Sunday, November 8, 2015

Torres v. Lynch - Probably Not the Case on Chevron Deference to Agency Interpretations of Criminal Law We've Been Waiting For

In previewing Torres v. Lynch, I asked whether Torres was the case on Chevron deference to agency interpretations of criminal law we've all been waiting for.  Torres, I explained, was a case where the agency interpretation of a defined term in immigration law, "aggravated felony," had consequences for the meaning of several immigration-related crimes that use that term, where the petitioner and amici argued vigorously that the agency should therefore not receive Chevron deference, and where the government, at least in the alternative, seeks Chevron deference should it lose at Step One.  I noted that Justice Scalia (in a statement respecting a denial of cert joined by Justice Thomas) and Judge Sutton have recently raised the issue of Chevron deference to agency interpretations of regulatory provisions that have criminal-law effect, that the statute in Torres likely was ambiguous, and that the Court would likely have to decide whether Chevron applied, absent severing the civil applications of the term at issue from the criminal applications.  (Severing in the sense that they could have different meanings, despite sharing the same definition - a move which has some precedent in the Court's administrative law cases.)

It would appear from the transcript, however, that the Court has absolutely no interest in deciding whether Chevron applies to agency interpretations of criminal law in this case.* There were just two questions about deference during the entire argument, both came from Justice Ginsburg, and neither went to Chevron  deference to interpretations of criminal law.  The first, put to Torres's counsel at the end of his argument, was "What about the -- the respect that we owe to the BIA for their interpretation?"  Torres's counsel replied that the rule of lenity would foreclose Chevron deference, but this didn't elicit any interest in the form of a follow-up.  Later, when the assistant to the SG, Elaine Goldenberg, raised deference at the back end of her argument, Justice Ginsburg asked about the fact that the Board of Immigration Appeals has changed positions on this issue.  Goldenberg replied that the Board had had good reasons for changing its position, and the Chief Justice interjected that in Chevron itself the EPA had changed positions.  There too, nothing was said by the Justices about deference to the Board's (collateral) interpretation of criminal law.

* For a more general recap, see Steve Vladeck's recap for Scotusblog, with which I generally agree, though I think he underestimates support for the petitioner, and which argues that a majority of the Court is inclined to vote for the government and hold that convictions for state offenses "described in" federal statutes include offenses that lack those statutes' jurisdictional elements. Listening to the argument audio, I hear at least one solid vote for Torres - Justice Sotomayor - and four more possible votes for Torres - Justices Scalia (with whom Justice Thomas could follow), Breyer, Kagan, and Ginsburg, though Kagan and Ginbsurg seem to be leaning in favor of the government. 

What explains this lack of interest in a hot and potentially outcome-determinative issue?  Perhaps the Justices (except Justice Ginsburg, perhaps) think the statute here is unambiguous one way or another, making Chevron's applicability irrelevant.  The government's substantial purposive arguments notwithstanding though, what could be more ambiguous than whether "an offense described in [a federal statute containing a jurisdictional element] . . . whether in violation of Federal or State law" necessarily contains the federal statute's jurisdictional element?  The meaning of "described in" just isn't clear. (See endnote.**)

A clue, I think, is contained in Torres's reply brief, which points out that in the Court's half-dozen engagements with the provision at issue here -- a list of offenses, housed under the heading of "aggravated felonies," that subject aliens to various immigration consequences, including deportation -- the Court has never applied or even mentioned Chevron.  It's true that in the cases he cites, plus one he doesn't mention, the government declined to request Chevron deference in each case but one, usually because the Board of Immigration Appeals hadn't rendered a precedential decision on the questions at issue or had adopted a posture of conforming its decisions to local circuit precedent.  However, as the government did point out in its briefs in one such case, where the Chevron framework applies, the Court has held it will ordinarily remand to the agency if it finds ambiguity.  Yet the Court has never inquired, in any of these cases, into whether or not there was ambiguity, and has decided some of them without remanding in cases where the statutory text at issue was anything but clear.

Perhaps the Court has always been concerned about the collateral criminal consequences of deferring to the Board's interpretation of the aggravated felony definition, or at least concerned enough to avoid deciding whether the Board gets deference so long as the Court could arrive at a tolerably clear interpretation of the definition on its own.  That's a possibility.  But in both of the cases where the government has sought Chevron deference to the Board's interpretation of the definition - this one and Nijhawan v. Holder - its immigrant-opponents have argued that the Board can't get Chevron deference to interpretations of terms that appear in criminal law, and in both cases no one on the Court indicated any interest in that claim at oral argument.  (To the contrary, Justice Scalia, who's been calling for a criminal-law exception to Chevron since 1990, suggested Chevron should apply in the Nijhawan argument.)  Nor does the unanimous opinion in Nijhawan say anything about it.

A more plausible explanation, I think, is that the Court just doesn't think the Board has sufficient expertise in criminal law to warrant deference to its interpretations of generic offenses and cross-references to federal criminal statutes.  On the other hand, the Court  has been fairly consistent about giving the Board deference on "pure" questions of immigration law, probably because, on this theory, the Court does think the Board has sufficient expertise on those sorts of questions to warrant deference.

Of course, expertise is not an official part of the Court's deference doctrine, except (a) in Skidmore, where it goes to the "weight" an agency position gets, and (b), under Barnhart, in deciding whether an agency gets Chevron deference if an agency doesn't satisfy the Mead safe harbors (i.e., if its interpretation isn't set forth in a notice-and-comment rulemaking or formal adjudication).  Neither use of expertise could explain the Court's reliance on it in this context; the Board engages in formal adjudication, which takes it out of both Barnhart and Skidmore.*  

*The courts of appeals generally only give Skidmore deference to the Board's unpublished opinions, but the relevant opinions in Nijhawan and Torres are published, and in the other aggravated-felony cases, where there were no controlling published opinions, the Court could have remanded for the Board to write one.

However, as Bill Eskridge and Lauren Baer demonstrated seven years ago in a landmark empirical study of the Court's deference cases, the Court's deference doctrines are woefully inaccurate descriptors of the Court's deference practices.  In practice, the Court defers to agencies in something like half the cases its doctrines say it should, and in practice, Eskridge and Baer say, agency win rate (if not what, if any, deference doctrine is used by the Court in the first place) appears to have a lot to with agency expertise.  Eskridge and Baer also called on the Court to turn its tacit reliance on expertise into official doctrine; seven years later, that hasn't happened.  To the contrary, the Court has only become more emphatic about Chevron's inflexibility and scope (King v. Burwell's recognition of the major-questions doctrine notwithstanding).  Consequently (among many other consequences), the courts of appeals uniformly defer to the Board on the meaning of generic crimes and criminal-law references in immigration law, even as the Court never has for reasons which go unexplained in its opinions.

If the Court really is tacitly denying deference in large swaths of cases, like the cases on the meaning of the aggravated-felony definition, because it believes the relevant agencies lack expertise on the issues those cases present, two questions come to mind.  One, is a lack of expertise really a good reason to deny deference?  Two, if it is, shouldn't the Court say so so that lower courts can deny deference for lack of expertise too?

Briefly, on the first question, I don't think a lack of expertise is a good reason to deny an agency Chevron deference.  To the extent, at least, that a statute is ambiguous or vague enough as to cause serious doubt that Congress ever resolved or thought about a given question (which may not be the case of every ambiguity), the Court errs when it searches for a legislative intention or textual meaning that isn't really there.  And, if Congress has left some policy choice open, that choice should usually be made by an agency, not a court, regardless of the agency's expertise on that particular issue.  An agency, at least, has some political accountability, both to the President and to Congress, and can more openly engage in the policy reasoning that an unmade policy choice demands.  Besides, expertise can often be completely besides the point.  

For example, take Torres itself.  If in Torres the statute really is hopelessly ambiguous on whether "an offense described in Federal Statute X, which contains a jurisdictional element" includes state offenses that lack the jurisdictional element, what expertise is really needed to decide what the law should be (rather than what it is) on that score?  The Board, being comprised of political appointees by the Attorney General and her recent predecessors, can take note of the President's preference for more/less deportation of criminal aliens and simply decide the issue that way.  The Board can also simply decide whether it deems state arson offenses that lack jurisdictional elements worthy of deportation, as Congress itself could have, but didn't.  Either sort of decision, while inexpert, is much more legitimate than (a) the Court straining to find statutory meaning that isn't there, or (b) the Court instantiating its own policy preferences on deportation of criminal aliens, whether openly or in the guise of divining the fixed meaning of the statute.

As to whether the Court should be more open about its (possibly) expertise-based deference regime, I don't think so.  In the first place, I don't think a lack of expertise is a good reason for denying deference, so I wouldn't want it to spread.  But leaving that aside, the Court's silence on the reasons it denies deference may, like Chevron itself, be based on a frank and wise assessment of institutional competence.  It is all very well for the exquisitely gifted and exquisitely well-briefed nine lawyers on the Court to deny inexpert agencies deference in a handful of cases a year.  It would be quite another thing to license the entire federal judiciary to deny inexpert agencies deference in the thousands of cases a year where deference is an option.  Making that move might cause lower courts to substitute their less expert and less informed judgment for that of agencies, and would make litigation over agency-interpreted statutes hopelessly unpredictable, as expertise is very much in the eye of the beholder.  It would also give lower courts that just don't like a particular agency interpretation a ready-made excuse to not defer to it, at least in any case where they could plausibly accuse an agency of lacking expertise.  It seems, then, all for the best that the Court has declined Eskridge and Baer's invitation to raise its deference practices to the status of vertically binding deference doctrine.
** One could argue that "an offense described in Statute Y . . . whether in violation of Federal or State law" unambiguously picks up all the elements of Statute Y, but that reading threatens to make a null set of half of "whether in violation of Federal or State law."  Alternatively, one could argue that given the categorical approach (under which, if Torres is right, immigration judges would have to look to whether a state statute contained a federal jurisdictional element, not just to whether an alien's state offense happened to involve conduct which would satisfy that element), given the "whether in violation of Federal or State law" language, and given the fact that state statutes will not contain federal jurisdictional elements, it just has to be the case that "described in" excludes jurisdictional elements. 

I don't think this quite works.  Not only does the "whether in violation of Federal or State law" not unambiguously require that some state-law violations of the described-in offense actually exist, the categorical approach is itself not an unambiguous mandate.  In fact, the Court has occasionally deviated from the categorical approach in interpreting the very statute at issue in Torres, and could do so again, as Justice Breyer suggested at oral argument.  Were it to do so here, the argument that "described in" has to exclude jurisdictional elements unravels; immigration courts could look for jurisdictional facts in state offenses that matched the federal jurisdictional elements.

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