Latest SCOTUS ‘DIG’ Shows the Administration, Not Congress, Determines Our Laws

The Supreme Court ended last week with a “DIG.” Not the insult of common parlance, a DIG means they “dismissed a case as improvidently granted.” This says the Court, on second thought, decided they never should have taken the case.

The case, Arizona v. City and County of San Francisco, pertained to the Trump administration’s 2019 Public Charge Rule. This rule concerned the definition of criteria for determining which immigrants stood at risk of becoming a “public charge,” meaning a drain on public resources. It gave the government the power to deny entry or permanent legal status to those immigrants so designated.

Since 1999, the executive branch had defined “public charge” as someone who was “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” This definition excluded many non-cash benefits, including certain welfare benefits such as Medicaid or food stamps.

The Trump administration, however, re-defined “public charge” to include consistent dependence on these other governmental benefits. As the policy faced court challenges, the Biden administration both refused to defend the rule in court and reversed it.

The Supreme Court did not take up the case to consider the policy on its merits. It merely sought to determine whether 13 states could intervene to defend the rule.

The Court made the right decision to DIG the case. The justices have a host of problems complicating their ability to make a clear ruling. But we must not read more into that conclusion than is warranted. Caution can be found in the concurring opinion written by Chief Justice John Roberts. While agreeing that the Court should DIG the case, Roberts argued that large issues remained that a future case might be in a better position to resolve.

First, the Biden administration took unusual steps in reversing the rule in question. The Trump administration had followed the laborious, statutorily required process of “notice and comment” for promulgating the policy change. Typically, reversing this act would require the same bureaucratic process. The Biden administration refused so to do. Instead, it immediately repealed the rule based on a nationwide injunction given by a federal district court.

This point matters beyond bureaucratic pencil-pushing. It presents serious executive and judicial questions that demand answers. For one, the Biden administration gives too much power to district courts to continue their tendency to issue nationwide injunctions against federal laws or executive actions. Justice Thomas rightly has questioned the legitimacy of such actions and lamented their widespread use in recent years. Yet, while limited instances exist for that kind of injunction, their current abuse gives too much nationwide power to a court charged with deciding cases involving particular litigants in a specific area of the country.

Second, the notice and comment procedure exists for a reason. The fact that the bureaucracy makes most of our laws, not Congress, presents a host of constitutional problems. The notice and comment requirement, however, at least makes bureaucrats engage in a process that somewhat resembles congressional lawmaking. They must listen to the people who comment on the proposed rule, arguing for, against, or about amendments to it, engaging in something like a deliberative process that might include scuttling or reworking the rule before it takes on the power of law. In refusing to engage in this process, the Biden administration worsens the unconstitutional elements of the administrative state and accentuates a rule by bureaucracy.

Finally, though the Court did not, we should discuss the rule on its merits. Despite many arguments to the contrary, the Trump administration promulgated a reasonable policy in redefining “public charge.” Priorities must be made regarding the limited resources available to national and state government. Doing so by asking whether those seeking to immigrate or become permanent residents would tax the public welfare system is not mean, much less illegal, to ask.

One hopes the Court will take up some of these issues in a future case. Thereby, they can engage in another actual dig – digging into the important questions this rule demands we address.

Adam Carrington is an associate professor of politics at Hillsdale College.