Acting Department of Homeland Security (DHS) Secretary Chad Wolf was interviewed Sunday morning about the latest attempt by New York to circumvent federal immigration law–refusing to allow DHS access to the DMV records in New York. As a result, DHS banned New Yorkers from trusted traveler programs.

At the end of January, New York lost an important battle in the Supreme Court.  From the SCOTUS Blog:

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“Today a divided Supreme Court granted the Trump administration’s request for permission to enforce a rule known as the “public charge” rule, governing the admission of immigrants to the United States. The government had argued that it would suffer “effectively irreparable harm” if it could not implement the new rule while it appeals a pair of orders by a federal district court in New York. In a brief order, the court temporarily put the lower court’s rulings on hold until the government’s appeals to the U.S. Court of Appeals for the 2nd Circuit and, if necessary, the Supreme Court, are resolved.

The rule that the government will now be able to enforce interprets a provision of federal immigration law that bans noncitizens from receiving a green card if the government believes that they are likely to become a “public charge” – that is, reliant on government assistance. In August 2019, the Department of Homeland Security defined “public charge” to refer to noncitizens who receive a variety of government benefits, including cash, health care or housing, for more than 12 months over a three-year period. The rule also considers factors such as age, employment history and finances to determine whether a noncitizen might become a public charge in the future.”

One of the most interesting aspects of the decision was the concurring opinion:

“Justice Neil Gorsuch filed a concurring opinion that was joined by Justice Clarence Thomas. Gorsuch focused primarily on the common practice, illustrated in this case, of district courts issuing what are known as ‘nationwide injunctions’ – relief that goes beyond the parties to a particular dispute and bars the government from enforcing a law or regulation against anyone in the country. Nationwide injunctions, Gorsuch emphasized, ‘have little basis in traditional equitable practice’ and ‘hardly seem an innovation we should rush to embrace,’ because they ‘tend to force judges into making rushed, high-stakes, low-information decisions.’ And so although Gorsuch agreed with the court’s decision to allow the government to implement the public charge rule while it appeals, he also expressed hope that the court ‘might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.'”

Another pertinent quote from Justice Gorsuch on the practice the New York trial court judge used:

“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”

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