Orrick Appellate Team Files Briefs on Behalf of the U.S. House of Representatives in Opposing Administration’s "Public Charge" Rule

January.28.2020

An Orrick team filed amicus briefs last week in the U.S. Supreme Court and four federal appeals courts on behalf of the U.S. House of Representatives opposing the Department of Homeland Security's (DHS's) new "public charge" rule. Our team worked closely with the House's Office of General Counsel, arguing in the briefs that this rule effectively overhauls the nation's immigration system by executive fiat in a way that will cause dramatic harm to immigrants and their communities.

The amicus effort focuses on the administration's August 2019 rule that radically broadens a historically narrow exclusion in federal immigration law, which since 1882 has excluded from the United States persons likely to become "public charges." This provision has always had a narrow meaning, applying only to persons likely to become primarily dependent on the Government for a significant period. But the current administration's new rule radically redefines "public charge" to include persons who might temporarily collect small amounts of public benefits, such as food stamps, therefore preventing them from obtaining a visa or a green card.

The House amicus briefs, filed in the Second, Fourth, Seventh, and Ninth Circuits, explain why that is wrong. "The new rule's unprecedented understanding of 'public charge' departs improperly from the long-settled meaning of the term enacted by Congress," the brief states. And it would "replace the century-old understanding ... with a harmful regime that cannot be intelligibly applied."

The Orrick team, led by partner Bob Loeb, also filed an amicus brief on behalf of the House in the Supreme Court, opposing the Administration's request for an emergency stay of the lower courts' decisions enjoining the new DHS rule. The Second Circuit earlier this month left intact a nationwide injunction blocking enforcement of the law, and the administration asked the high court to allow the rule to go into effect while the issue is litigated.

The House explained that the Supreme Court "should deny the stay request without even reaching the merits because the balance of equities overwhelmingly weighs against a stay." The Supreme Court this week nevertheless agreed to allow the rule to go into effect while the issue is litigated in the lower courts.

The courts of appeals will hear argument on the merits of the challenges in the next several months.

In addition to Bob, the Orrick team includes Thomas Bondy, Rene Kathawala, Peter Davis and Sachi Schuricht.

Read the briefs here and here.