The NCSL Blog


By Lisa Soronen

In Arizona v. San Francisco City and County of California the Supreme Court will decide whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend the rule.

The U.S. Department of Homeland Security seal hangs on a fence at the agency's headquarters in Washington, on Dec. 11, 2014.Andrew Harrer / Bloomberg via Getty Images fileOne of the grounds for inadmissibility into the United States per the Immigration and Nationality Act (INA) is if a person is likely to become a “public charge.” This term isn’t defined in the INA.

Using the notice and comment rulemaking process, in 2019 the U.S. Citizenship and Immigration Services (USCIS) expanded the definition of “public charge” from cash assistance programs such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) to include programs such as Medicaid, Section 8 housing vouchers and the Supplemental Nutrition Assistance Program (SNAP).

San Francisco and many others  jurisdictions sued the Trump administration over the new definition in federal courts across the country. In February 2021 the Supreme Court agreed to hear a case from the Second Circuit to decide whether the definition was unlawful. Shortly thereafter, the Biden administration decided not to defend the rule. It sought and received dismissal of all the challenges to the rule, including the challenge in the Supreme Court.

In this case, the Ninth Circuit had affirmed district court preliminary injunctions concluding the 2019 public charge rule was likely contrary to law. In January 2021 the U.S. asked the Supreme Court to review the Ninth Circuit decision. On March 9, 2021, before the court acted on the petition, the United States and San Francisco jointly asked the Supreme Court to dismiss the Ninth Circuit petition, which it did. The Biden administration then issued a final rule (without notice and comment) rescinding the Trump administration’s definition.

The next day Arizona and 12 other states, which had not participated in the case previously, asked if they could intervene in the Ninth Circuit case so they could petition the Supreme Court to review the Ninth Circuit decision.

The Ninth Circuit denied Arizona’s motion to intervene without issuing an opinion. A dissenting judge would have granted it. Applying the Federal Rules of Civil Procedure governing intervening, Judge Lawrence Van Dyke concluded Arizona met all the requirements which include timeliness, having a “significant protectable interest” related to the litigation that may be impaired or impeded depending how the litigation is resolved, and whether existing parties will adequately represent the applicant’s interests.

In asking the Supreme Court not to take this case, the U.S. argued a state should not be able to intervene where it “seeks only to assert legal arguments in support of a claim or defense belonging to an existing party to the case.”

According to the U.S., the “defense for which intervention is sought” [in this case] . . .  is . . . the federal government’s legal defense of its exercise of authority under the INA, which [Arizona and the other states] have no independent right to assert. “[A] litigant that does not assert its own legal claims or defenses has no entitlement to intervene as a party merely because it disagrees with the manner in which the existing parties have asserted their respective claims or defenses.”

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

Additional resource

NCSL resoiurce on immigration and public charge

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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.