Arizona v. City and County of San Francisco

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 763–766
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 15, 2022
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

OCTOBER
TERM, 2021
763
Syllabus
ARIZONA et al. v. CITY AND COUNTY OF SAN
FRANCISCO
et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 20–1775. Argued February 23, 2022—Decided June 15, 2022
Certiorari dismissed. Reported below: 992 F. 3d 742.
Mark Brnovich, Attorney General of Arizona, argued the
cause for petitioners. With him on the briefs were Joseph
A. Kanefeld, Brunn W. Roysden III, Solicitor General, Drew
C. Ensign, Deputy Solicitor General, Kate B. Sawyer, Assist-
ant Solicitor General, Katlyn J. Divis, Assistant Attorney
General, Tyler R. Green, and Cameron T. Norris, Steve Mar-
shall, Attorney General of Alabama, Leslie Rutledge, Attor-
ney General of Arkansas, Theodore E. Rokita, Attorney Gen-
eral of Indiana, Derek Schmidt, Attorney General of Kansas,
Jeff Landry, Attorney General of Louisiana, Lynn Fitch, At-
torney General of Mississippi, Eric S. Schmitt, Attorney
General of Missouri, Austin Knudsen, Attorney General of
Montana, John M. O'Connor, Attorney General of Oklahoma,
Alan Wilson, Attorney General of South Carolina, Ken Pax-
ton, Attorney General of Texas, and Patrick Morrisey, At-
torney General of West Virginia.
Deputy Solicitor General Fletcher argued the cause for
the federal respondents. With him on the brief were Solici-
tor General Prelogar, Deputy Solicitor General Gannon,
Deputy Assistant Attorney General Harrington, Benjamin
W. Snyder, Daniel Tenny, and Gerard Sinzdak.
Helen H. Hong, Deputy Solicitor General of California, ar-
gued the cause for the state respondents. With her on the
brief were Rob Bonta, Attorney General, Michael J. Mon-
gan, Solicitor General, Michael L. Newman and Renu R.
George, Senior Assistant Attorneys General, Cherokee DM
Melton, Supervising Deputy Attorney General, Anna Rich,
Deputy Attorney General, and Kimberly M. Castle, Associ-
ate Deputy Solicitor General, Philip J. Weiser, Attorney
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764 ARIZON
A v. CITY AND COUNTY OF SAN FRANCISCO
Roberts, C. J., concurring
General of Colorado, Kathleen Jennings, Attorney General
of
Delaware, Karl A. Racine, Attorney General of the Dis-
trict of Columbia, Holly T. Shikada, Attorney General of
Hawaii, Kwame Raoul, Attorney General of Illinois, Aaron
M. Frey, Attorney General of Maine, Brian E. Frosh, Attor-
ney General of Maryland, Maura Healey, Attorney General
of Massachusetts, Dana Nessel, Attorney General of Michi-
gan, Keith Ellison, Attorney General of Minnesota, Aaron
D. Ford, Attorney General of Nevada, Andrew J. Bruck, Act-
ing Attorney General of New Jersey, Hector Balderas, Attor-
ney General of New Mexico, Ellen F. Rosenblum, Attorney
General of Oregon, Josh Shapiro, Attorney General of Penn-
sylvania, Peter F. Neronha, Attorney General of Rhode Is-
land, Mark R. Herring, Attorney General of Virginia, and
Robert W. Ferguson, Attorney General of Washington.
Sara J. Eisen-berg fled a brief for respondents City and
County of San Francisco et al. With her on the brief were
James R. Williams, Greta S. Hansen, and Raphael N.
Rajendra.*
Per Curiam.
The wr it of cer ti orar i is dismissed as i mprov idently
granted.
It is so ordered.
Chief Justice Roberts, with whom Justice Thomas,
Justice Alito, and Justice Gorsuch join, concurring.
Th is case i nvolves a reg u lati on known as the Publ ic
Charge Rule, promulgated by the Department of Homeland
*Briefs of amici curiae urging reversal were fled for the State of Ohio
et al. by Dave Yost, Attorney General of Ohio, Benjamin M. Flowers,
Solicitor General, and John L. Rockenbach, Deputy Solicitor General, and
by the Attorneys General for their respective States as follows: Treg R.
Taylor of Alaska, Daniel Cameron of Kentucky, and Douglas J. Peterson
of Nebraska; for the America First Legal Foundation by Christopher E.
Mills and Reed D. Rubinstein; and for the Immigration Law Reform Insti-
tute by Lawrence J. Joseph and Christopher J. Hajec.
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Cite
as: 596 U. S. 763 (2022)
765
Roberts, C. J., concurring
Security in 2019. See 84 Fed. Reg. 41292 (2019). The Rule
set
out the test the Department planned to use to determine
whether an applicant for admission into the country or ad-
justment to lawful permanent resident status is “likely at
any time to become a public charge,” which would make him
ineligible. 8 U. S. C. § 1182(a)(4)(A). Several parties fled
lawsuits arguing that the Rule was unlawful because it
defned “public charge” too broadly.
We granted certiorari in this case not to address the mer-
its of that argument, but to decide whether the petitioners—
13 States which support the Rule—should have been permit-
ted to intervene in this litigation to defend the Rule's legality
in the Court of Appeals. Petitioners argue that the answer
is yes, in light of the Government's actions.
When this and other suits challenging the Rule were frst
brought in 2019, the Government defended it. And when
multiple lower courts, including the District Court here,
found the Rule unlawful, the Government appealed those de-
cisions. After a change in administrations, though, the Gov-
ernment reversed course and opted to voluntarily dismiss
those appeals, leaving in place the relief already entered.
A new administration is of course as a general matter enti-
tled to do that. But the Government then took a further
step. It seized upon one of the now-consent judgments
against it—a fnal judgment vacating the Rule nationwide,
issued in a different litigation—and leveraged it as a basis
to immediately repeal the Rule, without using notice-and-
comment procedures. 86 Fed. Reg. 14221 (2021) (“Because
this rule simply implements the district court's vacatur of
the August 2019 rule . . . DHS is not required to provide
notice and comment.”). This allowed the Government to
circumvent the usual and important requirement, under the
Administrative Procedure Act, that a regulation originally
promulgated using notice and comment (as the Public Charge
Rule was) may only be repealed through notice and com-
ment, 5 U. S. C. § 551(5); see Perez v. Mortgage Bankers
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766 ARIZON
A v. CITY AND COUNTY OF SAN FRANCISCO
Roberts, C. J., concurring
Assn., 575 U. S. 92, 101 (2015). As part of this tactic of
“r
ulemaking-by-collusive-acquiescence,” City and County of
San Francisco v. United States Citizenship and Immigra-
tion Servs., 992 F. 3d 742, 744 (CA9 2021) (VanDyke, J., dis-
senting), the Government successfully opposed efforts by
other interested parties—including petitioners here—to in-
tervene in order to carry on the defense of the Rule, includ-
ing possibly before this Court.
These maneuvers raise a host of important questions.
The most fundamental is whether the Government's actions,
all told, comport with the principles of administrative law.
But bound up in that inquiry are a great many issues beyond
the question of appellate intervention on which we granted
certiorari, among them standing; mootness; vacatur under
United States v. Munsingwear, Inc., 340 U. S. 36 (1950); the
scope of injunctive relief in an APA action; whether, contrary
to what “[t]he government has long argued,” the APA “au-
thor ize[s] distr ict cour ts to vacate regu lati ons or other
agency actions on a nationwide basis,” Brief for Federal Re-
spondents 5, n. 3; how the APA's procedural requirements
apply in this unusual circumstance, cf. § 551(5); FCC v. Fox
Television Stations, Inc., 556 U. S. 502, 515 (2009); and more.
It has become clear that this mare's nest could stand in
the way of our reaching the question presented on which we
granted certiorari, or at the very least, complicate our
resoluti on of that questi on. I therefore concur i n the
Court's dismissal of the writ of certiorari as improvidently
granted. But that resolution should not be taken as refec-
tive of a view on any of the foregoing issues, or on the appro-
priate resolution of other litigation, pending or future, re-
lated to the 2019 Public Charge Rule, its repeal, or its
replacement by a new rule. See Cook County v. Mayorkas,
340 F. R. D. 35 (ND Ill. 2021), appeal pending, No. 21–2561
(CA7); 87 Fed. Reg. 10571 (2022) (new proposed rule that
would “implement a different policy than the 2019 Final
Rule”).
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 766, line 2: “collective” is replaced with “collusive”