Justice Sonia Sotomayor handed down a ferocious dissent Friday after the Supreme Court lifted the final barrier to a Trump administration rule that withholds green cards from immigrants dependent on government services.
At issue in Friday’s case was the so-called public charge rule. Federal immigration law provides that immigrants should not receive permanent legal status if they are likely to become "a public charge." The government has traditionally defined a public charge as a person dependent on a cash assistance program. The Trump administration’s rule expands that definition to include other forms of non-cash assistance like food stamps.
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The vote was five to four and tracked familiar ideological lines. The Court did not give an explanation for its decision, as is typical of such orders. In dissent, Sotomayor said the Trump administration has been bringing cases to the Supreme Court prematurely by exploiting procedural rules.
"Claiming one emergency after another, the government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each," Sotomayor wrote. "And with each successive application, of course, its cries of urgency ring increasingly hollow."
"It is hard to say what is more troubling: that the government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it," she wrote.
The Supreme Court blocked two nationwide injunctions from New York that barred enforcement of the new policy on Jan. 27. One final injunction, which applied in the state of Illinois, remained in effect after that decision.
The government filed an emergency stay application asking the justices to lift the Illinois injunction on Feb. 13. The Court’s Friday order means the government can enforce the rule in Illinois—which has almost 2 million immigrants—while litigation continues.
Sotomayor compared the conservative majority’s approach to the government’s stay applications with those brought by death row inmates. She accused the Court of showing greater solicitude for Trump than convicts on the brink of execution.
The government must show it will suffer irreparable harm to obtain an emergency stay. As Sotomayor saw Friday’s case, the only consequence to the government was a temporary inability to enforce its policy. The consequence facing capital convicts, on the other hand, is death, she argued.
"I fear that this disparity in treatment erodes the fair and balanced decision-making process that this Court must strive to protect," Sotomayor added.
She also needled the government for changing its own definition of irreparable harm. The government asked the Court to lift the New York injunctions because of their nationwide scope. Here, the injunction is of a much smaller scale.
"The government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 states," she wrote.
Before President Donald Trump took office, the government rarely sought emergency stays from the Supreme Court. The Bush and Obama administrations combined filed just eight stay applications with the justices. Including Friday’s case, the Trump administration has sought emergency stays on 24 occasions.
The justices have granted the government’s request 11 times, allowing Trump to enforce a tailored version of his travel sanctions and use military funds for border wall construction while litigation continues in the lower courts.
The cause of the increase in stay applications is much debated. Attorney General William Barr said the recent proliferation of nationwide injunctions is to blame during a 2019 speech to the American Law Institute. According to Justice Department estimates, courts issued just 27 nationwide injunctions in the entire 20th century. By comparison, judges have entered 40 nationwide injunctions against the Trump administration.
"When a nationwide injunction constrains a significant executive policy, the Justice Department has little choice but to seek emergency relief," Barr said. "No one benefits from emergency litigation—not the government, not the plaintiffs, not the courts. But the alternative is for the government to wait months or years for appeals to run their course before the executive may implement its policy at all."