NYC Suing Trump & Fixing the Shadow Docket

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1:30This is Bloomberg Law with June Grosso from Bloomberg Radio. New York City Mayor Zoran Mamdani said the Trump administration is exceeding its statutory authority by passing an arbitrary and capricious rule that goes against 140 years of legal precedent. The new federal public charge rule not only sweeps aside more than a century of established law, it is intentionally vague as a means of creating uncertainty and fear to isolate immigrant New Yorkers, to force them to make an impossible choice between meeting their own basic needs and continuing to live in the city that they love. New York City and state are leading a coalition of cities and 22 states filing lawsuits against the Department of Homeland Security's revocation of 2022 guidelines of the public charge rule in a way that gives immigration officers unprecedented sweeping discretion to deny green cards or visas to lawful immigrants.

2:36Joining me is an expert in immigration law, Leon Fresco, a partner at Holland and Knight. Leon, first tell us what the public charge rule is. Well, so the public charge rule actually comes from a statute that was passed in the 1800s. So this is not a new provision of law, so to speak. But it's a provision that's existed since the 1800s, which says that if a person is believed by the U.S. government to be likely to need public benefits. What the actual statute says is if the attorney general believes at the time of your application for admission into the United States that you are likely to be a public charge, you shall be deemed inadmissible.

3:20And so now it's not the attorney general who makes that decision. Now it's the Secretary of Homeland Security. And it's not just at the time of the admission, but also at the time of if you try to change from one status to another, or try to move from a non-immigrant status to a green card status, there is an adjudication that has to be made each and every time about all of the grounds of inadmissibility, meaning are you a drug dealer, are you a terrorist, are you an illegal gambler, etc. And one of the grounds of inadmissibility is that you are likely to be a public charge. So what has happened is over the course of many decades, the rules keep changing as to what the government wishes to define as a public charge.

4:08And the most recent rule was a Biden administration rule from 2022, which said that you are not a public charge unless you had obtained very specific government benefits that are very, very hard to obtain. So almost no one was a public charge. But what the Trump administration has done is they've replaced that Biden administration guidance with a rescission of that rule, but not with a new rule of their own. Instead, they said, go look at this sub-regulatory guidance in our USCIS policy manual. And what that policy manual basically says is any particular adjudicator can look at pretty much anything they want and make an unfettered discretionary determination as to whether the person in front of them with their application is a public charge or not.

5:04which again, the theory is, is this person going to be dependent on the U.S. taxpayers for their life in the United States, in which case the answer is they don't get the immigration benefit they are supposed to get. Or if you think that they will be self-sufficient, then you can continue and give them the benefit that they're supposed to get. Mayor Mamdani said that the change is going to disproportionately affect cities like New York City with large immigrant populations because they rely on federal funding. And there's a concern that people are not going to request these benefits because they're afraid of what may happen in their immigration cases.

5:43Well, the cities have two problems, which is number one, they have to have some sort of standing basis in order to file the lawsuit. So they have to show what they are going to suffer in order to be able to file this lawsuit on behalf of the foreign nationals that would themselves otherwise have to file this lawsuit about the public charge. So they have to have some theory of how they as states are harmed. And what they're saying is that as these federal rules and calculations get placed for how many people need benefits, etc., many of them are calculated based on how many people have green cards and how many people are lawfully in the state, etc., etc.

6:27And so when you lower those numbers, then those states lose those benefits. And the idea is that money gets spent in the state and then it has circulation effects where that money then gets spent again, etc., etc. And all of that economic damage then occurs because that money, that federal money never gets to that state in the first place because these people don't acquire the status that allows them to be included in these calculations. So the grounds are that DHS is exceeding its authority and the new rule is arbitrary and capricious. Right. There's two different interesting, it's like a sandwich complaint, which is they try to say, if you want to pick road number one, you will be losing in this route.

7:19If you want to pick road number two, you will be losing in this route. So you have to pick one and then you lose. So there's three counts and I'll go through them. So the first one is that if what you're trying to say is that this sub-regulatory guidance is binding on the agency and they have to use the guidance, which is the USCIS policy manual, which gives sort of a checklist for adjudicators to use to determine whether someone is a public charge or not. Their first group here is that that violates the statute because the statute means specific types of benefits, period. It doesn't mean anything you want.

8:04It's not a broad sort of let's look at this entire person's life and make a determination. It means specific benefits, and the reason they claim that is because there have been several congressional efforts to try to change the 1952 statute, meaning of what a public charge was, and all of those congressional efforts have failed, meaning that if you could already look at everything, you wouldn't have needed those congressional efforts to try to change this statute. And so in the Second Circuit, which is where the case was filed in New York, there's a case called New York versus DHS that came out in 2020, which says that a public charge is someone who's unable to support themselves through work savings or family ties and that mere receipts from the government of benefits is not dependency.

8:57And so from that standpoint, that means that you can't just unilaterally disqualify people for the bases that are in these checklists. But then they say, but if you're saying that these checklists are not binding, then it's a question of, well, what are they there for? They're contrary. But they say they are binding. Then the issue is then that that's really a regulation. You needed to do that using notice and comment. and they didn't use notice and comment, which is whenever you do any new thing administratively, if it's of any substance, you have to give 60 days or 30 days or some amount of notice, and you have to give the public a chance to comment on it.

9:39And they didn't do that here. And then in addition, the final claim is that to the extent also that they say this does matter, then they didn't consider up their reliance interest. This has been a thing since the time of the DACA decision where Justice Roberts said that they didn't give sufficient scrutiny to the reliant interest that people had already done when they took DACA. This is the same thing. They didn't consider alternatives or the reliant interest of what people did when they took benefits that are now going to be held against them when they thought it was legal. And so from that standpoint, that would also be arbitrary and capricious.

10:18So all three of those are interesting, But the point is, one way or another, these states are likely to prevail in the Second Circuit because they've already prevailed during an initial Trump administration rule in 2020. What will be more interesting will be what the Supreme Court does. The Supreme Court has ruled for the Trump administration in almost every case. What do you think they'll do here? I do wonder if the Supreme Court will want to allow unfettered discretion to adjudicate indicators without any kind of notice and comment. I do think that's going to be potentially something that might bother five justices maybe to the Supreme Court.

11:01But we'll have to wait and see because they did give this unfettered discretion to the CBP to not let in lawful permanent residents if they thought there was a problem with their case. And they just assumed that the CBP would act in good faith. That was a decision this last term. So maybe they will assume this public charge power will always be used in good faith and nobody will ever be discriminated against. But maybe they won't. Maybe they will say the government does need a check on this and you can't just have a sub-regulatory guidance that says whoever the specific person thinks that day is a public charge now suddenly has to leave the country.

11:39It does seem very vague. Manami said it was intentionally vague. So what do you think the government's argument is? Well, the government's argument is going to be that the statute, as it was passed in the 1800s, is the original statute, is the same basic version, and that was to give this unfettered guidance to the adjudicators. There's a very famous case from the late 1800s that I teach my immigration law students called ECU versus United States. It's a Japanese woman who comes with the equivalent nowadays of$4 ,800 in her wallet. But because she doesn't speak English, there's sort of this miscommunication.

12:21They're asking her what she's going to do here and she can't explain. And they say, you're a public charge. We are not allowed to be here. And then that case goes to the Supreme Court of all places over this one person's public charge issue in the 1800s. So it's interesting that they had this kind of advocacy litigation even back then in the 1800s. And the Supreme Court says, look, the statute says what it says. It says that the individual adjudicator can make this adjudication. And who are we, the Supreme Court, to interfere with this? At the end of the day, this is what the Congress wrote. The Congress said who had to make the adjudication, and we're not going to create any kind of federal court interference with this statute that was otherwise passed by Congress and signed by the president.

13:07So if they can get the Supreme Court to say all that is old is new again, then they could bring us back to the 1800s and restore that understanding of the immigration law. Leon, the mayor of New York and the attorney general of New York said that because of this, people won't use the safety nets that are available to them. I mean, do you think that that's true, that they'll stop for fear of what may happen? I think it becomes complicated because you would have to make two adjudications in your own mind. Number one, do I really need the benefits? And then number two, when do I think I'm going to be in front of immigration?

13:49So if you think you could wait until there's an administration that would remove said public charge rule, then you would take the benefits because you would say, well, whenever I apply one day, it won't be a problem because that rule will be gone by then. But if you think this rule would be in place forever, then the rational move would be not to accept any public benefits because you could be denied for accepting any public benefits. And the real trick is this. The individual that's the foreign national themselves rarely can get any benefits. The only one they can get is something called emergency Medicaid, which is basically you're dying and they got to let you in the hospital and somebody's got to cover it.

14:32So that's that. That's emergency Medicaid. But now what they're talking about is, okay, you are here as a foreign national. You have a U.S. citizen child. Your U.S. citizen child is poor because you're poor, and they get food stamps. So before, that wasn't held against the foreign national applicant because it was the child who was getting the food stamps. It wasn't the foreign national. Now that's being held against the foreign national under this guidance where they would say, well, it's your fault. you had this child and now the U.S. taxpayers are paying for this child's food. Why would we reward you with a green card in exchange for what you've done here?

15:12But the problem is, at the end of the day, this person is not technically the public charge. It's the citizen. And even if you were to deport the foreign national, the citizen still might stay and still might be getting food stamps. So it might not even change anything from that perspective. So there's a lot there, and I can understand a lot of the thinking on all the sides here, but the point is now that parent may not get those food stamps for that child, and so then, yes, that might happen now because of this rule. First stop, though, district court. Thanks so much, Leon. That's Leon Fresco of Holland and Knight.

15:54Coming up next, is there a way to fix the shadow docket? This is Bloomberg. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM.

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17:31The Midwest levels up. October 3rd and 4th, Future Play Festival takes over Peoria. Experience the$50 ,000 Collegiate Esports Showdown with interactive games, retro arcades, airsoft, and remote-control racing. And Saturday night, it's the Future Play After Dark Party Takeover with explosive live performances by Lil Jon and James Hype. Experience what's next in games and entertainment. October 3rd and 4th at the Peoria Civic Center. Don't wait. Don't miss it. Get your tickets now at futureplayfestival.com. The Supreme Court's emergency or shadow docket has grown in size and importance. Rulings that are often issued without a detailed explanation yet are binding on lower courts.

18:16Justice Ketanji Brown-Jackson is one of the justices who've criticized the shadow docket for its lack of transparency and accountability. So the court has left confusion in its wake and it offers little guidance because it ordinarily does not spell out the circumstances, giving rise to its own equities evaluation, making it incredibly difficult for lower courts to understand which facts were important to the state determination and thus identify like cases. In a new paper, Columbia Law School professors Thomas Schmidt and Kellen Funk say that over the past 15 years, the Supreme Court has confronted a growing number of its most consequential public law disputes through the shadow docket, and that the rising number of such rulings in the hasty way they're decided may lead to charges of arbitrariness and lack of transparency.

19:16Professor Schmidt joins me now. Can you explain why the shadow docket has grown so much in size and significance? Well, it's a difficult question. And let me just begin with some numbers, June, just to remind everybody how dramatically this has grown in the last decade or so. So during the eight years of the Obama administration, plus the eight years of the Bush administration, so six years total, the court got, I believe, six or eight applications from the government to intervene and lift the lower court's injunction with respect to a federal policy. That has exploded in recent years. So the latest number that I saw was about 37 applications from the second Trump administration in the first, what, year and a half, almost two years of the administration.

20:04So there's just been a dramatic increase. And I think that's due to a number of different reasons. I think one is that the executive branch and the president in particular has gotten a little bit more aggressive over time in invoking legal authorities to implement its preferred policies, right, without Congress. And that's led to some litigation that has created a series of injunctions in lower courts. And the Supreme Court itself has felt pressure to intervene and has intervened in a lot of cases. So that's one piece of the story. But I think another piece of the story, unquestionably, is that the court has been more open to these sorts of applications, and it's applied its own stay and injunction standards in a way that invite these applications.

20:48So to a certain extent, litigants are pushing on an open door. And that's another reason that there's been so much of a growth in this side of the court's business. Is it also because the court is taking so many fewer cases than it did years ago on the regular docket? It seems to go down all the time. That may be part of it, although there's a little bit of a chicken and egg problem here. So in other words, one thing that could be happening is the court has just decided for its own internal reasons to take fewer cases that has led to having more time to deal with more emergency applications. And therefore they've adjusted the relevant standards to make that possible.

21:26Another version of the story, and this is the version that I happen to believe, June, is that the court has gotten much more active on the shadow or what my co-author, Kellen, and I call the equity docket. And as a result, it just says less time for the merits cases, right? So in other words, I think partly at least the shrinking of the merits docket is due to the fact that the court anticipates term after term that it's going to be doing so much in a shadow interim emergency or equity posture, whatever phrase you want to use. Explain why you think it'd be better to call this the equity docket.

22:02I think it's better because that fundamentally describes what the court is doing, right? I mean, what litigants are doing when they come to the court in this posture is asking the court to set the status of a legal policy or to set the status between the parties while a lawsuit is pending. And traditionally, historically, that was one of the core functions of courts of equity. And so what we're trying to do by using this phrase is just connecting the court's activities in recent years on the equity or shadow docket to a long tradition of adjudication because we think there are actually some useful lessons to be drawn in that connection.

22:41There's a four-part test for equitable intervention that courts use. Does the Supreme Court take into account and decide on each of those four factors? So the four-factor test that the court has given is irreparable harm, the likelihood of success on the merits, the balance of the equities, and the public interest. Now, it's a little bit difficult to answer your question for a couple reasons, right? So first of all, so often these rulings on what we call the equity docket are unexplained. So when a ruling is unexplained, there's just no way to assess which of the factors the court considered. Second, sometimes when they are explained, they only focus in on one factor and don't really address the other factors.

23:25So again, it's not really clear in that circumstance what was an ingredient in the court's decision making. And then in other cases, the court kind of recites the factors in a rote sort of way, but doesn't really address all of them. So one thing that Kellan, Professor Funk, and I argue for in this paper is a little bit more transparency in the rationale for rulings and just a little bit more sensitivity, a little bit more attention to the traditional inputs of equitable decision making when the court takes a case on the equity docket. Will you explain what you mean by paying more attention to the traditional inputs of equitable decision making?

24:03Yeah, so maybe it'd be helpful to talk about this in the context of a case that's currently pending in the Supreme Court on its equity docket. So I'm thinking of the mail-in voting case. We're all thinking about that and waiting for that. Yes. Okay. So that's pending right now. We're all waiting with bated breath for the Supreme Court's ruling in that case. And let me explain what I mean about focusing on the equities, right? So one way that you could answer the government's petition in the mail-in voting case is to say the government is right on the merits. The United States Postal Service has the statutory authority to promulgate this rule.

24:42and as a result, we're going to grant the government's application and allow it to implement this rule before the new election, right? That would be a very merits-focused way of resolving the case. Another way of resolving the case would be to say, well, what's the balance of the equities here? And is the government really shown that it can prevail on that factor of the equitable test? And if you look at it from that point of view, I don't think this is a particularly close case at all, right? Because if we think about the equities on one side, We have tremendous possible harm in the form of voter disenfranchisement and just chaos in election administration, right?

25:19Stemming from the fact that the U.S. Postal Service rule conflicts with state law in some ways. And this is all happening so soon before the election. It's not even clear the federal government will be able to get this up and running, right? So we have all of those harms on one side of the ledger. And it's very difficult to identify what the harm on the other side of the ledger is if you look at the government's briefing, right? One thing the government says is, well, our goals would be thwarted. But that's kind of an abstraction, right? That's not really focusing in on the facts on the ground, as we would want a court of equity to do.

25:49The other thing the government gestures towards is voter fraud. That could, of course, be relevant to the equities. But the problem is the government doesn't really, in its briefing, give any evidence for what that problem is and how this rule in particular could help, right? So this is all to say, I think this would be a very straightforward case for the court to resolve on the equities without having to get into the thorny merits issues about the USPS's statutory authority. Then why do you think the court didn't resolve it the first time it came around and instead, you know, said that the case wasn't right because the post office hadn't passed regulations?

26:27I mean, I wonder about that because every legal expert says it's clear that it's not for the administration, it's not for the executive branch, for the postal service, for federal agencies to be making rules about elections. So why did they do that? It seemed bizarre. Yeah, I mean, I think one way to look at it is to say it was so clear that all of this chaos and uncertainty was coming and the Supreme Court should have got involved. I suspect the way the court majority looked at it was that whatever chaos we find to be coming down the road, if an application to us or a motion in a lower court for a preliminary injunction is premature, that is to say it's filed before the relevant rule challenged is even promulgated, a court shouldn't get involved.

27:14And you could even associate that with certain equitable traditions too about requiring plaintiffs to show irreparable harm. So they may have had their own equitable reasons initially to grant it, even if in retrospect, that decision might look imprudent. To the Trump administration, everything is an emergency. Whether it's an immigration law or something else. It's always an emergency that they're going to the Supreme Court on. I mean, should the court at some point say this isn't an emergency anymore? They do put some of these on the regular docket, rarely, but they do that. I mean, should they stop taking every single case that the Trump administration says is an emergency?

27:52Yeah, I think there's a lot to that, June. And I would think about it in a couple different ways. First of all, one of the most important requirements for getting on the equity docket and historically to get into a court of equity was that you had to show irreparable harm. And the reason you had to show irreparable harm is that the courts of law, in the case of the Supreme Court, right, the merits docket, are open for adjudication of the case in this non-expedited posture, right? So one way that the court could respond to this circumstance is to just insist on government showing of irreparable harm in every case when they come to the court, right?