Pending cases will decide whether Biden administration must enforce “remain in Mexico” and “public charge” policies and have broader implications for executive discretion
Today, Wednesday, February 23, the Supreme Court will hear oral argument in the case of Arizona v. City and County of San Francisco, California, in which Arizona (along with other states) seeks to compel the Biden administration to enforce a Trump administration policy on immigration. In 2019, the Department of Homeland Security issued a regulation under which a person seeking to immigrate to the United States would be deemed likely to become a “public charge,” and thus ineligible for a green card, if he or she receives any designated public benefit (including Medicaid, SNAP, subsidized housing benefits, and other forms of aid) for an aggregate of twelve months in any three year period. The regulation was successfully challenged in court and the Supreme Court was expected to review these rulings until, in 2021, the Biden administration determined it would not seek to defend the legality of the rule and agreed with the challengers to dismiss the case.
However, Arizona and the other petitioners in Arizona v. San Francisco are seeking a ruling that would require the current administration to enforce the rule on the grounds that failing to do so burdens them financially, since it would result in more use of public benefits by immigrants. Since the Biden administration removed the rule from the federal register without a “notice-and-comment process,” the petitioners argue, the regulation should not have been invalidated. Arizona’s petition alleges that the manner in which the Biden administration struck the rule down violates the requirements of the Administrative Procedure Act of 1946 and accordingly asks the Supreme Court to review the prior rulings of the appeals courts as intended prior to the dismissal of the cases.
In addition to Arizona v. San Francisco, the Court announced last week that it will hear oral argument in the case of Biden v. Texas, in which the current administration is seeking a reversal of a lower court decision which would require it to enforce the so-called “remain in Mexico” policy favored by the Trump administration, under which persons seeking asylum in the United States await decisions on their applications while still outside the border. The controversy centers, according to Michael Dorf of Cornell Law School, on the interpretation of the Immigration and Nationality Act of 1952, with Texas’s case stating that the law requires that, while the status of asylum seekers remains undecided, the government either detains them on American soil or bars them from entry, as the law reads that asylum seekers whose status is not “clearly and beyond a doubt entitled to be admitted… shall be detained.” The administration, meanwhile, argues that the Court has elsewhere held that “shall” does not always amount to an absolute obligation to act.
Both cases have implications beyond the immediate context of immigration policy. How the Court rules on Arizona v. San Francisco may have a lasting effect on the executive branch’s power to alter its own regulations without input from stakeholders, and the ruling in Biden v. Texas may prove to be similarly important for executive discretion over how, and whether, to enforce certain laws. The results in both cases may prove to be contentious, and we will continue to monitor them as they develop.
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