On May 1, 2023, Goldberg Kohn attorneys David Morrison and Steven Levy were presented with the Excellence in Pro Bono and Public Interest Service Award from the U.S. District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association. They and their fellow pro bono team members were honored for winning a case of national significance that went to the U.S. Supreme three times.
When presenting the award, Chief Judge Rebecca R. Pallmeyer acknowledged the significance of the case and praised the team for their "truly impressive work."
The pro bono legal team, which collectively poured in thousands of pro bono hours over three years, also included Jessica Scheller and Edward Brener from the Cook County State's Attorneys' office (the "County's Pro Bono Counsel"), as well as lawyers from Sidley Austin LLP, the Shriver Center on Poverty Law, Legal Council for Health Justice and the National Housing Law Project ("ICIRR's Pro Bono Counsel") (collectively, the "Pro Bono Legal Team").
"Given the sheer amount of effort, the difficulty of the assignment, the substantial impact of our achievement, and the nationwide attention paid to the efforts of the Pro Bono Legal Team, our entire team is worthy of the Court's Award," said David Morrison.
About the Case
The County's Pro Bono Counsel, representing plaintiff Cook County, Illinois, and ICIRR's Pro Bono Counsel, representing plaintiff Illinois Coalition for Immigrant and Refugee Rights ("ICIRR"), teamed together to successfully challenge the Trump administration's "public charge" rule, a high profile immigration regulation proposed in 2018. The Northern District Court granted the team's motion for preliminary injunction and barred application of the Trump public charge rule throughout the state of Illinois, granted the team's summary judgment motion and vacated the rule on a nationwide basis, and finally denied a petition to intervene filed by a group of conservative states after the Biden administration discontinued its defense of the Trump public charge rule.
This litigation involved the legality of the Trump public charge rule. Under federal law, immigration officials may not admit someone to the United States if they deem that person likely to become a "public charge," or someone dependent on government benefits. On Sept. 22, 2018, the Trump administration announced a new proposed public charge regulation and published a final regulation on Aug. 14, 2019. 84 Fed. Reg. 41,292 (Aug. 14, 2019), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019). The public charge rule was one of the Trump administration's most controversial and high-profile policy directives. The new rule greatly expanded the qualifying benefits that could be considered in making the public charge assessment to include even de minimis public benefits such as Medicaid, food stamps and housing assistance.
Even though the rule did not by its terms apply to them, the practical impact was to prevent immigrants already legally in the United States from using public benefits to which they were entitled, including health coverage and nutritional assistance for immigrant children, among other things, out of fear that use of those benefits would affect their immigration status. It is estimated that as the result of the rule's chilling effect, more than one-third of low-income immigrant families with children nationwide avoided using public benefits because of public charge concerns. Based upon an analysis of American Community Survey data during the first three years of the Trump administration, participation in SNAP, TANF, and Medicaid declined twice as fast among noncitizens as citizens. An analysis of SNAP data by the USDA found a more than 22.5 percent decline in use by mixed-status households, representing more than 718,000 children nationwide, during fiscal years 2018-2019. Even during the pandemic, immigrants were chilled from accessing critical public benefits, with 2.1 million immigrant essential workers and household members forgoing Medicaid and 1.3 million forgoing SNAP. In turn, the Trump rule negatively affected public health and placed significant financial burdens on the County. The new rule went into effect on Feb. 24, 2020.
Well before filing the complaint in this case, the Shriver Center on Poverty Law and Legal Council for Health Justice began preparing for potential litigation. This work included: generating thousands of varied and unique comments on the proposed rule; leading a national convening of immigrant advocates and privacy advocates to consider how immigrants who have applied or accessed public benefits could be identified by the federal government; and creating Protecting Immigrant Families Illinois with ICIRR to educate the public − including state and local officials, the public health and medical community, immigrant rights and culturally specific organizations, legal aid programs, and immigrants − on the proposed rule.
Beginning in September 2019, the Pro Bono Legal Team worked seamlessly together to research, strategize, draft and file a complaint and motion for preliminary injunction with supporting legal memorandum and substantial evidence seeking to enjoin the new public charge rule from taking effect throughout the state of Illinois. The team also prepared and successfully argued the preliminary injunction motion before a packed courtroom and a nationwide news audience. The Trump administration vigorously pressed its right to enforce the new rule. The briefing and argument centered around rigorous analyses of more than a century's worth of precedent interpreting the country's public charge rule, as well as a multi-layered attack under the Administrative Procedure Act. Judge Feinerman granted the plaintiffs' motion and entered an order on Oct. 14, 2019, preliminarily enjoining the final rule from taking effect in Illinois. Cook County, Illinois et al. v. Wolf, 417 F. Supp. 3d 1008 (2019).
The Trump administration immediately appealed the decision and sought a stay from the Supreme Court on Feb. 21, 2020, requiring emergency briefing by the team. The Supreme Court granted the stay by a 5-4 decision over a dissent by Justice Sotomayor. Just a few days later, the Pro Bono Legal Team argued the Trump administration's appeal of the preliminary injunction before the Seventh Circuit. The Seventh Circuit affirmed the preliminary injunction decision on June 10, 2020, with then-Judge Barrett dissenting. Cook County, Illinois et al. v. Wolf, 962 F.3d 208 (2020).
At this point the case was following a triple track – with substantial activity before both the Northern District Court, the Seventh Circuit and U.S. Supreme Court. Indeed, in just a single day in 2020, the team filed briefs in this Court, the Seventh Circuit, and the Supreme Court. On Aug. 2, 2020, the Seventh Circuit denied the government's petition for rehearing of the affirmance of the preliminary injunction, and the government then filed its petition for certiorari. While briefing the petition, the plaintiffs worked in the Northern District to turn their preliminary injunction victory into a final judgment. The Pro Bono Legal Team briefed and argued a motion for summary judgment on the APA claim. On Nov. 2, 2020, Judge Feinerman granted the summary judgment motion, vacating the public charge rule – this time on a nationwide basis. Because of the public policy implications of the ruling, as well as the proximity to the presidential election, the case received intense media coverage, including from the New York Times, The Wall Street Journal, and many other national publications.
ICIRR continued to litigate its equal protection claim before the Northern District Court, pressing the Trump administration for discovery. Meanwhile, the administration obtained a stay of the Northern District Court's judgment from the Seventh Circuit. In addition, the administration filed a petition for writ of certiorari to obtain Supreme Court review of the Seventh Circuit's decision affirming the Northern District Court's preliminary injunction decision.
The litigation over the public charge rule played a role in the presidential campaign as well, with candidate Biden campaigning on a promise to roll back the rule if elected. On March 9, 2021, while the case was pending before the Supreme Court, the Biden administration relied on the Northern District Court's decision vacating the rule to rescind the public charge rule. The Biden administration agreed to dismiss its appeals before the Supreme Court (on the Northern District Court's preliminary injunction decision) and the Seventh Circuit (on the Northern District Court's summary judgment decision), and ICIRR agreed to dismiss its equal protection claim against the defendants. As a result of the Pro Bono Legal Team's successful efforts before the Northern District Court, the Department of Homeland Security immediately stopped enforcing the public charge rule nationwide on March 9, 2021.
The litigation before the Northern District Court, however, pressed on. In May 2021, a group of 14 states, led by Texas, sought to intervene to defend the Trump public charge rule in light of the change in administrations. The Pro Bono Legal Team successfully briefed and argued the plaintiffs' opposition to the petition to intervene. Judge Feinerman denied the states' petition to intervene, finding the motion to be untimely. The states appealed that decision to the Seventh Circuit. The Pro Bono Legal Team successfully briefed and argued the appeal on April 13, 2022. On June 27, 2022, the Seventh Circuit affirmed the Northern District Court's denial of the states' petition to intervene. The states then filed a petition for certiorari, which the Pro Bono Legal Team again challenged. On Jan. 9, 2023, this long-running litigation finally came to a close when the Supreme Court denied the states' petition for certiorari.
The Pro Bono Legal Team's litigation victories led to a dramatic change in immigration law. On Dec. 23, 2022, the Biden administration's public charge rule went into effect, reverting to the pre-Trump administration rule. The judges who ruled over this case were well aware of the case's significance. During a recent interview after leaving the bench, Judge Feinerman described this case as one of his most memorable cases while serving as a federal district court judge. Likewise, in her Response to the United States Senate Committee on the Judiciary Questionnaire for Nominee to the Supreme Court, Justice Barrett identified this case as one of the 10 most significant cases over which she presided as a judge.