No. 19A785
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS
v.
STATE OF NEW YORK, ET AL.
_______________
DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS
v.
MAKE THE ROAD NEW YORK, ET AL.
_______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

________________________________________________________________
________________________________________________________________

 Congress has declared that under the United States’ “national
policy

with

respect

to

welfare

and

immigration,”

there

is

a

“compelling governmental interest” in “assur[ing] that aliens be
self-reliant”

and

in

“remov[ing]

the

incentive

for

illegal

immigration provided by the availability of public benefits.”
U.S.C. 1601.
empowered

8

Consistent with that objective, Congress has long

specified

Executive

Branch

officials,

including

the

Secretary of the Department of Homeland Security (DHS), to declare
“inadmissible” “[a]ny alien who, in the opinion of [the relevant
Executive Branch official], is likely at any time to become a
public charge,” 8 U.S.C. 1182(a)(4)(A).

See Appl. 5-6.

That statutory policy refutes respondents’ arguments.

First,

on the merits, it undermines respondents’ claim that “public
charge” has a uniformly accepted meaning that applies only to
narrowly drawn types of public support.
text,

context,

or

history

requires

Nothing in the statute’s
that

narrow

reading,

or

precludes DHS’s natural and reasonable conclusion that aliens who
rely

on

public

support

to

feed

or

house

themselves

protracted or intense period are public charges.

over

a

Second, on the

equities, it forecloses respondents’ argument that because aliens
subject to the Rule may disenroll from public benefit programs,
allowing the Rule to go into effect would harm the public interest.
Indeed,
identical

two

courts

nationwide

of

appeals

preliminary

faced

with

injunctions

substantively
already

have

 2
concluded that stays are warranted to allow the Rule to go into
effect pending appeal.

The nationwide injunctions of a single

district judge should not be allowed to supersede those appellate
determinations or dictate national immigration policy.

Instead,

historical limitations on the proper role of a district court,
given force through Article III and principles of equity, require
that any relief be appropriately tailored to the parties.
I.

THERE IS A REASONABLE PROBABILITY THIS COURT WOULD GRANT
CERTIORARI
Respondents do not seriously dispute that if the Second

Circuit were to affirm the nationwide preliminary injunctions,
that decision would warrant this Court’s review.

Indeed, the

nationwide aspect of those injunctions by itself would warrant
review.

See Trump v. Pennsylvania, cert. granted, Jan. 17, 2020

(No. 19-454).

Instead, respondents contend that “until the[]

courts [of appeals] issue their decisions, there is no reasonable
basis” to predict whether this Court would grant certiorari.
Opp. 21; see Make the Road (MTR) Opp. 20.

NY

But this Court routinely

makes such predictive judgments when it considers whether to grant
a stay pending appeal of a preliminary injunction.

See, e.g.,

Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); Trump v.
Sierra Club, 140 S. Ct. 1 (2019).

And contrary to respondents’

suggestion (MTR Opp. 17), making that prediction is especially
easy here, where two courts of appeals already have entered stays
of substantively identical nationwide injunctions -- one of them

 3
in a published and precedential opinion holding that the Rule
“easily” survives challenge.

City & County of San Francisco v.

USCIS, 944 F.3d 773, 799 (9th Cir. 2019).
II.

THERE IS A FAIR PROSPECT THAT THIS COURT WOULD VACATE THE
INJUNCTIONS IN WHOLE OR IN PART
A.

Respondents Are Unlikely To Prevail On The Merits

1.

Respondents have failed to identify a cognizable Article

III injury that is within the zone of interests of the publiccharge inadmissibility provision.

Even if respondents could show

that the prospect of aliens’ disenrollment from public-benefits
programs poses a “certainly impending” threat to their coffers
fairly traceable to the Rule, Clapper v. Amnesty Int’l USA, 568
U.S.

398,

410

(2013),

their

interest

in

preventing

such

disenrollment is “inconsistent” with the public-charge provision’s
goal of ensuring that aliens be self-sufficient, Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225
(2012).

Respondents’ contrary assertion (NY Opp. 35-36; MTR Opp.

22) that the public-charge provision was somehow intended to
facilitate continued dependence on public benefits in service of
other goals finds no support in the statutory text.
2.

a.

Respondents’ challenges to the Rule also lack merit.

As the Ninth Circuit recognized, Congress has over the course of
more than a century intentionally preserved the Executive Branch’s
flexibility to interpret public-charge inadmissibility provisions
in a way that takes account of changes in public welfare programs.

 4
City & County of San Francisco, 944 F.3d at 791-798.
exemplifies

that

adaptive

approach,

and

fits

well

The Rule
within

the

“considerable discretion” Congress has granted to DHS “to determine
if an alien is likely to become a public charge.”

Id. at 799.

Despite that history, respondents repeatedly insist that when
Congress adopted the current provision in 1996, “public charge”
had a narrow, “well-established meaning” that Congress must have
meant to incorporate.
27.

NY Opp. 6; see, e.g., id. at 7, 12, 22, 24,

In respondents’ view, the settled meaning of “public charge”

is “an individual who does not work and is consequently primarily
dependent on the government for long-term subsistence.”
see MTR Opp. 2.
meaning.

Id. at 4;

There is no such well-established or settled

See Appl. 20-27.

Even the 1999 agency discussions --

which respondents otherwise embrace -- acknowledged that “public
charge” is “ambiguous” and had “never been defined in statute or
regulation.”

64 Fed. Reg. 28,676, 28,676-28,677 (May 26, 1999);

see City & County of San Francisco, 944 F.3d at 796 (“[W]e are
unable to discern one fixed understanding of ‘public charge’ that
has endured since 1882.

* * *

[D]ifferent factors have been

weighted more or less heavily at different times, reflecting
changes in the way in which we provide assistance to the needy.”).
Three examples illustrate the point.
First, respondents’ position is impossible to square with the
affidavit-of-support provisions of the Immigration and Nationality

 5
Act (INA).

See 8 U.S.C. 1182(a)(4)(C) and (D).

Respondents do

not dispute that an alien subject to those provisions who fails to
obtain a required affidavit of support is, as a matter of law,
inadmissible on public-charge grounds, regardless of the amount or
type

of

benefits

the

alien

receives.

See

Appl.

20-22.

Respondents’ arguments (NY Opp. 29) that some public benefits are
currently exempted by regulation from that treatment, and that the
affidavit-of-support remains in effect for only a limited time,
miss the point:

in classifying aliens who fail to obtain a

required affidavit-of-support as being inadmissible on publiccharge grounds, Congress necessarily rejected respondents’ narrow
understanding of “public charge” as limited to aliens who are
institutionalized or primarily dependent on cash payments.
Second,

respondents’

position

is

inconsistent

with

an

immigration treatise and the Black’s Law Dictionary definition of
“public charge” from the time of the INA’s passage.
25.

See Appl. 24-

Respondents essentially argue (NY Opp. 25; MTR Opp. 7 n.2.)

those definitions were incorrect, and that the correct definition
is in a case that the dictionaries and treatise cited.

But that

case, Ex Parte Kichmiriantz, 283 F. 697 (N.D. Cal. 1922), does not
support respondents either:

it recognized that “the words ‘public

charge,’ as used in the Immigration Act [of 1917], mean just what
they mean ordinarily”:

“a money charge upon, or an expense to,

the public for support and care.”

Id. at 698.

To be sure, the

 6
court

found

that

definition

inapplicable

because

the

alien’s

relatives had paid the State for the alien’s care, see ibid., but
the

court

(like

the

dictionary

and

treatise)

nevertheless

understood that “public charge” naturally refers to aliens who
impose a charge on the public, without qualifications about cash
assistance, primary dependence, or the like.
Third, respondents’ position is inconsistent with longstanding
administrative interpretations, such as the one adopted in In re
B-, 3 I. & N. Dec. 323 (B.I.A. 1948; A.G. 1948), that did not
require a showing of cash support or primary dependence.
at 326.

See id.

Respondents observe (NY Opp. 25-26; cf. MTR Opp. 7 n.1)

that unlike the Rule, In re B- required a showing of actual failure
to repay funds upon demand. But that difference simply underscores
the Executive’s longstanding flexibility in making public-charge
determinations.
“public

Critically, In re B- adopted an understanding of

charge”

decidedly

different

from

respondents’

narrow

definition, see Appl. 25 & n.4, thereby disproving their central
claim that “public charge” has a single, well-established meaning
that DHS is required to maintain in perpetuity.
b.

Respondents misread Gegiow v. Uhl, 239 U.S. 3 (1915), as

establishing that “the scope of ‘public charge’ remained limited
to individuals likely to rely almost entirely on government support
to survive.”

NY Opp. 6.

Gegiow actually addressed only the

“single question” of “whether an alien can be declared likely to

 7
become a public charge on the ground that the labor market in the
city of his immediate destination is overstocked.”
10.

239 U.S. at 9-

The Court said no, requiring such determinations to be based

on the characteristics of the alien, not his place of destination.
Ibid.

Although the Court suggested in dicta that “public charge”

might be interpreted narrowly to accord with nearby terms (like
“paupers”

and

subsequently

“professional
revised

the

beggars,”

relevant

id.

at

language

10),

Congress

specifically

to

disapprove that inference, see Immigration Act of 1917, 64th Cong.
ch. 29 § 3, 39 Stat. 875-876; S. Rep. No. 352, 64th Cong., 1st
Sess. 5 (1916) (“The purpose of this change is to overcome recent
decisions of the courts limiting the meaning of the description of
the excluded class.

* * *

(See especially Gegiow v. Uhl, 239

U. S., 3.).”); see also United States ex rel. Iorio v. Day, 34
F.2d 920, 922 (2d Cir. 1929) (L. Hand, J.) (the public-charge
statute “is certainly now intended to cover cases like Gegiow”).
Nor do any of the lower-court decisions and administrative
adjudications respondents cite (NY Opp. 4-6, 23-25; MTR Opp. 5-8)
establish a uniform, settled understanding of “public charge.”
most,

those

discussed

decisions

above

--

--

when

confirm

contrasted

the

Senate

with

the

Judiciary

At

materials

Committee’s

observation in 1950 that “[d]ecisions of the courts have given
varied

definitions

charge.’”

of

the

phrase

‘likely

to

become

a

public

S. Rep. No. 1515, 81st Cong., 2d Sess. 347, 349 (1950).

 8
Congress’s reaction to that variation was to preserve Executive
Branch

flexibility

to

adapt

the

public-charge

inadmissibility

provision as circumstances require -- not to incorporate a fixed
definition of the term.
As
follows

the

Ninth

that

the

See Appl. 25-26.

Circuit

correctly

Rule’s

interpretation

consistent with the statute.’”

recognized,
is

it

“easily”

“‘rational

and

City & County of San Francisco,

944 F.3d at 799 (citation omitted).

DHS adopted a reasonable

interpretation of “public charge” that -- like the mid-twentieth
century treatise and dictionaries -- asks whether an alien is
likely to charge expenses to the public for support and care; the
agency

then

moderated

that

interpretation

by

establishing

an

administrable threshold level of benefits below which an alien
would

not

be

Congress’s

considered

a

identification

public
of

the

charge.

Especially

“compelling

given

governmental

interest” in “assur[ing] that aliens be self-reliant,” 8 U.S.C.
1601(4), that is an eminently reasonable interpretation of the
statute, promulgated after notice-and-comment rulemaking; it is
certainly not, as respondents contend, “far ‘beyond the meaning
that the statute can bear.’”
c.

NY Opp. 26 (citation omitted).

Contrary to respondents’ suggestion (NY Opp. 31-32; MTR

Opp. 31), the Rule is not arbitrary and capricious in treating the
receipt of public benefits as indicative of a lack of selfsufficiency.

An alien who receives public “assistance to provide

 9
for

* * *

basic necessities is,” by definition, “not self-

sufficient,” 83 Fed. Reg. 51,154, 51,159 (Oct. 10, 2018), whether
or not he could have been self-sufficient had he chosen not to
accept public benefits.

Nor is the Rule’s “aggregate-counting

system” arbitrary and capricious.

NY Opp. 32; cf. MTR Op. 32.

That system reflects DHS’s sensible approach to considering both
the intensity and duration of an alien’s receipt of benefits in an
administrable way, with periods of more intense usage weighed more
heavily.

DHS also acted reasonably in including, as part of its

totality-of-the-circumstances

as

low

credit scores, lack of English proficiency, and family size.

See

NY Opp. 32.
stability,

assessment,

factors

such

Such considerations bear on an alien’s financial

earning

power,

and

material

needs,

and

DHS

cited

evidence showing that they thus affect the likelihood that a given
alien will receive public benefits in the future.

See 83 Fed.

Reg. at 51,184-51,185 (family size and English proficiency); 84
Fed. Reg. 41,292, 41,425-41,426 (Aug. 14, 2019) (discussing causes
and effects of credit scores).
d.

The Rule also does not violate the Rehabilitation Act.

See NY Opp. 34-35; MTR Opp. 29-31.

Congress has directed that DHS

“shall” consider “health” in determining whether an alien is likely
to become a public charge. 8 U.S.C. 1182(a)(4)(B). On respondents’
view,

instead

consideration

of

treating

among

many

in

health-related
the

conditions

as

one

totality-of-the-circumstances

 10
analysis, DHS would be required to treat minor ailments as a
negative factor -- but disregard entirely more serious conditions
that rise to the level of a disability.
does not require such absurdities.
e.

See Appl. 30-31.

Finally, the Rule does not violate equal protection

principles.
manner

The Rehabilitation Act

the

See MTR Opp. 32-33.
reasonable,

It pursues in a facially neutral

congressionally

declared

“national

immigration policy” of ensuring “that aliens be self-reliant,” 8
U.S.C.

1601(5).

Respondents

offer

no

colorable

basis

for

subjecting it to heightened scrutiny.
B.

The Nationwide Injunctions Are Overbroad

1.

As the government explained (Appl. 32-39), nationwide

preliminary injunctions can be in serious tension with both Article
III and traditional principles of equity.

As to Article III,

respondents assert that the nationwide injunctions here “protect[]
against

precisely

the

harm

[respondents]

ultimately

prevent -- implementation of an unlawful regulation.”
see MTR Opp. 37.

seek

to

NY Opp. 38;

But “a plaintiff ’s remedy must be ‘limited to

the inadequacy that produced his injury in fact.’”

Gill v.

Whitford, 138 S. Ct. 1916, 1930 (2018) (emphasis added; brackets
and citation omitted).

An injunction limited to aliens receiving

services from respondents in the jurisdictions where respondents

 11
operate fully remediates respondents’ alleged injuries. 1
As to principles of equity, respondents contend that “[t]he
‘scope of injunctive relief is dictated by the extent of the
violation

established,

plaintiffs.”

not

by

the

geographical’

NY Opp. 38 (citation omitted).

location

of

But respondents

overlook that the case they quote for that proposition, Califano
v. Yamasaki, 442 U.S. 682 (1979), involved a class action “brought
in conformity with” Civil Rule 23.

Id. at 702.

A certified

nationwide class may of course pursue nationwide relief; indeed,
a principal problem with nationwide injunctions is that they elide
the requirements and protections of class-action litigation.
Appl. 32.

See

Yamasaki itself cautioned that before certifying a

nationwide class, courts should “ensure that nationwide relief is
indeed appropriate” and “would not improperly interfere with the
litigation of similar issues in other judicial districts.”

442

U.S. at 702. Respondents’ position would turn Yamasaki on its head.
Respondents assert (MTR Opp. 37) that a court in equity
historically could issue an injunction “that also protects the

Respondents’ assertion (MTR Opp. 35) that one of them
“supports affiliate programs that deliver direct services to
immigrants in 49 states and the District of Columbia” is
insufficient to create a nationwide injury. Respondents’ claim to
injury as mere service providers to the individuals actually
affected by the Rule already is tenuous, see Appl. 17-18;
voluntarily providing “support[]” to other service providers
stretches the concept of Article III injury beyond all reasonable
limits. See Clapper, 568 U.S. at 418.
1

 12
interests of nonparties.”

But in support, respondents cite an

article discussing a “bill of peace,” which was more analogous to
a class action (with similar requirements and protections), see
Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev.
1065, 1081 n.77 (2018), as best illustrated by the fact that such
bills

bound

the

absent

parties

win

or

lose,

cf.

Smith

v.

Swormstedt, 57 U.S. (16 How.) 288, 302-303 (1853); Supreme Tribe
of Ben Hur v. Cauble, 255 U.S. 356, 366-367 (1921).

Respondents

cite another article identifying a small handful of nationwide
injunctions issued in the early 20th century, one as early as 1913.
See Sohoni, The Lost History of the “Universal” Injunction, 133
Harv. L. Rev. 920, 924-925 (2020).

But federal courts’ equity

jurisdiction is limited to the “system of judicial remedies”
applied by “the High Court of Chancery in England” in 1789 -- not
1913.

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 318 (1999) (citations omitted). 2
2.

Respondents’ alternative reliance (NY Opp. 36-38; MTR

Opp. 36-37) on 5 U.S.C. 705 is misplaced.

That provision states

that a court may “postpone the effective date of an agency action”

The date of the earliest known nationwide injunction is
contested.
See Bray, A Response to The Lost History of the
“Universal” Injunction, Yale J. Reg. Notice & Comment (Oct. 18,
2019); Sohoni, A Reply to Bray’s Response, Yale J. Reg. Notice &
Comment (Oct. 18, 2019). Regardless, that scholars debate whether
the first nationwide injunction was in 1913 or 1939 or 1963 simply
underscores that it was not a traditional part of equity in 1789.
2

 13
only “to the extent necessary to prevent irreparable injury.”
Postponing agency action solely as to the plaintiffs properly
before the court is all that is “necessary” to prevent their
asserted injuries.

Ibid.

Respondents’ reliance (NY Opp. 36; MTR

Opp. 36) on the observation that Section 705 “authorizes courts to
stay agency rules pending judicial review,” Mexichem Specialty
Resins, Inc. v. EPA, 787 F.3d 544, 562 (D.C. Cir. 2015) (Kavanaugh,
J., dissenting in part) (emphasis omitted), likewise is inapposite
because it does not address the scope of such a stay.

And that

agencies “routinely” “postpone the effective dates of their own
rules

* * *

on a nationwide basis” (NY Opp. 37) says nothing

about whether courts may order them to do so under Section 705.
Moreover, as even the district court correctly recognized
(Appl. 24a n.5; id. at 50a n.4), the “standard for a stay” under
Section

705

injunction.”

“is

the

same

as

the

standard

for

a

preliminary

Indeed, as this Court reaffirmed shortly before the

APA was enacted, statutory remedies should be construed consistent
with “traditions of equity practice.”
U.S. 321, 329 (1944).

Hecht Co. v. Bowles, 321

The Court has even suggested that the All

Writs Act, 28 U.S.C. 1651, confers remedial authority no broader
than

would

exist

under

applicable” in a case.
(citation omitted).

traditional

“principles

of

equity

Grupo Mexicano, 527 U.S. at 326 n.8

Nothing in Section 705 suggests it is any

broader than the capacious All Writs Act.

At a minimum, because

 14
traditional principles of equity place fundamental limits on the
judicial power, id. at 318, respondents’ expansive reading of
Section 705 would raise serious constitutional doubts and so should
be rejected on that basis too.

See Jennings v. Rodriguez, 138

S. Ct. 830, 842 (2018). 3
3.

Finally, respondents assert (NY Opp. 38; MTR Opp. 38)

that the interest in the uniformity of the immigration laws and
the public interest support a nationwide injunction here.
Congress’s

desire

that

the

immigration

laws

be

But

“enforced

vigorously and uniformly,” Immigration Reform and Control Act of
1986, Pub. L. No. 99-603, § 115, 100 Stat. 3384, is a policy
directive to the Executive Branch -- not a license for courts to
issue nationwide injunctions that impede development of the law.
And it is respondents’ position that would undermine the
public interest.
support

the

Principles of efficient and effective governance

vigorous

enforcement

of

the

immigration

laws,

including regulations (such as the Rule here) duly promulgated
through notice-and-comment rulemaking.

Two courts of appeals

Respondents’ reliance (NY Opp. 36; MTR Opp. 36) on
National Mining Association v. U.S. Army Corps of Engineers, 145
F.3d 1399 (D.C. Cir. 1998), also is misplaced. The D.C. Circuit
did not grapple with any of the historical limitations on equitable
remedies, and instead relied on a unique practical point
inapplicable here: that because venue for suits against federal
agencies always lies in D.C., even a narrower injunction would as
a practical matter apply nationwide because successive plaintiffs
would benefit from the binding precedent. See id. at 1409-1410.
3

 15
already have determined that the Rule likely is lawful; at a
minimum, therefore, it is in the public interest to enforce the
Rule in those jurisdictions.

A nationwide injunction prevents

that

of

by

precluding

successfully

operation

challenged

anywhere

a

Rule

--

everywhere

regardless

if

of

how

it

is

many

unsuccessful challenges there may be.
III. THE REMAINING STAY FACTORS WEIGH IN FAVOR OF A STAY
Respondents do not dispute that because of the nationwide
preliminary injunctions, the government is presently awarding -on an effectively irrevocable basis -- grants of lawful permanent
resident status to aliens who, under the Rule, should instead be
declared

inadmissible.

See

MTR

Opp.

8,

34-35;

Appl.

39-40.

Instead, they claim (NY Opp. 16) these effects do not qualify as
irreparable harm because any inadmissibility determinations made
under the Rule would be “of dubious legality.”

That argument thus

collapses into respondents’ arguments on the merits.
Respondents’ arguments about the “public interest” also are
inextricably tied to their arguments on the merits.

Respondents

contend that the nationwide injunctions should be allowed to remain
in place, notwithstanding the decisions of the Ninth and Fourth
Circuits, because otherwise large numbers of aliens will disenroll
from public benefit programs, forgoing billions of dollars’ worth
of “benefits for which they are eligible.”

MTR Opp. 33-34; ibid.

(describing these effects as “grave harms”).

But Congress has

 16
expressly specified that it is the official “immigration policy of
the United States that

* * *

aliens within the Nation’s borders

not depend on public resources to meet their needs.”
1601

(emphasis

“discourag[e]

added).

aliens

To

from

the

extent

receiving

that

public

the

8 U.S.C.
Rule

benefits”

may

because

pursuing such benefits would be inconsistent “with the immigration
status they are seeking,” that is not a valid objection because
“self-sufficiency is the rule’s ultimate aim,” consistent with
statutory purposes.

84 Fed. Reg. at 41,312-41,313.

See United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001)
(“[A]

court

Congress,

siting

in

deliberately

omitted).

And

to

equity

cannot

expressed

the

extent

in

‘ignore

the

judgment

legislation.’”)

that

the

Rule

of

(citation

might

cause

disenrollment by aliens who are not subject to the Rule, such
disenrollment is “unwarranted,” 84 Fed. Reg. at 41,313, easily
corrected, and temporary. It does not outweigh the long-term harms
the government will experience while the Rule is enjoined.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JANUARY 2020