PHOENX — Shut down by appellate judges, Attorney General Mark Brnovich is asking the U.S. Supreme Court to let him defend a Trump-era rule designed to deny "green cards'' to those at the bottom of the economic ladder.
In new filings, Brnovich accuses the Biden administration of colluding with others opposed to the Trump rule to deny the high court the chance to review its legality by simply rescinding it. That move effectively made it impossible for the justices to review the legality of what had been done under Trump's leadership.
Brnovich does not dispute that Biden, as the incoming president, has the right to rescind policies enacted by Trump.
He said, though, that requires actually amending the rule, something that involves going through what can be a lengthy process under the federal Administrative Procedures Act. And that would have put the legal arguments about the validity of the Trump rule on hold but still kept the issue alive.
"Yet that is not what happened here,'' Brnovich wrote.
"The United States did more than just cease to defend the rule,'' he continued. Then, quoting a federal appellate judge who sided with him, Brnovich said, that the move "terminated the rules with extreme prejudice — ensuring not only that the rule was gone faster than toiler paper in a pandemic, but that it could effectively never, ever be resurrected, even by a future administration.''
So now he wants the U.S. Supreme Court to let him and other Republican attorneys general do what Biden will not — defend the rule.
The ability of immigrants to support themselves has always been a part of the consideration when determining if someone who enters this country legally should be granted permanent status. 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 allows the Department of Homeland Security to deny admission to anyone who is "likely to become a public charge.''
It said that would be based on the person's age, health, family status, assets, resources, financial status, education and skills. And a separate section of the rule said someone already in the country could be deported if, within five years, the person has become a public charge.
That led to a series of lawsuit across the nation, with several judges blocking the rule from taking effect. It was when appellate courts split on the issue — but before it went to the Supreme Court — that the Biden administration decided it no longer wanted the rule, effectively killing the litigation.
That led to Brnovich and other states moving 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 said he and the other states have more than a passing interest in the issue.
He pointed out the Trump-era rule estimated 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.''
But the Trump-era rule would be based solely on the chances someone might need benefits at some point in the future, not whether anyone already here actually is receiving them.
One way of accomplishing that was to use income as a much stronger indicator of whether the applicant is likely to become a burden and, therefore, ineligible.
One section 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.'' In essence, that suggests anyone above that level — $66,250 for a family of four — would have little problem qualifying.
At the other end, it says the absolute minimum for even being considered will be in the 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,'' the measure reads.
In refusing to allow the Trump rule to take effect, the 9th Circuit called it "inconsistent with any reasonable interpretation'' of the law on immigration.
The judges said the 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.''
That would have sent the case to the U.S. Supreme Court, as other appellate courts have issued contrary rulings — but for the fact the Biden administration decided not to defend the rule and effectively rescinded it. Brnovich wants to intervene "to offer a defense of the rule so that its validity can be resolved on the merits, rather than through strategic surrender.''
The move puts him at odds with Gov. Doug Ducey.
He 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.
The court has not set a date to decide on whether to let Brnovich intercede.
He is not alone, with Republican attorneys general from Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Texas and West Virginia also signing on to his legal brief.