Amicus Curiae Brief — Arizona, et al., Petitioners v. City and County of San Francisco, California, et al.

No. 20-1775

In the Supreme Court of the United States

__________

ARIZONA, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA,

ET AL.,

__________

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

__________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

__________

REED D. RUBINSTEIN

America First Legal

Foundation

600 14th Street, N.W.

Fifth Floor

Washington, DC 20005

(202) 964-3721

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether States with interests should be permitted to

intervene to defend a rule when the United States

ceases to defend.

ii

TABLE OF CONTENTS

Page

Question Presented ...................................................... i

Table of Authorities ................................................... iii

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

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

Argument ..................................................................... 5

I.

The decision below enables evasion of

the APA. ............................................................ 5

II. The case is not moot. ........................................ 9

III. The public charge rule is valid. ...................... 17

Conclusion.................................................................. 20

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Al-Adahi v. Obama,

672 F. Supp. 2d 114 (D.D.C. 2009) ........................ 8

Azar v. Allina Health Services,

139 S. Ct. 1804 (2019) ............................................ 6

CASA de Maryland, Inc. v. Trump,

971 F.3d 220, (4th Cir.) (Wilkinson, J.),

reh’g en banc granted, 981 F.3d 311

(4th Cir. 2020) ................................................ 17, 19

City & County of San Francisco v. U.S.

Citizenship & Immigration Services,

944 F.3d 773 (9th Cir. 2019) ................................ 19

City & County of San Francisco v. U.S.

Citizenship & Immigration Services,

981 F.3d 742 (9th Cir. 2020) ................................ 19

Cook County v. Mayorkas,

No. 19-6334, 2021 WL 3633917

(N.D. Ill. Aug. 17, 2021) ......................................... 8

Cook County v. Wolf,

498 F. Supp. 3d 999 (N.D. Ill. 2020) ................ 9, 10

Cook County v. Wolf,

962 F.3d 208 (7th Cir. 2020) ................................ 18

iv

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ...................................... 6, 16

DHS v. New York,

140 S. Ct. 599 (2020) .............................. 2, 6, 13, 18

DHS v. New York,

141 S. Ct. 1370 (2021) ............................................ 2

DHS v. Regents of the University of California,

140 S. Ct. 1891 (2020) ................................ 5, 13, 15

District of Columbia v. U.S. Department of

Agriculture, 444 F. Supp. 3d 1 (D.D.C. 2020) ..... 11

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ............................................ 6, 8

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123 (1951) ............................................ 2, 5

Knox v. Service Employees International

Union, Local 1000, 567 U.S. 298 (2012) .............. 19

Make the Road New York v. McAleenan,

405 F. Supp. 3d 1 (D.D.C. 2019) .......................... 11

Morgan v. Daniels,

153 U.S. 120 (1894) .............................................. 12

National Cable & Telecommunications

Association v. Brand X Internet Services,

545 U.S. 967 (2005) ................................................ 8

v

National Mining Association v. U.S. Army

Corps of Engineers, 145 F.3d 1399

(D.C. Cir. 1998)............................................... 10, 14

New York v. DHS,

969 F.3d 42 (2d Cir. 2020)...................................... 7

New York v. U.S. Department of Commerce,

351 F. Supp. 3d 502 (S.D.N.Y. 2019) ................... 11

Perez v. Mortgage Bankers Association,

575 U.S. 92 (2015) .................................................. 6

Texas v. Biden,

No. 21-10806, 2021 WL 5882670

(5th Cir. Dec. 13, 2021) .......................................... 3

Texas v. Cook County,

141 S. Ct. 2562 (2021) ............................................ 3

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .......................................... 13

United States v. Mendoza,

464 U.S. 154 (1984) .............................................. 15

United States v. Peters,

9 U.S. 115, 5 Cranch 115 (1809) .......................... 20

Walker v. Azar,

No. 20-2834, 2020 WL 4749859

(E.D.N.Y. Aug. 17, 2020) ...................................... 14

vi

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ........................................ 12, 13

Wolf v. Cook County,

140 S. Ct. 681 (2020) .............................................. 2

Constitution and Statutes

Mass. Const. pt. I, art. XXX ........................................ 5

5 U.S.C. § 553(b)(3)(B) ............................................... 16

5 U.S.C. § 553(b)-(c) ..................................................... 5

5 U.S.C. § 706 ............................................................ 10

8 U.S.C. § 1182(a)(4)(A) ......................................... 2, 17

Regulations

Inadmissibility on Public Charge Grounds,

83 Fed. Reg. 51,114 (Oct. 10, 2018) ............... 16, 18

84 Fed. Reg. 41,292 (Aug. 14, 2019).......................... 18

Implementation of Vacatur,

86 Fed. Reg. 14,221 (Mar. 15, 2021) .................... 16

Other Authorities

Samuel Bray, Does the APA support national

injunctions?,

The

Volokh

Conspiracy,

https://bit.ly/33dW5db (May 8, 2018) ................. 12

vii

Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, 131

Harv. L. Rev. 417 (2017) ...................................... 13

Brief for the Federal Appellants 85,

Pennsylvania v. Trump, Nos. 17-3752, 181253, 19-1129, 19-1189, 2019 WL 721635 (3d

Cir. Feb. 15, 2019) ................................................ 11

Brief for the Petitioners 49, Trump v.

Pennsylvania, No. 19-454, 2020 WL 1190624

(U.S. Mar. 2, 2020) ............................................... 12

Ronald A. Cass, Nationwide Injunctions’

Governance Problems: Forum Shopping,

Politicizing

Courts,

and

Eroding

Constitutional Structure, 27 Geo. Mason L.

Rev. 29 (2019) ....................................................... 13

John

Harrison,

Section

706

of

the

Administrative Procedure Act Does Not Call

for Universal Injunctions or Other Universal

Remedies, 37 Yale J. Reg. Bull. 37 (2020) ........... 12

Ronald M. Levin, “Vacation” at Sea: Judicial

Remedies and Equitable Discretion in

Administrative Law, 53 Duke L.J. 291 (2003) .... 13

viii

Memorandum from the Office of the Attorney

General to the Heads of Civil Litigating

Components & U.S. Attorneys, Litigation

Guidelines for Cases Presenting the

Possibility of Nationwide Injunctions (Sept.

13, 2018), https://www.justice.gov/opa/pressrelease/file/1093881/download ............................. 10

Reply Brief for Appellant 22–27, City of Chicago

v. Barr, No. 18-2885, 2018 WL 6605982 (7th

Cir. Dec. 7, 2018) ................................................. 11

Reply in Support of Application for a Stay 11–

15, DHS v. New York, No. 19A785 (U.S. Jan.

23, 2020), https://www.supremecourt.gov/

DocketPDF/19/19A785/129741/

20200123160342975_19A785%20Reply.pdf ........ 11

Zayn Siddique, Nationwide Injunctions, 117

Colum. L. Rev. 2095 (2017) .................................. 15

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law

in the United States by preventing executive

overreach, ensuring due process and equal protection

for every American citizen, and encouraging

understanding of the law and individual rights

guaranteed under the Constitution and laws of the

United States.

America First Legal has a substantial interest in

this case. As a participant in notice-and-comment

rulemaking and an organization often engaged in

litigation about administrative law, it has an interest

in ensuring that the Executive Branch does not

abuse the Administrative Procedure Act as it has

done here. America First Legal also has an interest

in ensuring that America’s immigration laws are

enforced as Congress has written them, with proper

regard for the civil rights and liberties of our citizens

and legal immigrants. *

* All

parties have consented to the filing of this brief. In

accordance with Rule 37.6, no counsel for a party authored this

brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than amicus curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission. Any America First Legal personnel

who were involved with the promulgation of the prior

administration’s public charge rule had no role in this brief.

2

SUMMARY OF THE ARGUMENT

“It is procedure that spells much of the difference

between rule by law and rule by whim or caprice.”

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 179 (1951) (Douglas, J., concurring).

The prior administration followed the law, adhering

to the Administrative Procedure Act’s rigorous

procedural requirements to adopt a rule that

reasonably interpreted a broad statute about

immigration eligibility. Under that statute, the

Immigration and Nationality Act, an alien is

“inadmissible” if “likely at any time to become a

public charge.” 8 U.S.C. § 1182(a)(4)(A). The

promulgated rule reasonably defined the “public

charge” inquiry to encompass both cash assistance

and certain non-cash benefits received for more than

a year during the past three years.

Lawsuits followed across the country, with several

lower courts enjoining the rule. This Court

repeatedly signaled to the lower courts that the rule

was consistent with the law, issuing multiple stays of

lower court injunctions. DHS v. New York, 140 S. Ct.

599 (2020); Wolf v. Cook County, 140 S. Ct. 681

(2020). The lower courts continued to resist, with the

same courts issuing injunctions and judgments that

flew in the face of this Court’s stay orders. Faced

with blatant disregard for the law, this Court was

forced to grant certiorari. DHS v. New York, 141 S.

Ct. 1370 (2021).

Yet the unprincipled resistance to the rule of law

continued. After the Biden administration took office,

it abandoned the government’s traditional role in

defending federal law and coordinated a blitzkrieg of

3

dismissals with the plaintiffs, the government’s

supposed opponents. The Biden administration had

no patience for legal niceties like the APA, much less

for passing an immigration law through Congress.

So, locking into place a single Illinois district court

order purporting to vacate the rule (an order

previously stayed by the Seventh Circuit), the

government dismissed the various appeals. On

command, the lower courts jumped, quickly issuing

dismissal mandates. And voilà: on the order of one

district court, the rule is purportedly vacated

nationwide and the government announces its

revocation via press release without having to adhere

to the pesky APA requirements. See JA 85 & n.4.

Thus, the Biden administration (again) “claims the

power

to

implement

a

massive

policy

reversal . . . simply by typing out a new Word

document and posting it on the internet. No input

from Congress, no ordinary rulemaking procedures,

and no judicial review.” Texas v. Biden, No. 21-10806,

2021 WL 5882670, at *1 (5th Cir. Dec. 13, 2021).

Again this Court tried to signal the lower courts,

sending objecting states to the Illinois district court

to present their intervention request. Texas v. Cook

County, 141 S. Ct. 2562 (2021). Again the signal was

not received. Courts have uniformly denied

intervention to these states, which would bear the

brunt of the costs imposed if the final rule is not

implemented. The Ninth Circuit below could not even

be bothered to explain its denial of intervention. The

Illinois district court claimed that the states had

waited too long and that the Biden administration

had already relied on its own manipulation of the

litigation.

4

Enough is enough. The manipulative procedures

sanctioned by the lower courts here enables this and

future administrations to routinely evade the APA’s

requirements. Those requirements are a central

method of protecting the rule of law in a government

that

operates

largely

through

unelected

bureaucracies. The APA’s core mandate of notice and

comment gives the People the chance to participate

and influence their government’s policy. Under

Respondents’ and the lower courts’ views, however,

notice-and-comment rulemaking can be avoided by

purposely throwing pending cases after a new

administration takes office. The government could

use any single district court to retract a rule and

then issue a new rule without notice and comment.

The specter of a single judge setting unreviewable

nationwide policy itself mocks the rule of law. By the

federal government’s lights, this case is moot because

a judge in Illinois already set aside the rule. But, at

this Court’s direction, that litigation remains

ongoing. Regardless, the federal government itself

has repeatedly denied that the APA’s “set aside”

remedy gives a single district judge the immediate

power to preempt all other cases and impose a

nationwide judgment. As the government has

elsewhere argued, that reading of the APA runs into

serious statutory, constitutional, and practical

problems.

What makes all of these maneuvers particularly

damaging to the rule of law is that the prior

administration’s public charge rule is legal. Members

of this Court have explained in exhaustive detail why

that is so. And this Court already recognized as much

through its various stay orders. Giving a new

5

administration power to impose a single district

judge’s unlawful order on the nation contradicts the

principle that ours is “a government of laws and not

of men.” Mass. Const. pt. I, art. XXX. “Steadfast

adherence to strict procedural safeguards is our main

assurance that there will be equal justice under law.”

McGrath, 341 U.S. at 179 (Douglas, J., concurring).

To prevent this and future flagrant violations of both

the APA and this Court’s orders, the Court should

reverse.

ARGUMENT

I. The decision below enables evasion of the

APA.

The federal government’s gamesmanship shows a

disregard for the important procedural requirements

of the APA. If this Court permits the government’s

scheme to succeed, this case will provide a roadmap

for the government to routinely avoid those

requirements in revoking rules it no longer favors.

But those requirements are important, for they

ensure that the public has an adequate opportunity

to participate in their government and that

rulemaking occurs in a reasoned way.

“The APA sets forth the procedures by which

federal agencies are accountable to the public and

their actions subject to review by the courts.” DHS v.

Regents of the University of California, 140 S. Ct.

1891, 1905 (2020). To issue a rule under the APA, an

agency is generally required to notify the public of

the proposed rule, invite comments, consider and

respond to the comments, and explain its reasoning

in its final rule. 5 U.S.C. § 553(b)–(c). The agency

must “examine the relevant data and articulate a

6

satisfactory explanation for its action.” FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 513 (2009).

“Notice and comment gives affected parties fair

warning of potential changes in the law and an

opportunity to be heard on those changes—and it

affords the agency a chance to avoid errors and make

a more informed decision.” Azar v. Allina Health

Services, 139 S. Ct. 1804, 1816 (2019). Requiring an

agency to “disclose the basis of its action” also

“permit[s] meaningful judicial review.” Department of

Commerce v. New York, 139 S. Ct. 2551, 2573 (2019)

(cleaned up).

The prior administration’s public charge rule

complied with the APA’s rigorous procedural

requirements. DHS considered and responded to

hundreds of thousands of comments before issuing its

final rule. See DHS, 140 S. Ct. at 599 (Gorsuch, J.,

concurring). And agencies must “use the same

procedures when they amend or repeal a rule as they

used to issue the rule in the first instance.” Perez v.

Mortgage Bankers Association, 575 U.S. 92, 101

(2015).

Here, however, the Biden administration found a

quicker way to dispose of a rule that it disliked. As

Judge VanDyke explained in dissent below, the

government “deliberately [] short-circuit[ed] the

normal APA process by using a single judge to

engage in de facto nationwide rulemaking.” App. 16.

On the same day that the government surrendered in

all cases, and without notice and comment, it issued

a press release announcing the rule’s revocation,

followed a few days later by a new rule purporting to

be retroactively effective. See App. 27. These actions

7

were intended to make it “effectively” impossible for

the rule to “be resurrected” “by a future

administration.” App. 15.

If the government succeeds in its effort here to

leverage one (stayed) district court order into a nearpermanent rule reversal—on an issue where this

Court has issued multiple stays and granted

certiorari—the government could routinely follow

this route to evade the APA’s important procedural

requirements. Not only could the government skip

notice and comment, it could scuttle judicial review of

its actions. And it could bind future administrations

by locking in one judge’s order.

The federal government does not deny any of this.

Instead, it merely notes that “DHS has initiated a

new rulemaking process” and that “Petitioners will

have the opportunity to comment during that

process.” BIO 18. As Judge VanDyke pointed out,

“This argument might have had more merit had the

federal government followed the traditional route of

asking the courts to hold the public charge cases in

abeyance, rescinding the rule per the APA, and then

promulgating a new rule through notice and

comment rulemaking.” App. 31.

Plus, an eventual rule will not alleviate the years

of harm to Petitioners and this country from being

subjected in the meantime to an unlawful rule that

imposes costs on states. And given that it took the

government two decades to move from an “interim”

measure announced in 1999 to the final rule here,

New York v. DHS, 969 F.3d 42, 53 n.7 (2d Cir. 2020),

the unlawful rule could govern for a very long time.

8

The Illinois district court asserted that its

“vacatur of the Final Rule does not preclude DHS in

the future from promulgating a public charge

regulation identical to the Rule.” Cook County v.

Mayorkas, No. 19-6334, 2021 WL 3633917, at *15

(N.D. Ill. Aug. 17, 2021). First, that ignores the

intervening years of costs, governance of an unlawful

rule, and incentives for future APA evasions. Second,

the district court did not explain how the government

may disregard a final judgment against it. Cf. AlAdahi v. Obama, 672 F. Supp. 2d 114, 117 (D.D.C.

2009) (holding that the federal government in civil

contempt for violating a court order).

Further, an agency changing its position must

“display awareness that it is changing position,”

“show that there are good reasons for the new policy,”

and provide a “detailed justification” when “its new

policy rests upon factual findings that contradict

those which underlay its prior policy” or “when its

prior policy has engendered serious reliance interests

that must be taken into account.” Fox, 556 U.S. at

515 (cleaned up). So the district court’s purported

nationwide vacatur at minimum would make it

harder to return to the proper rule via the APA.

Finally, under this Court’s precedents, “a judicial

precedent holding that the statute unambiguously

forecloses the agency’s interpretation, and therefore

contains no gap for the agency to fill, displaces a

conflicting agency construction.” National Cable &

Telecommunications Association v. Brand X Internet

Services, 545 U.S. 967, 982–83 (2005). The Illinois

district court suggested that Brand X would not

apply here in part because its decision “rests

exclusively” on “Chevron step two.” Cook County,

9

2021 WL 3633917, at *15. Yet the district court’s

actual decision contained a long discussion equating

the two Chevron steps and stated that “the statutory

term ‘public charge’ . . . cannot be stretched to cover

the full measure of noncitizens deemed by the Final

Rule to be public charges.” Cook County v. Wolf, 498

F. Supp. 3d 999, 1005 n.* (N.D. Ill. 2020).

In short, even if a future administration could

eventually promulgate the original rule again, the

intervening years will be governed by an unlawful

rule that imposes costs on Petitioners. Worse, the

government’s course here would be followed by every

administration seeking to change agency rules

without following the APA’s notice-and-comment

requirements. Such circumvention of the APA would

harm organizations like America First Legal and the

public at large, depriving them of their opportunity to

have a say in how the ever-expanding Fourth Branch

governs.

II. The case is not moot.

On the petition for certiorari, Respondents argued

that this case is moot because “a district court in

separate litigation has since vacated the Rule in its

entirety, that court’s judgment has become final, and

the Rule has accordingly been removed from the

Code of Federal Regulations.” United States BIO 11

(cleaned up); accord California BIO 9. As Petitioners

show, that vacatur remains subject to ongoing

litigation and any ruling on the merits there could

eliminate the basis for the rule’s removal, so this case

is not moot. Br. 30–37. What’s more, Respondents’

argument assumes that a district court’s power

under the APA to “set aside” agency action gives it

10

the power to single-handedly vacate a rule

nationwide, no matter if any (or every) other court

has upheld that rule. But the United States itself has

repeatedly denied that the APA gives a single district

court such unfettered authority to set nationwide

policy. And if the Illinois district court’s judgment

potentially cannot vacate a rule nationwide, that is

another reason why this case is not moot.

Under the APA, a “reviewing court shall . . . hold

unlawful and set aside agency action, findings, and

conclusions found to be” contrary to law. 5 U.S.C.

§ 706. Some, including the Illinois district court, have

read this provision to mean that a reviewing court

has no choice but to vacate the rule at issue

nationwide, not “just for certain plaintiffs or

geographic areas.” Cook County, 498 F. Supp. 3d at

1005 (citing, inter alia, National Mining Association

v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409

(D.C. Cir. 1998)).

But none other than the federal government has

recently rejected that reading of the APA. In 2018,

the Department of Justice adopted guidelines

instructing that “universal vacatur is not

contemplated by the APA” and that “the APA’s text

does not permit, let alone require, such a broad

remedy.” 1 According to DOJ:

1 Memorandum from the Office of the Attorney General to the

Heads of Civil Litigating Components & U.S. Attorneys,

Litigation Guidelines for Cases Presenting the Possibility of

Nationwide

Injunctions

7

(Sept.

13,

2018),

https://www.justice.gov/opa/press-release/file/1093881/download

(cleaned up).

11

[T]he text of section 706 does not specify

whether the rule, if found invalid, should be set

aside on its face or as applied to the challenger.

In the absence of a clear statement in the APA

that it displaces traditional rules of equity,

courts should adopt the latter reading of the

“set aside” language. The historical backdrop to

the APA’s enactment lends further support to

this reading. The absence of nationwide

injunctions prior to Congress’ enactment of the

APA in 1946 (and for over fifteen years

thereafter) suggests that the APA was not

originally understood to authorize courts to

issue such broad relief. 2

The federal government has repeatedly asserted

this position in litigation, including about this rule. 3

In one recent brief before this Court, it explained

that “Nothing in the APA’s text or history—or this

Court’s cases construing it—suggests that Congress

2 Id.

3 E.g., Reply in Support of Application for a Stay 11–15, DHS v.

New

York,

No.

19A785

(U.S.

Jan.

23,

2020),

https://www.supremecourt.gov/DocketPDF/19/19A785/129741/

20200123160342975_19A785%20Reply.pdf;

Brief

for

the

Federal Appellants 85, Pennsylvania v. Trump, Nos. 17-3752,

18-1253, 19-1129, 19-1189, 2019 WL 721635 (3d Cir. Feb. 15,

2019) (“[T]he D.C. Circuit’s practice represents an improper

exception to the ordinary rule that relief should be limited to

the parties.”); Reply Brief for Appellant 22–27, City of Chicago

v. Barr, No. 18-2885, 2018 WL 6605982 (7th Cir. Dec. 7, 2018)

(“The term [set aside] does not itself indicate that the action

should be ‘set aside’ as to anyone other than a plaintiff”); Make

the Road New York v. McAleenan, 405 F. Supp. 3d 1, 67 (D.D.C.

2019), New York v. U.S. Department of Commerce, 351 F. Supp.

3d 502, 678 n.87 (S.D.N.Y. 2019); District of Columbia v. U.S.

Department of Agriculture, 444 F. Supp. 3d 1, 48 (D.D.C. 2020).

12

took the dramatic step of sub silentio authorizing

nationwide relief.” Brief for the Petitioners 49,

Trump v. Pennsylvania, No. 19-454, 2020 WL

1190624 (U.S. Mar. 2, 2020). Yet under the Illinois

district court’s strong “set aside” reading, a single

court is not only authorized but required to issued

nationwide vacaturs in every case, regardless of any

other judicial action.

As the federal government’s own arguments

reflect, this reading raises serious statutory,

constitutional, and practical issues. On the statutory

front, “when the APA was enacted the expectation

was that agencies would make policy primarily

through adjudication,” and “‘set aside’ was a

technical term for reversing judgments.” 4 Further, “it

would be very odd to think ‘set aside’ means ‘enjoin

enforcement of against anyone’ given the full set of

objects for the verb in Section 706,” including

“findings” and “conclusions” that cannot be

“enjoined.” 5

The better reading of “set aside” is to direct courts

“not to decide [the case] in accordance with the

[challenged] agency action.” John Harrison, Section

706 of the Administrative Procedure Act Does Not

Call for Universal Injunctions or Other Universal

Remedies, 37 Yale J. Reg. Bull. 37, 46 (2020). As

explained above, this reading would comport with

“established [equity] principles,” a departure from

which may not be “lightly assume[d].” Weinberger v.

4 Samuel Bray, Does the APA support national injunctions?, The

Volokh Conspiracy, https://bit.ly/33dW5db (May 8, 2018) (citing

Morgan v. Daniels, 153 U.S. 120, 124 (1894)).

5 Id.

13

Romero-Barcelo, 456 U.S. 305, 313 (1982); see

generally Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, 131 Harv. L. Rev.

417, 438 n.121, 449–52 (2017); Ronald A. Cass,

Nationwide Injunctions’ Governance Problems:

Forum Shopping, Politicizing Courts, and Eroding

Constitutional Structure, 27 Geo. Mason L. Rev. 29,

75–77 (2019); Ronald M. Levin, “Vacation” at Sea:

Judicial Remedies and Equitable Discretion in

Administrative Law, 53 Duke L.J. 291, 309–15

(2003). 6

On the constitutional front, when a district court’s

order goes beyond “order[ing] the government not to

enforce a rule against the plaintiffs in the case before

it,” “it is hard to see how the court could still be

acting in the judicial role of resolving cases and

controversies.” DHS, 140 S. Ct. at 600 (Gorsuch, J.,

concurring). Yet that is a federal court’s only

permissible role under Article III. The traditional

understanding

of

the

“judicial

power”

is

“fundamentall[y] the power to render judgments in

individual cases.” Trump v. Hawaii, 138 S. Ct. 2392,

2427 (2018) (Thomas, J., concurring).

Last, on the practical front, the strong “set aside”

reading undermines the rule of law. Take this

hypothetical. A rule is challenged in all 94 district

courts nationwide, and every district court save one

upholds the rule. Call that one (hypothetically) the

Northern District of California, and it has yet to rule.

In addition, if “set aside” requires universal vacatur, it is

unclear how courts could routinely “remand for the agency to”

“offer a fuller explanation” of infirm rules. Regents, 140 S. Ct. at

1907 (cleaned up).

6

14

Every Court of Appeals affirms save the Ninth

Circuit, where cases remain pending. Because of the

rule’s significance, this Court has granted certiorari

and heard argument in one of the cases upholding

the rule but not yet issued a decision. The Northern

District of California waits until the day after the

inauguration of a new president to “set aside” the

rule. Under the strong reading of “set aside,” that one

district court decision immediately overrides every

single other decision—trial or appellate—across the

country. It would presumably moot the case pending

before this Court, for the rule would no longer exist.

And even if this Court went ahead and affirmed some

other decision upholding the rule, it would make no

difference; the Northern District of California’s final

judgment would override even this Court’s decision.

Now change the hypothetical so that the Northern

District of California rules before the other 93 district

courts. Under the strong “set aside” reading, no other

court would then face a judiciable case because the

rule no longer exists, whether by direct operation of

the purported nationwide vacatur order or the added

obstacle of a quick rule change. See, e.g., Walker v.

Azar, No. 20-2834, 2020 WL 4749859, at *7 (E.D.N.Y.

Aug. 17, 2020) (stating “that [the court] has no power

to revive a rule vacated by another district court”).

Even courts adopting the strong reading have

acknowledged that it conflicts with “the ‘nonacquiescence’ doctrine, under which the government

may normally relitigate issues in multiple circuits.”

National Mining, 145 F.3d at 1409. Thus, the strong

reading “would substantially thwart the development

of important questions of law by freezing the first

15

final decision rendered on a particular legal issue.”

United States v. Mendoza, 464 U.S. 154, 160 (1984).

In sum, the strong reading gives one court the

power to set nationwide policy, no matter what every

other court in the country—potentially including this

Court—thinks about the rule’s validity. Professional

plaintiffs would have every incentive to file cases in

every district nationwide. They would slow-walk

enough cases to give them a likelihood that a future

administration could surrender to a single adverse

decision. And they would expedite enough cases to

find some court that would “prevent[]” the executive

from enforcing its rule “during an entire Presidential

term.” Regents, 140 S. Ct. at 1932 (Alito, J.,

concurring in the judgment in part and dissenting in

part). “Our constitutional system is not supposed to

work that way.” Id.

Distorting our constitutional system this way

harms nonparties too. “The nature of governmental

regulations is such that nearly every rule some group

of plaintiffs finds burdensome likely benefits some

other group.” Zayn Siddique, Nationwide Injunctions,

117 Colum. L. Rev. 2095, 2125 (2017). “[A]n

overbroad injunction can cause serious harm to

nonparties”—like the Petitioners here—“who had no

opportunity to argue for more limited relief.” Id.

These many problems with the strong “set aside”

reading underscore that giving the Illinois district

court’s vacatur universal effect is not a forgone

conclusion. The other basis for the Respondents’

mootness argument—that the federal government

took the single vacatur and invoked it to remove the

public charge rule without notice and comment—

16

fares no better. The government relied on the APA’s

“good cause” exception, asserting that “[n]otice and

comment and a delayed effective date are

unnecessary for implementation of the court’s order

vacating the rule and would be impracticable and

contrary to the public interest in light of the agency’s

immediate need to implement the now-effective final

judgment.” Inadmissibility on Public Charge

Grounds; Implementation of Vacatur, 86 Fed. Reg.

14,221, 14,221 (Mar. 15, 2021); see 5 U.S.C.

§ 553(b)(3)(B).

The government does not explain why a new rule

was necessary at all, given its view that the district

court’s vacatur operated as an immediate and

permanent nationwide injunction. In any case, if the

district court’s order does not and could not act as a

nationwide vacatur, then no good cause could exist

for the government to revoke the rule without notice

and comment. Especially given this Court’s repeated

interventions, any suggestion then that judicial

action required revoking the rule would be

“contrived.” Department of Commerce, 139 S. Ct. at

2575. “Good cause” could not mean a single district

court decision any more than it could mean some

court’s issuance of a preliminary injunction, a

statement at a court hearing, or the filing of a

complaint attacking the rule.

Again, recognizing this case’s ongoing validity

does not depend on resolving these various issues.

Instead, these arguments show that many avenues

remain for this case to have real effect despite the

existence of one district court’s purported universal

vacatur. This case is not moot, and the Ninth Circuit

erred in denying Petitioners intervention.

17

III. The public charge rule is valid.

What

makes

the

federal

government’s

manipulation here especially damaging to the rule of

law is that the public charge rule is valid. This Court

recognized as much in granting multiple emergency

stays of lower court injunctions against the rule.

Even the Seventh Circuit recognized as much,

staying the very order that the government now casts

as an appropriate rule of law. These stays would

have been “impossible had the government, as the

stay applicant, not made ‘a strong showing that it

was likely to succeed on the merits.’” CASA de

Maryland, Inc. v. Trump, 971 F.3d 220, 229 (4th Cir.)

(Wilkinson, J.), reh’g en banc granted, 981 F.3d 311

(4th Cir. 2020). Yet the federal government’s and the

lower courts’ subsequent conduct denied this Court’s

actions their “obvious and relevant import.” Id. at

230. Rewarding the government’s manipulation

would undermine not just the rule of law but also

this Court’s role within the federal judiciary.

The Immigration and Nationality Act provides for

the inadmissibility of “[a]ny alien who . . . , in the

opinion of the [Secretary of Homeland Security] at

the time of application for admission or adjustment of

status, is likely at any time to become a public

charge.” 8 U.S.C. § 1182(a)(4)(A). The Secretary’s

assessment “shall at a minimum consider the alien’s

(I) age; (II) health; (III) family status; (IV) assets,

resources, and financial status; and (V) education

and skills.” Id. § 1182(a)(4)(B).

Until recently, the “public charge” assessment

was governed only by informal field guidance, which

focused on whether the alien was likely to receive

18

cash assistance. App. 17. In October 2018, DHS

proposed a new approach that would consider both

cash assistance and other non-cash government

benefits. Inadmissibility on Public Charge Grounds,

83 Fed. Reg. 51,114 (Oct. 10, 2018). After considering

and responding to 266,000 comments over 10

months—i.e., how rulemaking is supposed to

happen—DHS promulgated a final rule. 84 Fed. Reg.

41,292 (Aug. 14, 2019); see DHS, 140 S. Ct. at 599

(Gorsuch, J., concurring). The Rule defines “public

charge” to mean “an alien who receives one or more

public benefits [as defined in the Rule] . . . for more

than 12 months in the aggregate within any 36month period.” 84 Fed. Reg. at 41,501. The relevant

government benefits include cash assistance and

several non-cash benefits, including most Medicaid

benefits,

Supplemental

Nutrition

Assistance

Program benefits, and federal housing assistance. Id.

This rule is a valid interpretation of the statute’s

reference to “public charge,” a phrase that “gives

DHS relatively wide discretion to specify the degree

of benefit usage that renders someone a ‘public

charge.’” Cook County v. Wolf, 962 F.3d 208, 248 (7th

Cir. 2020) (Barrett, J., dissenting). “The term ‘public

charge’ was broad when it entered federal

immigration law in 1882,” and subsequent

congressional acts only confirm that the term

properly includes “supplemental dependence in

enforcing the public charge exclusion.” Id. The

plaintiffs’ contrary arguments were “inconsistent

with history” and with logic, as they could never

“articulate why it mattered whether the government

chose to give someone $500 for groceries or $500

worth of food.” Id. at 249. “As a matter of both history

19

and text, a ‘public charge’ lacks self-sufficiency in the

sense that she lacks the financial resources to

provide for herself,” and “[t]he benefits designated in

DHS’s definition are all consistent with this concept

of self-sufficiency.” Id. at 250.

Thus, as then-Judge Barrett recognized, “the

plaintiffs’ objections reflect[ed] disagreement with”

policy, and “[l]itigation is not the vehicle for resolving

policy disputes.” Id. at 254. Judges Wilkinson,

Niemeyer, Bybee, Ikuta, and VanDyke agreed that

the rule is valid. 7 As shown by the stays, a majority

of this Court did too.

This Court did not here grant certiorari on the

rule’s merits. But recognizing the rule’s legality

makes the government’s “postcertiorari maneuvers

designed to insulate [the] decision from review”

breathtaking.

Knox

v.

Service

Employees

International Union, Local 1000, 567 U.S. 298, 307

(2012). If the Court does not step in, the rule of law

enacted in accord with this country’s statutes—

adopted by the People—will not govern. Instead, two

men, the President and a district court judge, will

have imposed an unlawful rule on the nation. And

they will have defied this Court to do it. If the

executive and one district court “may, at will, annul”

valid rules passed in accordance with federal statute

See CASA, 971 F.3d at 263 (finding it “plain” that “the

challenged action comports with law”); City & County of San

Francisco v. U.S. Citizenship & Immigration Services, 944 F.3d

773, 790 (9th Cir. 2019) (“The Final Rule’s definition of ‘public

charge’ is consistent with the relevant statutes, and DHS’s

action was not arbitrary or capricious.”); City & County of San

Francisco v. U.S. Citizenship & Immigration Services, 981 F.3d

742, 763 (9th Cir. 2020) (VanDyke, J., dissenting).

7

20

“and destroy the rights acquired under those [rules],

the constitution itself becomes a solemn mockery.”

United States v. Peters, 9 U.S. 115, 5 Cranch 115, 136

(1809).

CONCLUSION

This Court should reverse.

Respectfully submitted,

REED D. RUBINSTEIN

America First Legal

Foundation

600 14th Street, N.W.

Fifth Floor

Washington, DC 20005

(202) 964-3721

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

DECEMBER 17, 2021