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.

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