Thoughts on Public Charge Stay Order and Nationwide Injunctions

Abstract

The concurrence by Justices Gorsuch and Thomas in the Public Charge stay case before the Supreme Court relied solely on the nationwide injunctive relief issue and did not address the merits of the stay application. This paper considers the ramifications of this move. In discussing nationwide stays the concurrence is able to sidestep any substantive issue, such as the equitable factors and the administration's policy expanding the definition of public charge. I draw a comparison to District Judge Hanen's well thought-out decision in the DACA-related litigation, where he denied injunctive relief to the government which would have ended DACA. While noting the difficulties connected with "dueling injunctions," a nationwide injunction here may be appropriate given we are dealing with a national policy, the defendant is an agency of the federal government operating nationally, the issue is an immigration policy, and the parties impacted include potentially everyone who comes into contact with USCIS who seeks adjustment of status.