May an interested state permissibly intervene to defend an immigration rule in court after the United States ceases to defend it and announces that a court ruling vacating the immigration rule will become effective nationwide?
This case asks the Supreme Court to consider whether states should be permitted to intervene to defend a rule when the United States ceases to defend it. Petitioner Arizona argues that the States fulfilled all the requirements for intervention of right and permissive intervention, and, therefore, should be permitted to intervene. Respondent San Francisco counters that the circumstances in this case do not justify intervention of right, and that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. The outcome of this case will impact government rulemaking as well as governmental and judicial resources.
Questions as Framed for the Court by the Parties
Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.
Under federal immigration law, 8 U.S.C. § 1182(a)(4)(A), the government may deny noncitizens admission or adjustment to immigration status if they are “likely at any time to become public charge[s].” City and Cnty. of San Francisco v. USCIS at 15. Government interpretation of the “public charge rule” has changed over time. Id. at 16. Between 1999 and 2019, the Department of Homeland Security (“DHS”) defined “public charge” in accordance with field guidance issued by the Clinton administration. Id. The guidance defined “public charges” as individuals likely to receive “[c]ash assistance for income maintenance [or] institutionalization for long-term care at government expense.” Id. The federal government followed this nonbinding field guidance until August 2019, when the Trump Administration issued a final rule defining “public charge” after notice-and-comment rulemaking. Id. at 17. The rule defined a “public charge” as someone who is “more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.” Id.
The 2019 rule faced state challenges. Id. at 18. Several states sought preliminary injunctions, alleging that they were injured when noncitizens, confused by the rule’s language, unnecessarily disenrolled from state public benefits. Id. District courts in the Second, Fourth, Seventh, and Ninth Circuits issued preliminary injunctions. Id. The Ninth Circuit stayed the injunctions that were issued in its circuit, allowing the 2019 rule to go into effect. Id. at 19. While the Second and Seventh Circuits initially denied stays, the United States Supreme Court stayed the preliminary injunctions issued within their circuits. Id.
After the Supreme Court granted stays in the Second and Seventh Circuits, the Second, Seventh, and Ninth Circuits continued litigation on the public charge rule and affirmed the issuance of their preliminary injunctions. Id. In response, the federal government filed petitions for certiorari for the Second, Seventh, and Ninth Circuit decisions. Id. at 20. The petitions were pending before the Supreme Court when the Biden administration, which opposed the Trump administration’s 2019 rule, took office. Id.
In March 2021, DHS announced that it would no longer appeal court rulings enjoining the 2019 rule’s enforcement. Id. at 21. The Seventh Circuit granted the federal government’s motion to dismiss Cook County v. Wolf, a public charge rule case on appeal from the Northern District of Illinois. Id. DHS subsequently announced that the Northern District of Illinois ruling, which had vacated the 2019 public charge rule, would be in effect nationwide, and that the 1999 field guidance would control. Id. at 21-22. The federal government filed joint stipulations to dismiss the public charge rule cases pending before the Supreme Court, and the cases were dismissed. Id. at 22. The filing occurred hours after DHS announced that it would no longer defend the rule. Id.
In response to dismissals in the Seventh and Fourth Circuits, fourteen states collectively filed motions to intervene, arguing that because the United States announced its intention to stop defending the rule and the cases were dismissed so quickly after the announcement, the states were unable to intervene. Id. at 24. The Fourth and Seventh Circuits dismissed the states’ motions, and DHS issued a final rule removing the 2019 rule. Id. at 24. The states’ effort to intervene in the Ninth Circuit public charge litigation was likewise denied. Petition for a Writ of Certiorari, State of Arizona, et al. at 1.
On June 18, 2021, the state of Arizona and twelve other states filed a petition for writ of certiorari in the Supreme Court. Id. at 32. The Court granted certiorari on October 29, 2021.
INTERVENTION OF RIGHT
Petitioner Arizona argues that the States fulfilled all requirements necessary for intervention of right under Rule 24 of the Federal Rules of Civil Procedure. Brief for Petitioners, State of Arizona, et al. (“Arizona”) at 15, 19. Under Rule 24, Arizona explains, there are four requirements courts use to analyze a movant’s intervention of right. Id. at 19. First, Arizona notes, courts determine if there has been a timely submission for the intervention application. Id. Second, Arizona argues, courts analyze if the moving party has a significant interest regarding the transaction that is the subject of the legal action. Id. Third, Arizona contends, courts assess whether the action may impair the applicant’s ability to protect its interest. Id. Fourth, Arizona notes, the court must determine if the “existing parties” in the suit adequately represent the applicant’s interest. Id.
In arguing that the States have fulfilled the requirements needed for intervention of right, Arizona analyzes each of the four requirements. Id. at 20. First, Arizona argues that the States’ intervention motion was timely. Id. Arizona explains that without warning, on March 9, 2021, the United States declared that it would no longer defend the Public Charge Rule and the States’ interests in this case. Id. Arizona contends that the States moved to intervene on March 10, 2021, in the Ninth Circuit even though the Ninth Circuit had not issued its mandate yet. Id. Arizona explains, the States did not delay in reacting to the United States’ decision. Id. at 21. Moreover, Arizona notes that the idea that the States needed to intervene prior to when the United States stopped defending this rule goes against the Supreme Court’s decision regarding the timeliness benchmark in United Airlines, Inc. v. McDonald. Id. Specifically, Arizona explains, United Airlines held that timeliness is based on how quickly intervenors act once it becomes evident that existing parties no longer protect the intervenors’ interests and the time between seeking intervention versus the period in which intervenors could have appealed. Id. at 21–22.
Second, Arizona argues that the States have a “significant protectable interest that could be impaired.” Id. at 24. Arizona explains that the continuation of the Public Charge Rule will save money for the States. Id. Additionally, Arizona argues that DHS stated that the Rule would cause a decrease of 2.5 percent in public benefit programs’ enrollment levels. Id. Moreover, according to Arizona, the federal government only covers a portion of public benefit programs’ costs. Id. Third, Arizona argues that the invalidation of the Public Charge Rule could impair their ability to protect its interest. Id. Specifically, Arizona asserts, economic harm will fall on the States if the Public Charge Rule is invalidated because the States will not receive the benefits they could have obtained under the Public Charge Rule. Id. Thus, Arizona argues, the States have a valid interest in preventing economic damage that would support their intervention; and, the invalidation of the Public Charge Rule could impair their ability to protect its interest. Id. at 24–25. Fourth, Arizona argues that the current parties to the case no longer adequately represent the States’ interests. Id. at 25. Arizona asserts that the United States abandoned litigation and every case regarding the Public Charge Rule was dismissed, therefore no remaining party defended the States’ interest in the Public Charge Rule. Id. Thus, Arizona argues, since Arizona satisfied all four requirements for intervention of right in this case, the Ninth Circuit should have granted the States’ motion to intervene. Id. at 26–27.
Respondent San Francisco counters that the circumstances in this case do not warrant intervention as of right. Brief for Respondents, City and County of San Francisco and Santa Clara, et al. (“San Francisco”) at 12. San Francisco argues that the Supreme Court does not need to analyze whether the States’ motion to intervene was timely or if the States have a sufficient interest to warrant intervention because the States cannot demonstrate that their alleged interests would be impeded or impaired by this case. Id. at 13. San Francisco notes that Arizona only points out that the States would be deprived of benefits they would have received under the Public Charge Rule as their impairment. Id. San Francisco argues, however, that this case does not impact Arizona’s ability to gain those benefits through alternative methods. Id.
Specifically, San Francisco asserts that the preliminary injunctions in this case do not harm Arizona’s economic interests because they are not applicable in the Petitioners’ States. Id. Since the injunctions do not apply to the Petitioners’ States, the States are third parties to the suit and therefore do not have a valid interest in the outcome set forth by the Ninth Circuit. Id. at 14. San Francisco argues that, even if the preliminary injunction applied to the States, Arizona’s interest would not be impaired because the preliminary injunction has been superseded by the final judgment issued by a district court in the Northern District of Illinois, which abandons the Public Charge Rule and the federal government’s actions. Id. San Francisco argues that once the Seventh Circuit dismissed the appeal of the judgment from the Northern District of Illinois and issued the mandate to vacate the Public Charge Rule, the judgment from the Northern District of Illinois went into effect. Id. San Francisco argues that, as a result of the vacatur ruling from the Illinois district court, the federal government issued a rule that removed the Public Charge Rule from the Code of Federal Regulations and restored the previous text from August 2019. Id. Thus, San Francisco argues, the Ninth Circuit’s preliminary injunctions are not relevant to the States and do not harm their economic interests. Id. at 14–15. Moreover, San Francisco asserts, Arizona failed to cite any cases in which a court contemplated an appeal from a preliminary injunction after a different court ordered final relief, thus rendering the preliminary injunctions useless. Id. at 16.
Arizona maintains that the Ninth Circuit should have granted permissive intervention. Brief for Petitioners at 27. Arizona argues that under Rule 24(b)(1)(B), federal courts can allow litigants to intervene, if they file a “timely motion” and have “a claim or defense that shares with the main action a common question of law or fact.” Id. Arizona asserts that the standard for permissive intervention was satisfied because the States’ motion was timely and shared a common question of law with the main action. Id. Arizona explains that the States’ motion shared a common question of law with the main action because the States wanted to argue that the Public Charge Rule was procedurally and substantially valid. Id. Separately, Arizona argues that the Ninth Circuit should have granted permissive intervention since Respondents acted in an unprecedented manner by quickly issuing a multi-court, nationwide surrender. Id. Arizona notes that this is the first Administration to act this way. Id. at 28. Moreover, Arizona argues that refusing to grant the States’ permissive intervention was an abuse of the Ninth Circuit’s discretion that permitted the Government to bypass the Administrative Procedure Act’s (APA) rulemaking process. Id. Arizona emphasizes that one of the main goals of intervention is to allow unnamed parties, that would be negatively impacted by the suit, to join the litigation and try to stop the “deprivation of their rights,” as the APA notice-and-comment rights, which solicit public opinion, can be burdensome to the Government. Id.
San Francisco counters that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. Brief for Respondents at 20. San Francisco asserts that while courts may grant permissive intervention, they are not required to do so under any circumstances. Id. San Francisco explains that intervention is not available to every movant who wishes to argue in favor of an action. Id. San Francisco asserts that if every party who moved to intervene was permitted to do so, then there would not be a difference between filing to intervene as a party and filing an amicus brief. Id. at 20–21. Furthermore, given the discretionary nature of permissive intervention, San Francisco argues that courts can refuse to allow intervention “even when the requirements of [Rule] 24(b) are satisfied.” Id. at 21. Moreover, San Francisco counters that DHS is not avoiding the notice-and-comment requirements because DHS invited the public to submit written or oral comments regarding the Public Charge Rule from August 2021 to October 2021. Id. at 22–23. Additionally, San Francisco asserts, DHS is following court orders that prohibit DHS from exercising the Public Charge Rule during the notice-and-comment process. Id. at 23. Therefore, San Francisco argues, the Ninth Circuit did not abuse its discretion. Id.
POTENTIAL DISRUPTION TO GOVERNMENT RULEMAKING
The state of Ohio and three other states (“Ohio”), in support of Arizona, warn that prohibiting the states from intervening would prove disruptive to administrative procedure as it would allow the federal government to bypass normal rulemaking procedures. Brief of Amici Curiae State of Ohio et al., in support of Petitioner at 12. Ohio argues that disallowing state intervention would contribute to a “troubling” trend where the federal government engages in policymaking through collusive settlements. Id. at 14. Ohio asserts that the federal government circumvented the notice-and-comment rulemaking process ordinarily required to repeal or alter administrative rules when its actions made one district court’s ruling effective nationwide. Id. at 12. Ohio criticizes the federal government’s actions as “gamesmanship” for which it has faced no consequences. Id. at 16. Ohio maintains that allowing state intervention will disincentivize the federal government from collusively settling challenges to federal law. Id.
The federal government argues that barring state intervention would not represent a detrimental departure from established practice. Brief for Federal Respondents at 37. The federal government maintains that it was not unprecedented for the government to stop appealing adverse rulings against the 2019 rule. Id. The federal government contends that the decision not to pursue further review depends on, and has historically depended on, various legal and prudential considerations. Id. at 38. The federal government notes that Congress has, as a matter of policy, granted the Solicitor General the authority to determine how and whether to pursue appellate review. Id. at 40–41. Thus, the federal government argues, it is permissible for successive administrations of the executive branch to take different positions on government litigation. Id. at 41.
IMPACT ON GOVERNMENTAL AND JUDICIAL RESOURCES
America First Legal Foundation (“AFL”) contends that prohibiting the states from intervening could prove costly to the government and the public in the long term. Brief of Amicus Curiae America First Legal Foundation, in support of Petitioner at 9. AFL claims that the federal government’s nationwide vacatur of the 2019 rule would make it more difficult to return to the 2019 rule. Id. at 8. Should the federal government’s new rule prove unlawful, until a new rule is promulgated through notice-and-comment, an unlawful rule would govern in the intervening years. Id. at 9. As the state of Arizona argues, states would also have to make unexpected adjustments to their budgets to respond to the federal government’s rejection of the 2019 rule. Brief for Petitioner, State of Arizona, et al. (“Arizona”) at 13. Arizona claims that the 2019 rule would save states $1.01 billion annually by causing an approximately 2.5 percent decrease in enrollment in public benefits programs. Id. at 24. Arizona maintains that the government could distribute the money saved to economically disadvantaged persons. Id. at 25.
The federal government counters that it would be a waste of judicial and executive resources for states to take up an appeal when it declines to do so. Brief for Federal Respondents at 42. The federal government argues that state intervention would likely call for the federal government’s involvement, diverting government resources from rulemaking. Id. The federal government also asserts that it would be undesirable for DHS to take litigation positions on the public charge issue before completing notice-and-comment rulemaking. Id. The federal government emphasizes that litigation would require potentially intrusive, resource-intensive discovery into communications between senior executive branch officials at the time of the 2019 public charge rule’s adoption. Id. at 43. The federal government also points to the high cost of continuing to enforce the 2019 rule, which it claims has had a “negligible” effect on noncitizen status adjustment decisions while generating widespread confusion and discouraging eligible noncitizens from applying for government benefits. Id. at 44.
- Dan Schweitzer, Supreme Court Report: Arizona v. City and County of San Francisco, CA, 20-1775, National Association of Attorneys General (Nov. 9, 2021).
- Arizona v. City and County of San Francisco, California, Ballotpedia.