Sometimes the mirror looks back sharply. Obama-appointed Supreme Court Justice Sonia Sotomayor issued a scathing dissent in a non-controversial Supreme Court ruling February 22 – attacking colleagues appointed by Presidents Bush and Trump as politically biased. In doing so, she reveals her own political bias – in favor of judicial activism.
In a 5-4 ruling, the US Supreme Court did as it has often done. The Court temporarily stayed – or blocked implementation – of a district judge’s overbroad injunction, allowing the appellate review process to proceed.
Last October, a federal district judge – Obama-appointee Gary Feinerman – ruled in Wolf v. Cook County that the Trump Administration was not allowed to define “public charge,” as used in a longstanding federal law, the Immigration and Nationality Act.
That act makes “inadmissible” any “non-citizen” who – by the law’s own wording – “is likely at any time to become a public charge.” Even before Trump, the law allowed immigration officers to review “admissibility” of “aliens” by examining “at a minimum” certain attributes.
Attributes the law permits officers to review include “age, health, family status, assets, resources, and financial status,” as well as “education and skills,” in order to assess “inadmissibility” based on whether the non-citizen will become a “public charge.”
The definition of “public charge” in “field guidance” depends on whether a non-citizen is “primarily dependent on the government for subsistence.” The Trump Administration refined the definition of “public charge” to include non-cash and cash benefits.
Under Trump guidance, inadmissibility of a non-citizen as a “public charge” includes “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period,” or both cash and non-cash benefits.
The Obama-appointed district judge blocked the Trump action, saying that the original act did not specifically include “non-cash” benefits, like food stamps, public health, housing, education, or other non-cash dependence in determining whether someone was a “public charge.”
More egregiously, the judge ruled his injunction covered the entire state of Illinois, as other judges have stretched anti-Trump rulings to the nation. In response, the Trump Administration appealed this injunction to the US Court of Appeals, 7th Circuit. That appeal is taking time.
This is where the Supreme Court stay – and Justice Sotomayor’s dissent – come in. As the Trump administration awaits the appellate ruling, they wrestle cases – across the State of Illinois and nation. They want relief.
They believe the Obama-appointed judge is wrong on the merits, and his ruling is overbroad. Accordingly, they appealed for a temporary “stay” of the injunction blocking redefinition of benefits that create a “public charge” – to include non-cash benefits.
If all this sounds complex, it is not really. In sum, the Trump Administration thinks – like the Internal Revenue Service has for decades – that cash and non-cash benefits have value, and thus help determine whether an “alien” is “primarily dependent” on the “government.”
Since this seems reasonable, an injunction blocking enforcement of the law is misplaced and likely to cause harm – as it means more aliens will become dependent on non-cash government benefits, that is, on the taxpayers.
Moreover, the Obama judge’s ruling is – like many others – overbroad. It stretches the case to an entire state, just as other rulings have pushed limited decisions on the entire nation.
Stretching a single case to cover a state, circuit or nation is inherently suspect, since fact patterns differ. The immediate “holding” in one case may inform but seldom controls until the Supreme Court says so. Nevertheless, the lower court judge pushed wide application of his injunction. The Trump Administration resisted, appealing to the Supreme Court.
Not surprisingly, the Court’s majority ruled 5-4 that a temporary stay was appropriate, in order to exhaust review on the merits. So why did Justice Sotomayor issue such a scathing dissent, one in which she claims her colleagues are politically “biased” in favor of Trump?
Her dissent asserts the majority is following “a now-familiar pattern,” in which a lower court decision – asserting broad application – is appealed and stayed pending review on the merits. She objects, claiming that reveals political bias. What it reveals, in fact, is her own bias.
What Sotomayor is chafing at is a 5-4 majority that opposes judicial activism. The majority will not abide stopping executive action justified under Article II of the Constitution, or blithely asserting one lower court ruling decides an issue for a state, circuit, or the nation. The Framers would side with the majority since they never envisioned judicial legislation or one judge reversing a president.
What bothers Sotomayor – and explains the shrill dissent in Wolf v. Cook Country – is simple. Sotomayor, like lower court judges appointed by President Obama, are biased in favor of judicial activism. Like Obama, she favors allowing judges to legislate and reshape laws from the bench. Trump’s appointees do not agree, and therein lies the rub. The federal bench is being remade, and newer appointees do not favor judicial activism.