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By Janita Kan

A second appeals court has lifted an injunction blocking the Trump administration from implementing its immigration rule relating to “public charges,” mirroring an order in the Ninth Circuit Court several days before.

“Public charge” refers to an individual who is likely to become primarily dependent on the government for subsistence, by receiving assistance such as food stamps or Medicaid.

The cases stem from a new rule the Department of Homeland Security (DHS) adopted in August that expanded the definition of “public charges” in the Immigration and Nationality Act (INA). The rule provides clarification about what factors would be considered when determining whether someone is likely at any time in the future to become a public charge.

The rule was challenged in several states leading to injunctions that prevented the rule from going into effect on Oct. 15.

A three-judge panel of the Fourth Circuit Court of Appeals ruled 2-1 to grant a stay on a preliminary injunction on a lower court decision to halt the Trump administration rule. Despite this ruling, the DHS’ rule will still not be able to go in effect because of a separate nationwide injunction ordered by a district court in New York on the same issue.

In the short order (pdf), Judge Harvie Wilkinson and Judge Paul Niemeyer, both Reagan appointees, voted to grant the motion while Judge Pamela Harris, an Obama appointee, voted to deny.

The White House welcomed the ruling saying that it was a “major step forward for the rule of law.”“It is our hope that the Second Circuit will, like the Ninth and Fourth Circuits have already done, lift the meritless nationwide injunction a New York District Court has imposed against the rule so that it can be enforced, consistent with the plain letter of the law, for the benefit of all citizens and lawful residents of this country,” the White House said in a statement.In the Ninth Circuit Court ruling, the judges found that Congress did not provide direction on how the phrase “public charge” should be interpreted and the DHS has the discretion to do so, within its authority.“We find that the history of the use of ‘public charge’ in federal immigration law demonstrates that ‘public charge’ does not have a fixed, unambiguous meaning. Rather, the phrase is subject to multiple interpretations, it, in fact, has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it,” Judges Jay Bybee and Sandra Ikuta, both appointed by George W. Bush, wrote in the majority opinion (pdf).“Congress chose not to define ‘public charge’ and, instead, described various factors to be considered ‘at a minimum,’ without even defining those factors. It is apparent that Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of ‘public charge’ as necessary,” they added.The White House has accused unelected federal judges of issuing nationwide injunctions that block crucial executive action in disputes, preventing application across the nation while the cases proceed through the court. This has allowed judges to indirectly function as lawmakers.

Former Attorney General Jeff Sessions vowed to fight back against the encroachment of the judicial branch, commenting last year that “too many judges believe it is their right, their duty, to act upon their sympathies and policy preferences.”

“In effect, activist advocates want judges who will do for them what they have been unable to achieve at the ballot box,” he said. “It is fundamentally undemocratic.”

Several of these injunctions are detrimental to Trump’s immigration agenda, which has seen some crucial immigration policies be put on hold.

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