Here is an update on all the litigation regarding the U.S. Department of Homeland Security’s (DHS) public charge regulation, which began to be implemented on February 24, 2020, and related regulations and presidential policies, now occurring in 11 federal courts (latest updates are in blue):
U.S. Supreme Court
+ On April 24, in an unsigned order with no opinion, the U.S. Supreme Court denied the motion by the states of New York, Connecticut, and Vermont to lift or modify the Court’s January 27 stay of the nationwide preliminary injunction that would have blocked the implementation of the DHS public charge regulation because of the new threat to public health from COVID-19 with continued implementation of the regulation
+ Cook County, IL and the Illinois Coalition for Immigrant and Refugee Rights had filed a similar motion to the U.S. Supreme Court to lift or modify the Court’s February 21 stay of the IL-only preliminary injunction, and that motion also was denied by the U.S. Supreme Court on April 24
+ In both orders, the U.S. Supreme Court stated that “this order does not preclude a filing in the District Court as counsel considers appropriate”; on April 28, New York, Connecticut, and Vermont filed a motion in the U.S. District Court for the Southern District of New York for a new nationwide preliminary injunction because of COVID-19; oral argument on that motion was heard on May 18; on July 29, the New York District Court issued a new, nationwide preliminary injunction blocking the implementation of the DHS public charge regulation as long as there is a national state of emergency because of COVID-19
U.S. Courts of Appeals
Meanwhile, here is the status of the appeals of the five district court preliminary injunctions that originally had blocked the implementation of the regulation, and were stayed by either Courts of Appeal or the U.S. Supreme Court:
+ 7th Circuit Court of Appeals: in a 2-1 decision issued on June 10, the Court affirmed the Illinois-only preliminary injunction issued by the Illinois District Court; however the April order from the U.S. Supreme court staying the original preliminary injunction issued by the Illinois District Court prevents it from going into effect
+ 2nd Circuit Court of Appeals: the appeal of the New York District Court nationwide preliminary injunctions was argued on March 2, and we are waiting for a decision [audio of the oral argument can be heard on the 2nd Circuit’s website]
+ 4th Circuit Court of Appeals: the appeal of Maryland District Court nationwide preliminary injunction was argued on May 8, and we are waiting for a decision [audio of the oral argument can be listened to on the 4th Circuit’s website]
+ 9th Circuit Court of Appeals: briefing on appeals of Washington District Court nationwide preliminary injunctions and California District Court limited-geography preliminary injunction has been completed, no oral argument has yet been scheduled.
Given the U.S. Supreme Court’s stays of the original preliminary injunctions, even if any, or all, of these Courts of Appeals affirm the preliminary injunctions, those decisions would likely still be “stayed” either by those Courts themselves, or if DHS goes back to the U.S. Supreme Court for new stays.
U.S. District Courts
Meanwhile, in the originating U.S. District Courts that issued the preliminary injunctions:
+ motions for “discovery”, or requests for production of additional documents from DHS and government defendants, have resulted in court orders requiring DHS to produce more documents, issued by the California District Court on April 1 (reconciling numbers of comments submitted vs. produced, and communications with other federal departments and the White House), and by the Washington District Court on April 17 (communications with other federal departments, and evidence of discriminatory intent)
The California order is here:
And the Washington order is here:
+ at the same time, DHS has filed motions to dismiss all these legal challenges to the public charge regulation:
+ briefing on the motion continues in the Maryland District Court
+ the New York District Court heard oral argument on the motion to dismiss on May 18; on July 29, the District Court denied the motion to dismiss, but did dismiss one claim based on a technical argument that the Department of Homeland Security did not have the administrative authority to issue the regulation
+ on May 19, the Illinois District Court denied the motion to dismiss; the opinion is here:
Related Cases
In related cases, the challenge to the October 2019 presidential proclamation requiring immigrant applicants to have private health insurance remains blocked by a nationwide preliminary injunction issued by the Oregon District Court on November 26, 2019; on April 7, the District Court certified a class of plaintiffs challenging the executive action; the preliminary injunction order is here:
+ in December 2019, the 9th Circuit Court of Appeal denied an emergency stay of that nationwide preliminary injunction, and on May 5, denied a stay of the nationwide preliminary injunction pending appeal; the opinion is here:
+ on April 29, the Oregon District Court denied a temporary restraining order blocking implementation of the latest presidential proclamation, suspending all immigration processing overseas by the Department of State for at least 60 days, reasoning that the new presidential proclamation was insufficiently related (and much broader) than the October presidential proclamation; the Court did not preclude the filing of a new, separate legal challenge to the April presidential proclamation; the Court’s decision is here:
On July 29, the New York District Court issued a worldwide preliminary injunction blocking the implementation of the Department of State’s public charge regulation, changes to the Department of State’s policy manual, and the private health insurance requirement
Ignatius Bau 