A month ago, I highlighted the Biden administration’s extraordinary decision to abandon all of the government’s pending appeals of rulings against the Trump administration’s “public charge” rule governing admissibility of aliens, including the Supreme Court case in which the Court had granted review of an adverse Second Circuit ruling. As I explained, the Department of Justice has, for good reason, a strong tradition of not acquiescing in lower-court orders substantively invalidating agency action, even when a new administration is intent on changing policy.
Yesterday a Ninth Circuit panel denied the motion of a dozen states to intervene in one of the appeals that the government is abandoning. In dissent, Judge Lawrence VanDyke called attention to the Biden administration’s shenanigans:
[T]he new administration did something quite extraordinary with the Public Charge rule. In concert with the various plaintiffs who had challenged the rule in federal courts across the country, the federal defendants simultaneously dismissed all the cases challenging the rule (including cases pending before the Supreme Court), acquiesced in a single judge’s nationwide vacatur of the rule, leveraged that now-unopposed vacatur to immediately remove the rule from the Federal Register, and quickly engaged in a cursory rulemaking stating that the federal government was reverting back to the Clinton-era guidance—all without the normal notice and comment typically needed to change rules.
The Supreme Court is currently considering a motion by 14 states to intervene to defend the federal government’s position in a case arising out of the Seventh Circuit. The Court should give careful attention to the important points that VanDyke makes in support of intervention.