Supreme Court questions Biden administration’s actions on immigration rule
But in an unusual concurring opinion, Chief Justice John G. Roberts Jr. accused the Biden administration of apparent gamesmanship in abandoning the rule after lower courts ruled against it. He raised questions — shared by other justices when the court heard oral arguments in the case — about whether the administration was skirting the legal requirements that apply when a presidential administration vacates a policy of its predecessor.
The administration’s “maneuvers” could be seen as an attempt to avoid judicial review of whether “the Government’s actions, all told, comport with the principles of administrative law,” Roberts wrote.
He said a “mare’s nest” of procedural problems stood in the way of the court making such a decision, however, and his words read more like a warning for the future. It was joined by Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.
The court still must rule before the end of the term on another Biden administration case involving immigration. It involves lower-court decisions that have kept the administration from ending a Trump-imposed “remain in Mexico” requirement that keeps asylum seekers along the southern border outside the United States while their cases are decided.
Biden administration tells justices it should be able to end ‘remain-in-Mexico’ rule
Wednesday’s case was about President Donald Trump’s “public charge” rule, approved in 2019, which denied green cards to immigrants if they had relied too much on social welfare programs such as food stamps. It was in effect about a year, but courts across the country judged it at odds with federal immigration law, and a district judge in Illinois in November 2020 said it could not be implemented nationwide.
Deputy Solicitor General Brian Fletcher told the Supreme Court in oral argument that the Biden administration agreed with lower courts and that the rule was ineffective, as well. “We know that it affected only about five of the approximately 50,000 adjustment-of-status applications to which it was applied,” Fletcher said.
The Biden administration acquiesced to the Illinois judge’s decision and moved to dismiss the remaining cases around the country. That left states that favored the public charge rule without recourse, and Arizona Attorney General Mark Brnovich (R) tried to intervene on behalf of other Republican-led states.
But the U.S. Court of Appeals for the 9th Circuit, which covers the West, turned him down for a number of reasons.
The substance of the rule was not before the Supreme Court, and Roberts noted that the decision of the Illinois judge was still being appealed. He said the court’s action in the Arizona case “should not be taken as reflective of a view” on the procedural issues, “or on the appropriate resolution of other litigation, pending or future, related to the 2019 Public Charge Rule, its repeal, or its replacement by a new rule.”
The case is Arizona v. San Francisco.
Separately on Wednesday, the justices sided with two Native American tribes in Texas in a dispute over whether the state could prohibit the tribes from offering electronic bingo on their lands.
The 5-to-4 decision split the court in unusual ways, with Gorsuch writing for a majority that included fellow conservative Justice Amy Coney Barrett and the court’s three liberals. If the court’s traditions held, that means senior liberal Justice Stephen G. Breyer assigned the opinion to Gorsuch, one of the court’s most conservative members.
Gorsuch has a history of siding with tribal interests. In the case at issue, brought by members of the Ysleta del Sur Pueblo tribe near El Paso and the Alabama-Coushatta Tribe of Texas, the issue was whether Texas could keep the tribes from offering certain kinds of gambling on their lands.
Gorsuch said an agreement reached by the tribes, the state and Congress gave the tribes the ability to offer gambling that is not banned outright by the state, even if it is regulated. Bingo falls into that category, even if it is not “the sort of bingo played in church halls across the country,” Gorsuch wrote.
Indeed, Roberts, one of the dissenters, included a picture of one of the 2,000 machines Texas officials found in the Pueblos’ Speaking Rock Entertainment Center that looked just like slot machines, which Texas bans.
“Players press a button, graphics spin, noise plays, and eventually players learn whether they have won or lost,” Roberts wrote. “The machines are accessible 24 hours a day and, for added effect, are emblazoned with names like ‘Big Texas Payday,’ ‘Welcome to Fabulous Las Vegas,’ and ‘Lucky Duck.’ ”
“As the Tribe sees it, Texas does not ban the playing of bingo under all circumstances, so none of the State’s restrictions on the game apply,” Roberts wrote, adding “I am not persuaded.” He was joined by Thomas, Alito and Justice Brett M. Kavanaugh.
The case is Ysleta Del Sur Pueblo v. Texas.