Tuesday, September 27, 2016

A Comment on the Textual Problem in the Clean Power Plan Case

Today, the D.C. Circuit will hear en banc oral argument on the legality of the Clean Power Plan, an EPA rule that proposes to reduce carbon dioxide emissions from electrical power generation by a third over the next 15 years by, essentially, mandating the shutdown of much of the country's coal-fired generation.  The EPA claims it has authority for this measure under Section 111(d) of the Clean Air Act, which, at most - I say at most because I'm bracketing the central issue in the case for the moment - provides regulatory authority to set "standards of performance" for existing (i.e., not new) sources of air pollutants that are neither among the six so-called criteria pollutants listed under Section 108 of the Act, nor are hazardous air pollutants (pollutants that cause cancer or other serious health effects) regulated under Section 112 of the Act.  (I will refer, throughout, to sections of the Act; to find any of these sections in the U.S. Code, go to Title 42 and add 7300 to the section number.)

There are many serious questions about whether a mandate, broadly speaking, to shut down coal-fired generation and trade it for renewable sources is a "standard of performance" for coal-fired generation or, to quote the Act's definition of "standard of performance," a "best system of emission reduction which . . . the Administrator determines has been adequately demonstrated."  Inasmuch as the Clean Power Plan's "standard of performance" consists of requiring the owners of fleets of generators to engage in a complex cap-and-trade-like system, there are serious questions about whether the Clean Power Plan's standards of performance are standards of performance for sources, as 111(d) requires, or the entities that own them.  It is my sense, however, formed only on an admittedly cursory read of the briefs, that while the EPA may have the worse of these points absent deference, it can probably show sufficient ambiguity on them to survive Chevron, at least before the D.C. Circuit as presently constituted.  The more dangerous question in the case for the EPA is whether, under a snippet of text often referred to as the 111(d) exclusion, coal-fired plants' emission of carbon dioxide is excluded from 111(d) regulation altogether.

I said above that, at most, 111(d) extends to pollutants that are neither 108 criteria pollutants nor 112 hazardous air pollutants (or as they are commonly known, HAPs).  That is because, under at least the codified version of 111(d)'s exclusion, the EPA has authority to set standards of performance for sources of "any air pollutant [] for which air quality criteria have not been issued [and] which is not included on a list published under section 7408(a) of this title [108(a) of the Act] or emitted from a source category which is regulated under section 7412 of this title [112 of the Act]."  (My interpolation of an "and" replaces an "or" that all parties agree cannot be taken literally, as it would render the exclusion meaningless.)  The references to pollutants for which criteria have not been issued and that have not been listed under 108 excludes criteria pollutants; the reference to pollutants emitted from source categories regulated under 112 excludes, at the very least, HAPs.

What, however, the exclusion of sources of pollutants "emitted from a source category which is regulated under [112]" also seems to exclude is not just the HAPs themselves regulated in 112, but any sources of non-HAP pollutants that also emit HAPs and are regulated under 112, or indeed any category of HAP-emitting, 112-regulated source.  That is to say, if coal-fired plants emit a HAP, and are therefore regulated under 112, EPA cannot regulate carbon dioxide emissions from coal-fired plants under 111(d).  On first, second and third blush, this appears to be the only possible reading of the language.  "Which is regulated under [112]" clearly modifies the immediately preceding phrase "source category," not the "air pollutant" mentioned 31 words prior.  What Congress excluded from 111(d) regulation was plainly, it would seem, not air pollutants regulated under 112, but "any air pollutant . . . . emitted from a source category," which source category, in turn, is regulated under 112 because it emits HAPs.

When the EPA first proposed the Clean Power Plan, it responded to this point in a rather foolish way.  Prior to the 1990 amendments to the Clean Air Act, 111(d) only excluded from regulation, insofar as 112 went, any pollutant "included on a list published under" 112(b)(1)(A).  Section 112 was renumbered in the 1990 amendments, such that, absent a substantive amendment to the scope of the 111(d) exclusion, the reference to 112(b)(1)(A) had to become a reference to 112(b).  Hence, the Senate, which had no plans to broaden the 111(d) exclusion, passed a so-called conforming amendment modifying the cross-reference - specifically, "striking '112(b)(1)(A) and inserting in lieu thereof '112(b).'"  Had this been all that happened in 1990, the 111(d) exclusion would still only exclude Section 112 HAPs, not any non-HAP emissions from sources that emit HAPs.

However, that was not all that happened.  The House, in its bill, more substantively amended the 111(d) exclusion to include the language codified today - the exclusion of pollutants "emitted from a source category which is regulated under 112."  Even though the Senate receded to the House amendment in conference, and even though the House amendment mooted the Senate's conforming amendment, which struck a reference to 112(b)(1)(A) in 111(d) that under the House amendment no longer existed, the Senate's conforming amendment found its way into the merged bill passed by both houses and signed by the President.  The compilers of the U.S. Code sensibly ignored the amendment, and it was forgotten for 25 years until the EPA famously seized on it to claim that there were two enacted and signed versions of 111(d), and that it had discretion under Chevron to choose which one it would follow.

EPA's arguments on this score were absurd, both because the failure to pull the Senate conforming amendment from the final bill was plainly a drafting error, and because even if Congress did intentionally enact alternate versions of the same statute, delegating the question of which the law would be to an agency is the Platonic ideal of a violation of the otherwise moribund non-delegation doctrine.  So, among others, Laurence Tribe argued between the EPA's issuance of its proposed and final rules, in fora including a hopeless petition for review in the D.C. Circuit of the EPA's proposed rule.  Largely, I imagine, because of his arguments, the EPA's final rule primarily reasoned that the codified version of 111(d) was ambiguous, saving its discretion to choose between versions of 111(d) as an adventurous back-up theory.

How is "any air pollutant . . .  emitted from a source category which is regulated under 112" ambiguous?  It is unclear what part of this language, if any, the EPA deems ambiguous - it variously suggests that the exclusion is clear on "who" is regulated under 112 (sources) but not "what" is, or that perhaps "any air pollutant" may really mean "any HAP," though it obviously doesn't mean that with respect to the first half of the 111(d) exclusion that addresses criteria pollutants.  But the upshot of its argument is that the exclusion only excludes source categories' 112-regulated emission of HAPs from duplicative 111(d) regulation - not, as 111(d) appears to say, any source emissions of any pollutant from a source category that is regulated under 112 for emitting HAPs.

The obvious rejoinder, which Professor Tribe and his co-counsel forcefully make in reply, is that the EPA is either reading a lot of words into or out of the statute.  At one point, the EPA suggests that "any air pollutant . . . emitted from a source category which is regulated under 112" should be read "any HAP . . . emitted from a source category which is regulated under 112."  Alternatively, maybe EPA is suggesting the language means nothing more than "any air pollutant . . . which is regulated under 112," though it would surely protest that claim.  Or perhaps when the EPA says that its reading addresses "what" is "regulated under 112," not just "who," it is reading the language to say "any air pollutant . . . emitted from a source category which is regulated under 112 with respect to that pollutant" - which would limit the exclusion to 112-regulated HAPs.  (It's this, I will argue, that is EPA's real and best argument.)

How, one wants to ask, can EPA justify reading all that into or out of the seemingly rather plain text of 111(d)?  How is 111(d) ambiguous on whether it implicitly includes all these missing words, or more implausibly still, implicitly excludes a lot of the words that are actually there?  It turns out that sentences of the form of the 111(d) exclusion are routinely ambiguous in just the way the EPA posits.

111(d), again, requires regulation of "any air pollutant . . . which is not . . . emitted from a source category which is regulated under 112."  I will suppose that this language is an instance of sentences that take the following general form: do/don't (verb) (noun) that is/isn't (verb optional) from a (noun) which (something).  Some examples: don't buy chicken (that is) from a store that has a low sanitation score.  Don't buy a dog (that is) bred from a dog who had rabies.  Only adopt dogs (that are) from shelters that never kill any animals.  Regulate any air pollutant which is not emitted from a source category which is regulated under 112.

As these examples hopefully illustrate, sentences like these have three parts.  First, there is a command with respect to some thing.  Second, that thing is qualified as being "from" or not "from" something else, sometimes with a verb preceding the from ("bred from," "emitted from").  Third, that something else is in turn qualified in some way.

Most fairly read, EPA's argument is that the third part of the relevant language in the 111(d) exclusion - the part that qualifies the source category as "regulated under 112" - not only qualifies the source category in the second part of the sentence, but implicitly refers back to and is limited by "any air pollutant" in the first part of the sentence.  In this way, the exclusion only applies to pollutants emitted from source categories regulated under 112 with respect to those pollutants.  Can 111(d) be read this way?  To me, this comes down to whether sentences of the form "do/don't (verb) A that is from B that is C" sometimes are commonly understood in context, in conversation or writing, to mean "do/don't (verb) A that is from B that is C with respect to A."  Some examples will show that they are.

First, consider "don't buy chicken from a supermarket that doesn't have a sale."  In conversation, this sentence would be universally understood to mean "don't buy chicken from a supermarket that doesn't have a sale on chicken."  One might claim that the sentence literally only commands the listener to not buy chicken from a supermarket that isn't running any sale.  But no one would understand the sentence that way as (a) read that way it would rule almost no supermarket out and be a pointless thing to say (all supermarkets have sales on something), and (b) whether or not a supermarket has a sale on non-chicken products is irrelevant to whether one should buy chicken there.  What is relevant to buying chicken is sales on chicken.  Context, then, dictates that "doesn't have a sale" refers back to and is limited by the "chicken" at the beginning of the sentence.  Note that this cannot be explained away by something unusual about the grammar or usage of the word "sale"; it is perfectly possible to talk about sales simpliciter in sentences that look a lot like the one in the example.  "Don't shop at Neiman Marcus when they don't have a sale" just means "don't shop at Neiman Marcus when they don't have a sale." 

Second, consider a more ambiguous case - "don't buy chicken from a fast-food restaurant that has had a recall."  Some listeners would interpret this stricture to only apply to restaurants that have had chicken recalls and read the sentence to impliedly say "a recall of chicken"; if a restaurant's had recalls of its lettuce, why should that affect one's chicken purchases?  Other listeners would interpret it to apply to any recall; any recall at a restaurant raises doubts in some minds about the safety of buying that restaurant's chicken.  Many listeners, I believe, would ask "what do you mean?  Any recall or just a recall of the chicken?"  In any event, if the speaker clarified and said he only meant chicken recalls, very few people, if any, would feel that the speaker had unambiguously said something different from what he meant.

Third, consider a case where the qualifier in the third part of the sentence almost certainly doesn't refer back to the noun in the first part of the sentence: "don't buy chicken for Chester (who has a severe peanut allergy) from a restaurant that uses peanut oil."  A listener who was very un-cautious about peanut allergies, or didn't understand them, might think the speaker meant to only exclude restaurants that use peanut oil in their chicken.  But most listeners would understand the risk posed by peanut oil in the kitchen where the chicken was prepared, and take "that uses peanut oil" to not refer back to, and be limited by, "chicken."

What these examples show, I hope, is that "don't (verb) A from a B that C" can impliedly mean (and not just be intended to mean but fail to mean) "don't (verb) A from a B that C with respect to A," and that the substantive content of a sentence with this form will usually tell or help tell us whether "with respect to A" is implied or not.  In linguistic terms, the implied "with respect to A" in many sentences like these is a species of conversational implicature, although some theories of linguistics might explain the phenomenon as a convention on which sentences like these just mean (and do not merely imply) an unstated "with respect to A."

Back to the 111(d) exclusion, is the language "any air pollutant . . . emitted from a source category which is regulated under 112" at least ambiguous on whether it means "any air pollutant . . . emitted from a source category which is regulated under 112 with respect to that pollutant"?  One standard textualist move would be to argue that this is a very roundabout way of essentially saying "any air pollutant which is regulated under 112," and renders the House amendment in 1990 a strangely pointless exercise in adding unnecessary words to the statute.

Recall, however, "don't buy chicken from a supermarket that doesn't have a sale."  That command, which seems ordinary enough, could also be described as a roundabout way of saying "don't buy chicken that isn't on sale"; why mention the supermarket?  The speaker that particularly wants to distinguish the right supermarkets from the wrong ones, as people often do in this context, will add the extra words, though they add little extra meaning.  Likewise, the drafter that particularly wants to distinguish the right source categories from the wrong source categories will add the extra reference to source category.  Given that 111(d) is about regulating sources, not pollutants, it makes all the sense in the world that a drafter would add surplus language that focused the 111(d) exclusion on sources regulated elsewhere.  Further, the House amendment would not, on this reading, be entirely pointless, for two reasons. First, it, like the Senate amendment, was rendered necessary by the renumbering of 112; second, by altering the exclusion from pollutants "included on a list published under" 112 to source emissions of pollutants actually "regulated under" 112, the House would have narrowed the scope of the exclusion to source emissions of those pollutants EPA was really regulating, as opposed to any pollutant as to which 112 called for regulation.

Absent the flight to surplusage, the only way I see to deciding whether "air pollutant . . . emitted from a source category which is regulated under 112" can permissibly be read under Chevron to contain an implied "with respect to that pollutant" is to ask whether the statute could make sense that way.  For given how common these kinds of implicatures are, the implicature need only be sensible for it to be permissible. 

The implicature is obviously sensible; until 1990 111(d) said just about what it would mean now with the implied "with respect to that pollutant."  Then, it excluded source emissions of HAPs listed under 112; now, with the implicature, it would exclude source emissions of pollutants emitted from sources that were regulated under 112 for emitting those pollutants, because those pollutants are HAPs.  Again, it's an awfully roundabout way of excluding HAPs, but only excluding 112-regulated source emissions of HAPs from 111(d) is a perfectly plausible thing for Congress to say.  I would even venture to say it's quite a bit more plausible than excluding any source from regulation for its emission of non-criteria, non-HAP pollutants if that source is already regulated for emitting HAPs.  While petitioners vaguely gesture in the direction of the 1990 House's supposed intent to root out duplicative regulation of regulated sources, it doesn't make much sense to say that, even though carbon dioxide is a regulable air pollutant, the EPA can't touch coal-fired plants' emissions of it under 111(d) because it's already regulating coal-fired plants' emission of mercury and the like (well, trying to) under 112.  It's tough to see how both regulating a coal-fired plant's emission of mercury acid and its emission of greenhouse gases is duplicative.  In short, the more one looks at 111(d)'s language and thinks about what that language is doing, it starts to read a lot more like "don't buy chicken at a supermarket that doesn't have a sale [on chicken]" than a provision so unambiguously limited to the broad prohibition on its face that EPA had to doubt its enactment into law.

Wednesday, June 29, 2016

Encino Motorcars, Cuozzo, and the Impossible Dream of Step Two Arbitrary and Capricious Review

1. The classic arguments for arbitrary and capricious review at Step Two.

Since the dawn of Chevron, people have been arguing that Chevron's second step is or should be hard-look, arbitrary and capricious review.  Some of the arguments for this move are rather prosaic.  First, Chevron itself comes close to saying that Step Two is arbitrary and capricious review ("legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.").  Second, equating Step Two with arbitrary and capricious review is said to square Chevron with the Administrative Procedure Act and thereby legitmate Chevron; Justice Thomas' important concurring opinion last week in Cuozzo is an example of this view. 

Third, as Ronald Levin first arguedChevron and the Court's subsequent opinions on Chevron says that Chevron has two steps, not one, and absent equating Step Two with arbitrary and capricious review, it's very difficult to see how Step Two isn't a reprise of Step One.  Courts that decline to inquire into the policy reasoning an agency gives for choosing one of several possible meanings of a statute have nothing much to do at Step Two besides repeat their Step One conclusion that the statute doesn't unambiguously foreclose the agency's reading.  For a randomly chosen but poignant example of this redundancy, see the D.C. Circuit's recent opinion in Van Hollen v. FEC, a case in which that court reversed a district court's Step One decision for the challenger, remanded the case to the district court to consider Step Two, and on further appeal from the remand, reasoned that its prior Step One holding "largely foreordains our . . . Step Two answer," because the court had already determined that the agency's reading "was within the range of linguistically possible constructions" -- a determination which the court treated as sufficient to decide Step Two, even though such a determination should always be required for an agency to survive Step One.  (There are courts who only ask at Step One whether a statute can bear multiple meanings, without deciding whether it can bear the agency's; this saves Step Two from redundancy at the cost of making Step One a pointless exercise.)

Though it's virtually undeniable that only arbitrary and capricious review can make Chevron non-redundantly live up to its purported two-step framework (but see Richard Re's novel suggestion that Step Two, instead of being a space for arbitrary and capricious review, could non-redundantly determine whether an agency's reading is compelled), some scholars have more ambitiously argued that regardless of the number of steps Chevron has, Chevron deference is only justifiable if arbitrary and capricious review is a part of it. Chevron, the argument goes, famously claims that in cases of statutory indeterminacy, courts should defer to agencies' policy choices rather than making their own, because of agencies' superior political accountability and expertise.  If that's the rationale for Chevron deference, though, why should a court defer to an agency that doesn't purport to be making a policy choice, but relies only on interpretive claims about statutory meaning, or an agency that purports to be making a policy choice as between permissible interpretations of a statute but does so in an arbitrary way?  Arguments of this kind have been made, at various times, by Michael Herz, Peter Strauss, Kenneth Bamberger and StraussJeffrey Pojanowski and Randy Kozel, Richard Murphy, and many others, and I agree with them wholeheartedly.

2. How Chevron theory's success, as theory, caused its operational failure.

This theory of Chevron was substantially victimized by its own success.  Courts and commentators bought in so heavily to Chevron's prescriptive claims on why courts should defer to agencies that they came to mistake them for descriptive truisms about what agencies were actually doing, or regularly observed mandates to agencies to behave in the manner that Chevron suggested they did.  Very early in Chevron's history, courts largely stopped reading the regulatory documents to which they were deferring , assumed that, given Chevron's account of agency statutory interpretation, whatever was contained in them must be a deliberative policy choice of some sort, and either gave agencies deference on this premise without even doing arbitrary and capricious review, or, when they did arbitrary and capricious review at Step Two, largely turned to agency briefs for policy reasoning to review. 

Though I could adduce any number of cases in which courts have unknowingly mistaken pure agency statutory interpretation for agency policymaking and deferred on that ground, two extrajudicial examples of the mystification Chevron would cause for even the leading lights of administrative law particularly strike me.  The first is a personal anecdote.  Once, Justice Scalia visited a seminar I was taking at Georgetown and took questions from the class.  When I asked him what he would do in a Chevron case if an agency gave purely interpretive reasons in a regulation for its choice to read a statute one way or another, he tentatively ventured that Chevron deference might not be warranted in such a case, but said that he had never seen such a case in his years on the Court or D.C. Circuit.  This surprised me because, as I'd recently learned in writing a note on Chevron deference to the Board of Immigration Appeals, many agencies, especially adjudicative bodies like the Board or NLRB, engage in purely interpretive reasoning more often than not when choosing what meaning to give to an ambiguous statute.  I can only conclude that Scalia had come to mistake Chevron's picture of agency practice for reality.  

Second, in 2005, Jerry Mashaw wrote perhaps the first major article on agency statutory interpretation and found, in a small empirical study of EPA and HHS regulations, that agencies engaged in textualist statutory interpretation all the time.  Two years later, Richard Pierce, a giant of administrative law, wrote a short response that questioned the point of the whole project, disregarded, without mention, Mashaw's empirical evidence of agency practice, and claimed that when agencies "give meaning to ambiguous provisions in the statutes they administer . . . they are not involved in the process of statutory interpretation.  Instead, they are engaged in a policymaking process . . . ."  The only evidence cited for this empirical claim was Chevron itself.  And while it's possible to read Pierce as merely making a prescriptive claim about what agencies are supposed to do under Chevron, even that overreads Chevron, which only states what courts are supposed to do when agencies respond to statutory ambiguity in certain ways, not how agencies are supposed to respond to statutory ambiguity.

3. A new age for hard-look review at Step Two?

Though three decades under Chevron's rule have passed without the Court, or D.C. Circuit for that matter, truly heeding the call to turn Step Two into a meaningful policy review of agency discretion, or even clarifying what Step Two is if not arbitrary and capricious review, in recent years there have been signs that the Court was beginning to inch towards adopting the prevailing academic view.  First, in Judulang v. Holder, Justice Kagan surprisingly wrote for a unanimous Court that it didn't matter whether the Court applied Chevron to a Board of Immigration Appeals decision or arbitrary and capricious review, because Step Two review "ask[s] whether an agency interpretation is arbitrary or capricious in substance."  

Second, and more tellingly, last year in Michigan v. EPA Justice Scalia would invoke State Farm arbitrary and capricious review to reject an EPA interpretation of a provision of the Clean Air Act giving the EPA power to regulate if "appropriate and necessary" that declined to consider cost.  Meanwhile, Justice Kagan in dissent conceded that the EPA's interpretation of "appropriate and necessary" would have been unreasonable had it refused to consider cost, but argued that the EPA had considered cost.  In an exciting working paper presented earlier this month at George Mason's Chevron conference,  Catherine Sharkey reads Michigan to suggest that the present moment of Chevron retreat (though I'd call it revanchism) seen in cases like Michigan and Burwell may be finally ushering in meaningful arbitrary and capricious review at Step Two.  Like Herz, Strauss, Bamberger, Pojanowski, Kozel, Murphy, and others before her, she also argues that courts should be looking for "policy-relevant evidence" at Step Two, "not [agencies'] view of the best legal interpretation."  What may be new in Sharkey's paper, besides the suggestion that her view is at long last becoming doctrine, is the claim that hard look review at Step Two will not only lead courts to defer to the right agency interpretations, but cause agencies to make better decisions.  I would only add, probably unoriginally, that it would also encourage agencies to disclose the real policy reasons they have for doing what they're doing, instead of hiding behind motivated reasoning regarding statutory meaning and legislative intent.

4. Why Encino is a Step Two case that matters.

Last Monday, the Court decided a pair of cases, Encino Motorcars and Cuozzo, that appeared, on first blush, to confirm Sharkey's reading of Michigan and the current moment of Chevron retreat.  But before anyone on the hard-look side of the Step Two debates could claim Encino and Cuozzo as a victory, Adrian Vermeule, the leading advocate for a one-step Chevron, cast Encino as a banal non-event, while Daniel Hemel argued that Encino wasn't even a Step Two case, but was really all about Step "0.5."  I think Vermeule and Hemel are wrong; Encino (and Cuozzo) isn't banal, and it is a Step Two case, even if its author didn't write it that way.  But Encino, rather than ushering in the era of hard-look Step Two review so many have hoped for for so long, only holds that agency reason-giving of some kind is required at Step Two, and actually reifies the last thirty years of doctrinal indifference to, and uncuriosity about, what kinds of reasons agencies give.

Encino is a case about whether a car dealership's service adviser, who essentially sells customers car service but doesn't perform the service himself, is within the FLSA exemption to overtime compensation for a "salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles."  The Department of Labor determined, in a notice-and-comment rulemaking, that a service adviser was not included within that language.  

With all respect to Justice Thomas' dissent, it's plain to see that the statute is ambiguous on whether a service adviser is included.  An excellent argument can be made that a service adviser neither is engaged in selling automobiles, nor servicing them, though an equally reasonable argument can be made that a service adviser is engaged in servicing.  Further, the government plausibly argues that the statute really means mean "salesman primarily engaged in selling, or partsman or mechanic primarily engaged in servicing, automobiles."  A little-known canon of interpretation, reddendo singula singulis, suggests that the statute is best read in this way, though there are strong arguments that reddendo doesn't apply.  In short, the statute is ambiguous, and whatever the Department of Labor had concluded about whether service advisers were in or out would have been a permissible reading of the statute.  

However, the Department of Labor said virtually nothing about why it read service advisers out, only noting that service advisers were not explicitly in, stating that its interpretation was "reasonable," and cryptically remarking that it "recognize[d] there are circumstances under which the requirements for the exemption would not be met."  (The relevant page of the rule is here.)  The Department's failure to give reasons for adopting the eminently permissible interpretation it chose created the perfect test case of whether Step Two requires anything more from an agency than mere permissibility.

In an opinion by Justice Kennedy, the Court declined to defer to the Department's rule, and remanded the case to the Ninth Circuit to interpret the exemption without deference to the Department.  The extent to which the Court's denial of deference turned on the agency's interpretation being a surprising shift from longstanding views is unclear; Justice Kennedy at one point suggests that less reason-giving might have been needed if not for the change in view, while Justice Ginsburg and Justice Sotomayor concur in full but claim that the change was not a reason, or at least not much of a reason, for the Court's demanding heightened reason-giving in this case.  

I am not very interested in that question.  What is important is that, for apparently the first time, the Court denied deference to an agency's interpretation of confessedly ambiguous statutory language, contained in a formal document that satisfied Mead's safe harbors, because the agency failed to give reasons for picking the permissible interpretation it chose. Vermeule says this is banal; arbitrary regulations are invalid, so of course, he reasons, they get no deference.  Indeed, Encino should be banal.  But until last week, the Court had never held that arbitrary regulations get no deference (though it had said it in cases like Judulang and Chevron itself), nor had it held that a regulation that arrives at a permissible reading of a statute is arbitrary and invalid because it gave no reason for picking the permissible reading it picked.  To illustrate how important and novel Encino is, consider that in Burwell, the government seriously urged, and the Fourth Circuit gave, Chevron deference to a regulation that addressed whether federal exchanges were exchanges "established by the State" as follows (and that the Court only denied deference to that regulation on novel grounds which had nothing to do with the quality of the agency's reasoning):

The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. Moreover, the relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges.  Accordingly, the final regulations maintain the rule in the proposed regulations because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole. 
Hemel, for his part, claims that in spite of Encino's four citations to State Farm, repeated criticisms of the agency for failing to produce a "reasoned explanation" of its actions, and the Court's description of the agency's rule as "an arbitrary and capricious regulation," Encino isn't a Step Two or State Farm case.  Part of his argument is purely circular, or question-begging; he claims that Encino isn't a State Farm case because State Farm has nothing to do with agency statutory interpretation.  Once one acknowledges that courts can, in fact, apply arbitrary and capricious review to agencies' policy choices to pick one permissible reading of a statute over others, this argument collapses.  

More substantively, Hemel argues that Encino isn't a Step Two case, but is rather a Step Zero case, because Justice Kennedy emphatically declines to do Chevron at all, to the point where he declines to consider whether the statute is ambiguous at Step One.  This is probably formally correct; Justice Kennedy doesn't do Step One, says at multiple points that Chevron deference doesn't apply to the agency's regulation, and at times appears to suggest that the rule he's announcing is a wrinkle of Mead, the Court's classic (or infamous) case on Step Zero.  What Hemel misses, though, is that a Step Zero holding hinged solely on how an agency reasoned in a particular instance, rather than on whether a statute delegates gap-filling power to an agency if it uses notice-and-comment rulemaking or formal adjudication and reasons in a non-arbitrary fashion, is functionally equivalent to a Step Two holding.  Unlike a "true" Step Zero holding, like Burwell, which would deny the agency deference on a particular issue or under a particular statute no matter the quality of its reasoning or the formal vehicle in which that reasoning appeared, Encino denies the Department of Labor Chevron deference only so long as it reasons arbitrarily; a non-arbitrary regulation on the same subject would receive Chevron deference.  Had the Court styled its holding as a Step Two holding, the consequences for the Department of Labor would be exactly the same; the particular rule under review would not receive deference, but a different rule on the same question might. 

Thus, by doing arbitrary and capricious review (which the Court is clearly doing, to an extent) at Step Zero, the Court has essentially acquiesced to the calls to do arbitrary and capricious review at Step Two.  The only difference is the lack of a Step One ambiguity determination, which deprives the agency of information as to whether its prior reading was at least permissible and will survive review if re-arrived at in a non-arbitrary way.  I would predict that in future cases, Encino will be applied as if it were a Step Two holding in order to avoid this problem.

5. Why Encino is not the advent of real hard-look review at Step Two, and why the Court doesn't want it to be.

But while Encino is not banal, nor a strange new permutation of Mead, but rather is an important new development on Step Two or the functional equivalent thereof, it is not the revolution in Step Two arbitrary and capricious review that one might have hoped for.  The key sentence in the opinion isn't one of its many citations to State Farm, or its announcement that arbitrary and capricious regulations receive no Chevron deference, but this:

Although an agency may justify its policy choice by explaining why that policy “is more consistent with statutory language” than alternative policies, Long Island Care at Home, 551 U. S., at 175 (internal quotation marks omitted), the Department did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services (that is, service advisors). 
Here, the Court makes clear that the Department of Labor could have received Chevron deference had it only essayed a thumbnail sketch of the erudite arguments from reddendo singula singulis found in the SG's brief.  Had the agency only said that the statute is ambiguous, but that the more ordinary reading of "engaged in servicing automobiles" excludes persons who don't actually service automobiles, or that the statute is ambiguous, but that a hoary canon of construction suggests that "salesman" should be read to be the subject of "selling," and only "selling," while "partsman or mechanic" should be read to be the subjects of "servicing," the Court would have deferred, so long as it agreed with the agency on ambiguity.  

This is not real hard look review of the sort that people like Sharkey are calling for at Step Two.  Rather, it is a minimal filter for agency interpretations that fail to give non-arbitrary reasons of any kind. 32 years after Chevron was decided, the Court still doesn't understand - or understands but refuses to admit - that there are no good reasons for mandatory deference (as opposed to contingent, Skidmore deference) to agency regulations that adopt a particular interpretation of a statute because the agency says the statute is textually best read that way.  32 years after Chevron was decided, the Court still doesn't understand - or understands but refuses to admit - that Chevron only gives agencies deference on the premise and condition that they do not interpret statutes that way, but instead make policy choices that call on expertise, public opinion, and presidential preferences.

Encino's indifference to the kinds of reasons agencies give was presaged at oral argument in a remarkable colloquy between Paul Clement and Justice Kagan, and confirmed last Monday in Cuozzo, which is a familiar exercise in judicial denialism and legal fiction-making about the realities of agency statutory interpretation.  At oral argument in Encino, Clement attempted to argue that the Department of Labor shouldn't receive Chevron deference because it had solely addressed what it thought the statute meant, rather than what, given its ambiguity, the statute should be read to mean.  He was immediately shut down:

JUSTICE KAGAN: ... I mean, agencies do this all the time. They say, this is the way we read the statute. This is the way we want to read the statute. And this Court has never been in the business of saying, oh, when you think that the statute says something, you don't get deference. Whereas when you think the statute is ambiguous but you give other reasons, you do get deference. I mean, that would be a ­­ a completely unadministrable line to use.
MR. CLEMENT: Well, I don't ­­-- I don't want to quibble too long with you on that. I don't think that would be unadministrable at all. This Court has recognized the exact same principle in the Auer context, which is to say that if all you do is parrot the statute, then that doesn't really gain you any extra deference, and I think all ­­ --
JUSTICE KAGAN: This is not parroting the statute. This is saying we read this statute in a way which we think is better than another way.
This pithily sums up the two reasons the Court has probably never been inclined to separate the interpretive chaff from the policymaking wheat at Step Two: administrability, and the suspicion that when an agency says "this is the way we read the statute," it's because that's the way it wants to read the statute.  Administrability is a legitimate concern.  As I'll show below in connection with Cuozzo, it can be difficult to tell if an agency is doing statutory interpretation or policy reasoning, as all statutory interpretation is, to a certain extent, policy reasoning.  Often the reason a court or agency will believe that Congress intended something is that it seems a better policy than the alternatives, and agencies are arguably entitled to Chevron deference when assessing what interpretations are better policies than others, even when they're only doing so (or say they're only doing so) to determine what Congress meant.  

I think this is plausible, but incorrect; the kind of deference owed to an agency claim that a policy is better and therefore the one Congress likely preferred is an epistemological deference, based, contingently, on how much the agency actually knows about what's better in the area, whereas the kind of deference owed to a true agency choice of one policy over another is a categorical deference, premised on the claim that agencies are more accountable than courts and more constitutionally licensed to make policy.  And while a distinction between purely interpretive and policy reasoning might be unadministrable, the proper distinction between agencies that profess to say what Congress meant and agencies that profess to be making policy choices is probably much easier to draw.

Justice Kagan's second argument is weaker.  It is doubtless the case that when an agency claims to have arrived at the best estimate of statutory meaning, it often, even usually, has arrived at the reading it wanted to arrive at for unstated policy reasons (including the President's actual or presumed preferences).  Why, though, should agencies not be forced to state those reasons, which may, for all the courts know, be completely arbitrary?  And why should courts defer to just any old agency policy choice, so long as it's permitted by a statute?  While courts should generally defer to agencies' permissible policy choices, they shouldn't, and can't under the APA, defer to arbitrary ones, and it would seem that much could be gained, in the way of transparency, accountability, and the quality of agency reasoning by making agencies state their real policy reasons instead of hiding behind lawyerly exegeses of their preferred readings.

6. Cuozzo's confirmation of Encino as (basically) business as usual

In Cuozzo, the Court confirmed that it will still defer to more-or-less purely interpretive agency reasoning so long as it's reasoned, and that it will continue to perpetuate the Chevron myth of agencies as non-interpretive policymakers by recasting agency reasoning and performing arbitrary and capricious review on policy reasoning that an agency never gave.  Cuozzo concerned the claim construction standard the Patent Office should use in "inter partes review," a procedure by which a third party can ask the Patent Office to reexamine and invalidate a patent.  The statute creating inter partes review was silent on the matter; the Patent Office chose to use the standard it uses when reviewing patent applications in the first instance, namely the broadest reasonable construction standard, which tends to invalidate more patents than the standard the courts use in infringement litigation.  Challengers to the regulation argued that inter partes review was intended to be a stand-in for judicial proceedings, and that the standard used in those proceedings should be used in inter partes review.

In adopting the broadest reasonable interpretation standard in inter partes review, the Patent Office gave a series of basically interpretive reasons, only two of which the Court mentioned.  First, the Patent Office noted that the Federal Circuit had required it to use the broadest reasonable construction standard in patentability determination proceedings for thirty years.   

Second, the Patent Office argued that the interpretive reasons the Federal Circuit had given for requiring the broadest reasonable construction standard in patentability proceedings - the preponderance of the evidence standard for patentability, the ability to amend claims, and the lack of a presumption of validity - all were present in the new statute's treatment of inter partes review, whereas different burdens of proof apply in litigation, where a more patent-friendly claim construction standard is used.  Therefore,        "[t]he provisions of the [statute] indicate[d] that the typical standard . . .should apply" to inter partes review.  

Third, the broadest reasonable interpretation standard was consistent with the legislative history, "which indicates that Congress was aware of the . . . standard and expected the Office to apply the standard to the new . . . review proceedings."  Further, had Congress intended a new standard, it could have enacted one, but it didn't.  

Fourth, the statute allowed the Office to consolidate inter partes review with certain other proceedings in which the broadest reasonable interpretation standard had long applied, and ["i]t would be anomalous for the [Office] to have to apply two different standards in the merged proceeding."  

Fifth, inter partes review, as a statutory matter, turns out to be about patentability, the traditional Patent Office question, not validity, the traditional judicial question, and "[t]hat distinction confirms Congress' intent for the USPTO to apply the typical framework it currently applies in existing patentability determinations."  Finally, the Office concluded that a single claim construction standard must be used to "prevent inconsistencies and inefficiencies" in a merged proceeding.

The Court deferred to the Patent Office after performing a sufficiently convincing facsimile of arbitrary and capricious review that Justice Thomas announced his constitutional concerns about Chevron had been cured, at least for the moment, by the Court's obesiance to the APA.  According to the Court, "neither the statutory language, its purpose, or its history suggest that Congress considered what standard the agency should apply when reviewing a patent claim in inter partes review" - even though the regulation it deferred to repeatedly said that the statute's language, purpose and history suggested that Congress considered the question and intended the Office to use the broadest reasonable construction standard.  According to the Court, the Patent Office made a "decision to prefer a degree of inconsistency in the standards used between the courts and the agency, rather than among agency proceedings."  That decision, the Court says, was a reasonable choice for several reasons:  

First, the broadest reasonable construction standard helps to protect the public from bad patents - a reason the Patent Office never gave or gestured at.  

Second, here citing the agency rule, the Court notes that "past practice supports the Patent Office's regulation," which is the Court's repackaging of the Patent Office's claim that three decades of Federal Circuit jurisprudence more or less mandated that regulation.  

Third, while the rule's challengers argue that the Patent Office's standards will create inconsistency between the Patent Office and subsequent or preceding litigation, different burdens of proof apply in the two, "mean[ing] that the possibility of inconsistent results is inherent to Congress' regulatory design" - a repackaging of the Patent Office's claim that the differing burdens of proof indicated as a matter of statutory interpretation that the broadest reasonable construction standard must be used in inter partes review.  

Fourth, the Court repurposed the point about merger of proceedings, which in the Patent Office's version was a claim that the anomalies created by the rule's critics' position suggested their interpretation was incorrect, into an argument that it was reasonable for the Patent Office to decline to adopt the challengers' "difficult" rule. 

Finally, the Court deferred to the Patent Office's supposed "prefer[ence]" for consistency between agency proceedings, concluding that "whether there is a better alternative as a policy matter" was left by Congress "to the particular expertise of the  Patent Office."

In fairness to the Court, parts of my reading of the agency rule are tendentious.  While the Office makes repeated claims about "Congress' intent" and what "Congress expected," it is certainly possible to read the Office's point about anomalies flowing from the challengers' preferred rule as pure policy reasoning, rather than as claims that Congress couldn't have intended for their rule.  It may even be possible to read the Office's point about burden of proof and the like as an argument that, for the same reasons the Federal Circuit had thought the broadest reasonable construction standard made sense in patentability proceedings, it also made sense in inter partes review.  The difficulties of classifying these arguments as instances of interpretive reasoning or freeform policymaking point up the potential unadministrability of my preferred approach to Chevron.  

However, what is clear is that the Court deferred to a regulation that by the Court's own lights is erroneous, as it claims the statute has a precise meaning and definite intention on claim construction standards that the Court says isn't there.  In order to justify deferring to that regulation, the Court is compelled to conjure up an exercise in policy choice that simply doesn't exist.  And though it's certainly possible that the Court's imaginative reconstruction of what the Patent Office was thinking is entirely accurate, it's also possible that the Court deferred to a "choice" that really was the Patent Office's sincere estimate of congressional intent.  Whichever is the case, so long as the Court declines to require that, or inquire into whether, agency statutory interpretation live up to Chevron's picture of what agencies do, we will continue to live with fictionalized renderings of agency statutory interpretation.

Wednesday, June 1, 2016

Torres v. Lynch - a Sub Silentio Holding on Chevron Deference to Administrative Interpretations of Criminal Law?

Two weeks ago, the Supreme Court decided Torres v. Lynch, a case about the meaning of a defined term of art in deportation provisions of the federal immigration laws, "aggravated felony," that also appears in the definitions of and sentencing provisions for several federal immigration crimes.  Deciding the question in the deportation context, in a case which came up through the Second Circuit from the Board of Immigration Appeals, a closely divided Court agreed with the Board's result and reasoning but gave the Board no deference, instead producing a 21-page opinion which essentially acknowledged the linguistic ambiguity of the text in question and ultimately resolved that ambiguity by appeals to context, purpose, and far-flung analogues in the Assimilative Crimes Act and the federal three-strikes statute.  

The parties and amici hotly contested whether Chevron applied to so-called dual-use statutes with civil and criminal applications, a point of emerging doctrinal debate even before Torres; the Court doesn't tell us.  But its silence on deference in the face of confessedly ambiguous text has instigated a debate over whether the Court is signaling that Chevron does not apply to agency interpretations of criminal law, does not apply to so-called "crimmigration" questions (i.e. questions about which crimes lead to deportation) within the immigration agency's purview, or whether the Court is signaling nothing of the kind.  Michael Kagan, a law professor at UNLV, argues that Torres signals that Chevron has a criminal immigration exception, and that that's a good thing.  Patrick Glen, a senior litigation attorney in DOJ's Office of Immigration Litigation who was on the government brief in Torres, argues in response that Torres signals nothing and assures readers that his office will continue to seek Chevron deference to the immigration agency's interpretations of dual-use provisions of immigration law.  As someone who, compared to Kagan and Glen, is relatively agnostic on whether there should be a criminal-law exception to Chevron (though I tend to sympathize with Glen), I thought I could neutrally referee this dispute.

Before turning to Kagan and Glen's disagreement on Torres itself, a key point of disagreement between Kagan and Glen is which prior cases, if any, bear on whether the Court is silently crafting an exception to Chevron.  Kagan claims that the Court silently denied deference in many pre-Torres crimmigration cases; Glen says he's wrong. 

Some background is needed here.  The Board of Immigration Appeals is a strange body.  Our immigration laws vest the power to deport in the Attorney General.  The Attorney General, by regulation for nearly a century, has delegated much of this power by regulation to an entity of her creation, the Board of Immigration Appeals.  The Board is a multi-member, court-like body which hears appeals from immigration judges.  Like the federal courts of appeals, which it models itself after in many ways, the Board has adopted the modern practice of producing both precedential, published opinions, and non-binding, unpublished opinions.  When the Board decides a question of immigration law by unpublished opinion, the courts of appeals are in unanimous agreement that under Mead the Board's decision only gets, at the most, Skidmore deference.  Published opinions, by contrast, get Chevron deference.  This is a long prelude to saying that, in some of the cases of seeming non-deference on which Kagan relies as evidence for the crimmigration exception, there was no published opinion of the Board to which the SG's office sought Chevron deference.  (For an accurate - I have checked - inventory of the Court's recent crimmigration cases that details which even potentially presented a question of Chevron deference, see this page of the SG's brief in Mellouli v. Holder.)   And, in some of the other cases Kagan cites, as the page just linked to and Glen's post detail, what was at issue was actually the meaning of a criminal provision of the U.S. Code -- cross-referenced by immigration law but clearly not, by virtue of those mere cross-references, proper subjects of Chevron deference, and therefore not subjects of requests for Chevron deference on the SG's part.

This leaves just two relevant cases,* though Glen disputes the relevance of even these: Nijhawan v. Holder, and Torres itself.  Both Nijhawan and Torres involved the meaning of some subsection or subsections of the 21-subsection-long definition of "aggravated felony."  This definition appears in a section of the Immigration and Nationality Act, and the term it defines is principally used in immigration laws.  If an alien has committed an aggravated felony, he is both removable, and ineligible for discretionary cancellation of removal, making the definition of this term a matter of profound civil consequence.  However, what an aggravated felony is also has considerable criminal-law salience, because, besides the term being an element of several immigration-related federal crimes, the prior commission of an aggravated felony increases the maximum sentence for illegally reentering the country by a whopping 900%, or 18 years.  This sentencing provision has been cited over 16,000 times by the courts of appeals alone.  Hence, if the Board were to get Chevron deference on its interpretation of "aggravated felony," the fates of throngs of federal prisoners would turn on the Board's interpretation of a term of immigration art.  Both Nijhawan and Torres argued in their briefs that this would be an untenable state of affairs, Torres having the advantage of recent opinions by Justice Scalia and Judge Sutton agreeing with him about Chevron and criminal law.  As it happened, while the Board's interpretation of "aggravated felony" prevailed in both Nijhawan and Torres, the Court said nary a word about deference in either opinion, despite (as discussed below) non-obvious questions of interpretation in Torres if not both. 

*Glen would like to rely on the Court's fleeting mention of Chevron in Mellouli v. Lynch, though as he acknowledges, the Court didn't take Chevron very seriously in Mellouli.  Mellouli is besides the point for another reason, at least as to an exception to Chevron for criminal law, namely that the crime-based ground of deportability at issue in Mellouli was just a ground of deportability, with no criminal-law implications - unlike the meaning of "aggravated felony," which has substantial criminal-law implications.

Glen's strategy for dealing with Nijhawan and Torres is to claim that the government didn't even seek deference in Nijhawan because the statute was so clear, and only sought deference in Torres as a back-up argument that the Court didn't have to reach because the statute was so clear.  I think Glen is right about the government's litigating position in Torres, but little else. On Nijhawan, he is simply incorrect.  As in Torres, the SG sought Chevron deference as a back-up argument, devoting some five pages of her brief to disputing Nijhawan's contention that the Board shouldn't receive deference to its interpretations of terms that appear in criminal laws.  It is somewhat plausible to say, however, that Nijhawan was an easy enough case to make consideration of Chevron unnecessary.  The Court unanimously held in Nijhawan that a subsection of the aggravated-felony definition including fraud offenses where the loss to the victim exceeded $10,000 did not call for the traditional categorical approach of matching convictions, element by element, to statutes attaching collateral consequences to certain crimes, for the simple reason that very few criminal statutes contain, as an element, loss in excess of $10,000.  While the text of the statute did not expressly call for a departure from the categorical approach (which itself is an invention of the courts, not the Board), it could only be so fairly read.  So the Court said, at any rate.

Nevertheless, the complete absence of the Board's reasoning from the Nijhawan opinion is suspect.  The Court decided an issue, whether the categorical approach applied to subsection (M)(i) of the aggravated felony definition, that Congress very probably never thought about and certainly never addressed - that is, just the sort of issue that Chevron was created to handle - and it did so by drawing dubious inferences from a 50-state sua sponte survey of state fraud law loss thresholds that Congress probably never conducted.  The Court's bottom line was that because only 21 states had any loss thresholds in their fraud laws at the time the aggravated-felony definition was enacted, and only 8 had thresholds right on the $10,000 button, Congress must have intended for immigration judges to inquire into the underlying facts of fraud offenses when determining whether potential deportees committed offenses involving $10,000 loss.  The argument assumes that Congress knew this information - information which of course appears nowhere in the legislative history, and which the SG, in defending the Board's interpretation, didn't even bother to collect.  Would Justice Breyer, Nijhawan's author, have charged his law clerk with conducting a survey of state fraud law that on any serious reflection proves nothing had there not been some qualms on the Court about simply deferring to the Board's eminently reasonable interpretation of the statute?  Doubtful.

Torres, a 5-3 decision, is an even more suspect case of silence on deference.  Torres involved the headscratcher of whether, for purposes of the aggravated-felony definition, an "offense described in" a federal statute named in that definition, "whether in violation of Federal or State law," includes state offenses that don't require the jurisdictional element of the federal statute in question.  The Board thought the answer to that question was yes; the Second Circuit, finding ambiguity, deferred.  The Court affirmed the Second Circuit without even mentioning Chevron, the Board's rationale, or the fact that the Second Circuit deferred.  Instead, it concluded, in 21 pages of closely reasoned text, that the theoretical eligibility of state offenses to be "described in" aggravated felonies suggested that state offenses must be practically eligible as well, and that to be practically eligible, "an offense described in" a federal statute must not include that statute's jurisdictional element.

Glen says the Court reached this conclusion because the statute was unambiguous.  Perhaps the Court thought so.  One can't read Justice Kagan's opinion without getting the impression of great confidence in her result, borne out of the improbability that Congress would make serious state crimes non-deportable offenses merely because they lacked jurisdictional elements.  

However, Torres is hardly a typical Step One opinion.  For one thing, the Court never mentions Chevron.  For good reason, the Court doesn't usually omit mention of Chevron just because it thinks an agency is unambiguously correct.  This term in FERC v. Electric Power Supply Association, the author of Torres dropped a footnote stating that because the Court found the statute in FERC clear, it did not have to address Chevron. Footnotes like these are a necessity in a post-Brand X world, where absent a clear statement that the statute is clear and consideration of Chevron is therefore unnecessary, an agency can change its mind and abrogate the Court's decision; only determinations of unambiguity ensure that the Court's opinion will bind future agencies.  Torres does not say reaching Chevron was unnecessary, nor does it use words like unambiguous or clear, except when acknowledging that Congress could have been more clear.  

Instead of announcing its decision in terms of clarity, the Court flatly admits that the language at issue has multiple possible meanings and cannot decide the case, and that arguments from context, purpose, and an ostensibly "well-established background principle" about the relative unimportance of jurisdictional elements are needed to decide the case.  Usually, when the Court says language has multiple possible meanings and can only be disambiguated by context, it deems that language ambiguous and either defers to the agency or finds some exception to Chevron and disambiguates the language itself.  

Moreover, the Court's particular grounds for resolving the case are remarkably far-flung for a Step One opinion.  Can "described in" really unambiguously except jurisdictional elements because of an analogous practice of disregarding jurisdictional elements under the Assimilative Crimes Act, a statute that regulates federal military enclaves and appears not to even contain similar language to the aggravated-felony definition?  If the Court thought the statute unambiguous, would it need to cite, as evidence of its well-established background principle of selective jurisdictional deemphasis, Judge Diane Wood's views on the meaning of similar language in the federal three-strikes statute, or jurisdictional elements' irrelevance for purposes of mens rea?  Ultimately, the Court places greater weight on what Diane Wood thinks about a statute that isn't in the case than on what the responsible agency thinks about the statute that is in the case.  Even if the Court silently deemed the latter statute unambiguous, despite the many indications to the contrary, why is the agency's view never marshaled as confirmatory evidence of that unambiguity when so much else is?

The dissent, joined by Justices Sotomayor, Thomas and Breyer, is even odder in this regard.  In a case where the government argued Chevron deference and the court below deferred, the dissenters feel free to disagree with the agency without explaining how they overcome Chevron.  This too is not the norm; in FERC this term, for example, Justice Scalia explained in dissent that he gave the agency no deference because he thought FERC was clearly wrong.  

Do the Torres dissenters think the Board was clearly wrong?  Possibly.  The dissent, quite unlike the majority, claims to rely on "plain language," "ordinary accepted meaning," and a "straightforward approach."  How seriously it takes its claims about plain language, though, is unclear.  The dissent devotes just a page to its plain-language argument, giving the weak example of a Craigslist ad that describes an apartment and claiming that the ad only "describes" the apartment if everything the ad says is in the apartment is there.  Of course, though, one could and would say that one moved into the apartment "described in" the ad even if some feature of the apartment was altered between advertisement and move, pointing up that what matters here is not what "described in" means standing alone, but what it means to commit an offense described in a federal statute, whether in violation of that statute or state statutes.  Ultimately, the dissent places much greater emphasis on what can be inferred from the structure of the aggravated-felony definition than on parrying the majority's claim that committing an offense described in a statute doesn't unambiguously mean committing that offense jot for jot.

So what is happening in Nijhawan and Torres?  I think it's clear that something's happening.  Total silence on Chevron, in cases where (1) the government asks for deference, (2) the parties hotly debate whether Chevron applies, and (3) the Court rules for the agency without explicitly or even, I would argue, implicitly finding unambiguity, is neither common nor easily explicable.  This doesn't mean, however, that what Professor Kagan thinks is happening is happening.  I see a few possible explanations.  

Most simply, and minimally, at least some members of the Court think that whether Chevron applies to agency interpretations of dual-use statutes with criminal applications is a tough question, and didn't think it had to be decided in Torres or Nijhawan because the agency, if not clearly right, had the better of the arguments.  A decision on Chevron's applicability in these contexts, the Court may reasonably feel, can wait for a case where an agency needs Chevron deference to prevail.  While adopting the agency's view in Torres and Nijhawan without either expressly finding unambiguity or holding Chevron inapplicable doesn't really fit the doctrine, and creates a potential Brand X problem, that Brand X problem is highly unlikely to come to fruition, as the Board would have to overrule one of its precedents that the Supreme Court ratified and adopt, in either case, starkly pro-criminal-alien views.  The doctrinal oddity of these decisions, and the small potential of a Brand X  problem, then, is a small price to pay for avoiding a difficult question about Chevron's domain.  I find this a very plausible account of what's happening in Torres and Nijhawan.

Equally plausibly, some Justices in the Torres majority and on the unanimous Nijhawan Court are or were firmly convinced that Chevron does not apply to agency interpretations of the aggravated-felony definition, and refused to join (or write) opinions saying that Chevron did apply.  (We could also suppose that the Court has internally decided the question already, but if that were the case, it might say so.)  Since reaching Chevron was practically, if not doctrinally, unnecessary, other members of the Torres majority and Nijhawan Court acquiesced and didn't write separate concurrences calling for deference.  This is quite probable.  The author of Nijhawan, Justice Breyer, is famous for a selective approach to the Step Zero question of whether Chevron applies.  Justice Scalia, several years after Nijhawan, would write a statement respecting the denial of certiorari highly doubting Chevron's applicability to dual-use civil/criminal statutes.  And in Torres, three members of the majority - the Chief Justice, Justice Alito, and Justice Kennedy - dissented in City of Arlington from a holding that Chevron applied programmatically to all ambiguities in agencies' statutes.  The Torres dissenters, for their part, included Justice Breyer and Justice Thomas, who lately has begun to doubt whether Chevron is even constitutional.  It's easy to imagine them encouraging Justice Sotomayor (if she needed encouraging) to not acknowledge Chevron's applicability in her dissent.

Finally, to the extent that some Justices evidently think that Chevron's applicability in the Torres/Nijhawan context is questionable or doubtful, we might ask why that is.  Kagan thinks it has something to do with "the core liberty concerns" involved in immigration law, the Board's lack of political accountability (members, once appointed, can stay seemingly forever, and one Janet Reno appointee remains on the Board), and its lack of expertise in statutory interpretation.  Glen harshly criticizes these suggestions.  I agree with Glen that Kagan's explanations aren't convincing.  The Court, as he points out, has repeatedly deferred to the Board on tough interpretive questions of immigration law, just so long as those questions don't involve the collateral immigration consequences of criminal convictions. Skepticism of Chevron's applicability to issues of deportation or detention, or of the Board's expertise and accountability writ large, can't explain Torres and Nijhawan.

What can explain some Justices' doubts about deference in this particular context is threefold.  First, as Nijhawan and Torres argued, with help from amici, there is a decent argument that Chevron doesn't apply to interpretations of defined terms that appear in criminal laws.  This isn't an argument to which I'm very sympathetic, as it, among other things, misconceives the relative weight of lenity and Chevron, but outside of the executive branch mine is a decidedly minority view.

Second, the Court may doubt, as the lower courts have at times, whether the Board has anything very useful to say on the classification of state and federal crimes.  The substantial expertise the Board has in "pure" questions of immigration law, which can be as labryinthine as the Internal Revenue Code or habeas, may not seem implicated by disputes that call to mind nothing more than some of the Court's less difficult cases under the Armed Career Criminal Act, which also contains a list of generically described offenses that trigger collateral consequences.  This is confused, as it either assumes, falsely, that there are correct legal answers about the meaning of the aggravated-felony definition that the Board is less skilled than the Court at finding, or that classifying criminal offenses is a matter for technical expertise - specifically, the technical criminal-law expertise of the Court, which the Court deploys, as in Nijhawan's survey of state fraud law and in similar exercises in Torres, to help carry out Congress's presumed purpose of geographically uniform deportability.  One could instead view the many ambiguities in the aggravated-felony definition as delegations to the Board to ratchet up criminal deportability or ratchet it down - a policy choice which the Attorney General's delegates, however unaccountable, are better-suited to make than the Court.  However, it would hardly be surprising if some members of the Court didn't see things that way.

Third, the Court's caution about deference in Torres may be a function of the waning fortunes of Chevron itself, which has perhaps only two true believers left on the Court since Scalia's death and Thomas's intellectual journey from writing Brand X to concluding Chevron likely violates Article III  - Justices Kagan and Ginsburg. (While joining Scalia's opinion in City of Arlington, Justice Sotomayor's most notable writing on Chevron is a remarkably muscular reading of Mead in her Lawson v. FMR LLC dissent.)  With so few votes left for a truly mandatory deference doctrine, it's unsurprising that the Court would decline to apply Chevron in an edge case.

Wednesday, April 6, 2016

Supreme Court Vindicates Venerable One (Person/Permanent Resident/Non-incarcerated Permanent Resident/Citizen/Voter), One (Vote/Share of Representation/Share of Representative Access/Share of Constitutent Services/Share of Constitutent Feedback) Rule

All the possible numerators and denominators for the one-person, one-vote rule in the title of this post come straight out of the Court's opinion in Evenwel Monday.  See, e.g., slip op. at 4 n.3 (listing a variety of apparently permissible exclusions, on the part of various states, from "the total-population apportionment base," including formerly non-domiciled prisoners, immigrant non-citizens,* and temporary residents); id. at 16 n.12 (declining to address whether non-voters even have standing to bring one-person, one-vote claims); id. at 19 (declining to decide whether states may equalize voters, rather than residents, between districts); id. (noting that total-population apportionment has the virtue of "ensuring that each representative is subject to requests and suggestions from the same number of constituents"); but see id. at 19 n.14 (acknowledging the lack of any constitutional right to equal access to representatives).

* The Court is careful to quote the SG's claim, in his brief, that the immigrant non-citizen exclusions, which can be found in Maine and Nebraska's state constitutions, are currently not "operational as written."  I take this observation to be calculated, in part, to negate any inference of the propriety of those exclusions from the Court's cataloguing them in its list of modest departures from total-population apportionment.  Interestingly, not "operational as written" turns out to be a euphemism for Maine and Nebraska violating their own state constitutions by counting non-citizens in recent reapportionments.

To be clear, my complaint isn't that the Court has turned the one-person, one-vote rule into the one-permanent-resident, one-share-of-representative-access rule; I quite agree with the Court that slogans about the doctrine are irrelevant.  My complaint is that the Court's turned the rule into the one-x, one-y rule.  It's hard to see how the Constitution can mandate the equalization of something or another among some or another set of persons, within 10% deviation no less, without providing, or being construed to provide, what that something or another or some or another set of persons is.  It's as if the Court had held in San Antonio Independent School District that the Constitution mandated equal educational ______ as between _____ but let the states decide how to fill in the blanks.

The Court's argument collapses on itself in painfully obvious ways.  The Court concedes in footnote 14, or appears to concede, that there is no constitutional right to equal access.  ("Appellants point out that constituents have no constitutional right to equal access to their elected representatives.  But a State certainly has an interest in . . . facilitat[ing] access for all its residents.")  If that is so, but there is some constitutional right against a diluted vote that underwrites the one-person, one-vote rule, how can a vote-dilutive equalization of access like the one in Evenwel be tolerated?  Recall that the differences between the districts at issue in this case, in terms of voters, exceed 40%, and that the (voters? residents? residents not residing in jail?) the one-person, one-vote rule requires to be equalized between districts have to be equalized within 10%.  It would seem to follow that whatever constitutional right there may be against vote dilution is too weak to explain the rule, since that right tolerates deviations four times greater than the rule does.  

On the other hand, if there isn't a constitutional right against a diluted vote, or at least one not strong enough to forbid deviations of 40% between districts' voter-population, what right underwrites the one-person, one-vote rule?  The Court concedes away equal access, is unwilling to venture a dictum, see slip op. at 16 n.12, on whether non-voters even have standing to challenge malapportioned districts, and even suggests at one point that the choice of apportionment base may be a nonjusticiable political question, see id. at 7 n.6, which if true would seem to rule out any one right as an explanation of the rule.  Perhaps there is some right to equal representation, as apart from equal access, but the Court's lone explanation of why a state might even want to equalize total population between districts, let alone have to, says that non-voters have needs for constituent services and suggestions to offer on many policy issues, and is immediately followed by the footnote disclaiming any right to equal access.  Besides, it's a little difficult to understand what, substantively, a right to equal representation as apart from equal access would be.  What does it mean to say that a non-voter - a child, or a non-citizen, or a felon - has a right to be in a district with population equal to that of surrounding districts, if it doesn't mean that the non-voter has a right to equal opportunity to make suggestions and request services?  That his presumed interests will be given equal voice in Congress and the state legislatures, by representatives who have no electoral incentives to give his interests voice?  The Court is wise to not address whether non-voters have standing to bring such elusive equal-representation claims.

Ultimately, the Court seems to suggest that the one-person, one-vote rule flows from both a right against vote dilution and a right to equal representation (though it's careful to refer to both as mere "interests"), the product of which rights somehow ends up being a right against 10% deviations, between districts, in whatever population base the state chooses, with possibly a thumb on the scale in favor of residents.*  As doctrine, this is hard to stomach.  All the same, it's very understandable.  Evenwel, it strikes me, is a predictable consequence of this Court grappling with Warren and Burger Court precedent, as the Warren Court's allergy to legal reasoning and doctrine and the Burger Court's penchant for arbitrary, faux-legislative constitutional decision rules mix with the present Court's penchant for stare decisis and inability to agree on deep theories of almost anything.

* Although the Court disclaims deciding whether states may equalize voters instead of residents, that question was in no way before the Court, as much as some of the parties wanted to put it there, so it's hard to infer much from the Court's declining to decide that issue.  And though some members of the majority, including the author of the Court's opinion, almost certainly would forbid states from equalizing voters, hence the opinion's extensive citation to evidence of the Fourteenth Amendment's framers' preference for equalizing population, I find it hard to believe that there is a majority for mandatory equalization of residents.  Some people will draw a negative inference from the fact that Justice Alito's concurrence, strongly suggesting that states may equalize voters, was only joined by Justice Thomas, but it may be that Justice Kennedy and the Chief Justice simply saw no reason to stake out a position on the issue in a case that didn't present it.