The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court has stayed a nationwide injunction which disallowed the public charge rule from going into effect anywhere in the United States.

The Supreme Court building.Sarah Silbiger / Reuters For now, the public charge rule will remain in effect across the country (except in Illinois) until the 2nd Circuit, and the Supreme Court, if it decides to get involved, rules in this case.

Since 1882, when Congress enacted the first comprehensive immigration statute, it prohibited the admission to the United States of “any person unable to take care of himself or herself without becoming a public charge.” The most recent definition of “public charge,” adopted in 1999, included immigrants who demonstrated a need for “institutionalization for long-term care at government expense” or “receipt of public cash assistance for income maintenance.”

In 2019 the Trump administration adopted a new definition of public charge that considers not only cash benefits, but also certain non-cash benefits including the Supplemental Nutrition Assistance Program (SNAP), Section 8 housing, Section 8 project-based rental assistance, Medicaid (with certain exceptions) and Section 8 public housing.

Some states and local governments and other entities sued the federal government over this rule. The results were mixed. Two federal district courts in the 9th Circuit ruled against the federal government, but the 9th Circuit stayed those orders determining the government was likely to succeed on the merits. A district court in Maryland likewise ruled against the federal government, but the 4th Circuit overturned its decision. All of the district court rulings described above would have made the public charge rule unenforceable in some or all of the United States.

In Department of Homeland Security v. New York a federal district court in New York “enjoined the government from applying the new definition to anyone, without regard to geography /or participation in this or any other lawsuit.” The 2nd Circuit declined to stay that injunction, and the federal government appealed to the Supreme Court, which has now issued a stay effective everywhere but Illinois. A federal district court in Illinois has enjoined enforcement of the rule—only within the state of Illinois.

The federal government argues it should win because the “text and structure [of federal immigration law] make clear that receipt of public benefits, including non-cash benefits that are not intended to serve as primary means of support, is an important consideration in determining whether an alien is inadmissible on public-charge grounds.” 

The challengers respond that the rule is a “stark departure from a more-than-century-long consensus that has limited the term to individuals who are primarily dependent on the government for long-term subsistence.”

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elise Kagan would have denied the stay.

Justice Neal Gorsuch wrote a concurring opinion criticizing the use of “universal injunctions,” which apply to persons who are not parties to a lawsuit. For example, the injunction at issue in this case, which was brought by New York State and a number of non-profits, disallowed the federal government from enforcing the public charge rule against anyone in any state. As of late, lower courts have regularly issued such injunctions against the federal government.

NCSL opposed the public charge rule in comments submitted to the Department of Homeland Security. For more information on public charge, see NCSL’s resource.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

Actions: E-mail | Permalink |

Subscribe to the NCSL Blog

Click on the RSS feed at left to add the NCSL Blog to your favorite RSS reader. 

About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.