Appeals Court Halts DHS Public Charge Rule for Judicial Districts and States Represented in Case

In a 2-1 ruling, the U.S. Court of Appeals for the Ninth Circuit affirmed a decision made in the lower courts that granted a preliminary injunction in a multistate lawsuit against the Department of Homeland Security (DHS) Public Charge Rule (see Memo, 08/19/2019) on December 2, 2020. The rule is now blocked from being implemented in states and districts under the jurisdiction of the Ninth Circuit Court of Appeals and in Maine, Oregon, Pennsylvania, and the District of Columbia.

Last year, the Ninth Circuit had halted preliminary injunctions on the DHS public charge rule granted in the District Court for the Northern District of California and the District Court for the Eastern District of Washington. Shortly thereafter, the plaintiffs appealed the decision. The judges reviewed the appeals through the following justifications:

  1. Plaintiffs’ Capacity to Maintain the Action

The plaintiffs had alleged that the public charge rule had would cause continuing financial harm, as lawful immigrants eligible for federal cash, food, and housing assistance withdraw from these programs and instead turn to state and local programs. When addressing if the injury was apparent or imminent, the judge's panel explained that:

  1. The Rule itself predicts a 2.5 percent decrease in enrollment in federal programs and a corresponding reduction in Medicaid payments of over one billion dollars per year;
  2. The Rule acknowledges that disenrollment will cause other indirect financial harm to state and local entities; and
  3. Declarations in the record show that such entities are already experiencing disenrollment.

The plaintiffs were also able to prove that the interests of the plaintiffs in preserving immigrants’ access to supplemental benefits are within the zone of interests protected by the statute. Due to these findings, the judges determined that the district courts were correct that the plaintiffs were able to maintain this action.

  1. Contrary to Law

DHS contended that the interpretation made in the public charge rule is a permissible interpretation of the statute. The plaintiffs maintain that the public charge rule violates the statue because the rule is not a reasonable interpretation of the meaning of “public charge” The judge’s panel noted that the opinions of the Second Circuit and the Seventh Circuit, in affirming preliminary injunctions of the Rule, agreed that the Rule’s interpretation was outside any historically accepted or sensible understanding of the term. The panel concluded that the plaintiffs have demonstrated a high likelihood of success in showing that the public charge rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law.

  1. Arbitrary and Capricious

As part of an Administrative Procedures Act (APA) challenge, plaintiffs must prove that the rule is arbitrary and capricious in which a court can overturn agency rules if they find that underlying rationale or factual assertions to be unreasonable. The district courts ruled that the plaintiffs were likely to succeed in their contention of this rule. The plaintiffs argued that DHS failed the arbitrary-or-capricious test in three principal respects:

  1. Failed to adequately consider the financial effects of the Rule;
  2. Failed to address concerns about the Rule’s effect on public safety, health, and nutrition, as well its effect on hospital resources and vaccination rates in the general population; and
  3. Failed to explain its abrupt change in policy from the 1999 Guidance.

The panel concluded that the DHS adopted the public charge rule without adequately taking into account its potential adverse effects on the public welfare, concluding that the promulgation of the rule was arbitrary and capricious as well as contrary to the law within the meaning of the APA.

  1. Remaining Injunction Factors

The panel explained that the plaintiffs had established that they likely are bearing and will continue to bear heavy financial costs because of the withdrawal of immigrants from federal assistance programs and consequent dependence on state and local programs. The panel also observed that the public interest in preventing contagion is particularly salient during the current global pandemic and noted the financial burdens on the plaintiffs and the adverse effects on the health and welfare of the immigrant as well as the general population.

  1. Propriety of a Nationwide Injunction

The court concluded a nationwide injunction is not appropriate as the same issues regarding the validity of the rule that this lawsuit has brought up have been or are being litigated in multiple federal districts and circuit courts. The court thus vacated this portion of the order made by the District Court for the Eastern District of Washington, restricting the injunction to the aforementioned states and districts.

  1. Rehabilitation Act

Since the court has held that the public charge rule violated the APA, the ruling does not address the Rehabilitation Act.

The Ninth Circuit affirmed the order of the District Court for the Northern District of California and affirmed in part and vacated in part (vacating the nationwide injunction in justification V) the order of the District Court for the Eastern District of Washington.

In his dissenting opinion, Judge Van Dyke wrote that for reasons interpreted in the court’s December 2019 opinion on the case, by the Fourth Circuit in an August 2020 opinion, and by a dissenting opinion from the Seven Circuit Judge in a June 2020 opinion (notably referring to the now, Supreme Court Justice Amy Coney Barrett), and what has been implied by the Supreme Court’s multiple stays this year of injunctions identical to this ruling, he must dissent.

In a press release announcing the victory, California Attorney General Xavier Becerra said, “We applaud today’s decision blocking the Trump Administration from enforcing its immoral public charge rule while we make our case in court. As we continue to face an unprecedented economic and public health crisis, forcing hardworking families to choose between basic necessities and maintaining their immigration status is inhumane. Attacking the healthcare of even one community is an attack on us all. Today’s victory is critical, but the fight is not over. We won’t let the Trump Administration’s assault on our immigrant communities go unchecked.” Xavier Becerra was joined by Attorney Generals of Maine, Oregon, Pennsylvania, and the District of Columbia.

It is important to note that the Public Charge Rule will not apply to testing, screening, or treatment of communicable diseases including COVID-19.

The preliminary injunction on the DOS Public Charge Rule remains in effect nationwide (see Memo, 08/03).

NLIHC will continue to inform readers on the status of this litigation and the efforts across the nation to oppose the Public Charge Rule.

Read the decision by the United States Court of Appeals for the Ninth District at:

Read the press release from the Office of the Attorney General for California at:

Visit the Protecting Immigrant Families Campaign website for more information and resources on the Public Charge Rule at: