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Cite as: 589 U. S. ____ (2020) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 19A905 

CHAD WOLF, ACTING SECRETARY OF HOMELAND 

SECURITY, ET AL. v. COOK COUNTY, 

ILLINOIS, ET AL. 

ON APPLICATION FOR STAY 

[February 21, 2020] 

The application for stay presented to JUSTICE 

KAVANAUGH and by him referred to the Court is granted,

and the District Court’s October 14, 2019 order granting a

preliminary injunction is stayed pending disposition of the 

Government’s appeal in the United States Court of Appeals 

for the Seventh Circuit and disposition of the Government’s 

petition for a writ of certiorari, if such writ is timely sought.

Should the petition for a writ of certiorari be denied, this 

stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. 

JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE 

KAGAN would deny the application. 

JUSTICE SOTOMAYOR, dissenting from the grant of stay. 

Today’s decision follows a now-familiar pattern. The 

Government seeks emergency relief from this Court, asking 

it to grant a stay where two lower courts have not. The 

Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if 

this Court does not grant a stay. And the Court yields. 

But this application is perhaps even more concerning 

than past ones. Just weeks ago, this Court granted a stay 

of a different decision involving the same administrative

rule at issue here, after the Government professed urgency 
 

2 WOLF v. COOK COUNTY 

SOTOMAYOR, J., dissenting 

because of the form of relief granted in the prior case—a

nationwide injunction. The Government now uses that 

stay—of a nationwide injunction—to insist that it is entitled to one here. But the injunction in this case is limited

to one State, Illinois. The Government cannot state with 

precision any of the supposed harm that would come from 

the Illinois-specific injunction, and the Court of Appeals for

the Seventh Circuit has scheduled oral argument for next

week. The Government’s professed harm, therefore, boils 

down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. It is 

hard to say what is more troubling: that the Government 

would seek this extraordinary relief seemingly as a matter 

of course, or that the Court would grant it.

This case concerns a provision of the Immigration and 

Nationality Act that renders inadmissible any noncitizen

who “is likely at any time to become a public charge.” 8 

U. S. C. §1182(a)(4)(A). The provision instructs immigration officers to consider, “at a minimum,” a person’s “age;

health; family status; assets, resources, and financial status; and education and skills” in determining inadmissibility on this “public charge” basis. §1182(a)(4)(B). For the 

last 20 years, field guidance has defined “public charge” as

a person “primarily dependent on the government for subsistence.” 64 Fed. Reg. 28689 (1999) (internal quotation

marks omitted). Per that guidance, immigration officers

were not to consider non-cash public benefits in deciding

whether a noncitizen met that definition. 

In August 2019, the Department of Homeland Security 

issued a regulation that changed this longstanding definition. This new regulation (the public-charge rule) now defines a “public charge” as “an alien who receives one or more

designated public benefits for more than 12 months in the 

aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two 

months).” 84 Fed. Reg. 41292, 41295. The regulation also 
 

 

Cite as: 589 U. S. ____ (2020) 3 

SOTOMAYOR, J., dissenting 

expands the type of benefits that may render a noncitizen

inadmissible, including non-cash benefits such as the Supplemental Nutrition Assistance Program (formerly food 

stamps), most forms of Medicaid, and various forms of housing assistance. Ibid. 

Several lawsuits followed, one of which reached this 

Court last month. See Application for Stay of Injunctions 

in Department of Homeland Security v. New York, No. 

19A785 (New York cases). The Government in no small 

part insisted that it was entitled to a stay because of the 

scope of relief awarded below: The District Court in the New 

York cases imposed a nationwide injunction that “rendered

effectively academic” the Government’s successful litigation 

on the public-charge rule elsewhere. Id., at 4. The Government’s unquestionable focus was the scope of that injunction: Its stay application used the word “nationwide” 34 

times. 

Over the dissent of four Justices, this Court granted the

Government’s application for a stay. Department of Homeland Security v. New York, 589 U. S. ___ (2020). Two Justices concurred in the grant of the stay, emphasizing—as 

the Government did—the “equitable and constitutional 

questions raised by the rise of nationwide injunctions.” Id., 

at ___ (GORSUCH, J., concurring in grant of stay) (slip op., 

at 5). No Member of the Court discussed the application’s

merit apart from its challenges to the injunction’s nationwide scope.

In the meantime, other courts considered the publiccharge rule, and one—the District Court in this case—ruled 

much more narrowly. The District Court concluded that the 

plaintiffs in the case before it were entitled to a preliminary

injunction, based on self-described “dry and arguably bloodless” legal analysis. Cook County v. McAleenan, ___ 

F. Supp. 3d ___, ___, 2019 WL 5110267, *14 (ND Ill., Oct. 

14, 2019). But it did not award nationwide relief as the New 

York court had: It merely prevented the Government from 
 

4 WOLF v. COOK COUNTY 

SOTOMAYOR, J., dissenting 

enforcing the public-charge rule in Illinois, where the 

“‘nearly 100 nonprofit organizations and social and health

service providers’” represented by one of the plaintiffs were 

located. Ibid. 

After the District Court declined to stay enforcement of 

its injunction pending appeal, the Government asked the 

Seventh Circuit to intervene and stay the injunction itself. 

On December 23, 2019, the Seventh Circuit declined, and 

instead set an expedited briefing schedule to ensure prompt 

consideration of the issue. As part of that expedited schedule, the Seventh Circuit set oral argument for February 26,

2020—five days from now.

Notably, the Government initially chose not to appeal the 

Seventh Circuit’s decision denying a stay. Instead, while 

letting the normal appellate process play out in this case, it

urged this Court to review a later issued decision granting

a nationwide injunction—in no small part because it was a 

nationwide injunction. Yet now that this Court acceded to 

that request, the Government wants more: It asks this

Court to grant a stay of the District Court’s considered—

and considerably narrower—order below. 

One might wonder what the trouble is with granting a

stay in this case. After all, by granting a stay in the New

York cases, the Court effectively has already allowed the 

Government to enforce the public-charge rule elsewhere—

why not Illinois too? But—even putting aside the dissent

of four Justices in the New York cases and the plaintiffs’

weighty arguments on the merits—the Court should not 

forget the burden the Government must carry to obtain a 

stay. To warrant this “‘extraordinary’” relief, Williams v. 

Zbaraz, 442 U. S. 1309, 1316 (1979) (Stevens, J., in chambers), it is not enough for a party to point to an important

legal issue, or even one that is likely to obtain the assent of

five Justices on the merits (which is far from certain here). 

Instead, to justify upending the normal rules of appellate 
 

Cite as: 589 U. S. ____ (2020) 5 

SOTOMAYOR, J., dissenting 

procedure, a party must also show a likelihood of irreparable harm. Packwood v. Senate Select Comm. on Ethics, 510 

U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers). 

And “[b]ecause this matter is pending before the Court of

Appeals, and because the Court of Appeals denied” the Government’s motion for a stay, the Government now bears “an 

especially heavy burden.” Ibid. 

The Government has not made that showing here. Its 

public-charge rule is set to go into effect in 49 of 50 States 

next week. The Seventh Circuit is set to consider the 

Illinois-specific injunction next week as well, with a decision to follow shortly thereafter. And the Government is 

unable to articulate how many cases—if any—this narrow 

injunction would affect in the meantime. In sum, the Government’s only claimed hardship is that it must enforce an

existing interpretation of an immigration rule in one

State—just as it has done for the past 20 years—while an 

updated version of the rule takes effect in the remaining 49. 

The Government has not quantified or explained any burdens that would arise from this state of the world. Indeed, 

until this Court granted relief in the New York cases, the

Government itself did not consider this Illinois-specific 

harm serious enough to warrant asking this Court for relief. 

These facts—all of which undermine the Government’s 

assertion of irreparable harm—show two things, one about

the Government’s conduct and one about this Court’s own. 

First, the Government has come to treat “th[e] exceptional

mechanism” of stay relief “as a new normal.” Barr v. East 

Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) 

(SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 

5). Claiming one emergency after another, the Government 

has recently sought stays in an unprecedented number of

cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly 

hollow. Indeed, its behavior relating to the public-charge 
 

 

6 WOLF v. COOK COUNTY 

SOTOMAYOR, J., dissenting 

rule in particular shows how much its own definition of irreparable harm has shifted. Having first sought a stay in

the New York cases based, in large part, on the purported

harm created by a nationwide injunction, it now disclaims

that rationale and insists that the harm is its temporary 

inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown

in the appellate process. That is because the Court—in this 

case, the New York cases, and many others—has been all 

too quick to grant the Government’s “reflexiv[e]” requests. 

Ibid. But make no mistake: Such a shift in the Court’s own 

behavior comes at a cost. 

Stay applications force the Court to consider important 

statutory and constitutional questions that have not been 

ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal

appellate process, putting a thumb on the scale in favor of

the party that won a stay. (Here, the Government touts

that in granting a stay in the New York cases, this Court

“necessarily concluded that if the court of appeals were to

uphold the preliminary injunctio[n], the Court likely would 

grant a petition for a writ of certiorari” and that “there was

a fair prospect the Court would rule in favor of the government.” Application 3.) They demand extensive time and 

resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is

poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on 

stay applications has benefited one litigant over all others. 

This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying 

many of those decisions on purported failures “to raise any

potentially meritorious claims in a timely manner.” Murphy v. Collier, 587 U. S. ___, ___ (2019) (second statement 

of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, 

J., joined by THOMAS and GORSUCH, JJ., dissenting from 
Cite as: 589 U. S. ____ (2020) 7 

SOTOMAYOR, J., dissenting 

grant of stay) (slip op., at 6) (“When courts do not have adequate time to consider a claim, the decisionmaking process 

may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) 

(overturning the grant of a stay of execution). Yet the 

Court’s concerns over quick decisions wither when prodded 

by the Government in far less compelling circumstances—

where the Government itself chose to wait to seek relief, 

and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment 

erodes the fair and balanced decisionmaking process that 

this Court must strive to protect.

I respectfully dissent.