Thread by @doug_rand

The DHS #PublicCharge rule—Trump's reckless "wealth test" to restrict immigration—lumbered back to life w/ a 2nd Cir. ruling on Fri night.

These judges did *not* say the rule is lawful—indeed, they believe DHS is likely to lose.

So what's going on?
1/
boundless.com/blog/public-ch…

TL;DR: The 2nd Circuit decided whether a lower court had any authority to suspend ("enjoin") the public charge rule, which was blocked in 3 states (NY/CT/VT).

Citing a prior SCOTUS order, they ruled no, clearing the way for DHS to reimpose the rule nationwide.
2/

This litigation has been incredibly complicated and disorienting.

I find it helpful to split the cases into two tracks: pre-Covid and post-Covid.

3/

10/11/19: Judge Daniels (SDNY) grants nationwide preliminary injunction, calling the public charge rule "repugnant to the American Dream of the opportunity for prosperity & success through hard work." 

(Let's call this the "pre-Covid injunction.")
4/
ag.ny.gov/sites/default/…

1/8/20: After the Trump administration immediately requests an emergency pause ("stay") of the injunction, a 2nd Circuit panel says no.

DHS still can't implement the public charge rule.

So of course they go to SCOTUS…
5/
legalaidnyc.org/wp-content/upl…

1/27/20: SCOTUS grants the govt's emergency stay request, reversing the 2nd Cir & suspending the pre-Covid nationwide injunction.

It was a 5-4 decision, with no explanation—just 106 words.

And it was deeply weird…
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legalaidnyc.org/wp-content/upl…

…because SCOTUS reserved to itself the sole power to suspend the public charge rule going forward, even if the lower courts ordered a nationwide preliminary injunction again.

It's not supposed to work this way, per @steve_vladeck:
7/
 nytimes.com/2020/06/17/opi…

A few weeks later, SCOTUS ruled 5-4 to shut down any preliminary injunctions of the public charge rule that lower courts might order even on a limited statewide basis.

Justice Sotomayor voiced a blistering dissent.
8/

https://twitter.com/doug_rand/status/1231037910222282752

8/4/20: A new 2nd Cir. panel upholds the pre-Covid injunction on appeal, & says the public charge rule is likely unlawful, but narrows the injunction to just NY/VT/CT.

In reality this affects nobody, because SCOTUS has stayed all injunctions.
9/
ca2.uscourts.gov/decisions/isys…

Okay, that was the first track.

But since SCOTUS allowed the public charge rule to go forward in January, we've experienced a global pandemic—emphatically not a time to be deterring people from seeking healthcare.

(via @joefigs2 @HarvardChanSPH:)
10/
statnews.com/2020/08/21/the…

So @NewYorkStateAG & other plaintiffs went back to SCOTUS, presented mountains of evidence that the #PublicCharge rule is deterring people from getting Covid testing & treatment, & pleaded for an injunction to suspend the rule during this emergency.
11/
law360.com/immigration/ar…

4/24/20: SCOTUS is unrelenting:

"The motion to temporarily lift or modify stay is denied. This order does not preclude a filing in the District Court as counsel considers appropriate."

So plaintiffs go back to SDNY...
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scotusblog.com/2020/04/no-pau…

7/29/20: …where Judge Daniels grants a new nationwide preliminary injunction, based on the new facts under a pandemic emergency.

(Let's call this the "post-Covid injunction.")

DHS stops implementing the public charge rule.
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nysd.uscourts.gov/sites/default/…

8/12/2020: A 2nd Circuit judge orders that the post-Covid injunction be narrowed to apply only to NY/VT/CT, pending a full panel's upcoming ruling.

DHS finds it too difficult to implement the public charge rule in all but 3 states, & sits on its hands.
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9/11/20: The 2nd Circuit panel pauses ("stays") the post-Covid injunction in its entirety.

These are the same Clinton-appointed judges who had approved the pre-Covid injunction, but now they say their hands are tied by SCOTUS.
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ca2.uscourts.gov/decisions/isys…

This coming week, DHS is sure to re-impose its #PublicCharge rule nationwide, no matter the massive health risks.

Meanwhile, in another case, the @StateDept's version of the public charge rule remains enjoined (repped by @NILC @theCCR @PaulWeissLLP).
nilc.org/issues/economi…
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There's yet another case, brought by @NILC @aila @MorganLewisLaw & @JennerBlockLLP, challenging the *implementation* of the public charge rule as unlawful.
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nilc.org/wp-content/upl…

And I don't believe any of the 9 original cases challenging the public charge rule are over—they're just grinding along until they get to final rulings at the district courts, & then it's back up to the circuit courts & SCOTUS.
18/

Before then, there's an election. Biden has promised to reverse the #PublicCharge rule ASAP, as part of both his immigration plan & his Covid response plan.
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joebiden.com/covid-plan/

Here is much more info on the public charge rule, including how it amounts to a family separation policy preventing hundreds of thousands of married couples to be together.

(via @chooseboundless:)
20/20
boundless.com/public-charge-…