Amicus Curiae Brief — Department of Homeland Security, et al., Applicants v. New York, et al.

No. 19A785

In the Supreme Court of the United States

U.S. DEP’T OF HOMELAND SECURITY, ET. AL.,

Petitioners,

v.

STATE OF NEW YORK, ET AL.,

Respondents.

U.S. DEP’T OF HOMELAND SECURITY, ET. AL.,

Petitioners,

v.

MAKE THE ROAD NEW YORK, ET AL.,

Respondents.

On Motion to Lift or Modify the Stay

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

IMMIGRATION REFORM LAW INSTITUTE

IN SUPPORT OF FEDERAL PETITIONERS

CHRISTOPHER J. HAJEC

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 202-355-9452

lj@larryjoseph.com

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Movant Immigration Reform Law Institute

(“IRLI”) respectfully seeks leave to file the

accompanying brief as amicus curiae in support of the

application to stay the injunctive relief entered by the

district court in these matters.* The federal government takes no position on IRLI’s motion, and the other

parties have not indicated a position on this motion.

IDENTITY AND INTERESTS OF MOVANT

The Immigration Reform Law Institute (“IRLI”) is

a nonprofit 501(c)(3) public interest law firm

dedicated both to litigating immigration-related cases

in the interests of United States citizens and to

assisting courts in understanding federal immigration

law. IRLI has litigated or filed amicus curiae briefs in

a wide variety of immigration-related cases, including

an amicus brief in the district court proceedings in

this litigation. For more than twenty years the Board

of Immigration Appeals has solicited supplementary

briefing, drafted by IRLI staff, from the Federation for

American Immigration Reform, of which IRLI is a

supporting organization.

REASONS TO GRANT LEAVE TO FILE

By analogy to this Court’s Rule 37.2(b), movant

respectfully seeks leave to file the accompanying

Consistent with FED. R. APP. P. 29(a)(4)(E) and this Court’s

Rule 37.6, counsel for movant and amicus curiae authored this

motion and brief in whole, and no counsel for a party authored

the motion and brief in whole or in part, nor did any person or

entity, other than the movant/amicus and its counsel, make a

monetary contribution to preparation or submission of the

motion and brief.

*

i

amicus curiae brief in support of the federal stay

applicants’ opposition to the stay respondents’ motion

to lift or modify the stay. Movant respectfully submits

that its proffered amicus brief brings several relevant

matters to the Court’s attention, complementing the

federal government’s arguments on the issues that

the application raises:

• Lack of direct parens patriae standing or

direct injury. The state and local respondents

cannot press parens patriae standing against

federal government agencies, and they lack

sufficient injury of their own. See IRLI Amicus Br.

at 4-5.

• The

challenged

rule

complies

with

immigration law. IRLI’s amicus brief analyzes

the evolution of the immigration laws’ publiccharge provisions from the earliest immigration

statutes through the present, an analysis that

undermines the 1999 “field guidance” agency

memorandum on which the respondents and the

district court have relied. See IRLI Amicus Br. at

5-7.

• Irrelevance of 1999 proposed rulemaking.

Because the respondents’ and the district court’s

analyses depend in part on a 1999 notice of

proposed rulemaking that the agency never

finalized, IRLI’s amicus brief addresses the lack of

authority inherent in an aborted rulemaking (i.e.,

a proposed rule that never became final). See IRLI

Amicus Br. at 8 (collecting cases).

• Administrative-law irrelevance of superseded guidance. Because the respondents’ and

the district court’s analysis depends in part on a

ii

1999 guidance memorandum that the challenged

2019 final rule expressly supersedes, IRLI’s

amicus brief addresses the requirements that

courts can and cannot impose on an agency when

it revises prior guidance that was exempt from

notice-and-comment requirements when initially

issued. See IRLI Amicus Br. at 8-9.

• Invoking the National Emergencies Act or

Coronavirus Aid, Relief, and Economic

Security Act petitions the wrong branch of

government. The amicus brief analyzes why the

respondents’ invocation of both the National

Emergencies Act, 50 U.S.C. §§ 1601-1651, and the

Coronavirus Aid, Relief, and Economic Security

Act, Pub. L. No. 116-136, 134 Stat. 281 (2020),

petitions the wrong branch of government: if

respondents seek relief in this emergency, they

must seek it from Congress or the Executive

Branch, not the courts. See IRLI Amicus Br. at 1216.

• This Court should not short-circuit the

Administrative Procedure Act’s process for

petitioning the government to amend a rule.

The amicus brief explains the process in the

Administrative Procedure Act (“APA”) for

respondents to petition to amend a rule and to

seek APA review of any agency’s denial of that

petition or unreasonable delay in responding — a

process that respondents have not followed. See

IRLI Amicus Br. at 16-18.

These issues are all relevant to deciding the stay

application, and movant Immigration Reform Law

Institute respectfully submits that filing the brief will

aid the Court.

iii

Dated: April 20, 2020

Respectfully submitted,

CHRISTOPHER J. HAJEC

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 202-355-9452

lj@larryjoseph.com

Counsel for Movant

iv

TABLE OF CONTENTS

Pages

Motion for Leave to File Brief Amicus Curiae ........... i

Table of Contents ....................................................... v

Table of Authorities.................................................. vii

Interest of Amicus Curiae .......................................... 1

Standard of Review .................................................... 1

Statement of the Case ................................................ 1

Summary of Argument............................................... 2

Argument .................................................................... 4

I. The State and Local Respondents are unlikely

to prevail on the merits, and the question is

not close. ............................................................... 4

A. The State and Local Respondents lack

standing. ........................................................ 4

B. The Rule permissibly construes “public

charge.” .......................................................... 5

C. INS’s 1999 Field Guidance is a nullity

and cannot support a likelihood of the

plaintiffs’ prevailing. ..................................... 8

II. Even assuming that this case prsents a close

question, the State and Local Respondents do not

establish any right to relief. ................................ 9

A. The State and Local Respondents’

disjointed factual allegations do not

establish irreparable harm. ........................ 11

B. Invoking the current Covid-19

emergency does not aid the State and

Local Respondents. ...................................... 12

1. The NEA delegates unreviewable

emergency authority to the President. . 13

v

2. The CARES Act makes permissible

choices to protect our citizens and

LPRs, and those choices are not

reviewable here. .................................... 15

C. The relief requested is inconsistent

with administrative law. ............................. 16

Conclusion ................................................................ 18

vi

TABLE OF AUTHORITIES

Pages

Cases

Alfred L. Snapp & Son v. Puerto Rico,

458 U.S. 592 (1982) ......................................... 4, 11

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ............................................. 17

Chevron, U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) ..................................... 5, 9, 13

Dep’t of Commerce v. New York,

139 S.Ct. 2551 (2019) .......................................... 17

Dep't of Homeland Sec. v. New York,

140 S.Ct. 599 (2020) .............................................. 1

FDIC v. Meyer,

510 U.S. 471 (1994) ............................................... 6

Graddick v. Newman,

453 U.S. 928 (1981) ............................................. 10

Graham v. Richardson,

403 U.S. 365, 376 (1971) ..................................... 16

Heckler v. Lopez,

464 U.S. 879 (1983) ............................................. 10

Hollingsworth v. Perry,

558 U.S. 183 (2010) ................................. 1, 4, 9, 11

In re Int’l Union, United Mine Workers of Am.,

231 F.3d 51 (D.C. Cir. 2000) ............................... 17

INS v. Chadha,

462 U.S. 919 (1983) ............................................. 14

Luther v. Borden,

48 U.S. 1 (1849) ................................................... 13

vii

Matter of Appletree Markets, Inc.,

19 F.3d 969 (5th Cir. 1994) ................................... 8

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ............................................. 10

Nat’l Fed’n of Indep. Business v. Sebelius,

567 U.S. 519 (2012) ............................................. 11

NRDC v. Abraham,

355 F.3d 179 (2d Cir. 2004) .................................. 8

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ............................................... 6

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................. 9

Public Citizen, Inc. v. Shalala,

932 F.Supp. 13 (D.D.C. 1996) ............................... 8

Renne v. Geary,

501 U.S. 312 (1991) ............................................... 4

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ................................................. 4

Sullivan v. Stroop,

496 U.S. 478 (1990) ............................................... 9

Tedori v. United States,

211 F.3d 488 (9th Cir. 2000) ................................. 8

Telecomms. Research & Action Center v. FCC,

750 F.2d 70 (D.C. Cir. 1984) ............................... 17

United States v. Ron Pair Enters.,

489 U.S. 235 (1989) ............................................... 6

Utah Wilderness Alliance v. Dabney,

222 F.3d 819 (10th Cir. 2000) ............................... 8

Va. House of Delegates v. Bethune-Hill,

139 S.Ct. 1945 (2019) ............................................ 5

viii

Vieth v. Jubelirer,

541 U.S. 267 (2004) ............................................. 13

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ................................................... 9

Statutes

U.S. CONST. amend. I, cl. 6....................................... 16

U.S. CONST. art. III............................................... 4, 10

Administrative Procedure Act,

5 U.S.C. §§551-706 ........................... 1-3, 8-9, 16-18

5 U.S.C. § 553(b)(A) .................................................... 8

5 U.S.C. § 553(e) ....................................................... 17

Immigration and Nationality Act,

8 U.S.C. §§ 1101-1537 .................................... 2, 5-9

8 U.S.C. § 1601(1) .................................................... 6-7

8 U.S.C. § 1601(2)(A) .................................................. 6

8 U.S.C. § 1601(5) ....................................................... 6

National Emergencies Act,

50 U.S.C. §§ 1601-1651 .............................. 3, 13-15

50 U.S.C. § 1621(a) ................................................... 14

8 U.S.C. § 1 ............................................................... 14

Act of March 3, 1875, § 5,

18 Stat. 477 ........................................................... 7

Immigration Act of 1882, § 2,

22 Stat. 214 ........................................................... 7

Act of March 3, 1891, § 1,

26 Stat. 1084 ......................................................... 7

Act of March 3, 1903, § 2,

32 Stat. 1213, 1214 ............................................... 7

Act of March 3, 1903, § 26;

32 Stat. 1213, 1220 ............................................... 7

ix

Act of February 20, 1907, § 26,

34 Stat. 898, 907 ................................................... 7

Act of February 5, 1917, § 3,

39 Stat. 874, 875 ................................................... 7

PUB. L. NO. 99-93, § 801,

99 Stat. 405, 448 (1985) ...................................... 14

Coronavirus Aid, Relief, and Economic Security

Act, Pub. L. No. 116-136, § 6428(d)(1), 134

Stat. 281 (2020) .......................................... 3, 15-16

Coronavirus Aid, Relief, and Economic Security

Act, § 6428(d)(1)Pub. L. No. 116-136,

§ 6428(d)(1), 134 Stat. 281 (2020) ............. 3, 15-16

Legislative History

S. Comm. on Gov’t Operations & the Special

Comm. on Nat’l Emergencies and Delegated

Emergency Powers, 94th Cong., 2d Sess., The

National Emergencies Act Source Book:

Legislative History, Texts, and Other

Documents (1976) .......................................... 14-15

120 CONG. REC. 29,975, 29,983 (Aug. 22, 1974) ...... 15

121 CONG. REC. 27,632, 27,636 (Sept. 4, 1975)........ 14

121 CONG. REC. 27,632, 27,645 (Sept. 4, 1975)........ 14

H.R. REP. NO. 99-240, at 86 (1985) (Conf. Rep.) ...... 14

Rules, Regulations and Orders

Inadmissibility and Deportability on Public

Charge Grounds, 64 Fed. Reg. 28,676

(May 26, 1999) ................................................... 2, 8

Field Guidance on Inadmissibility and

Deportability on Public Charge Grounds,

64 Fed. Reg. 28,689 (May 26, 1999) .......... 2, 5, 8-9

x

Inadmissibility on Public Charge Grounds, 84

Fed. Reg. 41,292 (Aug. 14, 2019) ...................... 1, 8

Other Authorities

Public Charge, Black’s Law Dictionary

(3d ed. 1933) .......................................................... 6

Public Charge, Black’s Law Dictionary

(4th ed. 1951)......................................................... 6

Centers for Disease Control & Prevention,

Coronavirus Disease 2019 (COVID-19): Older

Adults .................................................................. 12

Centers for Disease Control & Prevention,

Coronavirus Disease 2019 (COVID-19): People

Who Are at Higher Risk for Severe Illness ........ 12

JAMES R. EDWARDS, JR., PUBLIC CHARGE

DOCTRINE: A FUNDAMENTAL PRINCIPLE OF

AMERICAN IMMIGRATION POLICY (Center for

Immigration Studies 2001) ................................... 7

5 Gordon et al., Immigration Law and Procedure,

§ 63.05[2] (Rel. 164 2018) ..................................... 7

xi

INTEREST OF AMICUS CURIAE

Amicus Curiae Immigration Reform Law Institute

(“IRLI”) respectfully submits that the Circuit

Justice — or the full Court if this matter is referred to

the full Court — should not lift or modify the stay.

STANDARD OF REVIEW

A stay pending the timely filing and ultimate

resolution of a petition for a writ of certiorari is

appropriate when there is “(1) a reasonable probability that four Justices will consider the issue

sufficiently meritorious to grant certiorari; (2) a fair

prospect that a majority of the Court will vote to

reverse the judgment below; and (3) a likelihood that

irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). For

“close cases,” the Court “will balance the equities and

weigh the relative harms to the applicant and to the

respondent.” Id.

STATEMENT OF THE CASE

In the underlying two cases, plaintiffs challenge

under the Administrative Procedure Act, 5 U.S.C.

§§ 551-706 (“APA”), a final rule, Inadmissibility on

Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14,

2019) (hereinafter, the “Rule”), promulgated by the

U.S. Department of Homeland Security (“DHS”). As

relevant here, the plaintiffs in one case are a group of

states and one city (hereinafter, the “State and Local

Respondents”) who now ask this Court to lift or modify

a previously issued stay in favor of DHS. Dep't of

Homeland Sec. v. New York, 140 S.Ct. 599 (2020).

In both underlying cases, the plaintiffs invoke a

guidance document issued by the former Immigration

1

and Naturalization Service (“INS”) on the scope of the

“public charge” grounds for excluding an alien under

the Immigration and Nationality Act, 8 U.S.C.

§§ 1101-1537 (“INA”). Specifically, in 1999, the INS

issued a notice of proposed rulemaking (“NPRM”),

Inadmissibility and Deportability on Public Charge

Grounds, 64 Fed. Reg. 28,676 (May 26, 1999) (the

“1999 NPRM”), and an intra-agency guidance

memorandum as “field guidance.” Field Guidance on

Inadmissibility and Deportability on Public Charge

Grounds, 64 Fed. Reg. 28,689 (May 26, 1999) (the

“1999 Field Guidance”). In their motion, the State and

Local Respondents ask this Court to lift or modify the

stay previously entered to account for a change in the

balance of equities from the Covid-19 pandemic.

SUMMARY OF ARGUMENT

As signaled in describing the standard of review,

the attempt to rebalance the equities would become

relevant only if this were a “close” case, which it is not

(Section I). The State and Local Respondents do not

make any effort to shore up their likelihood of

prevailing, which is fatal to their motion for three

independent reasons. First, they lack parens patriae

standing against DHS and they fail to identify their

own injuries adequately (Section I.A). Second, the

challenged Rule accurately interprets the INA’s

public-charge provisions, so the APA challenge to the

Rule must fail (Section I.B). Third, even if they could

strike the Rule somehow, they cannot resurrect the

1999 Field Guidance that they prefer because it is a

procedural nullity and inconsistent with the INA

(Section I.C).

2

If this Court were inclined to consider the motion,

notwithstanding the lack of a need to balance equities,

the motion still must fail at least three reasons. First,

the facts on which the State and Local Respondents

rely are disjointed and inconsistent both internally

and vis-à-vis facts about the Covid-19 pandemic: they

claim simultaneously to be concerned with essential

workers — whom the law requires to have health

insurance — and unemployed workers, though the

Covid-19 virus primarily affects the elderly and those

with pre-existing medical conditions who are less

likely to work in essential industries (Section II.A).

Second, to the extent that the State and Local

Respondents seek to leverage the Covid-19 pandemic

through the National Emergencies Act, 50 U.S.C. §§

1601-1651 (“NEA”) or the Coronavirus Aid, Relief, and

Economic Security Act, Pub. L. No. 116-136,

§ 6428(d)(1), 134 Stat. 281 (2020) (“CARES Act”), they

petition the wrong branch of government; this Court

has no warrant in either the NEA or the CARES Act

to revisit the relief in this litigation (Section II.B).

Finally, insofar as this is an APA action, the State and

Local Respondents should follow APA procedures for

going outside the administrative record to address

post-promulgation developments by petitioning DHS

to amend the Rule (which the State and Local

Respondents have not done) and waiting for DHS

either to respond or to delay a response, neither of

which has yet happened (Section II.C).

3

ARGUMENT

I. THE STATE AND LOCAL RESPONDENTS

ARE UNLIKELY TO PREVAIL ON THE

MERITS, AND THE QUESTION IS NOT

CLOSE.

The State and Local Respondents’ motion focuses

entirely on the argument that the Covid-19 pandemic

has altered the balance of the equities, and thus

requires altering or halting the stay. For that

argument to work — that is, for the balance of the

equities even to matter — this must be a “close” case,

Hollingsworth, 558 U.S. at 190, which it is not. The

State and Local Respondents do not even attempt to

argue otherwise.

A. The State and Local Respondents lack

standing.

Most harm that the State and Local Respondents

seek to prevent will fall on their residents who are not

citizens or legal permanent residents (“LPRs”). State

and local governments lack standing to assert parens

patriae standing against the Federal Government.

Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592,

610 n.16 (1982). Harms to third parties, then, form no

part of the State and Local Respondents’ standing.

With respect to any harm to the State and Local

Respondents themselves, the factual showing of harm

is inadequate to establish standing. Under Article III,

appellate courts review jurisdictional issues de novo,

Steel Co. v. Citizens for a Better Environment, 523 U.S.

83, 94-95 (1998), and “presume that federal courts

lack jurisdiction unless the contrary appears

affirmatively from the record.” Renne v. Geary, 501

U.S. 312, 316 (1991). When a plaintiff argues for harm

4

that is not obvious, that plaintiff must establish the

nonobvious harm with evidence. Va. House of

Delegates v. Bethune-Hill, 139 S.Ct. 1945, 1955 (2019)

(party asserting federal jurisdiction “bears the burden

of doing more than simply alleging a nonobvious

harm”) (interior quotation marks omitted). For harm

to the State and Local Respondents themselves, the

motion — like their underlying case — provides

merely anecdotal evidence. See Mot. at 19-20. As

statisticians caution, the plural of “anecdote” is not

“data.” For each anecdotal piece of evidence, there

may be other offsetting anecdotes (for example, aliens

who shelter in place to avoid both Covid-19 and

immigration consequences) so that the net impact on

the State and Local Respondents is nonexistent.

In any event, standing that accrues after a

plaintiff files suit is insufficient to establish standing

to sue. Plaintiffs that lack standing will not prevail on

the merits and, so, do not present the “close” case that

would be needed for the State and Local Respondents’

new evidence on the balance of the equities to matter.

B. The Rule permissibly construes “public

charge.”

The respondents and the district judge all seek to

revert to the 1999 Field Guidance, but the Rule

permissibly interprets the INA. As argued in Section

I.C, infra, the 1999 Field Guidance impermissibly

interprets the INA, but DHS need not have adopted

the only possible INA interpretation. DHS needs only

to have adopted a permissible one, Chevron, U.S.A.,

Inc. v. NRDC, 467 U.S. 837, 842-43 (1984), as it has

done.

5

The district court erred by using congressional

inaction to depart from the statute’s plain meaning:

“It is impossible to assert with any degree of

assurance that congressional failure to act represents

affirmative congressional approval[.]” Patterson v.

McLean Credit Union, 491 U.S. 164, 175 n.1 (1989)

(interior quotation marks omitted), abrogated in part

on other grounds, PUB. L. NO. 102-166, §§ 101-102,

105 Stat. 1071, 1072-74 (1991). Instead, the “plain

meaning of legislation should be conclusive, except in

the rare cases [in which] the literal application of a

statute will produce a result demonstrably at odds

with the intentions of its drafters.” United States v.

Ron Pair Enters., 489 U.S. 235, 242 (1989) (internal

quotation marks omitted). The plain meaning here

supports DHS.

While dictionary definitions should suffice, FDIC

v. Meyer, 510 U.S. 471, 476 (1994) (absent a statutory

definition, “we construe a statutory term in

accordance with its ordinary or natural meaning”);

Public Charge, Black’s Law Dictionary (3d ed. 1933)

(“one who produces a money charge upon, or an

expense to, the public for support and care”); accord

Black’s Law Dictionary (4th ed. 1951), the Rule is

consistent with other INA provisions. See 8 U.S.C. §

1601(5) (“a compelling government interest to enact

new rules … to assure that aliens be self-reliant”); 8

U.S.C. § 1601(2)(A) (“aliens … [should] not depend on

public resources to meet their needs”). “Selfsufficiency has been a basic principle of United States

immigration law since this country’s earliest

6

immigration statutes.” 8 U.S.C. § 1601(1).2 “Strong

sentiments opposing the immigration of paupers

developed in this country long before the advent of

federal immigration controls.” 5 Gordon et al.,

Immigration Law and Procedure, § 63.05[2] (Rel. 164

2018). Indeed, those sentiments predated the

founding of the Nation: “American colonists were

especially reluctant to extend a welcome to

impoverished foreigners[.] Many colonies protected

themselves against public charges through such

measures as mandatory reporting of ship passengers,

immigrant screening and exclusion upon arrival of

designated ‘undesirables,’ and requiring bonds for

potential public charges.” JAMES R. EDWARDS, JR.,

PUBLIC CHARGE DOCTRINE: A FUNDAMENTAL

PRINCIPLE OF AMERICAN IMMIGRATION POLICY 2

(Center for Immigration Studies 2001) (citing E. P.

HUTCHINSON, LEGISLATIVE HISTORY OF AMERICAN

IMMIGRATION POLICY, 1798-1965 (Univ. of Penn.

Press, 1981)). Nothing about the challenged Rule is

inconsistent with the INA.

See Act of March 3, 1875, § 5, 18 Stat. 477 (excluding

convicts and sex workers, thought likely to become dependent on

the public coffers for support); Immigration Act of 1882, § 2, 22

Stat. 214 (barring admission of “any person unable to take care

of himself or herself without becoming a public charge.”); Act of

March 3, 1891, § 1, 26 Stat. 1084 (excluding “paupers”); Act of

March 3, 1903, § 2, 32 Stat. 1213, 1214 (excluding “professional

beggars”); Act of February 5, 1917, § 3, 39 Stat. 874, 875

(excluding “vagrants”); Act of March 3, 1903, § 26; 32 Stat. 1213,

1220 (authorizing bonds that promise, in consideration for

admission, that an alien will not become a public charge); Act of

February 20, 1907, § 26, 34 Stat. 898, 907.

2

7

C. INS’s 1999 Field Guidance is a nullity

and cannot support a likelihood of the

plaintiffs’ prevailing.

Neither INS’s aborted 1999 NPRM nor the

interim 1999 Field Guidance support the State and

Local Respondents’ merits claims. Indeed, both are

nullities, and both were inconsistent with the INA

when promulgated.

First, an NPRM that never matures into a final

rule is a nullity: “any notion of ascribing weight to

anything that has remained in the ‘proposed

regulation’ limbo for a like period [of 13 years] is

totally unpersuasive.” Tedori v. United States, 211

F.3d 488, 492 n.13 (9th Cir. 2000); NRDC v. Abraham,

355 F.3d 179, 201 (2d Cir. 2004); Matter of Appletree

Markets, Inc., 19 F.3d 969, 973 (5th Cir. 1994); Public

Citizen, Inc. v. Shalala, 932 F.Supp. 13, 18 n.6 (D.D.C.

1996) (citing Public Citizen Health Research Group v.

Commissioner, F.D.A., 740 F.2d 21, 32-33 (D.C. Cir.

1984)); Utah Wilderness Alliance v. Dabney, 222 F.3d

819, 829 (10th Cir. 2000). INS’s 1999 NPRM does not

support relief here.

Second, once shorn of the 1999 NPRM of which it

was a part, the 1999 Field Guidance was a mere

“interpretative rule[], general statement[] of policy, or

rule[] of agency organization, procedure, or practice”

that the APA exempts from notice-and-comment

requirements. See 5 U.S.C. § 553(b)(A). The

challenged rulemaking nullified INS’s 1999 Field

Guidance: “This final rule supersedes the 1999

Interim Field Guidance on Deportability and

Inadmissibility on Public Charge Grounds.” 84 Fed.

Reg. at 41,292. Since federal courts lack authority

8

under the APA to require any more of an agency when

it changes prior APA-exempt guidance, Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 101-02 (2015), the

1999 Field Guidance has no ongoing administrativelaw relevance here.

Third, to the extent that the 1999 Field Guidance

remained extant, it obviously violates the INA and so

has no claim to deference under the first step of the

deference analysis to employ “traditional tools of

statutory construction” to determine congressional

intent, on which courts are “the final authority.”

Chevron, 467 U.S. at 843 n.9 The INS’s 1999 Field

Guidance violated the plain meaning of the INA, see

Section I.A, supra, by attempting to insert a new

meaning into a longstanding statutory term of art:

“But where a phrase in a statute appears to have

become a term of art … any attempt to break down the

term into its constituent words is not apt to illuminate

its meaning.” Sullivan v. Stroop, 496 U.S. 478, 483

(1990). So, while the 1999 Field Guidance no longer

exists, it would not aid the State and Local

Respondents’ case if it did.

II. EVEN ASSUMING THIS CASE PRSENTS A

CLOSE QUESTION, THE STATE AND

LOCAL RESPONDENTS DO NOT

ESTABLISH ANY RIGHT TO RELIEF.

The prior section recapitulates why the plaintiffs

here cannot prevail on the merits and, so, are not

entitled to a preliminary injunction, Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), and do

not present the “close” case required for a court to

balance the equities when considering a stay

application. Hollingsworth, 558 U.S. at 190. In this

9

section, amicus IRLI explains why the State and Local

Respondents’ motion would fail to warrant relief, even

if this were a “close” case.

For stays, the question of irreparable injury

requires a two-part “showing of a threat of irreparable

injury to interests that [the applicant] properly

represents.” Graddick v. Newman, 453 U.S. 928, 933

(1981) (Powell, J., for the Court3). “The first, embraced

by the concept of ‘standing,’ looks to the status of the

party to redress the injury of which he complains.” Id.

“The second aspect of the inquiry involves the nature

and severity of the actual or threatened harm alleged

by the applicant.” Id. The State and Local Respondents ’ do not meet either prong of that test.

As for standing, the State and Local Respondents

do not have standing, see Section I.A, supra, and their

allegations in the motion do not establish standing,

much less irreparable harm. See Section II.A, infra.

With respect to irreparable harm, the lack of standing

“negates giving controlling consideration to the

irreparable harm” that the State and Local

Respondents claim. Heckler v. Lopez, 464 U.S. 879,

886 (1983) (Brennan, J., dissenting from the denial of

motion to vacate the Circuit Justice’s stay). Indeed, a

lack of standing necessarily implies a lack of

irreparable harm because the latter sets a higher bar

for injury than Article III. Monsanto Co. v. Geertson

Seed Farms, 561 U.S. 139, 149-50, 162 (2010). In sum,

the State and Local Respondents could not establish

Although Graddick began as an application to a circuit

justice, the application was referred to the full Court. Graddick,

453 U.S. at 929.

3

10

that the balance of equities tips in their favor, even if

that were relevant under Hollingsworth.

A. The State and Local Respondents’

disjointed factual allegations do not

establish irreparable harm.

Most of the harms that the State and Local

Respondents identify befall third-party residents, and

the State and Local Respondents lack parens patriae

standing to press these harms against the

Government. Alfred L. Snapp, 458 U.S. at 610 n.16.

But even for the nonobvious harms to the State and

Local Respondents themselves, the evidence is

insufficient.

The motion’s evidence is not only disjointed and

self-contradicting but also conflicts with judicially

noticeable facts and laws:

• The motion claims that affected residents work in

“essential industries [such as] providing healthcare, preparing and delivering food to residences,

cleaning hospitals and public spaces, and caring

for the sick or aging,” Mot. at 21, but somehow

lack healthcare, notwithstanding the “employer

mandate” in the Affordable Care Act. See Nat’l

Fed’n of Indep. Business v. Sebelius, 567 U.S. 519,

539 (2012) (“[m]any individuals will receive the

required coverage through their employer”).

• The motion seeks to protect the unemployed as

well as essential workers, without acknowledging

the disconnect between those two sets of injuries.

• The motion focuses on essential workers and the

unemployed without acknowledging that overall

mortality from Covid-19 falls disproportionately

on the elderly and those with pre-existing medical

11

problems — such as those with chronic lung

disease, serious heart conditions, severe obesity,

or chronic kidney disease undergoing dialysis —

that make them unlikely to be workers, much less

workers in essential industries. See CDC,

Coronavirus Disease 2019 (COVID-19): Older

Adults (“8 out of 10 deaths reported in the U.S.

have been in adults 65 years old and older”); 4

CDC, Coronavirus Disease 2019 (COVID-19):

People Who Are at Higher Risk for Severe Illness.5

• The motion provides data on “noncitizens” who

work in essential industries, Mot. at 21, but fails

to break that data down into relevant subsets of

noncitizens who might be affected by the Rule.

While some of these flaws in the motion’s evidentiary

basis might be correctable — for example, the number

of noncitizens actually affected by the Rule in relevant

industries — a movant bears the burden to establish

standing and irreparable harm. The State and Local

Respondents have not met that burden.

B. Invoking the current Covid-19

emergency does not aid the State and

Local Respondents.

The motion attempts to leverage the Covid-19

emergency for relief, but the State and Local

Respondents petition the wrong branch of

government: “policy arguments are more properly

Available

at

https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/older-adults.html (last visited April

20, 2020).

4

Available

at

https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html

(last

visited April 20, 2020).

5

12

addressed to legislators or administrators, not to

judges.” . Chevron, 467 U.S. at 864. Congress holds the

power here, except where Congress has delegated its

emergency powers to the President.

1. The NEA delegates unreviewable

emergency authority to the

President.

By invoking the President’s Covid-19 emergency,

the State and Local Respondents ask this Court to

delve into an area that the NEA leaves to Congress

and the President, under “a textually demonstrable

constitutional commitment of the issue to a coordinate

political department” and “a lack of judicially

discoverable and manageable standards for resolving

[the case].” Vieth v. Jubelirer, 541 U.S. 267, 277-78

(2004) (interior quotation marks omitted). As the only

unelected branch of government, courts are the least

fit to answer such questions: “making judges supreme

arbiters in political controversies … [would] dethrone

[the people] and [make them] lose one of their …

invaluable birthrights.” Luther v. Borden, 48 U.S. 1,

52-53 (1849). Whatever sympathy the motion elicits,

the relief requested belongs to the political branches

to consider.

The NEA provides the President with unfettered

discretion to declare an emergency, subject only to the

power of Congress to terminate an emergency:

As a firm believer in a strong Presidency and

Executive flexibility, I could not support this

bill if it would impair any of the rightful

constitutional powers of the President. [The

bill] will have no impact on the flexibility to

13

declare a national emergency and to quickly

respond if the necessity arises.

121 CONG. REC. 27,632, 27,636 (Sept. 4, 1975) (Rep.

Hutchinson), reprinted in S. Comm. on Gov’t

Operations & the Special Comm. on Nat’l

Emergencies and Delegated Emergency Powers, 94th

Cong., 2d Sess., The National Emergencies Act Source

Book: Legislative History, Texts, and Other

Documents, at 252-53 (1976) (hereinafter, “NEA

Source Book”); 121 CONG. REC. 27,632, 27,645 (Sept.

4, 1975) (Red. Drinan), reprinted in NEA Source Book,

at 279 (“H.R. 3884 [has] no standard really,

whatsoever, when and why the President can

proclaim a national emergency”). Consistent with the

statutory text, 50 U.S.C. § 1621(a), a President has

full discretion to declare an emergency in the first

instance.

As enacted, the NEA relied on congressional

oversight,6 121 CONG. REC. 27,632, 27,636 (Sept. 4,

1975) (Rep. Moorhead), reprinted in NEA Source

Book, at 254 (“Congress would assume the major role

of reviewing and overseeing the conduct of the

In INS v. Chadha, 462 U.S. 919, 946 (1983), this Court

rejected the one-house veto provisions of former 8 U.S.C. §

1254(c)(2) (1982) for failing to meet the constitutional

requirements of bicameralism and presentment. Following

Chadha, Congress amended the NEA to replace concurrent

resolutions with joint resolutions, PUB. L. NO. 99-93, § 801, 99

Stat. 405, 448 (1985); H.R. REP. NO. 99-240, at 86 (1985) (Conf.

Rep.) (“Senate amendment amends the National Emergencies

Act to stipulate that a national emergency may be terminated by

joint resolution of the Congress,” and “Conference Substitute is

identical to the Senate amendment”).

6

14

Executive branch in a national emergency situation”),

not on judicial review:

Unlike inherent Presidential powers which

can be reviewed by the Supreme Court,

emergency powers are specific legal

delegations of authority to a President. The

Supreme Court has generally given deference

to such delegations of authority. The laws are

viewed

as

persuasive

evidence

of

Congressional intent that the President

should be permitted special latitude during

crises. Thus, unless the Congress itself imposes

controls, emergency powers shall remain

largely unchecked.

120 CONG. REC. 29,975, 29,983 (Aug. 22, 1974) (Sen.

Pearson), reprinted in NEA Source Book, at 84-85

(emphasis added). Amicus IRLI respectfully submits

that this Court should not entertain arguments on the

President’s priorities for dealing with emergencies. It

falls exclusively to Congress and legislative processes

to terminate or amend an emergency declared by the

President.

2. The CARES Act makes permissible

choices to protect our citizens and

LPRs, and those choices are not

reviewable here.

The State and Local Respondents implicitly complain that noncitizens need certain forms of welfare

because the CARES Act does not provide emergency

assistance to “nonresident alien[s].” See PUB. L. NO.

116-136, § 6428(d)(1), 134 Stat. at ___ (pagination not

available). While noncitizens theoretically could sue a

relevant official over the CARES Act’s exclusion of

15

nonresident aliens, two obvious barriers come to

mind. First, that would be a separate lawsuit. Second,

the exclusive federal power over admitting aliens and

setting the terms of their residence might overcome a

disparate-treatment claim. Graham v. Richardson,

403 U.S. 365, 376, 380 (1971) (successful challenge to

states’ excluding resident aliens from welfare benefits

as inconsistent with equal protection and exclusive

federal power regarding aliens). While the State and

Local Respondents and the nonresident aliens whom

they purport to represent are free to petition Congress

with their concerns, U.S. CONST. amend. I, cl. 6, this

Court has no warrant to review the CARES Act here.

C. The relief requested is inconsistent with

administrative law.

The State and Local Respondents note —

impatiently — that DHS has not responded to a

March 6, 2020, letter from the States’ attorneys

general sent to request a temporary halt to the Rule.

Mot. at 12.7 On March 13, 2020, DHS issued guidance

that provides relief with respect to Covid-19 and the

public-charge rule, id. at 12-13, but the States’

attorneys general wrote again on March 19, 2020, to

advise DHS that the relief did not address all the

harms that their first letter had raised. Id. at 13-14 &

n.27; App. 48-51. Insofar as this is largely an APA

suit, the State and Local Respondents should follow

the APA process, and that process does not support

relief here.

Agencies within the City of New York sent a similar letter

on March 18, 2020. Id.; App. 226-29.

7

16

The APA expressly allows the public to send such

letters to petition an agency to amend, promulgate, or

repeal a rule. 5 U.S.C. § 553(e). Agency denials are

normally reviewable, Armstrong v. Exceptional Child

Ctr., Inc., 575 U.S. 320, 336 (2015) (Breyer, J.,

concurring), as is action unreasonably delayed.

Telecomms. Research & Action Center v. FCC, 750

F.2d 70, 76 (D.C. Cir. 1984) (“TRAC”). Since DHS has

not responded directly yet, the proper response by the

petitioning officials would be to challenge the inaction

as unreasonable delay, but that approach holds a

danger. If DHS were to issue a notice of proposed

rulemaking, that could moot this litigation. In re Int’l

Union, United Mine Workers of Am., 231 F.3d 51, 54

(D.C. Cir. 2000). In any event, DHS has not even come

close to the sort of unreasonable delay that would give

the State and Local Respondents a window to compel

DHS to issue an NPRM, and the Covid-19 emergency

would be over before DHS finalized any new rule.

By contrast, if the State and Local Respondents

ignore the process that the APA provides in § 553(e),

they are effectively seeking relief based on non-record

evidence that occurred after the filing of the underlying complaint. Recalling that at issue here is the

APA’s waiver of sovereign immunity, it warrants

emphasis that APA review ordinarily follows the

administrative record before the agency. Dep’t of

Commerce v. New York, 139 S.Ct. 2551, 2573-74

(2019). The State and Local Respondents have not

made any showing that would fit within an exception

to that rule. Id. This Court could reject the motion on

that basis alone.

17

In sum, the APA provides a process for resolving

the State and Local Respondents’ concerns, and they

have initiated that process by petitioning DHS for

relief. Neither the APA nor the APA’s waiver of the

Government’s sovereign immunity allow this Court or

the State and Local Respondents to short-circuit that

process via this motion.

CONCLUSION

This Court should deny the State and Local

Respondents’ motion.

Dated: April 20, 2020

Respectfully submitted,

CHRISTOPHER J. HAJEC

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 202-355-9452

lj@larryjoseph.com

Counsel for Amicus

Curiae

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