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.