Howard Fischer Capitol Media Services
PHOENIX — The U.S. Supreme Court won’t allow Attorney General Mark Brnovich to defend a Trump-era rule designed to deny “green cards” to those at the bottom of the economic ladder.
In a unanimous decision on Wednesday, the justices said it was “improvising” that the court even upheld Brnovich’s attempt to reinstate the public charge rule that would have imposed new hurdles on those seeking permanent legal status. The majority, in its eight-word order, did not explain its decision.
But in a separate concurring opinion, Chief Justice John Roberts said the decision did not mean the court agreed with the Biden administration’s decision to overturn the rule – the action Brnovich sought to challenge. . In fact, the judges allowed him to present his case to them in person in February.
But Roberts, joined by three other judges, said there were too many thorny side issues – what he called a “mare’s nest” – that would prevent reaching a clear decision.
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Roberts said there could be another opportunity for the court to decide whether Biden acted lawfully in undoing what Trump had instituted without going through a formal rule-making process. But, for now, Biden’s suit stands — and Brnovich and the other state attorneys general who filed suits to overturn it have no legal right to challenge it.
There was no immediate response from the Attorney General.
At the heart of the struggle are the conditions the federal government can impose on those who, having entered the country legally, want permanent legal status.
The ability of immigrants to support themselves has always been a consideration. But the rules, dating back to the Clinton administration, have been much more lax in determining whether someone can get what’s officially called a permanent resident card.
In 2019, the Trump administration passed a rule that has become more precise, using a variety of factors to determine whether they would be likely to use government programs, considering factors ranging from income to ability to speak English. .
Potentially more importantly, the rule was designed to apply based on the likelihood that someone will need benefits at some point in the future, not whether someone actually receives them. And it did so by using income as a much stronger indicator of whether the applicant is likely to become a burden and, therefore, ineligible.
For example, he said U.S. Citizenship and Immigration Services “will generally consider 250% of the federal poverty guidelines to be a heavily weighted positive factor in all circumstances.” In other words, it suggests that anyone above that level — $69,375 for a family of four using current data — would have little problem qualifying.
On the other end, it says that the absolute minimum to even be considered will be around half.
“Specifically, if the foreigner has an income below this level, it will generally be a heavily weighted negative factor in all the circumstances,” it reads.
In a 2021 ruling, the 9th Circuit Court of Appeals called the rule “inconsistent with any reasonable interpretation” of immigration law.
At that point, the now-ruling Biden administration decided it no longer wanted to uphold the rule, effectively killing the litigation.
This led Brnovich and other states to seek to defend the rule in Biden’s absence. The 9th Circuit Court of Appeals refused, leading to this re-filing in the nation’s High Court.
He argued in court that Arizona and the other states had more than a passing interest in the matter.
He pointed out that the Trump-era rule estimated it would save all states more than $1 billion a year. Abolishing it, Brnovich said, means those costs remain with the states.
In an earlier interview with Capitol Media Services, the attorney general said now is not the right time to be pouring money into more people who are getting things like Medicaid and public assistance benefits.
“I think we need to take care of people who are here legally before we start giving benefits to people who have just arrived here and don’t have legal status,” Brnovich said. “I’m trying to protect Arizona taxpayers.”
Wednesday’s High Court ruling bars him from defending the rule.
Not all Republicans viewed the Trump-era rule as a good thing.
Governor Doug Ducey criticized the Trump administration in 2019 when it proposed the rule, saying the federal government should focus more on criminal activity, drug cartels and human traffickers.
Specifically, in discussing who could get permanent resident status under the new rules, the governor said this country needs more than those who are already financially strong.
“We don’t just need people at the graduate level and at the PhD level,” Ducey said. “We also need entry-level workers and people who can work in the service economy. »
The governor said it was a matter of opportunity.
“I want to see people who are going to move up the economic ladder,” he said. “I think a lot of us have a family history similar to that.”
And that, Ducey said at the time, comes down to his preference for a more balanced approach to immigration than what Trump was proposing.
“We have the ‘haves’ and the ‘soon to have’,” he says. “And both are part of real immigration reform.”
But the question remains politically relevant.
Earlier this week, while speaking in Phoenix, former Vice President Mike Pence called for the rule to be reinstated.
“You know, there’s this verse in the Bible that says ‘He who doesn’t take care of his own house is worse than an unbeliever,'” said Pence, who could be a Republican presidential candidate. in 2024.
“We need to make it clear that people who come to this country can support themselves, support their families,” he said. “We need the ‘public charge rule’ in place so that people who come here are a benefit to America and not a burden on the taxpayers.”
In its ruling overturning the Trump-era rule, the 9th Circuit said federal law had always been interpreted to mean long-term reliance on government support, not as encompassing the temporary need for benefits non-monetary. They also said the change did not take into account the effect on public safety, health and nutrition as well as the burden on hospitals and vaccination rates in the general public.
Then there’s the fact that the Trump rule sought to introduce a lack of English proficiency into decisions “despite the common American experience of children learning English in public schools and teaching their elders in our communities. of urban immigrants”.
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