Friday, June 23, 2017

A Response to Justice Alito's Hypotheticals in Maslenjak

Yesterday the Supreme Court decided what it means to "knowingly procure, contrary to law, the naturalization of any person"—a federal crime for which the penalty, if the person whose naturalization the defendant procured contrary to law is himself, is revocation of citizenship.  The parties litigated two ways of reading this language.  The first is merely that the acts by which one procured naturalization must be contrary to law, regardless of whether the illegality itself was a but-for cause of, or a contributing factor to, procuring naturalization.  That is to say, if one has to do a series of things to procure naturalization, including filling out an application with several hundred statements, one has procured naturalization in a manner contrary to law so long as any one of those acts was, in some respect, illegal, e.g., if one of the applications was false.  This was the government's theory.  The second way, the defendant's way, to read the language is that the naturalization must be procured by a means contrary to law, i.e., that some illegal act must at least materially contribute to obtaining naturalization.

Eight Justices joined Justice Kagan's opinion to the extent it held that the correct reading of the language is causal.  Justice Kagan claims that this follows from "the way language naturally works"; we wouldn't say, she reasons, that someone obtained a painting illegally unless he did something illegal that caused him to obtain the painting.  She tries to illustrate this with a couple hypotheticals that I don't think work. For example, she says we wouldn't say that someone illegally obtained a painting if he drove illegally on the way to the auction house.  That may only show that traveling to the place where one obtains a painting has nothing to do with obtaining the painting causally or otherwise, just as you wouldn't say that "I bought clothes quickly" because you drove quickly to the store.  However, I think she's right; to take a perhaps better hypothetical, if you pay for something expensive in cash and knowingly pass the cashier a Canadian penny, plus an amount well in excess of the item's price, to make the change even out, we probably wouldn't say that you bought the item illegally (though I'm not quite sure of this), though we definitely would say it if you paid the whole purchase price in rolls of Canadian pennies.

Before turning to how Justice Alito attempts to rebut this reading of "knowingly procure, contrary to law," I want to say a little about what sort of claim Kagan is making when she says that "language naturally works" so as to connote (or denote) that an illegal act caused the procurement when we say that someone procured something contrary to law.  (It isn't at all clear from the opinion.)  In the first place, it seems to have nothing to do with the meaning of words and phrases like "contrary to law" or "illegally" generally.  When we say that someone "drove illegally," we do not mean that some illegal act was a cause of the driving.  If we say that someone shot a deer contrary to law, we probably simply mean that their shooting the deer was illegal, not that they used an illegal gun that caused the deer's death.  On the other hand, it also seems to have little to do with the meaning of words like "procure" or "obtain" generally.  If we say that someone "barely procured naturalization" or "slowly procured naturalization," we obviously don't mean that the slowness of the procurement, or its being barely procured, was the procurement's cause; quite the opposite, in fact.  So why is it that Kagan's gloss of "procure, contrary to law" or "illegally obtain" seems so intuitively correct?  Is "illegally obtain/procure" just idiomatic for obtaining/procuring because of some illegality, even though "illegally" doesn't necessarily modify verbs in a causal way, and procure and obtain aren't always modified causally either?

Idiom might explain it, but that seems an easy way out.  What I want to tentatively suggest is that when an adverb modifies "obtain" or "procure," it must at least materially qualify the whole of the obtaining or procurement.  We wouldn't say, for example, that someone obtained something adroitly if what they did was only adroit in one small respect.  More broadly, when any adverb modifies any verb, it probably has to at least materially describe that verb.  For example, we wouldn't say that someone "drove from New York to California illegally" because he briefly sped in Montana, or that he drove from New York to California at a slow speed because he drove at a slow speed for an hour in Indiana.  So to say that someone procured naturalization contrary to law, it seems insufficient that one immaterial statement in the process of procuring naturalization was false and illegal; the procurement must be materially illegal in order to sensibly talk about an illegal procurement.  

Now, here is where I think obtaining or procuring might differ from other verbs.  If you agree that to say that someone drove from New York to California illegally the drive must have been materially illegal, all we are saying is that some substantial percentage of the drive, in terms of duration, must have violated some law.  But when we talk about materiality in the context of obtaining something, I am inclined to think we mean material to obtaining that thing, not just that some substantial number of the acts one took towards obtaining it were illegal.  (Of course, some adverbs just don't have this kind of material relationship to obtain or procure; see note.**)  So if every page of an application for naturalization contained some question that was immaterial to the result, misstatements as to each such irrelevant question, though they may make up a substantial portion of the application, don't seem to amount to an illegal procurement of naturalization.  For misstatements to be material to procurement, and thereby amount to a procurement contrary to law, I believe they have to materially contribute to causing the procurement.

Interestingly, this is just where Justice Alito disagrees with Justice Kagan.  He agrees with me, or rather I agree with him, that in order to procure naturalization contrary to law, you have to do something illegal that's material to procuring naturalization.  But unlike me, he thinks that that materiality need not be causal; the illegal act, he says, need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.  He attempts to demonstrate this through two hypotheticals.  As Justice Kagan offers no response to them, I offer mine.

First, he supposes that eight co-workers buy two season tickets for their favorite football team.  They then agree to each write their names on one slip of paper and put the slip in a hat, from which a slip is then drawn to see who gets the two tickets (for themselves and a guest) for a given game.  One of the eight puts his name in twice, and wins the drawing.  Alito concludes that "he 'procured' the tickets 'contrary to' the rules of the drawing even though he might have won if he had put his name in only once."

This hypothetical, it strikes me, hardly proves that "procures contrary to law" doesn't connote or denote causality, because the relationship between the second slip and winning the drawing is causal, at least in the sense the law understands causality.  Suppose, for instance, Person A knows Person B is considering committing suicide and has put one poisoned chocolate truffle into a box of eight chocolate truffles with the intention of randomly selecting one from the box and eating it.  If Person A secretly puts a second poisoned truffle in the box in hopes of increasing the chance that Person B will kill himself, and Person B does take one of the two poisoned truffles and die—assume the police can't tell whether it was Person A's truffle or notI'm pretty sure that Person A will be found liable, at least in tort, for causally contributing to Person B's death (unless Person B's act is deemed an intervening cause, which is irrelevant to the point I'm making), even though Person B might have died from eating the original poisoned truffle.  If there's a 50% chance that an illegal act caused some outcome, and we can't tell whether or not it did, we call that act the outcome's legal cause.

On the other hand, suppose that one member of the group fills out the slips of paper for everyone.  The cheater in this modified version of Alito's hypothetical writes his own name on a second slip of paper, which he puts in the hat.  If the original slip in the hat with his name on it is drawn, which can be ascertained simply by comparing the handwriting on that piece to the handwriting on all the others, and he thereby wins the drawing, would we say that he procured the tickets contrary to the rules of the drawing?  I think not, even though what he did had a natural tendency to affect the drawing's outcome.  We certainly would say that his participation in the drawing was contrary to its rules, but not that he procured the tickets contrary to the drawing's rules, or "illegally," which shows, I think, that when it comes to procurement materiality is causal.

Alito's second hypothetical is rather stronger.  He supposes that an Olympic runner wins a race while using a performance-enhancing drug; she's found out and is disqualified.  Because the second-place time was slow, it's speculated that she would have won without the drug.  Nevertheless, Alito says, "it would be entirely consistent with standard English usage for the race officials to say that she 'procured' her first-place finish 'contrary to' the governing rules."

I think this example simply trades on a particular feature of what's deemed material in Olympic running.  In running, as I understand it, any cheating, whether material to the outcome of any particular contest or not, often results in disqualification.  Had the runner in Alito's hypothetical worn a banned running shoe, her results would have been disqualified as well, even if the shoes made very little difference and the second-place finisher wasn't close.  Here, when we say that someone procured a first-place finish contrary to rules, all we mean is that they violated a rule during the race.  To violate a rule is to be ipso facto ineligible; therefore, any procurement of a first-place finish in a race where one violated a rule is contrary to the rules.

Suppose a sport, though, that doesn't view every infraction as quite so material.  For example, it is discovered two games into the NBA Finals that a minor role player is using a performance-enhancing drug, his team down 0-2; he is then suspended from the series, but his team is not disqualified from playing on, and that team wins the next four games and the series.  Would we say that the team procured its championship contrary to the rules of basketball?  Pretty obviously not.  What if the team won its first two games before the player got suspended, then won only two of the five thereafter en route to winning the Finals in seven games?  The answer is probably still no, especially absent reason to think the drug made the player materially better and the player made the team materially better.  Or, what if several players on the team wear an illegal basketball shoe, or get away with wearing illegal elbow guards, and are fined a nominal sum for it?  Now we really won't say they procured their championship illegally, though we would have in the case of the runner with the illegal shoes.  

On the other hand, what if the San Francisco Giants had won the 2002 World Series in seven games, a series in which the then-possibly-steroid-using Barry Bonds hit .471 with a .700 on-base percentage, a 1.294 slugging percentage, and 4 home runs in 17 at-bats?  We likely would say that the Giants procured the championship contrary to the rules of baseball, given that Bonds' contributions were necessary to the outcome, and given the huge statistical gap between Bonds in his pre-steroid years and Bonds in his allegedly steroid-using years, such that his steroid use likely made a material causal contribution to the outcome.  So again I conclude that absent an unusual context-specific theory of materiality, to procure something illegally means that illegality materially contributed to the procurement, and that to say that illegality materially contributed to the procurement is just to say that it materially causally contributed to the procurement.

** Of course, this won't be the case of every adverb that modifies obtain or procure.  To obtain quickly just means that the whole process was quick, but even here note that quickly must modify the whole process or not at all—there is no carving up the process into parts and saying that someone obtained something quickly because a material part of the process was quick.  On the other hand, more durational verbs, the sorts of verbs, like drive, where it makes sense to say "he (verb) for two hours" (which isn't the case of obtain or procure), can be sensibly modified where one is really only describing a material part of the relevant duration.  The contrast is a subtle one, but to be precise, to say that someone obtained something quickly just means that the whole length of time it took them to obtain it is a relatively short span of time in which to obtain it; to say that someone drove from Point A to Point B slowly or quickly may not necessarily describe the whole length of the drive so much as the speed at which they were driving most of the time.

Tuesday, June 13, 2017

A Thought on the Relevance of Congressional Authorization and Related Enactments to the Establishment-Clause Question in the Travel-Ban Case

Over at Take Care, Leah Litman and Ian Samuel have a post faulting Texas for arguing, in its amicus brief in support of the government's cert petition in the travel-ban case, that because Congress has given the President statutory authorization for orders like the travel ban, the courts should give great deference to the executive under Youngstown in reviewing plaintiffs' Establishment Clause claims.  Litman and Samuel, or L&S for short, argue that Youngstown is only applicable to disputes about the allocation of federal power between the President and Congress (that is to say, though they don't precisely say this, claims that the President has acted in excess of his powers under Article II), not claims that the President has violated provisions of the Bill of Rights which limit federal power as a whole.  

I think that's entirely correct, though I'm not sure what saying things like, to quote the profligately capitalized headline for the piece, "Texas's Amicus Brief Makes An Argument That Is So Obviously Wrong Some People Thought It Was Not Worth Responding To,"* adds to the argument other than a gratuitous (and completely unfunny, unless intended as Take Care self-parody, in which case, mildly funny!) attempt at snarky insult to the people working in the Texas SG's office, or the professors who originally raised Youngstown as a defense of the order.  It's almost certainly the case of a great many perfectly good arguments that "Some People" mistakenly thought them "So Obviously Wrong" that they were "Not Worth Responding To" (even people who L&S "admire and respect," see endnote), just as it's the case of many bad arguments that some people (usually the ones making them) think them so obviously right that response would be futileHowever admirable and respectable these "Some People" are, the only argument that's laughably wrong here is the suggested inference from the fact that some people think Texas is laughably wrong to the conclusion that it is.

I also think it would occur to any minimally charitable reader of Texas' brief that the Texas SG, who's a pretty sophisticated Supreme Court advocate, may well understand L&S' indeed trivially obvious points about Youngstown, but cleverly chose to respond to the statutory arguments against the ban advanced in two strong concurring opinions -- which Texas may be concerned will persuade the Court to deny cert or affirm, as their authors undoubtedly hoped -- in the guise of a Youngstown argument against plaintiffs' constitutional claims.  The reason Texas would do this is that the majority opinion below only addressed those constitutional claims, and criticizing the concurring opinions doesn't naturally fit into any of the traditional reasons for granting cert (as relevant here, the importance of the issues decided below, and that the decision below was wrong), even though those opinions may counsel against cert.  The bulk of what's framed as a Youngstown argument is in substance an argument that, contrary to Judges Keenan's concurrence, Trump's order was authorized by 8 U.S.C. 1182, and that contrary to Judge Thacker's concurrence (as well as some very forceful blogging by Samuel), Trump's order did not violate 8 U.S.C. 1152.  The Youngstown framing seems to me to be just that: a framing device intended to avoid the awkwardness of directly attacking the concurring opinions below at the cert stage. 

While I agree, L&S's snark and perhaps uncharitably literal reading of Texas's brief aside, that statutory authorization for the President's actions does not make them constitutional under Youngstown, which is best understood as an Article II doctrine only, not a general test of the constitutional validity of presidential actions, I am not sure that I agree that statutory authorization is simply "irrelevant to the claims in the travel ban litigation," that congressional authorization "wouldn't change any of the analysis about whether the actions that the President did take did in fact violate the First Amendment" (emphasis in original), or that courts "don't need . . . to pause to consider whether there are any statutes authorizing . . . the President's actions, when they address a claim that the President has violated an individual's rights, or a particular amendment to the Constitution."  This seems very possibly wrong in the following way.

I take it a fighting question in the travel-ban litigation, though L&S may think it an extremely easy one, is whether or not the Establishment Clause applies at all in immigration.  Congress has authorized the President, in 1182, to suspend the entry of any "class" of aliens whose entry he deems detrimental to the interests of the United States, with no exception for religious classes.  In 1152, Congress forbade immigrant visa preferences on a number of grounds, including race and sex; it did not, interestingly, forbid immigrant visa preferences on the basis of religion.  Congress has, as Josh Blackman chronicles here, given special preferences in immigration to ministers going back to at least the 1880s, given preferences in asylum to religious minorities claiming religious persecution, requiring immigration courts to regularly hold trials on asylum-seekers' religious beliefs, and has given preferences to Jewish and evangelical Christian immigrants from the Soviet Union.  All of these laws would likely be on shaky constitutional ground if they concerned some important domestic governmental benefit, and their passage seems to suggest that the Congresses that enacted them and Presidents that signed them believe that the Establishment Clause applies with less (if any) strength in immigration than in domestic contexts.  As the Court wrote in an opinion it uncritically cited today that denied an equal-protection challenge to an entry restriction, "in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens."

Now, L&S say that congressional authorization is irrelevant to whether some presidential act violates the First Amendment, because the First Amendment binds Congress and the President alike.  But this doesn't quite follow, indeed doesn't follow at all, because congressional authorization of religious exclusion in immigration, and a tradition of religious preference in immigration, could be relevant to what the Establishment Clause means in the first place.  As the Court recently put it in Noel Canning, while "it is the 'duty of the judicial department . . . to say what the law is,' it is equally true that the longstanding 'practice of the government' can inform our determination of 'what the law is.'"  This sort of use of historical practice is not a remotely novel concept, and while it's invoked most often in separation-of-powers cases (though related uses of tradition are rife in substantive due process cases), it's hardly out of bounds in individual-rights cases generally or Religion Clause cases specifically.  Indeed, only three years ago, in an Establishment Clause case, the Court wrote that "it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.  Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change."  

That passage, to be sure, particularly looks on possibly originalist grounds to historical practices dating back to the Founding, and I'm unaware of Founding-era religious preferences or discrimination in immigration, though I would not be shocked to learn that they existedBut it's far from obvious that the only historical practices that matter in Establishment Clause cases are Founding-era practices.  Arguments from post-Founding historical practice are certainly strongest in separation-of-powers cases, as there they can be justified in terms of interbranch acquiescence.  But as Curtis Bradley and Trevor Morrison wrote in the Harvard Law Review a few years ago, "not all reasons for invoking practice depend on acquiescence."  As they pretty convincingly argue, one could care about post-Founding historical practice for any number of originalist, Burkean, popular-constitutionalist, common-law constitutionalist, and reliance-based reasons.  And I strongly doubt that there are many (any?) constitutional lawyers or scholars who would claim that post-Founding congressional practice is completely irrelevant to how we should interpret, say, the Fourth Amendment, or the Fifth, or Sixth, or Eighth.

To be clear, I mean to make no claims about the extent of the practice of religious preferences in immigration or how far back that practice may go, the extent to which that practice could be justified under domestic Establishment Clause doctrine, or the extent to which post-Founding practice should inform the interpretation of the Establishment Clause in areas on which the courts, until this year, have been virtually silent.  But I do mean to claim that the fact that two branches of government (if the ban's legal critics are right about its motives) have given their blessing to religious discrimination in immigration absolutely has some bearing on what the third branch ought to do with them.

* To be fair, I don't know if L&S are responsible for their headlines, or if some crackerjack Take Care editor is.  But the post itself says much the same thing in much the same way: "Before we [engage with this argument], a note of caution: When we wrote the original post, we were told (by several people whom we admire and respect) that perhaps this post wasn’t even worth writing, because the argument we were rebutting was so silly."  Also, the Youngstown "argument is so obviously wrong that 'many law students have spotted it'" (quoting, for authority, one of L&S's own tweets).  Also, the Texas Law Review is (un)subtly shamed for having "elected to reprint in its online companion" some blog posts by Josh Blackman making that obviously wrong argument.  I have always assumed that gripes about law-review publication choices are the lifeblood of law-professor water cooler gossip, but only on Take Care can we non-academics find those gripes in writing -- and about a law review's online companion's publication choices no less(!) 

Here, I should confess to a minuscule degree of bias on account of the fact that the offending Tex. L. Rev. See Also piece cited a comment I made on someone else's blog post, which was a fun first (for my blog comments, not, I'm immodest enough to say, for this blog) that went a little ways towards justifying what's now been nearly half a lifetime of inveterate law-blog commenting.  That bias notwithstanding, the piece in question, a critique of the Ninth Circuit's first decision in the travel-ban case, though marred by an argument that I at least deem obviously mistaken, was an otherwise fine dissection of an opinion that I think most people now concede was extremely weak, and amply deserved its publication in a law review's online companion.  Even were that not the case, it strikes me as bad form to take a barely veiled dig at a law review for publishing an article because one doesn't agree with the arguments the article makes (absent factual error about what the law just is that I don't think is quite present here, as Youngstown isn't, at least on its face, circumscribed in the ways L&S cogently argue it should be).

Monday, June 12, 2017

Morales-Santana on "Entry Preferences for Aliens"

I have virtually no interest in the travel-ban litigation at all, a statement which may seem belied by this and one other post I'll be doing today or tomorrow, but I just wanted to note, as I hadn't seen it noted anywhere, that today's opinion in Sessions v. Morales-Santana has something to say about the appropriate standard of review in cases where it's alleged that some broad exclusion of aliens is unconstitutionally discriminatory.  In describing Fiallo v. Bell, the Court writes:

The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788–789, and n. 1. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' “exceptionally broad power” to admit or exclude aliens. Id., at 792, 794. This case, however, involves no entry preference for aliens. MoralesSantana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review.
Some quite tentative observations:

1.  In writing this passage, and in joining it, Justice Ginsburg and the rest of the Court (with the notable exceptions of Thomas and Alito, who concurred in the judgment, and Gorsuch, who did not participate) could not have been unaware that the travel-ban order is a sort of "entry preference [or anti-preference] for aliens," and must have had the travel-ban cases in mind.

2.  The parenthetical "rational-basis review" is intriguingly gratuitous and possibly incorrect.  Fiallo did not talk in terms of rational-basis review; nor did Mandel, on which it wholly relied.  Fiallo could easily be read to hold that gender discrimination or other sorts of normally suspect discrimination as between aliens are essentially unreviewable; it's hard to find review of any kind in Fiallo and there are many statements in it to the effect that matters of alien exclusion "are policy questions entrusted exclusively to the political branches," and that "it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision."  Perhaps most notably, in addressing an argument that the statute at issue there was based on "an overbroad and outdated stereotype" about the fathers of illegitimate children, the Court said in footnote 9 of Fiallo that complaints about invidious stereotypes where aliens were concerned "should be addressed to the Congress rather than the courts."  The Court in no way doubted that those stereotypes motivated the statute or suggested that matters might have been different were there more evidence of those stereotypes.  Footnote 4 of Fiallo is also rather remarkable in its apparent assertions of non-reviewability; there, the Court approvingly paraphrases/quotes Justice Frankfurter in Galvan v. Press as writing that "much could be said for the view that due process places some limitations on congressional power in the immigration area, were we writing on a clean slate," but that "the slate is not clean," and concludes that it is "no more inclined to reconsider" Galvan and cases like it "today than we were five years ago when we decided [Mandel]."  That is to say, due process does not even place some limitations on congressional power in the immigration area, though much could be said for such a view; it places none.

3.  It is also mildly noteworthy that Justice Ginsburg writes that Fiallo relied on Congress' power to exclude aliens. Fiallo did indeed talk in those terms; it also said that "the power to expel or exclude aliens [w]as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control" (emphasis added).  There could be some effort here to preemptively narrow Fiallo to congressional exclusions.

4.  At the same time that the Court's discussion of Fiallo might seem to ramp scrutiny up a bit from the somewhat delphic facially legitimate and bona fide standard in Mandel, it also may ratchet scrutiny down.  It's very difficult for me to see how to cohere Fiallo, as the Court described it, with the travel ban's critics' insistence that courts can leverage the bad-faith exception to Mandel into reviewing the travel ban like they would any other statute or rule in an Establishment Clause case.  In Fiallo, Congress enacted a statute that facially discriminated among aliens on the basis of gender and illegitimacy; according to the Court today, Fiallo held that those facial discriminations, motivated by gender/illegitimacy stereotypes though they may have been, should only be reviewed for rational basis because of Congress's broad power over aliens.  Proving that the travel-ban order is really a stereotype-motivated religious gerrymander in national-origin disguise, it seems to me, merely gets you to exactly where the plaintiffs in Fiallo were from the start.  

Of course, that perhaps bold statement has to be adjusted for differences between religious discrimination and gender/illegitimacy discrimination, but those seem to be differences without a distinction inasmuch as the Court was very clear today that Fiallo modulated an otherwise "exacting standard of review" into rational-basis review because Congress was making entry rules that discriminated amongst aliens.  The bad-faith exception may only apply or make sense, I want to tentatively suggest, in cases where individual consular officials give some preexisting statutory reason for excluding individual aliens that arguably has been given in bad faith, not when Congress or the President promulgate a new policy about which classes of aliens may not enter the country that allegedly or facially discriminates on some normally suspect ground.  

5.  The statement at the end of the Court's discussion of Fiallo that Fiallo doesn't apply because Morales-Santana "claims" he is a citizen is strange; as I understand the case, it was about whether Morales-Santana's claim was right, and the Court held today, for remedial reasons, that it wasn't.  What the Court says would make more sense if it said that Morales-Santana, citizen or not, is at least a lawful permanent resident and that cases that turned on Congress's plenary power to exclude aliens from entry are inapposite.  I don't think, though, that this language provides an out for plaintiffs in the travel-ban cases to say that because they claim that the people on whose behalf they're suing should be able to enter the country, cases like Fiallo and Mandel do not apply.

Wednesday, May 31, 2017

Esquivel-Quintana as a Cousin of Bond and Yates (Not Everything Is About Chevron)

There's a puzzle about Esquivel-Quintana that my last post didn't explore.  The Court could have avoided reaching the question of deference by finding the statute unambiguous either way; indeed, both the government and Esquivel-Quintana argued the statute was unambiguous.  And as a textual matter, if we're to pretend that "sexual abuse of a minor" has a definite meaning, the government would seem to have the better of it.  Statutory rape is easily seen as sexual abuse, particularly where, as the agency required, there's a meaningful age differential between the victim and the rapist, and "of a minor" clearly means any minor, not just minors under 16.  Esquivel-Quintana couldn't argue that "of a minor" meant "of some minors," and therefore had to argue that because of a (nonexistent) consensus that the age of consent is 16, statutory rape of minors 16 and over in the 16 states with ages of consent at 17 or 18 isn't "sexual abuse."  This seems, to me anyway, a much harder textual pull.  Yet given two arguments for unambiguity, the Court unanimously chose Esquivel-Quintana's.  How come?

Esquivel-Quintana strikes me as of a piece with Bond and Yates, two infamous recent criminal cases in which the Court reached textually impossible results out of discontent with the government's prosecutorial choices.  In Bond, the defendant spread a mildly toxic chemical on her victim's doorknob in hopes of causing her a rash, and was prosecuted in federal court for use of a chemical weapon.  The chemical unambiguously was a chemical weapon, under the Chemical Weapons Convention Implementation Act's definition of chemical weapons, which, as one would expect, parrots the Chemical Weapons Convention's definition.  But the Court, bothered by the government's exercise of prosecutorial discretion, simply read the definition out of the statute because of its dissonance with the Court's "ordinary" understanding of chemical weapon and replaced it with its surpassingly vague ordinary understanding, incidentally taking the country out of compliance with the Convention, at least at the federal level.

In Yates, a scofflaw went fishing for dozens of undersized grouper, in violation of federal conservation regulations promulgated pursuant to federal marine fishery conservation law, and then, after receiving an order from a deputy of the National Marine and Fisheries Service to return to the harbor with the undersized fish, attempted to conceal his offense by dumping them into the ocean and replacing them with legally caught fish.  Yates was then prosecuted for concealing a "tangible object," i.e., physical evidence, with the intent to obstruct a federal investigation.  The Court, inexplicably feeling that this didn't rise to the level of what ought to be prosecuted as federal obstruction, held that fish weren't tangible objects and that the phrase "tangible object" in the obstruction statute only covered information-recording/storing objects—a meaning which no speaker of the English language had ever given to the phrase before Yates' able federal public defender came up with it, and which was completely redundant given that the statute already criminalized the destruction of records and documents.  The result of the Court's misguided solicitude has been, among other things, that the Second Circuit recently held that a man who covered up his son's triple-fatality arson by repainting the getaway car was innocent of destruction and concealment of evidence, and only liable, at most, as an accessory after the fact.  I would charitably say that bad facts make bad law, except that the Court was aware of the father's conviction at the district-court level and all but acknowledged that its holding would wipe it out.

Bond and Yates's smarter (and more qualified) defenders have claimed that the statutes in Bond and Yates were at least barely ambiguous, or at least that the Court non-frivolously thought they were; this is simply wrong, inasmuch as any claim about the meaning of language can be wrong, but even they acknowledge that the statutes in Bond and Yates were at best only mildly ambiguous, and that if not for its concerns about prosecutorial discretion the Court would likely have deemed them clear.  It strikes me that a variation on this move is going on in Esquivel-Quintana.  If not for the Court's normative objections to deporting college-aged men from the country on account of their relationships with their high-school senior girlfriends, the Court would likely have acknowledged "sexual abuse of a minor" was unclear or even read it the other way.  Having, however, a problem with the government's choice to deport Esquivel-Quintana, and having no way to police that exercise of discretion directly, the Court read that exercise of discretion out of the statute.  

I find this sort of stealth legislation stupendously inappropriate, in addition to usually being extraordinarily maladroit.  At least in this case the Court has announced a clear rule that probably shouldn't generate too many unexpected consequences, though one can of course imagine many extremely abusive relationships between adults and late adolescents, quite unlike Esquivel-Quintana's, that ought to be deportable offenses and won't be under the Court's rule, absent a state statutory-rape statute with special elements for abuse of trust or age differential or other blameworthy aggravating factors.  But this is a cost of the categorical approach (which is also a creature of the Court's creation) as much as it is a cost of the Court's rule, and one which the Court indirectly contemplates. In any event, though the Court has no business replacing Congress's criminal and immigration law with kinder, gentler criminal and immigration law of its choosing, at least decisions like Bond, Yates, and Esquivel-Quintana aren't fooling many people.

Tuesday, May 30, 2017

Esquivel-Quintana and Chevron Avoidance

Take a trip with me back to 1996.  The Macarena is playing on your pre-digital car radio; I'm at my third day camp in three years arguing with my swimming instructor over whether Bob Dole will pick John Engler as his vice-presidential nominee; Bill Clinton is burnishing his well-earned reputation for law and order by signing the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigrant and Immigrant Responsibility Act (IIRAIRA) into law; and the five most populous states in the country (CA, NY, TX, IL, FL), along with eleven other states which all together account for about 51% of the United States' population,* place the age of sexual consent at 17 or higher.  What odds would you have given that 21 years later, the Supreme Court would hold that IIRAIRA's undefined "sexual abuse of a minor" unambiguously only embraced, in 1996, statutory rapes of minors aged 15 or younger, tracking statutory-rape laws that govern only about 49% of the country?  30 to 1?  20 to 1?  Maybe a little better than that, but presumably you wouldn't have given much of a chance to the Court's holding that the generic definition of an offense was unambiguous on a point on which the country was split 50/50.  Unless, at least, you were a psychic and knew that by 2017 the Court would be falling over itself in order to avoid deciding questions of Chevron's domain.

*Relying on congressional districting allocation in 1996, which probably slightly undercounts the population of these 16 states.

Of course, that's just what the Court unanimously did today in Esquivel-Quintana v. Sessions, in order to continue to avoid deciding whether the Board of Immigration Appeals receives deference on the definition of aggravated felonies (of which "sexual abuse of a minor" is a part), a term in immigration law that carries a mix of civil and criminal ramifications and which people have argued is outside the Board's delegated authority to interpret on a variety of grounds: (1) that the Board cannot receive deference on the interpretation of criminal statutes and that "aggravated felony" must be given a unitary meaning in every statute in which it appears, civil or criminal, given its unitary definition (but see Duke Energy, Utility Air); (2) that the immigration rule of lenity automatically trumps Chevron (no and no); (3) that the Board lacks expertise in criminal law (irrelevant; misunderstands Chevron; assumes that agencies are in the business of interpreting the law and deciding what terms like sexual abuse of a minor "really" mean rather than making policy choices as between permissible interpretations, which is in fact Chevron's theory).  

The claim that "sexual abuse of a minor" unambiguously only encompasses statutory-rape offenses with a maximum victim age of 16 is not, with respect to all the serious people who purport to believe it, a remotely serious position.  That the Court alighted on it, and unanimously no less, just in order to avoid a fractious and perhaps equally divided opinion on whether Chevron applied is obvious.  However, there are a few mildly interesting things to be said about this and other maneuvers in Chevron avoidance.

The first is just that Chevron avoidance is an increasingly frequent and important phenomenon.  As Professor Mila Sohoni insightfully argued at a recent Chevron symposium, questions of Chevron's domain and application are difficult, transsubstantive, and akin to the constitutional questions courts use constitutional avoidance to avoid deciding, inasmuch as Chevron is constitutive of the relationship between courts, agencies, and Congress.  Moreover, Chevron's domain is itself increasingly a constitutional question for the Justices.  If all these transsubtantive, administrative-constitutional (or literally constitutional) questions can be avoided by a decision that merely interprets the statute at hand, it's little wonder that the Court will increasingly be attracted to various strategies of Chevron avoidance, which include good-for-this-case-only exceptions to Chevron that punt tougher questions about how Chevron works, disingenuous unambiguity determinations, or simply ignoring Chevron altogether.

Second, Chevron avoidance, at least as practiced in Esquivel-Quintana, is extremely problematic.  Constitutional avoidance's famous vice is that it creates a doubtful penumbra of stealth enforcement of constitutional norms around the norms themselves by avoiding interpretations of statutes that might be unconstitutional but may very well be perfectly lawful.  (The Chief Justice's choice to decide constitutionality before reaching avoidance in NFIB should, for this reason, be praised, not grumped about for being somewhat outside the modern norm.)  Chevron avoidance has a similar problem in that it will tend to deny deference whenever, as a doctrinal matter, deference is merely in doubt, thereby leading to less deference than would obtain if the Court simply decided whether various asserted exceptions to Chevron really exist or not.  That should be true of all Chevron avoidance.

What's particularly offensive about avoiding Chevron by finding unambiguity is that it requires the Court to prevaricate.  It's one thing to say a statute can bear a weak constitutional reading, and that alternative constitutionally doubtful readings should be avoided; it's really something else for the Court to say a hopelessly vague term unambiguously must be read to mean something impossibly precise in order to dodge questions of deference that would arise were the term deemed ambiguous.  The unstated logic of Esquivel-Quintana is that if it's barely possible to call the statute unambiguous, the Court should say so to avoid a lot of trouble But if a statute's merely barely arguably unambiguous, it's not unambiguous at all.  Note too that constitutional avoidance is explicit, while Chevron avoidance of this flavor must be covert, by its logic; to admit that one's avoiding a question of deference by calling the statute unambiguous is to admit that the statute's not ambiguous. Moreover, the cost of finding unambiguity to avoid delicate questions about Chevron's domain is that it subverts Congress's actual delegation of the question at hand to the agency, replaces that delegation with a fantasized meaning of the Court's creation, and prevents the agency from exercising its wise policy judgment about the gap Congress left the agency to fill.  And while Congress can correct a mistaken act of constitutional avoidance if it wants by making its constitutionally doubtful meaning clearer, it's not clear to me how Congress would go about clarifying that "sexual abuse of a minor" is in fact ambiguous.  We're likely stuck with the meaning that the Court imposed in order to save itself from having to make some difficult decisions.

Third, I don't quite see what the Court thinks it gains by avoiding hard Chevron questions.  Perhaps the Court would have fractured over deference, but what signal does the Court send lower courts when it transparently avoids questions about deference?  Are lower courts permitted to act on those signals?  On the one hand, the best reading of extant Supreme Court precedent is that there is no exception to Chevron for civil/criminal statutes in general or the aggravated-felony definition in particular; on the other, some unknown number of Justices obviously think there should be one and have persuaded their colleagues to do anything to avoid deferring to agencies interpreting those statutes.  As it's unclear whether lower courts can even act on these sorts of signals—some people would say they're merely predictive and that predicting the Court's impermissible, others would say predicting the Court is great, others would justify use of signals on something more like a command theory of precedent—it's extremely difficult to say what lower courts should do with what's now been almost a decade of Chevron avoidance on this question.  A fractured opinion, the mysteries of the Marks doctrine notwithstanding (on which see this exciting cert petition), would provide much more guidance than this.

Fourth, when courts avoid Chevron and interpret irreducibly indeterminate statutes, what you end up with is the interpretive equivalent of junk science.  "Legislative voids," as Justice Gorsuch aptly described them in Gutierrez-Brizuela, don't talk.  What's left of interpretation is a judicial game of spin the bottle.  So we learn, for example, in this opinion that in 1996 a "reliable dictionar[y]" said that the age of consent was "usually" 16.  So it "usually" was, in a sense; to be more exact, it was the age of consent in 31 of 50 states comprising 45% of the population.  The reliable dictionary's generalization adds less than nothing.  

Next, there's a federal definition of sexual abuse of a minor which, the Court admits, "would categorically exclude the statutory rape laws of most States."  No matter; the Court takes the part of the definition it likes, the victim-age minimum, and says that that's unambiguously part of the generic definition because, in part, of the "evidence" provided by the good half of the federal definition.  That's not how evidence works.  Then there's the 51%/49% multi-state survey, discussed above, from which the Court mystifyingly derives a "general consensus," presumably because 34 states are a lot more than 16 and usage in Vermont and Wyoming counts more than usage in California.  Finally, and insultingly, the Court claims that there's "something special" about California's having an age of consent at 18, though (1) the Court holds that the generic age of consent is 16, not 17, making California's specialness irrelevant; (2) half the country at the relevant time had an age of consent over 16; and, (3) in any event ten states (including CA, FL, VA, and WI) accounting for about 28% of the population had ages of consent at 18 at the relevant time, making California not so special at all.*  Were the Board left to make a policy choice about which statutory-rape offenses are serious enough to be deportable, which it actually attempted to do on the basis of studies showing that statutory rapes with meaningful age differentials are especially harmful to their victims, law in this area would be reasoned, rather than a game of dictionary-definition random chance and counting error.

* I hope Justice Thomas enjoys seeing his opinion cited back to him the next time he dissents from an opinion dubiously announcing a national consensus against some modality of punishment.

Sunday, May 7, 2017

Another Addition to the Chevron Anticanon: Judge Kavanaugh on the "Major Rules" Doctrine

(Apologies at the outset for the unnecessary length of this post, though I think it's worth your time; I'm writing an article and haven't had time to revise and shorten.)

I hate to be the guy who's always picking on people's attempts to undermine his favorite doctrine, but what else can I do when Chevron's under attack?  Some people compare Erie, not without reason, to George Washington declining to seek a third term; along analogous lines, I compare Chevron to Gorbachev's peaceful resignation in favor of Yeltsin.  You may not like what came afterwards, but would you like to go back to what came before?  To a certain cast of mind, the most heroic thing the Article III judiciary can do, at least in a post-Brown world, is to make law abnegating its lawmaking power.  So I have to comment on last Monday's dissent from Judge Kavanaugh in the D.C. Circuit's net-neutrality case on his discovery of the "major rules" exception to Chevron

One* of the many moves in Team Death to Chevron by a Thousand Cuts' arsenal is what's heretofore been known as the major-questions exception:  the idea, formulated most clearly in King v. Burwell, that agencies shouldn't receive Chevron deference on really important questions, just the not-so-important ones. (Judge Kavanaugh thinks the doctrine stands for an entirely different idea; I'll get to that shortly.)  The theory of the major-questions exception is not, as some defensive Chevronistas charge, that Congress wants major open questions to be decided by courts.  Rather, it's that Congress probably made a decision, even if obscurely expressed, on any given "major" question, and doesn't usually intend to punt such questions to agencies.  I find this a perfectly defensible premise; the trouble is that the major-questions exception doesn't follow from it.  What follows is that major questions likely present Step One problems where Congress "spoke to the precise question at issue," as Chevron puts it, and decided it one way or another; in the rare event a court should find a major question was genuinely undecided, that would seem a case for administrative gap-filling, not judicial.

* The other 999 cuts include a civil/criminal dual-use statute exception—by the by, if you're someone who's been thinking about or working on Esquivel-Quintana lately, that one's a very bad idea for reasons laid out in the linked postuse of alternative ambiguity-resolving canons, like the not-so-existent doctrine of immigration lenity, at Step One, clause-by-clause inquiries into intended delegation, Breyerian Step Zero balancing, and denying deference to agencies that change their minds based on "shifting political winds [i.e., democracy]," like Chevron says they're supposed to.  

While the major-questions doctrine misguidedly narrows Chevron's domain, it has nothing at all to say about which way major questions should be decided.  It only says that when it comes to major questions, courts must decide de novo (perhaps with Skidmore deference to persuasive agency interpretation) what the statute means, on the theory that when it comes to major questions statutes must mean something.  The agency may win on de novo review, as it did in Burwell, or it may not; the exception itself places no thumb on the scale in any particular direction.  

Judge Kavanaugh, however, disagrees with this account of the major-questions exception.  On his account of the "major rules doctrine," a neologism of his invention, not only is judicial review of major rules non-deferential, it's dispositively tilted against them.  Whereas so-called "ordinary rules" are upheld under Chevron unless they are clearly impermissible or arbitrary and capricious, "major rules" are invalid under the major rules doctrine unless clearly authorized.  This inversion of Chevron for major rules cannot plausibly be described as existing law.  More interestingly, if Judge Kavanaugh is to be taken at his word that his doctrine is neutral as between regulation and de-regulation, it also is logically impossible.

A.  The Major-Questions "Exception" Before Burwell

To lay some descriptive groundwork, there are many partially divergent accounts of the major-questions cases, but the best view of the major-questions exception is that it didn't truly exist until King v. Burwell was decided two years, or if you're fancy, two terms ago.  This may sound startling; we had all, after all, heard of a major-questions exception to Chevron long before Burwell was decided.  Talk of a major-questions exception to Chevron before Burwell, however, was really just a case of loose speech.  Major-questions cases before Burwell had, with maybe half an exception, fallen in the genre of what we might colloquially call "Step One (or Two) cases that make you say 'huh.'"  They were cases where the Court, far from applying an exception to Chevron, applied Chevron itself, albeit in ways that felt less deferential than traditional Chevron review.  These cases are generally thought to have followed two patterns: using the importance of a question to modestly torque Step One, and using the importance of a question to modestly torque Step Two (though I will argue below that this second pattern never really existed).  

1.  The Elephant-in-Mouseholes Canon at Step One

In the more representative and important pattern, one that describes Brown & Williamson, Whitman, and MCI, the Court would encounter a statute that was linguistically ambiguous on whether it allowed an agency to embark on a regulatory course of profound economic and political significance.  Normally, that linguistic ambiguity would suffice for the agency to survive at Step One.  But the Court, perceiving an incongruity between the profoundly consequential regulatory power the agency was claiming on the one hand, and "the vague terms," "ancillary provisions," "modest words," or "subtle device[s]" the agency claimed authorized that power on the other, would conclude at Step One that "Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion."  As Scalia would put it, Congress does not hide elephants in mouseholes.  

As that famous line suggests, this small handful of cases didn't solely turn on gauging the size of the elephant; they also came down, just as much, to the size of the mousehole.  After all, the annals of Chevron cases in the Court are hardly free of instances where the Court deferred to (or in Burwell, upheld) rules of politically or economically elephantine proportions.  The theory of the elephant/mousehole cases was never that Congress must clearly authorize an elephantine rule, but merely that Congress is presumed not to authorize elephantine rules in a manner clearly inconsistent with having authorized an elephantine rule.  

In MCI, for example, the FCC argued that its statutory power to "modify" statutory rate-filing requirements allowed it to read them out of the Communications Act altogether, gutting what the Court called "the heart" of the Act's regulation of common carriers.  In a dictionary sense, "modify" could mean "eliminate"; in context, it couldn't.  In Brown & Williamson, the FDA argued that a statute enacted in 1938 gave it the previously undiscovered and disavowed power to regulate tobacco as a drug—a reading of the statute that was not only highly anachronistic but an extremely awkward fit with the way it regulated drugs generally, as it required the FDA to choose between simply banning tobacco, which Congress had all but forbidden the FDA to do, and absurdly deeming tobacco safe for its intended use.  Linguistically, the statute's definition of "drug" could embrace tobacco; contextually, it couldn't.  And in Whitman, the EPA (CORRECTION: industry, which takes Whitman out of the major-questions canon proper altogether and illustrates that elephant/mousehole is a generalizable rule of interpretation, not limited to the Chevron/pseudo-major-questions-exception context; thank you, commenter gv516) argued that its mandate to set national air quality standards that were "requisite to protect the public health" with an "adequate margin of public safety" allowed it to consider costs in setting down markers for the nation's air quality, relying on attenuated readings of "requisite" and "adequate margin."  The lesson of these cases isn't profound; it's simply that in order for a court to interpret a statute to delegate an agency profound regulatory or deregulatory power, the statute must do so in terms that are at least plausibly proportionate to, and not contextually inconsistent with, such a delegation.  Far from reviving the non-delegation doctrine by interpretive means, or really embodying any doctrine at all, these cases merely represent ordinary context-sensitive statutory interpretation at work.

2.   Majorness at Step Two?

Utility Air Regulatory Group v. EPA, a 2014 opinion by Scalia, is read more often than not as a case where the importance of a question inflected how the Court applied Step Two, or even as a holding that it's likely unreasonable at Step Two for an agency to interpret an ambiguous statute to authorize vastly important regulation.  I don't think that's right.  The standard account, though, goes like this.

In Massachusetts v. EPA, the Court held that the Clean Air Act's definitional section's definition of air pollutant encompassed greenhouse gases.  The EPA, therefore, naturally reached the conclusion that it was required to regulate greenhouse gases as air pollutants under all the Clean Air Act programs that regulate "air pollutants" - including its permitting of pollutant-emitting stationary sources.  Because, however, EPA has to issue a permit for any source that emits 100–250 tons or more of an air pollutant, and because a great many sources emit greenhouse gases at that level, reading greenhouse gases into the permitting provisions' references to air pollutants would have required EPA to issue permits to 6 million sources, up from 15,000 and spend $21 billion a year on permitting, up from a cost of mere tens of millions. The EPA, therefore, sought to "tailor" the tonnage triggers to the enormity of greenhouse-gas emissions by increasing them by a factor of a thousand.

The Court, rejecting this rule, first held at Step One that the EPA was not compelled to read the permitting program's references to air pollutants to include greenhouse gases; the statute's definition of air pollutant could "yield to context" where context so demanded, and hence the references to air pollutant in the permitting program were ambiguous.  Then, at Step Two, the Court held that the EPA's reading of those references to include greenhouse gases was an unreasonable choice as between the alternatives the statute permitted—unreasonable because of the "enormous and transformative expansion in the EPA's regulatory authority" its reading would work.  The Court, it concluded, "expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance"; at the least, when an agency claimed to discover previously undiscovered vast regulatory power in an old statute, "a measure of skepticism" was warranted.

Were this picture of Utility Air correct—had it really held that an agency interpretation of an ambiguous statute to give the agency vast regulatory power is presumptively, though not necessarily, unreasonable at Step Two—Utility Air would be a big deal indeed, and go a fair way towards supporting Judge Kavanaugh's claims about a major-rules doctrine.  But it's not.  Rather, Utility Air is just another major-questions Step One case, and an object example of how the knotty relationship between Steps One and Two can trip up very smart people into mistaking the one for the other.  

Utility Air first held that the EPA's reading of air pollutant was not compelled before moving to address an alternative argument that it was at least reasonable; from this structure, people seem to infer that Utility Air held that the statute was ambiguous on whether the permitting programs applied to greenhouse gases.  But that never happened; nothing in the opinion actually says so.  A holding that an agency's reading isn't compelled isn't the same thing as a holding that a statute's ambiguous; it's only a holding that the agency isn't unambiguously right.  What remains possible is that the agency is unambiguously wrong, and that's just what Utility Air said about the EPA's reading of air pollutant.  

To wit, the Court "conclude[d] that EPA's interpretation is not permissible"—not just arbitrary or unreasonable—because EPA itself "admitt[ed] the statute [wa]s not designed to grant" it permitting power over greenhouse-gas stationary sources, given the impossibility of actually regulating them at the statute's tonnage triggers, and the illegality of the EPA's alterations to those unambiguous triggers.  As in Brown & Williamson, the Court found that a semantic ambiguity in a statute's definition of what it regulated was contextually unambiguous in light of the substantive provisions of the statute that acted upon it. The relevant section of the opinion is replete with claims of unambiguity; for example, "applying the  . . . permitting requirements to greenhouse gases would be inconsistent with—in fact, would overthrow—the Act's structure and design," or, "the authority claimed would render the statute unrecognizable to the Congress that designed it."  Likewise, every statement of principle on which the Court relied en route to its supposed Step Two holding concerned unambiguity, not reasonableness; the Court cited cases holding that "a statutory provision that may seem ambiguous in isolation is often clarified by the remainder of the statut[e] . . . because only one of the permissible meanings . . . is compatible with the rest of the law," and that agency interpretations that are "inconsistent with the design and structure of the statute as a whole" are, of course, wrong.

If the EPA were so clearly wrong, why, one might ask, did the Court bother to say it expected Congress to "speak clearly" if it wished to assign agencies vast regulatory power?  Doesn't this suggest it thought the statute unclear?  No.  Rather, the importance of the power the EPA asserted appears as a makeweight in the Court's opinion (if not indeed a gratuitous dictum), punctuating a discussion of the absolute irreconcilability of the EPA's reading of air pollutant with the regulatory scheme in which that term was embedded, that the Court seems to have merely adduced as further evidence that the statute was indeed clear.  As in the elephants/mouseholes cases, the Act's extreme obscurity, at best, on authorizing a regulation of vast consequence was an indication that the Act clearly did not authorize a regulation of vast consequence.  Given the somersaults the EPA admitted it had to turn to fit greenhouse gases into the permitting program, Utility Air can hardly be said to stand for the proposition that whenever a statute is merely unclear on whether it authorizes a regulation of vast consequence, it doesn't.

Finally, assuming I'm wrong and Utility Air is a Step Two case, would it then stand for the proposition that an agency reading of an ambiguous statute to vest it with profound regulatory authority is per se unreasonable?  No.  As even those who think Utility Air's a major Step Two precedent acknowledge, it at most says the Court is skeptical of profoundly consequential regulations at Step Two, not that it's always unreasonable to read an ambiguous statute to authorize one.  The Court wrote that agency claims to have discovered vast, previously undiscovered regulatory power in an old statute are owed "a measure of skepticism"—not that such claims are off the wall.  And while the Court did say in the very next sentence of its opinion that it "expect[s] Congress to speak clearly" when giving agencies vast regulatory powers, that can only be read as an expectation or presumption, not a clear-statement rule.  Otherwise, the Court would greet interpretations of ambiguous statute to yield vast regulatory powers with more than skepticism, and otherwise, all the extensive discussion of how EPA's interpretation of air pollutant didn't cohere with the permitting program would have been unnecessary.  Moreover, had Utility Air announced a clear-statement rule for major rules, Chevron's presence in the opinion would make no sense; a clear-statement rule would displace Chevron altogether.

B.  Burwell—Sometimes an Exception is Just an Exception

Before Burwell, the Court had never held that the majorness of a question took it out of Chevron altogether.In Burwell, the Court did—but then upheld the agency rule it declined to defer to.  Burwell, of course, involved whether Obamacare's health-insurance tax credits were available to participants in federally run insurance exchanges, or only state-run insurance exchanges.  Critically, most states failed to establish their own exchanges; a decision either way would have enormous consequences on the efficacy of Obamacare.  

* Gonzales v. Oregon, nine years earlier, mentioned majorness as one of a multitude of reasons to hold at Step Zero that the Attorney General lacked the authority to even interpret a statute with the force of law on a particular question, quite apart from whether the interpretation he rendered was correct; interestingly, even at Step Zero, the Court used elephants/mousehole reasoning on the interpretive question of whether the A.G. had rulemaking power on the underlying question in the case, arguing that it would be incongruous for Congress to hide rulemaking power on the subject of assisted suicide in a provision giving the A.G. the power to make rules concerning the registration of physicians to dispense certain drugs.

The IRS, which had rulemaking authority with respect to the tax credits, had issued a regulation granting the tax credits to participants on federally run exchanges, notwithstanding language in the statute at least suggesting they were ineligible.  But the Court refused to defer to the IRS's rule.  Inappositely citing two elephant/mousehole cases, the Court reasoned that Congress wouldn't have wanted to delegate such an important question to an agency and must have decided it itself.  Though the Court refused to apply the ordinary Chevron standard of review, it nevertheless took pains over whether or not the statute was ambiguous, which it seemed to view as a threshold question, and found at some length that it was.  It then held that the correct way to resolve that ambiguity was in favor of the IRS's conclusion that it was required to make tax credits available on federal exchanges—thereby holding that the statute ambiguously authorized the IRS to issue a rule of "deep economic and political significance" that was "central to th[e] statutory scheme."  In the closest the Court has ever come to making a doctrine out of the major-questions exception, the Court clearly held that ambiguous statutes can authorize major rules.

C.  Judge Kavanaugh's "Major Rules Doctrine"

1.  Its Lack of Legal Pedigree

Judge Kavanaugh, reading exactly the same cases I've just discussed, believes they stand for the following proposition: "For an agency to issue a major rule, Congress must clearly authorize the agency to do so.  If a statute only ambiguously supplies authority for the major rule, the rule is unlawful."  This is puzzling.  It is also, given his definition of "major rules" to include major regulatory or de-regulatory rules, completely incoherent.

The heart of Judge Kavanaugh's argument that we have a major-rule doctrine is a series of bullet-pointed overreadings of the major-questions cases.  Each bullet-pointed overreading concludes with a few sentences that go like this: "It would have been a major step for the [agency] to [do what it wanted to do].  Yet there was no clear statutory authority for the [agency] to do so.  The Court therefore rejected the rule/thus invalidated the rule/as a result, vacated the rule."  Unfortunately for Judge Kavanaugh, this just isn't what the major-questions cases say.  The Court refused in MCI and Whitman to find elephants in mouseholes, or in the case of Brown & Williamson and Utility Air, to find them in incongruous tundras—details of the Court's reasoning which he conveniently skips over.  Nothing in those cases remotely stands for the proposition that the Court will never find an elephant in a statute that's merely ambiguous about whether it contains an elephant.  Indeed, in Burwell the Court found authorization for a rule that "involve[d] billions in spending each year and affect[ed] the price of health insurance for millions of people" in a statute that the Court struggled to avoid holding unambiguously foreclosed that authority.

What, then, does Judge Kavanaugh do with BurwellBurwell, he says, is different.  The major rules doctrine, he explains, only applies to rules that "regulate or de-regulate (as opposed to tax or subsidize) some major private activity."  When an agency merely "interprets a major government benefits or appropriation provision of a statute," all that follows is that Chevron may not apply; the agency's interpretations can still stand, absent deference, even if only ambiguously authorized.  

I suppose this is the arbitrary distinction one might have to draw if one read a major-rules doctrine out of the elephants/mouseholes cases and needed to distinguish Burwell.* That said, I can't understand Judge Kavanaugh's distinction.  Why would Congress have to clearly authorize agencies to regulate or de-regulate major private activities, but not have to clearly authorize agencies to tax, subsidize, or de-subsidize major private activities?  Do the non-delegation doctrine or "the presumption that Congress intends to make major policy decisions itself," which Judge Kavanaugh claims motivate the major-rules doctrine, have more strength as applied to private activity?  If so, why?  One would assume it's just as unconstitutional for Congress to delegate how to tax or spend than how to regulate (maybe more so given how central taxing and spending is to Article I), and that Congress is just as determined to make major taxing and spending decisions itself as it is to make major regulatory decisions (again, maybe more so).  Besides, is the distinction between "regulating or de-regulating" major private activities and "taxing or subsidizing" them even a meaningful one?  Aren't taxes and subsidies regulatory?

* Though I can probably offer Judge Kavanaugh a better one.  How about the distinction that in Burwell, the Affordable Care Act necessarily authorized a major rule in some direction on the availability of tax credits on federal exchanges—the IRS had to say something on the subject—whereas in the other major-questions cases, mere inaction was an alternative? 

Finally, Judge Kavanaugh quotes a series of academic writings by then-Judge Breyer, William Eskridge, and Abbe Gluck and Lisa Bressman.  The strange thing about all his quotations is that they rather plainly summarize or anticipate the Court's real major-questions exception, not Judge Kavanaugh's major-rules doctrine.  Eskridge, for example, writes that "judges presume that Congress does not delegate its authority to settle . . . major social and economic policy decisions"; Gluck and Bressman describe a "presumption of nondelegation" as to major policy questions, and quote a congressional drafter who says that "drafters don't intend to leave [major questions] unresolved."  All any of that says is that  Congress decides major questions itself—not that it necessarily announces its decisions in unambiguous terms.  The fact that Congress is ambiguous on the authority for a major rule doesn't mean, as Burwell illustrates, that it didn't decide to authorize it.

2.  Its Incoherence

As Lisa Heinzerling has persuasively argued about the much milder anti-major-rule skepticism on offer in Utility Air, presumptions against major rules are inherently biased against regulation. As a formal matter, however, Judge Kavanaugh is careful to insist that his rule applies to rules that "regulate or de-regulate . . . some major private activity," and reads MCI as a case where the major-rules doctrine precluded major deregulation.  This begs a tough question.  If on Judge Kavanaugh's rule, a statute that is ambiguous on a major question neither authorizes major regulatory nor de-regulatory activity, won't anything the agency does on the question be unlawful?  

For example, suppose the major-rules doctrine really were the law and the Court applied it in Burwell.  How would that work?  According to the Court, the statute was ambiguous on whether federal exchanges included tax credits, and according to the Court, the question of whether they did was one of major economic and political significance.  It would seem to follow that the IRS's rule giving credits on federal exchanges couldn't stand; such a rule would undeniably be a major rule.  So too, however, would a rule denying credits on federal exchanges; that rule also would massively affect federal spending and insurance prices.  So it would seem to follow that that rule couldn't stand either.  Under the major-rules doctrine, whatever the IRS did about credits on federal exchanges would be invalid.

Now it's true that Judge Kavanaugh gerrymanders Burwell out of his rule, though only because it was decided in a way that refutes his theory, not because he has an exception for cases where his rule paradoxically renders any disposition of a major question illegal.  That said, consider, to be fair, how the major-rules doctrine would apply in the cases where Judge Kavanaugh says it applies:  cases that involve the regulation or deregulation (not the taxing or subsidizing) of some major private activity.  Here, Judge Kavanaugh may say that the doctrine only cuts one way:  barring, in cases of ambiguity, major regulation or de-regulation that differs from the status quo.  Merely standing pat isn't itself a "major rule."  And so, in Brown & Williamson, simply not regulating tobacco as a drug would not have been a major rule; in MCI, not eliminating rate-filing would not have been a major rule; and in the net-neutrality case actually before him, simply not reclassifying Internet service providers as common carriers would not have been a major rule.

This works as far as it goes, but it doesn't go very far.  For at the back of agency stasis, there's always an antecedent agency decision that the stasis maintains; on any given ambiguous major question, there will at some time be a time for agency choosing, as there was shortly after Obamacare's enactment in Burwell.  Take the reclassification of information service providers.  It's true that what Judge Kavanaugh says the major-rules doctrine required of the FCC—simply continuing to sit on their hands while Internet service providers discriminated between different sources of content—isn't a major rule, indeed isn't a rule at all.  But before the FCC reclassified broadband ISPs as common carriers, it classified them some time after the technology came along.  And at that moment, whatever the FCC would have to say on the ambiguous subject of ISP classification would necessarily be a "major" rule, one which would profoundly affect the economy if not indeed society at large.  So it would seem that the FCC's initial classification of broadband ISPs in 2002, on Judge Kavanaugh's view, was necessarily invalid, though that's obviously not what the Court thought in Brand X when it deferred to that classification.

Judge Kavanaugh hasn't completely overlooked this point, at least not as to ISP classification specifically.  (He seems unaware that his rule generally results in paradox.)  His puzzling response is that the FCC's original decision that broadband Internet was an information service, not a telecommunications service subject to common-carrier regulation, wasn't a major rule, but a mere "ordinary" one.  How so?  Because that classification "did not entail common-carrier regulation and was not some major new regulatory step of vast economic and political significance."  Absent a definition of major rules that turns on how regulatory they are, rather than their significance, which Judge Kavanaugh suggests elsewhere in the opinion is not the definition he's using (recall that a major rule can de-regulate), I can't understand this distinction.  Surely the FCC's decision to regulate ISPs as non-common-carriers was a decision of vast economic significance for precisely the same reasons that their later decision to regulate ISPs as common carriers was one.

Judge Kavanaugh, then, is trapped in a dilemma.  On the one hand, he can claim, as he initially does, that his rule is neutral as between regulation and deregulation, or rules on profound questions that impose more regulation and rules on profound questions that impose less.  This seems to follow from the premises he says animate his rule:  that Congress is presumed not to delegate major questions to agencies and that such delegations are constitutionally questionable, neither of which seems to suggest courts should look more kindly on delegations to deregulate than delegations to regulate.  However, if he sticks to this formulation of his rule, what follows is that an agency can't act in any direction on an ambiguous major question, even though the agency must act in one way or another.  (The FCC couldn't, in Brand X, have simply not classified ISPs, anymore than the IRS in Burwell could have declined to either make tax credits on federal exchanges available or unavailable.)

On the other hand, Judge Kavanaugh can acknowledge that his rule is anti-regulatory, and has to be formally anti-regulatory for the rule to work.  He can define major rules as rules on a major question that choose to impose more regulation rather than less, and in this way save his rule from the paradox of forbidding agencies to do anything.  But this comes at a severe cost:  neither he nor anyone else has any argument for why ambiguous statutes cannot be read to authorize profoundly important onerous regulations, but can be read to authorize profoundly important choices to regulate lightly or not at all.  

It's true that such a rule neatly avoids delegation problems; on Judge Kavanaugh's rule, the less regulatory of two choices on an ambiguous major question isn't just permissible, but mandatory (though he doesn't appear to have thought this through).  For example, in Brand X, if the FCC's choices were the "major" rule of treating ISPs as common carriers and the "ordinary" rule of treating them as mere information-service providers, the major rule was illegal and the ordinary rule FCC's only permissible option.*  So this version of major-rules doctrine would address Judge Kavanaugh's delegation concerns by foreclosing all delegations on ambiguous major questions.  The trouble is that the direction in which it forecloses them is completely unmotivated.  Judge Kavanaugh can explain why we'd want a rule that presumes delegations on major questions away; he just can't explain why we'd want a rule that presumes them away in favor of less regulation.  A rule that Congress always prefers more regulation in cases of major ambiguity follows equally from his premises as the rule he's proposed.

* This is yet another illustration, incidentally, of why Judge Kavanaugh is wrong about the current state of the law, as Brand X was decided on the theory that the FCC had a choice.

The reason Judge Kavanaugh finds himself in this corner is that the major-rules doctrine isn't really responsive to his anti-delegation premises at all.  What's logically responsive to a presumption that Congress doesn't delegate major questions is de novo review on the question of what Congress decided—that is to say, Burwell.  Whether the court concludes Congress opted for more regulation or less, whatever it decides will, in theory at least, be Congress's decision; either way there won't have been any delegation.  To require, on top of withholding Chevron deference on major questions, that courts invalidate any "major rules" on those questions is completely unnecessary to addressing whatever non-delegation concerns or presumptions against delegation one has.  It also results in logical impossibility; absent invalidating any statutory ambiguities on major questions and asking Congress to decide them more clearly, something which Judge Kavanaugh doesn't call for, what follows is that agencies must be silent on major questions altogether, though they practically and legally can't.  In order to save his rule from incoherence and arrive at a place that appears to respond to his non-delegation concerns, Judge Kavanaugh has to presume an anti-regulatory answer to major questions.  That answer, however, has nothing at all to do with the concerns that supposedly motivated the project in the first place.