Arizona is leading a coalition of 13 states to defend the Public Charge Rule, a federal immigration policy that ensures noncitizens can financially support themselves to become U.S. citizens or obtain green cards. Joining Arizona are attorneys general from the states of Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, and West Virginia.
In 2019, the Department of Homeland Security (DHS) created a rule that expanded the definition of “public charges” to include anyone who received certain government benefits (like Medicaid or food stamps) for more than 12 months over a three-year period. U.S. Citizenship and Immigration Services (USCIS) stopped applying the Public Charge Final Rule to all pending applications and petitions on March 9, 2021. USCIS removed content related to the vacated 2019 Public Charge Final Rule from the affected USCIS forms and has posted updated versions of affected forms.
The states are asking the Supreme Court of the United States to allow them to intervene in a lawsuit challenging the policy after the Biden Administration abandoned defense of the rule earlier this year. Arizona led a coalition of 13 states in March at the Ninth Circuit to intervene in the lawsuit but was denied.
Arizona and the other states are also asking Supreme Court of the United States (SCOTUS) to grant review of a Ninth Circuit decision that invalidated the Public Charge Rule. Previously, SCOTUS granted review of a case involving the same issues. But, after SCOTUS agreed to hear the case, the Biden Administration abruptly shifted course. Without any notice or warning—and breaking established norms—it sprung an unprecedented, coordinated, and multi-court gambit to dismiss all pending cases pursuant to a settlement. Attorney General Brnovich believes that the validity of the Public Charge Rule should be decided on its legal merits, not pervasive strategic surrenders by the Biden Administration.
Congress has had a Public Charge requirement in one form or another for over a century according to the Attorney General’s Office. Under existing federal immigration law, noncitizens are not eligible to receive a green card if they are reliant upon government assistance, otherwise known as a “public charge.”
Arizona and the other states claim to have a significant interest in upholding the Public Charge Rule because it reduces demand on already over-stretched government assistance programs. The federal government only pays a portion of the costs involved in many of the programs at issue, therefore increasing the strain on over-stretched state assistance programs. It is estimated the rule will save the states $1.01 billion annually in direct payments. For example:
In 2019 Arizona spent $3,059,000,000 on Medicaid benefits. Increasing the number of Medicaid participants would increase the State’s spending on Medicaid (the costs of which typically exceed State general fund growth) and would require the State to make budget adjustments elsewhere.
Arizona paid $85 million in maintenance-of-effort costs for Temporary Assistance to Needy Families (TANF) programs in 2019. TANF resources are limited. In 2016, less than a quarter of eligible impoverished families received this assistance.
States incur administrative costs for each Supplemental Nutrition Assistance Program (SNAP) recipient. For FY 2016, Arizona paid $77,730,088 in administrative costs for administering SNAP. By admitting aliens who are unlikely to depend on this resource, the State will save money that would have otherwise gone to fund administrative costs for aliens who would depend on the program.
On Feb. 12, 2019, Pat Call had been serving on the Cochise County Board for more than a decade representing for the Sierra Vista area, which includes the Army’s Fort Huachuca. It was also the day Call and his two fellow supervisors took part in a public and then a private meeting which ended with his appointment as justice of the peace of the Sierra Vista Justice Court.
The new job paid twice Call’s supervisor salary despite the fact he was not an attorney and had no judicial experience. But there was no advance public notice that Call was even interested in the position, and during the meeting Call suggested the board not utilize a nomination committee to review any perspective candidates, all of whom were lawyers with experience in justice court operations.
The Arizona Supreme Court announced Wednesday that it will hear a local resident’s challenge to Call’s appointment based on alleged violations of Arizona’s Open Meeting Law and Conflict of Interest Statute. The case is being watched by public agencies and government attorneys across the state.
“When it comes to holding public officials accountable for backdoor deals, this is the most important case in Arizona history,” appellate attorney David Abney said after the justices accepted the case for review.
Abney is one of three attorneys representing David Welch, the Sierra Vista resident who challenged the appointment. He told AZ Free News it does not matter that Call’s term on the bench ended in December 2020.
“There are still penalties and sanctions that can be assessed against those who violate the open-meeting and conflict-of-interest laws,” Abney said. “So Justice of the Peace Call’s departure does not insulate him or his collaborators from liability.”
The county defendants contend they did nothing improper in filling the court vacancy, and point to the fact the Cochise County Attorney’s Office provided legal advice throughout the process.
“The Arizona Legislature has made clear that, for a plaintiff making claim to a private right of action under Arizona’s conflict of interest or open meeting laws, he or she must be ‘affected by’ the alleged violation,” according to the county’s petition for review to the supreme court. The county contends Welch has no standing to challenge the board’s action.
Welch lives within the boundaries of the Sierra Vista Justice Court and had a misdemeanor case pending at the court at the time of Call’s appointment. His case would have been heard by Call, but the county attorney’s office had the case dismissed the day Call took office.
The county later invoked the ratification option in Arizona’s Open Meeting Law to reaffirm Call’s appointment as justice of the peace during a special meeting in March 2019. Welch, however, takes the position shared by Arizona Attorney General Mark Brnovich that the supervisors may still be open to personal liability if it is shown they engaged in misconduct.
But it is not only the open meeting law issues that Welch has challenged.
Public records show Call engaged in discussions about how to fill the court vacancy he was awarded a few hours later. He also took part in an executive session with the other supervisors, a deputy county attorney, and the county administrator just before being appointed.
Arizona’s conflict of interest statute requires a public officer who has a substantial interest in any decision of a public agency to make known such interest. Then the public officer “shall refrain from participation in any manner…in such decision.”
There is no ratification option in that statute to simply “do-over” or reaffirm a decision.
A judge from outside Cochise County initially dismissed Welch’s complaints on the basis of a lack of standing to bring the challenges. That ruling was overturned in a unanimous Arizona Court of Appeals decision in October 2020, which sent the case back to the lower court for a new hearing on Welch’s arguments.
For now the case is on hold while the supreme court reviews the appellate decision. Attorney Chris Russell has been on Welch’s case from the beginning and understands some residents are frustrated the case has been going on more than two years with no immediate end in sight. But he is looking forward to the attention the Arizona Supreme Court’s review will generate.
“Corruption thrives in the darkness,” Russell said. “Without open and transparent government free from conflicts-of-interest we are no better than a cabal run by the rich and powerful. History has proven that such a circumstance is always detrimental to the people.”
The supreme court has given the parties until early May to file any updated legal briefings before oral arguments are conducted later this year.
