Adam Klasfeld+ Your Authors @KlasfeldReports Reporter, @CourthouseNews: NYC+Int’l. RTs=What's it to ya? adam[at]adamklasfeld[dot]com PGP Fingerprint: F427 EE3B 6F05 E5D5 785B 775B 2C74 683C 219D 91DC Mar. 02, 2020 5 min read + Your Authors

Good morning from New York.

The Second Circuit hears an appeal this morning of a ruling blocking the Trump administration’s “public charge” rule on immigration, which a federal judge called “repugnant to the American Dream.”

Background from October: 

No live-tweeting this morning but updates following the proceedings on @CourthouseNews.

You know what? Scratch that. Let's live-tweet this.

The three-judge panel includes U.S. Circuit Judges:

* Pierre Leval
* Peter Hall
* Gerard Lynch

They refused to temporarily lift the injunction last month.

Proceedings are about to begin. The judges enter and the room rises.

Up first is attorney Gerard Sinzdak, representing the government, who quickly gets a question by Judge Lynch.

Lynch presses Sinzdak about Congress's intent on public benefits for immigrants.

"At one point was there ever judicial interpretations or administrative interpretations that took the view that receipt of any kind of public benefits was the test?"

Sinzdak offers one citation of somebody who was institutionalized, yet still not found to have been a public charge.

Lynch seems stunned, asking whether that's the government's most favorable citation.

Judge Leval agrees that this citation appears to be a strong precedent against the government's case.

It's the first time a second member of the panel has spoken up during proceedings dominated by intense grilling of the government by Judge Lynch.

"In my experience, people take what's available to them," Judge Leval notes, citing his accepting tax deductions.

The Trump admin's position is that someone who is eligible for benefits, like health care, is likely to get that for free, and therefore, possibly a public charge.

Judge Lynch notes that someone with a full-time job could be eligible for SNAP benefits.

"SNAP is not for basic needs. It is a supplemental program."

Judge Lynch's questioning of the government has been withering: "The proposition is you are trying to draw an intention for Congress over something it did not do."

Judge Hall speaks up for the first time, asking Sinzdak: "Does this have an impact of women of childbearing age?"

Sinzdak says that is an exclusion.

Leval asks whether that exclusion applies to women who need care following delivery.

Sinzdak says he "believes" it follows a few months after birth.

Judges are now grilling the government about this friend-of-the-court brief warning about the possible public health impacts of a pattern of immigrants disenrolling from Medicaid for fear of blowback under the public charge rule.

Sinzdak acknowledges that people are disenrolling but he says they do not need to be because one would already have to be a green card-holder to be enrolled in Medicaid.

Here is the friend-of-the-court brief under discussion now, filed by public health professionals warning about the impacts of the public charge rule. 

Attorney Judith Vale, representing the State of New York, is now up.

She emphasizes that the public charge rule has a settled meaning that always has meant the truly destitute, not those who have ever accepted supplemental benefits.

Vale's argument has been that the government cannot change a term of art, like "public charge," from its long-established meaning.

There is a long exchange between Vale and Judge Lynch on the precedent for that view.

Lynch tells Vale that the interpretation in the cases that she cited as precedent is "even more striking" than she suggested.

Summarizing them, Lynch said: "It's an able-bodied person. It may be the Depression. There may be no jobs there."

But if he can work: "Let them in."

Rattling off statistics about various forms of assistance, Vale notes that 40 percent of the New York population uses Medicaid.

Vale: "Benefits have changed over time, but not necessarily in the way that the defendants and the Ninth Circuit stay order say."

(Note: A divided 9th Circuit panel, two George W. Bush appointees and one Obama appointee, ruled in the govt's favor.) 

Now up for the advocacy group @MaketheRoadNY, which sued separately over the rule, is attorney Jonathan Hurwitz.

Referring to the potential public health consequences of disenrollment from benefit programs, Hurwitz said: "It's a predictable consequence of the rule."

Leval emphasizes that this rule only applies to people seeking to immigrate to the United States legally.

Hurwitz agrees: "That's correct."

"If you're here... in an undocumented status, this rule does not apply," Hurwitz says.

"There are state benefits to which LPRs have access," Hurwitz notes, referring to lawful permanent residents (aka green-card holders).

Judge Leval presses Hurwitz about the nationwide injunction that contradicts the ruling of another circuit, like the Ninth.

Even though the Ninth Circuit lifted its lower court's injunction, the SDNY block on the public charge rule still applies.

Hurwitz notes that Judge Daniels' nationwide injunction fell before the Ninth Circuit's decision.

Judge Lynch: "I hear Judge Leval's point very clearly."

"Let's assume that Judge Daniels acted appropriately... Would you agree that it's open to us to address what the appropriateness of a nationwide injunction is now?"

Hurwitz: "I think the court certainly could do that."

Judge Lynch asks whether they could find parts of the rule, like the English proficiency requirement, arbitrary and capricious.

Hurwitz says that even if it were inclined to do so, the court should remand the rule to the agency rather than rewrite piecemeal.

Up for the Democratic-dominated U.S. House of Representatives is William Havemann, arguing about Congress' intent as to the public charge rule.

Havemann: "Of course in 1996, Congress was concerned with non-citizen self-sufficiency, but Congress does not pursue its policy goals at all costs."

Havemann notes that Congress entitled green-card holders to food stamps in 2002.

In the past, DHS was looking at a candidate asking whether someone would depend upon the government and find so around 3 percent of the time, Havemann says.

This rule would thin to about half, he notes, calling it "transformational."

The Trump admin's public charge rule imposes "for the first time in the history of this country," Havemann says, a "wealth requirement" for lawful permanent residency.

Sinzdak is back up one more time for the government's rebuttal, attacking the House's statistic that half of U.S. citizens would have been considered public charges under the role.

He notes that public charge rule does not apply to them.

Lynch says that is not the point.

"If as many as 50 percent of the people in the country" cannot pass this threshold, Judge Lynch notes "that does suggest that it's a rather dramatic change" from a rule that was previously rarely applied.

From the House of Representatives brief:

"'[A]bout half of all U.S.-born citizens' at some point participate in the benefits programs considered in DHS’s new rule."

End of the hearing.

The judges adjourn without a ruling.

Look for a story soon on @CourthouseNews.

Note: The Second Circuit subsequently publishes the audio of its proceedings online, sometime after those hearings take place.

You can follow @KlasfeldReports.


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