In a recent podcast, former federal district court judge Gary Feinerman called the long-running public charge litigation handled by Goldberg Kohn and the Cook County State's Attorney's Office one of the most memorable cases he presided over during his 12-year tenure on the bench.
Judge Feinerman was interviewed by Original Jurisdiction host David Lat for a February 8, 2023, podcast titled "From Lawyer To Judge And Back Again: An Interview With Gary Feinerman," during which the judge reflects on his legal career and his time on the bench. Judge Feinerman served as a federal district court judge for the U.S. District Court for the Northern District of Illinois from 2010 to 2022. He also served as the Solicitor General of Illinois from 2003 until 2007, and as a law clerk to Supreme Court Justice Anthony M. Kennedy.
When asked by Lat whether there was a particular case or matter he handled as a judge that he would view as either his most memorable one or a matter that he was particularly proud of handling, Judge Feinerman responded that the public charge case was his most memorable and that "the case presented fascinating and difficult legal issues under the Administrative Procedure Act and the Equal Protection Clause." [The judge's full comments about the case appear below].
Goldberg Kohn attorneys David E. Morrison and Steven A. Levy, alongside Cook County State’s Attorney Jessica Scheller, represented Cook County, Illinois, for more than three years in its successful challenge to the Trump era's public charge rule. The Trump Administration's revised "public charge" rule had directed U.S. Citizenship and Immigration Services to deny green cards to immigrants who had used certain public benefits. After arguments by David Morrison for Cook County, and a number of other attorneys representing the County's co-plaintiff, Judge Feinerman originally granted Cook County and its co-plaintiff a preliminary injunction in September 2019, enjoining the Trump Administration from enforcing its new public charge rule in Illinois. David then presented oral arguments on behalf of Cook County before the Seventh Circuit Court of Appeals, which affirmed Judge Feinerman's preliminary injunction in favor of Cook County.
In November 2020, Judge Feinerman granted Cook County summary judgment, which decision vacated the public charge rule on a nationwide basis. The appeal from Judge Feinerman's summary judgment decision in the County's favor was pending before the U.S. Supreme Court when, on March 9, 2021, the Biden Administration dropped appeals pending in the Supreme Court and before the Seventh Circuit Court of Appeals. The Department of Homeland Security immediately stopped enforcing the public charge rule on March 9, 2021.
Texas and 13 other states subsequently sought to intervene in the Supreme Court, and after being turned away there, before Judge Feinerman in the Northern District of Illinois, arguing that the Biden Administration prevented enforcement of the Trump public charge rule and did not follow the Administrative Procedure Act in dropping the rule. The states' motion to intervene was submitted to Judge Feinerman in May 2021. Judge Feinerman denied their request to interject themselves into the Cook County lawsuit, finding the motion to be untimely. The states appealed his decision, and the Seventh Circuit rejected the request as well, affirming Judge Feinerman's order after hearing oral argument in April 2022.
On January 9, 2023, Goldberg Kohn and the Cook County State's Attorney's Office prevailed again when the U.S. Supreme Court denied the states' petition for certiorari challenging the Seventh Circuit's decision. Goldberg Kohn's co-counsel representing the Illinois Coalition for Refugee Rights included attorneys from Sidley Austin LLP, the National Housing Law Project, the Sargent Shriver National Center on Poverty Law and the Legal Council for Health Justice.
Following is an excerpt from the portion of the podcast in which Judge Feinerman shares his thoughts on the case.
Gary Feinerman: I handled several thousand cases during my time on the bench, and when any particular case was before me, I handled it as if it were the most important case on my docket, because most of the time, it was to the litigants and the lawyers in the case, the most important case on my docket. So I didn't—at least my instinct was not to think about cases in that way.
But that said, if I had to identify my most memorable case, I'd have to say it was the one that received a lot of public attention, or one of them that received a lot of public attention. It was a challenge by Cook County and an immigrant-rights association here in Chicago to an immigration regulation implementing the “public charge” statute that was promulgated during the prior administration.
The case presented fascinating and difficult legal issues under the Administrative Procedure Act and the Equal Protection Clause. I ended up invalidating the regulation, and the government appealed. And then after the current administration dismissed the government's appeal of my judgment invalidating the regulation, the case then presented more really interesting and fascinating issues regarding whether and, if so, under what circumstances, states can intervene to defend a federal regulation, when the federal government is no longer defending the regulation.
David Lat: And did that case go to the Court, or is that issue before the Court? This is definitely ringing a bell, and I believe there's a case in February that looks at this issue.
Gary Feinerman: Yes. That particular issue is before the court. There was another case involving the same regulation out of the Ninth Circuit that got argued in front of the Court, and I believe that case got [dismissed as improvidently granted]. It was Arizona v. San Francisco. But yes, there is a case coming up this Term, not in the context of a public-charge challenge, but in another context involving the ability of states to intervene. And I believe last year, last Term, there was another case, I think out of Kentucky, where the Court considered either this issue or an issue that's adjacent to this.