Supreme Court Clears Trump Immigrant Wealth Test

laws enacted even by Congress. Now, the Supreme Court has backed him up, lifting a nationwide injunction and letting the administration start enforcing its new immigrant wealth test that's designed to screen out Green card applicants seen as being at risk of becoming dependent on government benefits. Joining me is Leon Fresco, a partnered Hollandon Knight and formerly head of the Office of Immigration Litigation at the Department of Justice.

Describe what Trump's new immigrant wealth test is and how it differs from the old tests. Sure, the test is called the public charge test, and since the teen hundreds, Congress actually has had a statute called the Public Charge Statute.

And what that statute has said is is that if a person is coming to the United States from abroad, they can be denied entry into the United States if the person who's adjudicating their entry determines that they're likely to be a public charge, And what public charge has historically meant is that they will be reliant on the government dole or fisk in order to survive in the United States, taxpayers will have to ensure that these individuals

eat and get support and housing, etcetera. Now, what the Trump administration has done is it has in two thousand and eighteen decided to change the implementing regulations in order to define much more broadly the types of people who can be called public charges and thus to be able to exclude more foreigners from entering the United States. So are they determining in advance who might be a public charge? How would they do that? So there's three ways in

which this gets implemented. The first way it gets implemented is for individuals who are abroad who are applying for visas to come into the United States. So, when someone is abroad and they either want to come because they're marrying a US citizen or they have a job, that's petition for them to come on an employment based green card.

The counselor adjudicator when you go to pick up your visa at a U. S consulate can make a determination as to who is a public charge and if they think that person is likely to become a public chart, they can deny them the visa right there. The second way is that someone is already here, but they're here on what's called a non immigrant visa, meaning they came as a visitor, or as a student, or as a temporary worker, and now they want to apply for a

green card. Maybe they married a US citizen, or maybe a company has asked for them to stay permanently. In that situation, that determination can also be rejected if an adjudicator here in the United States determined that that person is going to become a public charge. And then the third way is for individuals who are here on one type of visa who wants to change to a second type of visa, that application may be denied now if the person is determined to be a public charge in

the future. Now, a New York federal judge blocked the policy from going into effect just while the legal fight goes forward. So how big a win is this for the Trump administration for the Supreme Court to lift that injunction and let the policy go forward. Well, by the very terms of the arguments that Trump administration was making to the New York Court of Appeals to the Second

Circuit Court of Appeals. They were saying that the harm that they would suffer if this rule had been enjoined, even for a few more months, was that they would not be able to reach people from coming to the United States that they would otherwise have wanted to reject. And so this is a big win for them from that perspective that they will now be able in these interim months where the litigation is pending, to reject people from the United States that would if otherwise, had to

have been accepted had this rule not been implemented. So the Court as a whole gave no explanation for its order, but Justice Neil Gorst, writing for himself, and Justice Clarence Thomas, said the Court needs to curb the power of federal trial judges to issue these nationwide orders that block a government initiative. So is this decision by the Court more about the wealth test itself or stopping these nationwide injunctions.

I think there's quite a mix of both there. And I think what may have frustrated the five justices is it be one thing if there was litigation about, for instance, the applicability of the public charge doctrine two people who didn't speak English, or the people with disabilities or the people with low credit scores or something like that a

specific test. But what they express frustration about, at least in the concurring opinion, is that the rule was enjoined in its entirety as to every single individual, and they're saying it cannot be the case that every single aspect of this rule is in violation of the statute, and because of that, that challenge that tries to make it completely invalid should be stayed. This was a split decision

along ideological lines. Why along ideological lines in a case like this are we expecting to see ideological splits in the immigration cases going forward? Sure, I think that the problem here and it just all comes down to sort of what you think is good faith or not good faith.

If you think that this regulation was done in good faith, then there would be no reason to enjoin it in its entirety because you think, okay, well, this regulation is only going to be applied in very narrow circumstances, and even those narrow circumstances, it's applied incorrectly. People can go to court and challenge it and that will be fine.

But the poor dissenters. I think that this was not done in good faith, that this is not going to be applied narrowly, and that this is going to mean tens of thousands of people being excluded who would never have been excluded in the past, and that when the dust settled on this regulation, you're going to see a great amount of human catastrophes in terms of people not being able to come into the United States that usually

were able to come. The new policy is designed to screen out Green card applicants seen as being at risk of becoming dependent on government benefits. It expands the definition of public charge and gives officials broad power to determine that someone is at risk of falling into that category. To make that determination, Department of Homeland Security officials can consider a list of factors including age, health, education, English

language proficiency, family size, wealth, and credit scores. In a five to four vote along ideological lines, the court blocked to New York federal judges ruling that was keeping the

policy from taking effect. What a legal fight goes forward, so Leon explained the argument of those states and immigrant groups who are challenging the new Wealth test well, the argument of the people challenging the immigration tests that they say that many of the factors that were added were not factors that Congress actually wanted added when it most recently popying them as issue a public charge in nine and so they're what they say is, look, a Congress

didn't want immigrants using certain benefits, they simply would have excluded immigrants from using those benefits. You can't come in after the fact in a regulation and play a gotcha game where somebody used a benefit that the Congress allowed them to use, that this would make them a public charge.

The idea being that the entire point of the public charge is to be using things that the Congress didn't want immigrants to use, but that if the Congress did want immigrants to use these benefits, the whole point of it being that they didn't consider that a bad thing.

And so from that perspective, that main argument, plus the fact that they broughten the test out to include factors like disability, English language knowledge, and credit scores, all things that really uh disadvantage knew immigrants of the United States who may not know English, but they have a skills that certainly makes it very likely that they'll earn money or credit score. Nobody comes in with a good credit score. People come in with a zero credit score and they

have to earn it. Those kinds of things become quite onerous if they're going to be applied literally and people are going to get rejected for these things. So what happens next in the litigation? So now the litigation works

its way through. The second circuit is kind of the one that's most developed here, and they will make a merits determination and assuming they maintain their merits determination that the rule is invalid, then the stay still remains in place unless the Supreme Court denied SIRT on the public charge case, which is very unlikely, or until the final decision of the Supreme Court, So most likely for about a year a year and a half, the Supreme Court

is allowing this public charge rule to take place, to take into effect. Which will be interesting because at least during this time period, we will have much more anecdotal evidence that can be provided to the the Supreme Court on the types of people that are being denied visas under this that weren't being denied visas before. In within the injunction, part of the test is whether they're likely to succeed

on the merits. So does this mean that those five justices are most likely going to allow the Trump administration to go forward with this inner wealth test when it does come back to the court. I think that's a very fair assumption to make here. I don't think they would have stayed the rule if they thought there was

something wrong with the rule. But I think the complication with this public charge case is that it is so broad that I think the rule is so broad and the application is so broad that I think what the court really wants to do in a rule like this is to say sub parts of this seemed perfectly reasonable. You know, if somebody has been living in public housing for the last thirty six months, why aren't they a

public charge when they apply for a green card? That might be a very reasonable thing to ask, as opposed to if somebody doesn't speak English, why does that make them a public charge? And so what they're trying to gear the litigants toward is make those kinds of claims, the narrower kinds about specific classes of people being denied, rather than the entirety of the rules. So I think they will uphold the entirety of the rule. But that doesn't speak to the sub classes that are likely to

form of of people being denied under this rule. So we've discussed before Leon how the Supreme Court is also allowing President Trump to build his wall with funds that were diverted from the military until that case goes through the courts. Now we have this, So does it seem to you as if the Court is just willing to let the Trump administration take these huge leaps in immigration?

I mean, I think it's become evident when you look at the travel band case, the asylum case, the border wall case, and now this public charge case that the institutional litigation that is designed to stop the president from at least implementing wholeheartedly reforms on immigration is not going

to be welcomed by the Supreme Court. The question is, does the Supreme Court have the band with to cover all of the alsos that are happening on all of the different immigration thanks, because otherwise it's gonna end up becoming the Supreme Court of Immigration. But when the Supreme Court is taking cases, it is saying we want the

Trump administration's immigration priorities to continue. And that is quite a I think a set of events that perhaps was not anticipated by the litigants making these cases, and it's going to require at some point, especially if the president is re elected, a sort of redetermination as to whether litigation is the right thing to do in these broader cases, because maybe you'll be creating bad president that will last a lifetime that you'd rather not create in the situation.

Of course, now that there are more conservative judges on the circuit courts, a lot of the circuit court opinions may now go against immigrants. Yeah, that's absolutely correct, and that's why personally, when I've done these types of cases, I've always tried to stick to the application of the law to a certain specific individual, because it's much easier to make those cases, and the court looks at those, and even conservative judges will say, how could you possibly

have done that? It's much easier when you're going to the court in those instances. When you're doing these broader policy challenges. A lot of times both sides go into their camps and the decision is just, you know, we we decide the decision first and then we come up

with the law to figure that out later. And you're starting to see some of that on both sides of the equation here, because I wonder when you have a Supreme Court that seems so willing to expand the power of the executive over the judiciary, what is left as a check on the executive. You know, if if Congress can't do it with withholding funds, and if the Supreme Court won't do it, then there's no is there. Correct.

It becomes very complicated because there are these two views of the world, and it's been an unresolved issue in immigration for about fifty years. Is there are some people and this I'm talking now uniquely immigration, not to other issues where the president claims broad powers. I'm talking just about immigration. There have been people on both sides of

the island. President Obama made these arguments when it was time for Dhaka and Dappa that say, when the president does something on immigration, it's broad power that cannot be reviewed by the courts. And then there are others who say, no, no, no, no. The courts have as much say, scrutinizing these immigration policies as they do anything else. And if the president gets made here that the president does have these broad power

as well, that's potentially fine for this president. But of course then the court would say that that would happen for a subsequent president they may not like. But then similarly, you know, a president who puts in policies that will exclude many, many, many people will while that person is president be creating all kinds of upheaval and difficult times for those individuals that immigration lawyers might not have wanted and should shouldn't have brought those lawsuits if they knew

this was going to be the outcome. And so these are the difficult balances. But yes, right now it seems like the Supreme Court is leaning towards sayings that on immigration, the president has extremely broad power that the Court is not going to question unless there's some really adverse outcome here that that's not being presented in the litigation. So that seems to bode ill for the doctor decision that

we're expecting this term, right. I mean, the way I've always thought this doctor decision will come down and we'll will wait and see, is that the court will say, look, President Obama had the power to make DOCTA and President Trump thus has the power to extinguish DOCTA, and neither is questioned by the courts. I think that's sort of a a split decision in the sense that a new president could reinstall data. What would be sort of the overreach would be if the court said and President Obama

didn't have the authority to make data. I don't know if they have to go all the way there, but if they just leave it at the president has broad power either way, then that that gets rid of data, and then it provides the sort of large prerogative for either president to have expensive immigration powers. Thanks for being on Zoomberg long Leon, that's Leon Fresco, a partner's hand and Knight