The Second Circuit Court of Appeals at the Thurgood Marshall U.S. Courthouse in lower Manhattan. (Photo: Rick Kopstein)

A panel of the U.S Court of Appeals for the Second Circuit pushed back Tuesday on the Trump administration's efforts to set aside a nationwide injunction against its proposed public charge rule, which would make it easier for the federal government to deny legal status to immigrants who may be eligible for public benefits.

Judges from the Manhattan-based appeals court pressed Justice Department attorney Daniel Tenny on the administration's claims that it would suffer irreparable harm unless the order was lifted. So far, two circuit courts in California and Washington have lifted similar injunctions entered by lower courts, but a federal appeals court in Illinois denied the government's request for a stay in that state.

A contingent of state attorneys general, led by New York Attorney General Letitia James, and a coalition of immigrants rights groups last year sued over the proposed rule change, which would alter the definition of public charge, a designation that has historically referred to individuals who are "predominantly reliant on government aid" for an extended period of time.

Under the new rule, immigrants who receive one or more designated public benefits, such as Medicaid, food stamps and housing subsidies, for an aggregate of 12 months during a three-year period would be more likely to be deemed a public charge. According to the plaintiffs, the change was targeted at racial minorities and prevent them from applying for benefits they would otherwise be entitled to.

U.S. District Judge George B. Daniels in October expressed skepticism about the motive behind the rule and blocked its implementation.

"Defendants do not articulate why they are changing the public charge definition, why this new definition is needed now, or why the definition set forth in the rule—which has absolutely no support in the history of U.S. immigration law—is reasonable," Daniels wrote in an Oct. 11 ruling.

On Tuesday, Tenny told a three-judge panel of the appeals court that, as long as the injunction remains in place, the federal government would be forced to grant permanent-resident status to people who were likely to be public charges under the new rule—decisions that could not be revisited or adjusted once they are made.

U.S. Circuit Judge Susan L. Carney responded to that argument by asking how the federal government could be irreparably harmed by continuing to follow a procedure that has been in place for decades.

Carney noted that nationwide injunctions were "obviously problematic from a number of perspectives," but suggested it might be more efficient for the appeals court to first take up the merits of the case instead of deciding whether to lift the injunction. The issue of irreparable harm, she said, was "very uncertain."

New York Assistant Solicitor General Judith Vale, arguing for the states, said the purpose of the injunction was to maintain the status quo until a merits panel could weigh in. Judge Daniels ruling, she said, found that the government was unlikely to succeed on the merits, and the government carried the burden of showing that a stay was needed.

Jonathan Hurwitz, a Paul, Weiss, Rifkind, Wharton & Garrison attorney representing the immigrants' rights groups, meanwhile, said that without the injunction, "hundreds of thousands" of immigrants would forego benefits, leading to an increase in emergency room visits, communicable diseases and problems with housing. Aid groups, he said, would be forced to dedicate most of their resources to addressing the fallout and would not be able to do the "work they normally do."

"I don't know whether the government would characterize that as harm, but it sounds like harm to me," he said.

Though the appeals court was not asked on Tuesday to address the legality of the rule itself, U.S. Circuit Judge Guido Calabresi did note that he had "a couple problems with the merits," including how the government would parse out the difference between people who applied for benefits in a time of emergency and those whose financial status made them more likely to be a long-term drag on the system.

Tuesday's panel also included U.S. Circuit Judge Amalya Lyle Kearse.

Briefing on the merits is set to wrap in the Second Circuit next month, with arguments possible for for March.

The cases, on appeal, are captioned State of New York v. United States Department of Homeland Security and Make the Road New York v. Cuccinelli.

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Manhattan Federal Judge Puts Trump Administration 'Public Charge' Rule on Hold

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