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Supreme Court rejects AG Brnovich's effort to restore Trump-era 'green-card' rule

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PHOENIX — The U.S. Supreme Court will not allow Attorney General Mark Brnovich to defend a Trump-era rule designed to deny “green cards” to those at the bottom of the economic ladder.

In a unanimous decision Wednesday, the justices said it was “improvident” for the court to have even entertained Brnovich’s bid to restore the Public Charge Rule that would have imposed new hurdles on those seeking permanent legal status. The majority, in its eight-word order, did not explain its decision.

But in a separate concurring opinion, Chief Justice John Roberts said the decision does not mean that the court agrees with the decision by the Biden administration to quash the rule — the action that Brnovich sought to challenge. Instead, he said that there were too many thorny side issues that would get in the way of reaching a clear ruling.

Roberts said that there may be another opportunity for the court to decide whether Biden acted legally. But, for the moment, Biden’s action stands — and Brnovich and the other state attorneys general who sued to overturn it have no legal right to challenge it.

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There was no immediate response from the attorney general.

At the heart of the fight is what conditions the federal government can impose on those who, having entered the country legally, want permanent legal status.

The ability of immigrants to support themselves has always been a part of the consideration. But the rules, going back to the Clinton administration, have been much more lax in determining whether someone can get what is formally known as a Permanent Resident Card.

In 2019, the Trump administration adopted a rule that got more specific, using a variety of factors to determine if they would be likely to use government programs like ability to speak English and income.

Potentially more significant, the rule was designed to apply on the basis of the chance of someone needing benefits at some point in the future, not whether anyone actually is receiving them. And it did that by using income as a much stronger indicator of whether the applicant is likely to become a burden and, therefore, is ineligible.

For example, it says that U.S. Citizenship and Immigration Services “will generally consider 250% of the federal poverty guidelines to be a heavily weighted positive factor in the totality of the circumstances. Put another way, that suggests anyone above that level — $69,375 for a family of four using current data — would have little problem qualifying.

At the other end, it says the absolute minimum for even being considered will be in he neighborhood of half that much.

“More specifically, if the alien has an income below that level, it will generally be a heavily weighted negative factor in the totality of the circumstances,” it reads.

In a 2021 ruling, the 9th Circuit Court of Appeals called the rule “inconsistent with any reasonable interpretation” of immigration law.

At that point, the Biden administration, now in power, decided it no longer wanted to defend the rule, effectively killing the litigation.

That led to Brnovich and other states to seek to defend the rule in Biden’s absence. The 9th Circuit Court of Appeals refused, leading to this new filing with the nation’s high court.

Brnovich argued to the justice that Arizona and the other states have more than a passing interest in the issue.

He pointed out that the Trump-era rule estimated that it would save all the states more than $1 billion annually. Abolishing it, Brnovich said, means those costs remain with the states.

In an earlier interview with Capitol Media Services, the attorney general said this is not the right time to be putting money into more people getting things like Medicaid and public assistance benefits.

“I think that we need to take care of people that are here legally before we start giving benefits to people who just recently arrived here and don’t have legal status,” Brnovich said. “I’m trying to protect Arizona taxpayers.”

Wednesday’s ruling by the high court forecloses his ability to defend the rule.

In its decision voiding the Trump-era rule, the 9th Circuit said federal law has always been interpreted to mean long-term dependence on government support and not to encompass the temporary need for non-cash benefits. They also said the change failed to consider the effect on public safety, health and nutrition as well as the burden placed on hospitals and the vaccination rates in the general public.

Then there’s the fact the Trump rule sought to introduce a lack of English proficiency into the decisions “despite the common American experience of children learning English in the public schools and teaching their elders in our urban immigrant communities.”

Not all Republicans perceived the rule as a good thing.

Gov. Doug Ducey criticized the Trump administration in 2019 when it proposed the rule, saying the federal government should focus more on criminal activity, drug cartels and human traffickers.

More to the point, in discussing the issue of who would be able to get permanent resident status under the new rules, the governor said this country needs more than those who already are financially sound.

“It’s not only people at the graduate level and the Ph.D level who we need,” Ducey said. “We also need entry-level workers and people who can work in the service economy.”

The governor said it’s about opportunity.

“I want to see people who will climb the economic ladder,” he said. “I think many of us have a family story similar to that.”

And that, said Ducey at the time, goes back to his preference for a more balanced approach to immigration than what Trump proposed.

“We have the ‘haves’ and the ‘soon-to-haves,’ ” he said. “And both of them a part of proper immigration reform.”

But the issue remains alive politically.

Earlier this week, while speaking in Phoenix, former vice president Mike Pence called for restoration of the rule.

“You know, there’s that verse in the Bible that says ‘He who does not look after their own household is worse than a non-believer,”’ said Pence, who may be a Republican contender for president in 2024.

“We need to make it clear that the people who are coming into this country can support themselves, support their family,” he said. “We need the ‘public charge rule’ in effect so that people coming here are a benefit to America and not a burden to taxpayers.”

On Twitter: @azcapmedia