfunctory stay orders is
problematic. See Wolf, 140 S. Ct. at 683-84 (Sotomayor, J., dissenting) (observing that
decisions rendered pursuant to emergency stay requests force the Court “to consider
important statutory and constitutional questions that have not been ventilated fully in the
lower courts, on abbreviated timetables and without oral argument”). That is particularly
so because, as Justice Sotomayor recently explained, such stays — which were once
reserved for the rarest of cases — have become commonplace. Id. at 683 (explaining that
the government, “[c]laiming one emergency after another,” has “come to treat the
exceptional mechanism of stay relief as a new normal” and has “recently sought stays in
an unprecedented number of cases” (internal quotation marks and alteration omitted)). If
the Court’s decision to grant a stay could be understood to effectively hand victory to the
government regarding the propriety of a preliminary injunction, there would be little need
for an intermediate appellate court to even consider the merits of an appeal in which the
Court has granted a stay. See Cook Cty., 962 F.3d at 234 (“The stay . . . preserves the status
quo while . . . case[s] . . . percolate up from courts around the country. There would be no
point in the merits stage if an issuance of a stay must be understood as a sub silentio
disposition of the underlying dispute.”). Indeed, even the Court’s orders staying the
aforementioned preliminary injunctions contemplate full hearings on the merits by the
courts of appeals. See Wolf, 140 S. Ct. at 681; New York, 140 S. Ct. at 599. Accordingly,
the Court’s stay orders do not control our evaluation of the merits of the preliminary
injunction at issue in these proceedings.
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public interest.” See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 17
Despite the panel majority’s rulings to the contrary, each of those factors weighs in favor
of preliminarily enjoining implementation of the Rule.
a.
Beginning with whether CASA will face irreparable harm in the absence of a
preliminary injunction, we are obliged to consider whether “irreparable injury is likely in
the absence of an injunction.” See Winter, 555 U.S. at 22; see also Di Biase v. SPX Corp.,
872 F.3d 224, 230 (4th Cir. 2017) (explaining that “more than just a ‘possibility’ of
irreparable harm” is necessary). To carry its burden, CASA must make a “clear showing
that it will suffer harm that is neither remote nor speculative, but actual and imminent.”
See Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes
Powell, 915 F.3d 197, 216 (4th Cir. 2019) (internal quotation marks omitted).
Additionally, the harm must be truly irreparable, meaning that it must be incapable of being
“fully rectified by the final judgment after trial.” Id. (internal quotation marks omitted).
In my view, the district court did not abuse its discretion in determining that CASA
is likely to suffer irreparable harm if the DHS Rule is not enjoined. CASA claims that,
because of the Rule, it must divert resources away from its core legislative advocacy
mission and toward efforts to counsel its members about the effects of the Rule. And
according to CASA, those advocacy efforts cannot be adequately undertaken at a different
17
In assessing the remaining preliminary injunction factors, my focus, like that of
the panel majority and the district court, is on CASA (as opposed to the individual
plaintiffs).
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time because they are dependent on political will and the legislative cycle. Such allegations
demonstrate irreparable harm. See Mountain Valley Pipeline, LLC, 915 F.3d at 217;
Mountain Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship, 918 F.3d 353, 366
(4th Cir. 2019); see also League of Women Voters of U.S. v. Newby, 838 F.3d 1, 9 (D.C.
Cir. 2016) (explaining that because decisions of the defendant “unquestionably ma[d]e it
more difficult for the [plaintiff organization] to accomplish [its] primary mission,” the
organization suffered injury sufficient for purposes of both “standing and irreparable
harm”).
b.
The remaining pieces of the preliminary injunction puzzle to consider are whether
the balance of equities and the public interest weigh in favor of granting relief. Because
the government is a party in these proceedings, those two factors can be considered
together. See Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016);
see also Nken v. Holder, 556 U.S. 418, 435 (2009).
In the panel majority’s view, DHS’s interest in “not burdening the public fisc by
admitting public charges” is more important than the harm CASA will face from the
impairment of its organizational mission and the diversion of its resources. See ante 55-
56. I disagree. Absent a preliminary injunction, CASA’s organizational mission will
undoubtedly continue to be frustrated and its resources diverted. Moreover, the public
interest will be harmed if aliens living in the United States disenroll from public benefits
for which they are eligible due to fear of immigration consequences stemming from the
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DHS Rule. On the other hand, DHS’s purported interests — when weighed against the
significant harms CASA faces — fail to measure up.
At the end of the day, DHS contends that it has an overriding interest in immediately
implementing its preferred policy and that such an interest tips the balance of equities and
the public interest in its favor. Although the majority dutifully accepts that contention, I
do not. If immediate implementation of a preferred policy were sufficient to tilt the balance
of equities and public interest in favor of DHS, every plaintiff seeking a preliminary
injunction against governmental action would be on a fool’s errand. Accordingly, the harm
CASA will suffer absent a preliminary injunction far outweighs any interest DHS may have
in immediately implementing its preferred policy. The majority errs in concluding
otherwise.
2.
Finally, the panel majority launches a broadside against the propriety of nationwide
preliminary injunctions. In the context of its other rulings, however, the majority’s attack
is dicta. And in any event, my friends are wrong in their criticism of the scope of the
district court’s injunction. To be sure, a nationwide preliminary injunction is a strong
remedy. But district courts are entitled to wide discretion in fashioning injunctive relief.
See South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018). And here, the
district court’s decision to preliminarily enjoin implementation of the DHS Rule
nationwide is a perfectly appropriate exercise of that considerable discretion. See Califano
v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the
extent of the violation established, not by the geographical extent of the plaintiff class.”);
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see also Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015) (affirming nationwide
injunction barring implementation of immigration policy and emphasizing that
immigration policy should be uniform throughout the country).
***
In sum, the Public Charge Statute excludes aliens from this country and prohibits
aliens already living in the country from adjusting their immigration statuses if they are
likely to become public charges. Although the Public Charge Statute does not define the
term “public charge,” the usual tools of statutory construction reveal that “public charge”
has always described an alien likely to be significantly dependent on the government. The
DHS Rule, however, alters that definition, declaring that any alien likely to receive a de
minimis amount of supplemental public benefits for a de minimis period of time is
excludable as a public charge. Under any reasonable construction, a person receiving such
a miniscule amount of benefits cannot be said to be significantly dependent on the
government. Because the Rule fixes a boundless definition of “public charge,” it lands far
afield of any reasonable interpretation of the Public Charge Statute. Accordingly, the
plaintiffs are likely to succeed on the merits of their challenge to the lawfulness of the Rule.
And because the remaining preliminary injunction factors weigh in favor of granting relief,
the district court did not abuse its discretion in preliminarily enjoining implementation of
the Rule, even on a nationwide basis.
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III.
Pursuant to the foregoing, I would affirm the preliminary injunction entered by the
district court. I therefore respectfully dissent.
113