President Donald Trump and members of his administration supplied enough ammunition to critics to allow them to continue their fight against what they allege is a bid to suppress nonwhite immigration to the United States, a federal judge held.
In a written opinion this week, U.S. District Judge Gary Feinerman declined to throw out a claim that the Trump administration is violating the constitutional right to equal protection with its “public charge” rule.
The rule allows federal officials to deny visas and green cards to immigrants they determine are likely to be dependent on public benefits like Medicaid, food stamps, housing subsidies or cash assistance.
Since 1882, immigration laws have authorized the United States to turn away foreign nationals who might become public charges.
The U.S. Department of Homeland Security published the Trump administration’s version of the public charge rule, called Inadmissibility on Public Charge Grounds, in August 2019.
This version redefines the term “public charge” to exclude from the country many foreign nationals who receive only minimal benefits.
The Illinois Coalition for Immigrant and Refugee Rights Inc. maintains the rule is intentionally designed to disqualify a disproportionate number of nonwhite immigrants from entering or remaining in the United States.
This equal protection claim is included in a lawsuit filed by the coalition and Cook County challenging the rule.
In his opinion Tuesday, Feinerman did not rule on the merits of the claim.
But he held the coalition had presented enough evidence to state a plausible allegation that the rule’s harsh impact on nonwhite foreign nationals was what led the Trump administration to adopt it.
Feinerman’s summary of the coalition’s evidence took up several pages of his opinion.
The coalition maintains that 23.3 million of the 25.9 million immigrants who will be affected by the public charge rule are nonwhite.
The coalition points to Trump’s comments during his presidential campaign that Mexicans are rapists and drug dealers and to his alleged description in January 2018 of Haiti, El Salvador and African nations as “sh**hole countries.”
The coalition also cites the August 2019 comment by Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services, that the inscription on the Statue of Liberty — “Give me your tired, your poor, your huddled masses yearning to breathe free” — “was referring back to people coming from Europe.”
And the coalition cites emails that Stephen Miller, senior policy advisor to Trump and the purported “architect” of the public charge rule, sent to various people in and outside the government.
Those emails tout materials from websites “espousing white nationalist and anti-immigration viewpoints, including the portrayal of nonwhite immigrants as violent or threatening,” according to the coalition.
“Given all this, [the coalition’s] allegation that the Final Rule’s disproportionate impact on nonwhite immigrants motivated its promulgation is eminently plausible,” Feinerman wrote.
Cook County and the coalition filed their suit in September 2019.
In the suit, the coalition alleges the public charge rule violates the equal protection component of the Fifth Amendment’s due process clause.
The coalition joins the county in alleging the rule runs afoul of the Administrative Procedure Act.
The rule exceeds the authority granted to Homeland Security under the Immigration and Nationality Act, the county and coalition argue, and Homeland Security acted arbitrarily and capriciously in crafting it.
In October 2019, Feinerman issued a preliminary injunction barring the federal government from enforcing the rule in Illinois.
He based his decision on a finding that the county and coalition are likely to prevail on the merits of their Administrative Procedure Act arguments.
Homeland Security appealed to the 7th U.S. Circuit Court of Appeals, which heard arguments in the case in February. Cook County, Illinois, et al. v. Chad F. Wolf, et al., No. 19-3169.
The U.S. Supreme Court stayed the preliminary injunction while the appeal is pending before the 7th Circuit. Chad Wolf, et al. v. Cook County, Illinois, et al., 140 S. Ct. 681 (2020).
Proceedings in the case have continued in the district court.
In his opinion Tuesday denying Homeland Security’s motion to dismiss the suit, Feinerman addressed only arguments concerning the coalition’s equal protection claim.
He already addressed arguments concerning the Administrative Procedure Act in his opinion granting the preliminary injunction, Feinerman wrote.
Quoting Department of Commerce v. New York, 139 S. Ct. 2551 (2019), he acknowledged that “in reviewing agency action, a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record.”
But there is an exception when the party challenging the action presents evidence that the agency acted in bad faith or engaged in other improper conduct, Feinerman wrote.
That exception exists, he wrote, “because evidence of racial animus (if any) will reside outside the administrative record.”
And the coalition presented evidence that there are gaps in the record, including the absence of the emails that Miller and high-ranking Homeland Security officials exchanged, Feinerman wrote.
The case is Cook County, Illinois, et al. v. Chad F. Wolf, et al., No. 19 C 6334.
The lead attorney for the coalition is David A. Gordon of Sidley Austin LLP.
The lead attorney for the Department of Homeland Security is Jason C. Lynch of the U.S. Justice Department in Washington, D.C.
Neither Gordon nor a spokesperson for the Justice Department could be reached comment.