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2018 Section 6: Separation of Powers Institute of Bill of Rights Law at the William & Mary Law School

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VI. Separation of Powers In This Section:

NEW CASE: Gundy v. United States ...... 373

“SEX OFFENDER CASE MAY DEAL BLOW TO 'ADMINISTRATIVE STATE'” Jimmy Hoover ...... 376

“THE SUPREME COURT MAY REVIVE A LEGAL THEORY LAST USED TO STRIKE DOWN NEW DEAL LAWS” Mark Joseph Stern ...... 379

“WILL SUPREME COURT PUSH CONGRESS TO GET BACK TO ITS JOB OF MAKING LAW?” Mark Miller ...... 381

“UNITED STATES V. GUNDY” Justia Inc...... 383

NEW CASE: Nielsen v. Preap ...... 385

“SUPREME COURT TO DECIDE WHETHER IMMIGRANTS JAILED FOR PAST CRIMES CAN BE DETAINED PENDING DEPORTATION” David G. Savage ...... 399

“SUPREME COURT TO CONSIDER HOW FAST GOVERNMENT MUST ACT IN DETAINING IMMIGRANTS FOR DEPORTATION” Robert Barnes ...... 401

“MORE DETAINED IMMIGRANTS ARE OWED BOND HEARINGS: 9TH CIRC.” Allissa Wickham ...... 403

Topic: Chevron Deference

“A POWER GRAB OF SORTS, BURIED IN A SUPREME COURT DECISION” Noah Feldman ...... 406

“THE FEDERALIST SOCIETY’S CHEVRON DEFERENCE DILEMMA”

369

Christopher J. Walker ...... 409

“UNDUE DEFERENCE” Jonathan Wood ...... 413

Topic: Deferred Action for Childhood Arrivals (DACA)

“THE END OF DACA IS THE NEXT BIG IMMIGRATION FIGHT” Noah Feldman ...... 416

“JUDGE UPHOLDS ORDER FOR TRUMP ADMINISTRATION TO RESTORE DACA” Miriam Jordan ...... 419

“KAVANAUGH COULD STYMIE TRUMP’S IMMIGRATION POLICIES” Laura D. Francis ...... 421

“JUDGE’S RULING ISN’T GOING TO SAVE THE DREAMERS” Noah Feldman ...... 424

“A JUDGE SUPPORTS DREAMERS AND THE RULE OF LAW” Cass R. Sunstein ...... 427

Topic: Sanctuary Cities

“FULL APPEALS COURT TO HEAR CASE ON INJUNCTION AGAINST TRUMP SANCTUARY POLICIES” Josh Gerstein ...... 431

“SANCTUARY CITIES AS THE NEXT NATIONWIDE INJUNCTION TEST CASE” Steve Vladeck ...... 433

“JUDGE: TRUMP OVERSTEPPED IN SANCTUARY CITY ORDER” Kimberly Atkins ...... 435

Topic: Affordable Care Act

“TRUMP ADMINISTRATION WON’T DEFEND ACA IN CASE BROUGHT BY GOP STATES” Amy Goldstein ...... 438

370

“TRUMP’S SABOTAGE OF OBAMACARE IS ILLEGAL” Nicholas Bagley and Abbe R. Gluck ...... 441

371

372

Gundy v. United States

Ruling Below: United States v. Gundy, 695 Fed.Appx. 639 (2nd Cir. 2017)

Overview: Herman Gundy was convicted of a sex offense. When Gundy was transferred to federal custody in Pennsylvania, he received permission to travel by bus from Pennsylvania to New York unsupervised. As a result, Gundy was convicted and sentenced to time served plus five years supervised release for staying in New York without registering as a sex offender.

Issue: Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

United States of America, Appellee v. Herman Avery GUNDY, AKA Herman Grundy, Defendant- Appellant

United States Court of Appeals, Second Circuit

Decided on June 22, 2017

[Excerpt; some citations and footnotes omitted]

OETKEN, District Judge: the case, to which we refer only as necessary to explain our decision to affirm. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, While serving a federal sentence for ADJUDGED, AND DECREED that the violating Maryland Criminal Law § 3-306, June 16, 2016 judgment of the District Court Sexual Offense in the Second Degree, during is AFFIRMED. his supervised release for a prior federal offense, Gundy was transferred from Defendant-appellant Herman Gundy Maryland to a federal prison in Pennsylvania. appeals his conviction and sentence, See United States v. Gundy, 804 F.3d 140, following a bench trial on stipulated facts, for 143 (2d Cir. 2015). As he approached the end one count of failing to register as a sex of his federal sentence, Gundy authorized the offender after traveling in interstate Department of Justice to make arrangements commerce, in violation of the Sex Offender for his move to community-based custody. Registration and Notification Act He was ordered to be transferred to the Bronx (“SORNA”), 18 U.S.C. § 2250(a). We Residential Re-Entry Center, a halfway assume the parties’ familiarity with the house in New York, and he was granted a underlying facts and the procedural history of

373 furlough to travel unescorted on a voluntariness or mens rea requirement that commercial bus on July 17, 2012, from may apply, and thus found Gundy guilty of Pennsylvania to the Bronx. Gundy arrived at violating § 2250. Following a sentencing the Re-Entry Center as planned, and, on hearing, the District Court entered judgment August 27, 2012, was released from federal imposing a sentence of time served and a custody there to a private residence in the five-year term of supervised release. Gundy Bronx. Gundy did not register as a sex now appeals from that judgment. offender in either Maryland or New York, as state law required, and was arrested and Section 2250(a) imposes criminal charged under 18 U.S.C. § 2250. Id. at 144. liability on anyone who (1) is required to After the District Court granted Gundy’s register under SORNA; (2) travels in motion to dismiss the prosecution for the interstate or foreign commerce; and (3) absence of a trigger for SORNA’s knowingly fails to register or update a registration requirement, this Court reversed required registration. 18 U.S.C. § 2250(a). the dismissal and reinstated the indictment, We held in our consideration of holding that the requirement was triggered Gundy’s earlier appeal that Gundy satisfies because Gundy was “required to register” the first requirement. There is no dispute that under SORNA no later than August 1, 2008. he knowingly failed to register, thus See id. at 145. satisfying the third requirement. On appeal, Gundy asks us to read in an exception to the Upon the indictment’s reinstatement, second requirement, travel in interstate Gundy renewed his motion to dismiss on the commerce, for a defendant who crosses state basis that the interstate travel requirement of lines while in federal custody. He contends the statute was not satisfied because he was that holding otherwise would violate the still in custody when he traveled from usual requirement of criminal law that Pennsylvania to the Bronx. The District criminal acts be committed voluntarily. The Court denied the motion, holding that the parties also dispute whether, on the stipulated statute did not include an exception to the facts and conclusions of the District Court interstate travel element based on a following the bench trial, Gundy’s travel defendant’s custodial status. The District from Pennsylvania to New York was Court also held that, even if the statute did voluntary. include a voluntariness or mens rea requirement, the allegations of the indictment We decline to reach Gundy’s were sufficient for that issue to be resolved at argument regarding the interpretation of § trial. 2250(a). Assuming arguendo that Gundy is correct and that the travel element contains an A bench trial followed on stipulated implicit voluntariness requirement, that facts. The District Court found that each requirement is easily met on the facts of this element of the offense had been proven case. Although Gundy remained technically beyond a reasonable doubt, including the in federal custody when traveling to the interstate travel element and any halfway house in New York, the stipulated

374 facts at trial are sufficient to support the District Court’s finding that Gundy’s travel was voluntary. On the basis of those facts, the

District Court was free to conclude that

Gundy made the trip in question willingly, as he authorized the initial transfer process and then traveled by bus to New York on his own recognizance. See United States v. Pierce, 224 F.3d 158, 164 (2d Cir. 2000) (noting that standard of review for sufficiency of the evidence is the same in a bench trial as a jury trial). We need not and do not reach the question of statutory interpretation because, even assuming Gundy is correct that interstate travel in § 2250(a) is limited to voluntary travel, the District Court reasonably found that the travel here was voluntary.

* * *

We have considered Gundy’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the District Court.

375

“Sex Offender Case May Deal Blow To 'Administrative State'”

Law360

Jimmy Hoover

March 7, 2018

The U.S. Supreme Court took up a case this want to reverse. week involving a convicted sex offender who The doctrine has not been used by the failed to register as such in New York, and Supreme Court to strike down a law passed the legal question at the center of the by Congress since 1935, but lawyers and proceeding could lead to a ruling that reins in scholars on the political right have clamored the "administrative state" and hands for its revival in recent years as federal conservatives a major win. regulators have grown in size and power. Court watchers were atwitter Monday after In Gundy v. U.S., the high court has agreed the court decided to take the case. to decide whether the Sex Offender Registration and Notification Act is “What’s interesting about this challenge is unconstitutional because, rather than saying that the possibility that a statute anywhere whether it applies to people convicted before right now might violate the non-delegation its passage, the statute simply passes that principle suggests a revisiting of the whole determination off to the attorney general. issue of whether the court should be in the Petitioner Herman Gundy, whose underlying business of determining how much discretion sex conviction occurred a year before the law is too much discretion” for Congress to hand was enacted, has said that SORNA violates the executive branch, said Evan Bernick, a the separation of powers. visiting lecturer at Georgetown University Law Center. At first glance, it might seem strange that Decades in the Wilderness conservatives are looking askance at a law passed to get tough on sex offenders. But the Believers in the non-delegation doctrine — case centers on the non-delegation doctrine, a there are many skeptics — say it is based on thorny judicial rule forbidding Congress from Article I of the Constitution, which states, passing laws that delegate legislative “All legislative powers herein granted shall functions to members of the executive be vested in a Congress of the United States.” branch, in this case the attorney general. For conservatives, the tendency of Congress to Despite those early origins, the doctrine hand over its constitutional duties to didn’t enjoy its heyday until 1935, when in a unelected federal officials is one they dearly pair of now-famous cases the Supreme Court

376 struck down portions of the 1933 National Judge Douglas Ginsburg, in a 1993 article, Industrial Recovery Act — a key New Deal said it was part of the “Constitution-in-exile law — because they gave the president ... kept alive by a few scholars who labor on legislative powers over the poultry and in the hope of a restoration, a second coming petroleum industries. of the Constitution of liberty.”

The court in the poultry case said Congress Recently, however, it has become part of a can’t allow the president to “exercise an broader conservative attack on the unfettered discretion to make whatever laws administrative state that developed in he thinks may be needed” without first laying response to heavy regulatory activity under down policies and standards itself, or what’s the Obama administration. since been referred to as an “intelligible principle.” Among its chief proponents is the newest member of the Supreme Court, Justice Neil But the Supreme Court quickly retreated Gorsuch, who in a 2016 opinion while he was from its seemingly broad rulings in those still on the Tenth Circuit suggested using cases, and hasn’t wielded the scythe of the non-delegation as a basis for non-delegation doctrine to fell congressional overturning Chevron USA v. Natural statutes since. Resources Defense Council Inc., a 1984 Supreme Court decision that has armed While the court has never explicitly federal agencies with a powerful tool for renounced the doctrine, it has struggled over defeating rulemaking challenges. the years to establish a rule for when a law delegating power to the executive branch Gorsuch, whose opinion in that case was one lacks an “intelligible principle” to serve as a of the reasons behind his Supreme Court guidepost for policymaking. nomination, has reiterated his desire to rein in administrative power through the doctrine Because it is still technically on the books, since taking the nation’s top bench. “Our the doctrine has been called a “shotgun founders did not approve lawmaking made behind the door” tempering Congress’ easy by bureaucratic fiat,” he said in a inclination to pass laws with broad November speech. delegations of power. But Bernick said “the shotgun isn’t apparently loaded, and hasn’t The case granted by the justices Monday will been loaded for decades. It’s not really a give him his first shot to do just that. threat.” An Unlikely Vehicle 'Second Coming of the Constitution'? Herman Gundy was sentenced to time served Conservatives have sought to put teeth back and five years of supervised released because into the doctrine for years; then-Justice he failed to register as a sex offender after he William Rehnquist called for its return in a was transferred from a federal prison in famous 1980 concurrence, while D.C. Circuit

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Pennsylvania to a halfway house in New bunch of different areas of law, and I think it York. could manifest itself in a case like this,” he said. Gundy filed a petition with the Supreme Court in September, making various “What could happen in this context, you challenges to the conviction. Among them could see an effort on the part of the court, a was his argument that SORNA violated the number of members of which have expressed non-delegation doctrine because it gave the skepticism about the administrative state and attorney general the decision of whether the its constitutional standing, to draw a 'thus far registration requirements should apply to and no further' principle,” he said. people whose sex offense convictions occurred prior to the law's enactment in 2006; Still, despite Justice Gorsuch’s passion on the Gundy was convicted of giving cocaine to an subject, Bernick believes the court will try to 11-year-old girl and raping her in October narrow the scope of its ruling so as not to 2004, according to the government. unleash a Pandora’s box of non-delegation challenges to various modern legislation, “The authority to legislate is entrusted solely much of which he said confers unto agencies to Congress,” Gundy, who is being power “as great or greater than any power represented by the New York federal that was conferred by the National Industrial defenders office, said in his petition. Recovery Act.” “Because SORNA grants the attorney general unfettered discretion to determine who is “I think that Gorsuch and [Justice Clarence] subject to criminal legislation without an Thomas are both votes, if the opportunity ‘intelligible principle’ to guide this arose to articulate a very robust non- discretion, it violates the non-delegation delegation principle that applies to doctrine.” everything,” he said. “My skepticism is whether there are more than two votes for that Bernick said the court’s decision to take on principle.” the case is reflective of its “sense of unease” about the growth of the administrative state. The case is Gundy v. U.S., case number 17- “This sense of unease is going to inform a 6086, in the U.S. Supreme Court.

378

“The Supreme Court May Revive a Legal Theory Last Used to Strike Down New Deal Laws”

Slate

Mark Joseph Stern

March 5, 2018

On Monday, the Supreme Court agreed to Typically, the Constitution’s Ex Post Facto hear Gundy v. United States, a constitutional Clause prohibits the government from challenge to federal sex offender regulations. applying a new criminal law retroactively to If, like me, you believe that America’s punish an offender who committed his crime current sex offender regime is before the law’s passage. But in 2003, the draconian, unjust, and counterproductive, Supreme Court rejected an Ex Post Facto that might sound like good news! And challenge to Alaska’s retroactive sex perhaps it is. But there’s one aspect of the offender registration act, holding that court’s grant that may be very bad news from Alaska’s measure was not sufficiently progressive viewpoint: It will only consider “punitive” to violate the clause. whether the policy in question violates the nondelegation doctrine—a hazy legal Thus, Herman Gundy—the defendant in this principle last used to strike down New Deal case, who was convicted of a sex offense legislation in 1935. before SORNA’s passage—decided to challenge the federal law’s retroactivity The law in question, the Sex Offender under the nondelegation doctrine. Under this Registration and Notification Act (SORNA), theory, Congress infringes upon the required states to expand their sex offender constitutional separation of powers when it registries or lose millions in federal funding. delegates too much legislative authority to It also increased punishments for sex another branch of government. Here, Gundy offenders, keeping them in the registry for asserts that Congress delegated an decades, strictly limiting their freedom of unconstitutional amount of power to the movement, and allowing them to be detained attorney general by allowing him to for years in “civil commitment” after they determine how to apply SORNA finish serving their prison sentences. Oddly, retroactively. Congress did not clarify whether SORNA must apply to sex offenders I am simultaneously sympathetic to and convicted before the law’s passage. Instead, terrified by this argument. On the one hand, it gave the attorney general authority to apply SORNA is a truly terrible law, and I’d like to the law retroactively, which he did. see it reined in. On the other hand, Gundy may open up a nasty can of

379 worms. The Supreme Court has deployed the Congress gives agencies a broad mandate to non-delegation doctrine to strike down interpret and implement these measures. If legislation precisely twice—in 1935. Both the Supreme Court renders that mandate laws were New Deal regulations: one unconstitutional, federal rules that protect governing industrial labor laws, the other workers’ rights, collective bargaining, clean setting quotas on oil sales. But shortly air, and endangered species would fall. thereafter, the court changed its attitude toward the New Deal, giving up So: Should progressives panic about Gundy? efforts to police economic reforms. Since Not quite yet. University of North Carolina then, the court has largely abandoned the criminal law professor Carissa Byrne nondelegation theory, allowing Congress to Hessick points out that the Supreme Court delegate power to another branch so long could set different rules for the non- as that power is limited by some “intelligible delegation in the criminal context. Gorsuch th principle.” Justice Anthony suggested as much in his 10 Circuit Kennedy described the doctrine as opinion—which, in fact, involved a similar “somewhat moribund” during oral arguments challenge to SORNA’s retroactivity. In an in 2014. impressive dissent, Gorsuch wrote that Congress must provide something more than In recent years, however, several an “intelligible principle” when delegating conservative justices have expressed an prosecutorial authority given the “individual interest in reviving nondelegation principles. liberty” at stake. “If the separation of powers Justice Clarence Thomas wants to bring it means anything,” he asserted, “it must mean back; so does Justice Neil Gorsuch, that the prosecutor isn’t allowed to define the who praised the doctrine as a safeguard of crimes he gets to enforce.” personal freedom while on the 10th U.S. Circuit Court of Appeals. (He also endorsed I think Gorsuch is probably right, but I worry it in a 2017 speech to the Federalist Society.) about this court’s ability, or willingness, to Many progressives fear that, once limit the non-delegation doctrine’s revival to resuscitated, the theory could be used to criminal cases. Gorsuch has a knack strike down all manner of economic for reintroducing conservative principles in regulations. cases where they lead to a liberal outcome, even though the underlying rationale tilts the It’s a reasonable concern. These days, law rightward. Would this conservative Congress hands off most regulatory authority Supreme Court cabin non-delegation to to a slew of federal agencies situated in the criminal law? Or might it succumb to the executive branch. A court concerned about temptation to use this principle as a sword to nondelegation could strike down a vast range slay economic and environmental of liberal legislation under the doctrine. regulations, too? Gundy will give us a Labor laws and environmental protections glimpse of the answer. would be especially vulnerable, since

380

“Will Supreme Court push Congress to get back to its job of making law?”

The Hill

Mark Miller

June 4, 2018

In the Constitution, the opening phrase “We helps illustrate the constitutional problem. the People” vests all legislative powers in While on federal supervised release related to Congress. The power to write the federal a drug charge, Herman Gundy was convicted laws that govern the American people in state court of a sex offense. When he belongs to Congress. The most important completed his state prison sentence, the protection of our liberty embedded in the government transferred him to a prison in Constitution — the separation of powers Pennsylvania on a different charge. While in among the three branches of our federal Pennsylvania he received permission to government — prohibits any branch from travel to New York to serve time for that redelegating its unique powers to another crime in a halfway house. He did not, branch. The courts call this the nondelegation however, register with the federal doctrine. government as a sex offender, as required under the federal Sex Offender Registration However, Congress, with the Supreme and Notification Act (SORNA) when a sex Court’s permission, has ignored that offender crosses state lines. prohibition by delegating its lawmaking powers to executive agencies for more than Although Gundy’s underlying crime 80 years. These agencies are staffed with occurred prior to SORNA’s passage, bureaucrats who can’t be voted out of office, Congress included a provision allowing the and many blame that lack of accountability U.S. attorney general to decide if the law for the growth of the regulatory state in the would apply retroactively to offenders who decades since the New Deal. committed SORNA crimes before the law’s passage. The attorney general decided it But the Supreme Court has signaled it may would, issued a regulation that said as much, revoke its longstanding approval of the and then charged Gundy for violating administrative status quo. It recently granted SORNA when he crossed state lines without review of a criminal case, Gundy v. United registration. States, which will allow the court to limit legislative powers to Congress, where they Gundy challenged this conviction on a belong. number of grounds, but the Supreme Court agreed to review the case for one reason: to The facts of the criminal case are not the determine whether Congress’s use of central legal issue, but a brief explanation

381

SORNA to delegate its lawmaking power to wetland, and then conclude that a landowner the attorney general — regarding whether the violated the Clean Water Act in years past. law should apply to criminals who committed Or, they narrow the definition of “normal crimes before it was enacted — violates the farming practices” by regulation and then nondelegation doctrine. deny the statutory exemption to American farmers for normal farming practices based The court last struck down a statute for on practices conducted before the regulation violating the nondelegation doctrine in 1935. was finalized. The court’s acceptance of the Gundy case, solely on this issue, signals a willingness to And the voter cannot punish the writer of revisit this doctrine and perhaps resurrect it. these commands because Congress cleverly In the case, the Supreme Court will decide has passed the lawmaking buck to whether Congress overstepped its bureaucrats who cannot be voted out of constitutional bounds by empowering the office. That is the rub — our Founding attorney general to unilaterally make law. Fathers delegated the lawmaking authority to Congress, and then made legislators Although the nondelegation doctrine does not responsible to the people by allowing the prevent Congress from “obtaining the people to vote them in or out of office every assistance of its coordinate branches,” as the two years, according to how Congress abused court has said, it does require Congress to or properly used its lawmaking power. minimally explain — by way of what the court has called “an intelligible principle” — Congress insulates itself from this what it wants the federal agency to do. But accountability by shirking its lawmaking unsurprisingly, Congress often fails to muster responsibility and handing it off to any principle, intelligible or otherwise, to bureaucrats. The Supreme Court should use explain what it expects the agency to do. the Gundy case to put a stop to this purposeful avoidance of accountability. Such is the case here. The attorney general’s regulation applying SORNA’s registration To be clear: if Gundy wins his case, his requirement retroactively to Gundy’s crimes conviction for not registering under SORNA before the act’s passage may be a legitimate would be reversed, but Congress would then decision, but it is a decision for Congress to most likely amend the law to require make, according to the Constitution. registration for old crimes. That puts the lawmaking onus back on Congress where it Like Gundy, American businesses face belongs. In reality, this case is less about retroactive applications of new regulatory Gundy than it is about the Supreme Court standards all the time. For example, reining in the regulatory state run amok, and regulatory agencies reinterpret a broad requiring Congress to get back to doing its statutory term, such as what constitutes a job.

382

“United States v. Gundy”

Justia

Justia Inc.

September 15, 2015

The Government appealed the district court's remanded, concluding that defendant was a dismissal of an indictment against defendant person “required to register” under SORNA and denial of its motion for reconsideration. beginning at the latest on August 1, 2008, the Defendant was indicted for violation of the effective date of the Attorney General’s final Sex Offender Registration and Notification guidelines. This date arrived well before his Act (SORNA), 18 U.S.C. 2250(a). The alleged travel from Pennsylvania to New district court held that defendant did not York. The district court thus erred in violate section 2250(a) because defendant concluding that defendant became a person was not “required to register” until shortly “required to register” under SORNA only before his release from custody and thus after after traveling interstate. the interstate travel charged in the Indictment. The court reversed and

383

384

Nielsen v. Preap

Ruling Below: Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016)

Overview: Three lawful residents were taken into custody by immigration authorities and were detained without bond hearings years after they completed serving their sentence for an offense that could have led to their removal. As a result, a class action for habeas relief was filed. Preap focuses on a federal law that allows the Department of Homeland Security to detain non-citizens convicted of specified crimes until proceedings take place to deport them.

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. S 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

Mony PREAP; Eduardo Vega Padilla; Juan Lozano Magdaleno, Plaintiffs-Appellees, v. Jeh Johnson, Secretary, Department Of Homeland Security; Loretta E. Lynch, Attorney General; Timothy S. Aitken; Gregory Archambeault; David Marin, Defendants-Appellants

United States District Court of Appeals, Ninth Circuit

Decided on August 4, 2016

[Excerpt; some citations and footnotes omitted]

NGUYEN, Circuit Judge: which requires immigration authorities to detain them “when [they are] released” from Every day in the United States, the criminal custody, 8 U.S.C. § 1226(c)(1), and government holds over 30,000 aliens in to hold them without bond, 8 U.S.C. § prison-like conditions while determining 1226(c)(2). A broad range of crimes is whether they should be removed from the covered under the mandatory detention country. Some are held because they were provision, from serious felonies to found, in a bond hearing, to pose a risk of misdemeanor offenses involving moral flight or dangerousness. 8 U.S.C. § 1226(a); turpitude and simple possession of a 8 C.F.R. § 1236.1(d). Others, however, are controlled substance. 8 U.S.C. §§ held without bond because they have 1226(c)(1)(A)–(D). committed an offense enumerated in a provision of the Immigration and This mandatory detention provision Naturalization Act (“INA”). 8 U.S.C. § has been challenged on various grounds. See, 1226(c). Aliens in this latter group are subject e.g., Demore v. Kim, 538 U.S. 510, 513 to the INA’s mandatory detention provision, (2003) (upholding the constitutionality of the

385 provision against a due process challenge); that “an alien described in paragraph (1)” is Rodriguez v. Robbins, 804 F.3d 1060, 1078– any alien who commits a crime listed in §§ 81 (9th Cir. 2015) (Rodriguez III), cert. 1226(c)(1)(A)– (D) regardless of how much granted sub nom., Jennings v. Rodriguez, No. time elapses between criminal custody and 15-1204, 2016 WL 1182403 (June 20, 2016) immigration custody. According to the (holding that detainees are entitled to a bond government, individuals not detained “when hearing after spending six months in . . . released” from criminal custody as custody). Here, we are faced with another required by paragraph (1) are still considered such challenge; this time, regarding the “alien[s] described in paragraph (1)” for meaning of the phrase “when [they are] purposes of the bar to bonded release in released” in § 1226(c)(1), and whether it paragraph (2). limits the category of aliens subject to detention without bond under § 1226(c)(2). To date, five of our sister circuits Specifically, we must decide whether an alien have considered this issue, and four have must be detained without bond even if he has sided with the government. Significantly, resettled into the community after release however, there is no consensus in the from criminal custody. If the answer is no, reasoning of these courts. The Second and then the alien may still be detained, but he Tenth Circuits found that the phrase “an alien may seek release in a bond hearing under § described in paragraph (1)” was ambiguous, 1226(a) by showing that he poses neither a and thus deferred to the BIA’s interpretation risk of flight nor a danger to the community. of the phrase to mean “an alien described in Addressing this issue requires us to consider subparagraphs (A)–(D) of paragraph (1).” the interaction of the two paragraphs of the See Lora v. Shanahan, 804 F.3d 601, 612 (2d mandatory detention provision, 8 U.S.C. § Cir. 2015) (“Consistent with Chevron, we are 1226(c). Paragraph (1) requires the Attorney not convinced that the interpretation is General (“AG”) to “take into custody any ‘arbitrary, capricious, or manifestly contrary alien who [commits an offense enumerated in to the statute.’” (quoting Adams v. Holder, subparagraphs (A)– (D)] when the alien is 692 F.3d 91, 95 (2d Cir. 2012))); Olmos v. released [from criminal custody].” 8 U.S.C. § Holder, 780 F.3d 1313, 1322 (10th Cir. 2015) 1226(c)(1). Paragraph (2) prohibits the (“The text, the statutory clues, and canons of release of “an alien described in paragraph interpretation do not definitively clarify the (1)” except in limited circumstances meaning of § 1226(c).”). The Fourth Circuit concerning witness protection. 8 U.S.C. § has held that “when . . . released” means any 1226(c)(2). Plaintiffs argue that the phrase time after release, but it did so under a “when . . . released” in paragraph (1) applies misconception that the BIA had so to paragraph (2) as well, so that an alien must interpreted the phrase. Hosh v. Lucero, 680 be held without bond only if taken into F.3d 375, 380–81 (4th Cir. 2012). Finally, the immigration custody promptly upon release Second, Third, and Tenth Circuits applied the from criminal custody for an enumerated loss-of-authority rule, finding that the AG’s offense. The government, by contrast, argues duty to detain criminal aliens under §

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1226(c)(1) continues even if the government I. fails to comply with the “when . . . released” The named Plaintiffs in this case are condition. See, e.g., Sylvain v. Atty Gen. of lawful permanent residents who have United States, 714 F.3d 150, 157 (3d Cir. committed a crime that could lead to removal 2013) (holding that “[e]ven if the statute calls from the United States. Plaintiffs served their for detention ‘when the alien is released,’ and criminal sentences and, upon release, even if ‘when’ implies something less than returned to their families and communities. four years, nothing in the statute suggests that Years later, immigration authorities took immigration officials lose authority if they them into custody and detained them without delay”); see also Lora, 804 F.3d at 612; bond hearings under § 1226(c). Plaintiffs Olmos, 780 F.3d at 1325–26. argue that because they were not detained “when . . . released” from criminal custody, On the other hand, the government’s they were not subject to mandatory detention position has been rejected by most district under § 1226(c). courts to consider the question and, most recently, by three of six judges sitting en banc Mony Preap, born in a refugee camp in the First Circuit. See Castañeda v. Souza, after his family fled Cambodia’s Khmer 810 F.3d 15, 18–43 (1st Cir. 2015) (en banc) Rouge, has been a lawful permanent resident (Barron, J.). In an opinion written by Judge of the United States since 1981, when he Barron, these three judges concluded that the immigrated here as an infant. He has two statutory context and legislative history make 2006 misdemeanor convictions for clear that aliens can be held without bond possession of marijuana. Years after being under § 1226(c)(2) only if taken into released at the end of his sentences for these immigration custody pursuant to § 1226(c)(1) convictions, Preap was transferred to “when . . . released” from criminal custody, immigration detention upon serving a short not if there is a lengthy gap after their release. sentence for simple battery (an offense not See id. at 36, 38. covered by the mandatory detention statute) and held without a bond hearing. Since the We agree with Judge Barron and his instant litigation began, Preap has been two colleagues. The statute unambiguously granted cancellation of removal and released imposes mandatory detention without bond from immigration custody. only on those aliens taken by the AG into immigration custody “when [they are] Eduardo Vega Padilla has been a released” from criminal custody. And lawful permanent resident since 1966, shortly because Congress’s use of the word “when” after he came to the United States as an conveys immediacy, we conclude that the infant. Padilla also has two drug possession immigration detention must occur promptly convictions—one from 1997 and one from upon the aliens’ release from criminal 1999—and a 2002 conviction for owning a custody. firearm with a prior felony conviction. Eleven years after finishing his sentence on

387 that last conviction, he was placed in removal custody by the government immediately proceedings and held in mandatory detention. upon their release from criminal custody for Padilla eventually obtained release after a Section 1226(c)(1) offense.” The district receiving a bond hearing under our decision court also issued a preliminary injunction in Rodriguez v. Robbins (Rodriguez II), 715 requiring the government to provide all class F.3d 1127, 1144 (9th Cir. 2013), in which we members with bond hearings under § held that the government’s detention 1226(a). Preap v. Johnson, 303 F.R.D. 566, authority shifts from § 1226(c) to § 1226(a) 571, 584 (N.D. Cal. 2014). This appeal after a detainee has spent six months in followed. custody; Rodriguez v. Robbins, 804 F.3d 1060, 1078–81 (9th Cir. 2015) (Rodriguez III), cert. granted sub nom., Jennings v. II. Rodriguez, No. 15- 1204, 2016 WL 1182403 (June 20, 2016). We have jurisdiction to review this class action habeas petition under 28 U.S.C. Juan Lozano Magdaleno has been a § 1291. The jurisdiction-stripping provision lawful permanent resident since he of 8 U.S.C. § 1226(e), which bars judicial immigrated to the United States as a teenager review of discretionary agency decisions in 1974. Magdaleno has a 2000 conviction regarding immigrant detention, does not bar for owning a firearm with a prior felony us from hearing “challenges [to] the statutory conviction, and a 2007 conviction for simple framework that permits [petitioners’] possession of a controlled substance. He was detention without bail.” Demore v. Kim, 538 sentenced to six months on the possession U.S. 510, 517 (2003). We review questions charge and released from jail in January of statutory construction de novo. United 2008. Over five years later, Magdaleno was States v. Bert, 292 F.3d 649, 651 (9th Cir. taken into immigration custody and held 2002). without bond pursuant to § 1226(c). He also was later released from detention following a III. Rodriguez hearing. The government’s authority to detain These three Plaintiffs filed a class immigrants in removal proceedings arises action petition for habeas relief in the from two primary statutory sources.8 The Northern District of California. The district first, 8 U.S.C. § 1226(a), grants the AG court granted their motion for class discretion to arrest and detain any alien upon certification, certifying a class of all the initiation of removal proceedings.9 Under “[i]ndividuals in the state of California who this provision, the AG may then choose to are or will be subjected to mandatory keep the alien in detention, or allow release detention under 8 U.S.C. section 1226(c) and on conditional parole or bond. 8 U.S.C. § who were not or will not have been taken into 1226(a)(1)–(2).

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If the AG opts for detention, the alien containing conditions prescribed may seek review of that decision at a hearing by, the Attorney General; or before an immigration judge (“IJ”), 8 C.F.R. § 236.1(d)(1), who may overrule the AG and (B) conditional parole[.] grant release on bond, id. § 1003.19. The alien bears the burden of proving his 8 U.S.C. § 1226(a) suitability for release, and the IJ should consider whether he “is a threat to national (c) Detention of criminal aliens security, a danger to the community at large, likely to abscond, or otherwise a poor bail (1) Custody risk.” Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006); see also 8 § C.F.R. The Attorney General shall take into 1236.1(c)(8). custody any alien who –

The second provision is 8 U.S.C. § (A) is inadmissible by reason 1226(c), the mandatory detention provision of having committed any at issue in this case. Importantly, this offense covered in section provision operates as a limited exception to § 1182(a)(2) of this title, 1226(a). See 8 U.S.C. § 1226(a). (“Except as provided in subsection (c) of this section . . (B) is deportable by reason of .”). Section 1226(c) reads as follows: having committed any offense covered in section 1227(a)(2)(A)(ii), (a) Arrest, detention, and release (A)(iii), (B), (C), or (D) of this title, On a warrant issued by the Attorney General, an alien may be arrested and detained (C) is deportable under pending a decision on whether the alien is to section 1227(a)(2)(A)(i) be removed from the United States. Except as of this title on the basis of provided in subsection (c) of this section and an offense for which the pending such decision, the Attorney alien has been sentence General– [sic] to a term of imprisonment of at least 1 (1) may continue to detain the year, or arrested alien; and (D) is inadmissible under

section 1182(a)(3)(B) of (2) may release the alien on– this title or deportable

under section (A) bond of at least $1,500 with 1227(a)(4)(B) of this title security approved by, and

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when the alien is released, without thus subjecting all criminal aliens who have regard to whether the alien is released committed one of the listed crimes to on parole, supervised release, or mandatory detention regardless of when they probation, and without regard to were taken into immigration custody. See In whether the alien may be arrested or re Rojas, 23 I. & N. Dec. 117, 121 (BIA imprisoned again for the same 2001). Second, the government argues that offense. we should follow the Fourth Circuit in holding that “when . . . released” is a duty- (2) Release triggering clause, not a time-limiting clause, and that, as such, it merely informs the AG The Attorney General may when the duty to detain arises, not when the release an alien described in duty must be performed. Hosh v. Lucero, 680 paragraph (1) only if the Attorney F.3d 375, 381 (4th Cir. 2012). Third, the General decides pursuant to [the government argues that we should follow the Federal Witness Protection Second, Third, and Tenth Circuits in holding Program] that release of the alien that, even if Congress intended that from custody is necessary . . . immigration authorities promptly detain [and] the alien will not pose a criminal aliens when they are released from danger to . . . safety . . . and is criminal custody, Congress did not clearly likely to appear for any scheduled intend that they would lose the authority to do proceeding. so in the event of delay.

8 U.S.C. § 1226(c) (emphases added) We find all three arguments (footnote omitted). We must decide the unpersuasive. We agree with Judge Barron proper scope of this mandatory detention and his colleagues on the First Circuit in exception, and specifically whether it applies Castañeda, 810 F.3d at 19, that the to aliens who are not promptly placed in government’s positions contradict the intent removal proceedings upon their release from of Congress expressed through the language criminal custody for an offense listed in § and structure of the statute. 1226(c)(1)(A)–(D). A. The government advances three arguments to support its view that Plaintiffs We first address the government’s are subject to mandatory detention under § argument that we should defer to the BIA’s 1226(c). First, it argues that we should give interpretation of § 1226(c)(2)’s phrase “an Chevron deference, as have the Second and alien described in paragraph (1)” to mean “an Tenth Circuits, to the BIA’s interpretation alien described in subparagraphs (A)–(D) of that the phrase “an alien described in paragraph (1).” See Rojas, 23 I. & N. Dec. at Paragraph (1)” means “an alien described in 125 (“We construe the phrasing ‘an alien subparagraphs (A)–(D) of paragraph (1),” described in paragraph (1),’ as including only

390 those aliens described in subparagraphs (A) Starting with the text, we find that § through (D) of section [(c)(1)], and as not 1226(c)(2) is straightforward. It refers simply including the ‘when released’ clause.”). to “an alien described in paragraph (1),” not Under this interpretation, § 1226(c)(2)’s to “an alien described in subparagraphs detention-without-bond requirement applies (1)(A)–(D).” We must presume that to any alien who has committed an offense Congress selected its language deliberately, enumerated in § 1226(c)(1), regardless of thus intending that “an alien described in how long after release from criminal custody paragraph (1)” is just that—i.e. an alien who he or she was taken into immigration committed a covered offense and who was custody. This interpretation is at odds with taken into immigration custody “when . . . the statute, which unambiguously links the released.” See Int’l Ass’n of Machinists & “when . . . released” custody instruction in § Aerospace Workers, Local Lodge 964 v. BF 1226(c)(1) to the without-bond instruction in Goodrich Aerospace Aerostructurers Grp., § 1226(c)(2), such that the latter applies only 387 F.3d 1046, 1051 (9th Cir. 2004) after the former is satisfied. (“[C]ourts must presume that a legislature says in a statute what it means and means in When faced with a question of a statute what it says there.” (quoting Conn. statutory interpretation, our analysis begins Nat’l Bank v. Germain, 503 U.S. 249, 253– “with the text of the statute.” Yokeno v. 54 (1992))). Certainly, had Congress wanted Sekiguchi, 754 F.3d 649, 653 (9th Cir. 2014). to refer only to “an alien described in The words of a statute should be accorded subparagraphs (A)–(D),” it could have done their plain meaning, as considered in light of so. And while we recognize that “Congress “the particular statutory language at issue, as has not always been consistent in how it well as the language and design of the statute refers to other subsections in the same as a whole.” K Mart Corp. v. Cartier, Inc., statute,” Olmos, 780 F.3d at 1320 (describing 486 U.S. 281, 291 (1988). We cannot look to a separate provision where Congress referred the statute’s language in isolation because to “subparagraph (a)” but the context made it “[t]he meaning—or ambiguity—of certain obvious that Congress was referring to only words or phrases may only become evident subparts (i) and (ii)), we observe that, unlike when placed in context.” FDA v. Brown & the example cited by the Third Circuit in Williamson Tobacco Corp., 529 U.S. 120, Olmos, this section’s context supports, rather 132 (2000). “If the intent of Congress is clear, than contradicts, the plain meaning. that is the end of the matter; for the court, as well as the agency, must give effect to the As mentioned, there are two relevant unambiguously expressed intent of sources of authority for the government’s Congress.” Chevron, U.S.A., Inc. v. Natural detention of aliens in removal proceedings— Res. Def. Council, Inc., 467 U.S. 837, 842– § 1226(a) and § 1226(c). Section 1226(a) 43 (1984). provides for discretionary detention of any alien in removal proceedings, while § 1226(c) provides a limited exception of

391 mandatory detention for a specified group of the AG can fail to comply with the “when . . aliens. Thus, if the government is not . released” requirement of § 1226(c)(1)— authorized to detain an alien under the narrow thereby necessarily relying on § 1226(a) for exception of § 1226(c), it may only do so its authority to take custody of an alien—but under the general rule of § 1226(a). still apply the release conditions of § Critically, however, each of these sections 1226(c)(2). In other words, even if § includes its own corresponding instructions 1226(c)(1) authorizes the custody of only for releasing detained aliens—§ 1226(a) those aliens who are detained “when [they provides for possible release on bond, while are] released” from criminal custody, not § 1226(c) forbids any release except under those who are detained at a later time, the special circumstances concerning witness BIA would still apply § 1226(c)(2)’s protection. There is one important proscription on bonded release from consequence of this structure: under both the immigration custody. This reading simply general detention provision in § 1226(a) and fails to do justice to the statute’s structure. the mandatory detention provision in § See Castañeda, 810 F.3d at 26 (noting that 1226(c), the authority to detain and the under the BIA’s reading, the statute is “oddly authority to release go hand in hand. That is, misaligned” because it necessarily “de- an alien detained under § 1226(a) is clearly link[s] the ‘Custody’ directive in § subject to the release provisions of § 1226(a), 1226(c)(1) from the bar to ‘Release’ in whereas one detained under § 1226(c) is (c)(2)”). subject to the release provisions in § 1226(c). Accordingly, if an alien is not detained in The headings in § 1226(c) further immigration custody “when . . . released” illustrate this point. Section 1226(c) as a from criminal custody, as required under § whole is entitled “Detention of criminal 1226(c)(2), then the government derives its aliens.” This heading conveys to the reader sole authority to detain that alien from § that the section provides an exception to the 1226(a)(1), and, as a consequence, it must general detention rule of § 1226(a), and that provide the alien with a bond hearing as this exception concerns the detention of required under § 1226(a)(2). certain criminal aliens. The two paragraphs within the section are entitled “Custody” and The BIA’s interpretation in In re “Release.” These headings inform the reader Rojas flouts this structure. The BIA held that that the section governs the full life cycle of the “when . . . released” clause was the criminal aliens’ detention, with the first “address[ed] . . . to the statutory command paragraph specifying the requirements for that the ‘Attorney General shall take into taking them into custody, and the second custody’ certain categories of aliens,” but that specifying the restrictions on their release. it did not define the categories of aliens This structure suggests only one logical subject to the prohibition on bonded release conclusion: the release provisions of § in § 1226(c)(2). In re Rojas, 23 I. & N. Dec. 1226(c)(2) come into effect only after the at 121. The BIA thereby held, in essence, that government takes a criminal alien into

392 custody according to § 1226(c)(1). And, 1226(c) in order for paragraph (2) to take correspondingly, if the government fails to effect. Olmos, 780 F.3d at 1321 (recognizing take an alien into custody according to § that the authority to detain “arises in 1226(c)(1), then it necessarily may do so only Paragraph ‘1’” and that “the [AG] must under the general detention provision of § exercise this responsibility ‘when the alien is 1226(a), and we never reach the release released’”). But, applying the loss-of- restrictions in § 1226(c)(2). authority doctrine, that court concluded that the government maintains its authority to Rojas’s contrary reading, as Judge take custody of an alien under § 1226(c)(1) Barron explained, would mean that Congress even when it fails to comply with the “when directed the AG to hold without bond aliens . . . released” requirement. Olmos, 780 F.3d “who had never been in criminal custody”— at 1321–22 (“With the alien in the [AG’s] because with the “when . . . released” clause custody under his delayed enforcement of § rendered inoperative for purposes of § 1226(c)(1), there would be nothing odd about 1226(c)(2), there would be nothing to impose § 1226(c)(2)’s restrictions on when the alien a requirement of the aliens ever having been can be released.”). Finding that the “when . . in custody. Castañeda, 810 F.3d at 27. At the . released” requirement imposed no actual same time, Rojas’s reading would leave the limitations on the government, the Tenth AG “complete discretion to decide not to take Circuit thus concluded that the BIA’s [such aliens] into immigration custody at all.” interpretation—reading out the “when . . . Id. These incongruous consequences further released” requirement—was reasonable. Id. persuade us to reject the BIA’s reading. We disagree. As we later explain, the loss-of- authority doctrine does not apply to § Notably, neither the BIA nor those 1226(c). And absent this doctrine, we are left circuits that deferred to the BIA adequately with the conclusion that the AG must comply addressed the structure of the relationship with § 1226(c)(1), including the “when . . . between § 1226(a) and § 1226(c). Indeed, the released” requirement, before it can apply § BIA and the Second Circuit failed to address 1226(c)(2). it at all. See Lora v. Shanahan, 804 F.3d 601, 611 (2d Cir. 2015) (deeming it ambiguous In sum, we conclude that paragraph whether the “when . . . released” clause “is (2)’s limitations on release unambiguously part of the definition of aliens subject to depend upon paragraph (1)’s mandate to take mandatory detention” without considering custody. “An alien described in paragraph statutory context); In re Rojas, 23 I. & N. (1)” is therefore one who is detained Dec. at 121–22 (considering statutory context according to the requirements of paragraph but failing to acknowledge the relationship (1). These requirements include the mandate between § 1226(a) and § 1226(c)). The Tenth that the government take the alien into Circuit did address it, and even seemed to custody “when . . . released.” The BIA’s agree with our conclusion that custody must interpretation to the contrary is be authorized under paragraph (1) of § impermissible.

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B. thing that leaps out is that “Congress chose a word, ‘when,’ that naturally conveys some We must next decide whether the AG degree of immediacy as opposed to a purely is in compliance with § 1226(c)(1)’s custody conditional word, such as ‘if.’” Castañeda, mandate—and thus § 1226(c)(2)’s 810 F.3d at 37 (citation omitted). Of course, limitations on release apply—even if the AG the word “when” has multiple dictionary takes an alien into custody after substantial definitions. But looking to context, which of time has passed since the alien’s release from these meanings is the intended one is clear. criminal custody. Plaintiffs argue that § The word “when” used in a command such as 1226(c)(1)’s mandate requiring the AG to this one requires prompt action. Consider a detain criminal aliens “when [they are] teacher’s common instruction to stop writing released” from criminal custody means that when the exam ends. There is no doubt that they must be taken into custody promptly such an instruction requires the student to after release, not years later, as were the immediately stop writing at the end of the named Plaintiffs here. The government, on exam period. Or as one district court noted, the other hand, argues that the phrase “when “if a wife tells her husband to pick up the kids . . . released” is ambiguous, supporting either when they finish school, implicit in this Plaintiffs’ reading or a broader reading command . . . is the expectation that the requiring mandatory detention of any husband is waiting at the moment” school criminal alien arrested by the AG at any point ends. Sanchez-Penunuri v. Longshore, 7 F. after release from criminal custody. The Supp. 3d 1136, 1155 (D. Colo. 2013); see government’s argument wrongly assumes also Khoury v. Asher, 3 F. Supp. 3d 877, 887 that the BIA had so construed “when . . . (W.D. Wash. 2014) (“A mandate is released.” On the contrary, the BIA explicitly meaningless if those subject to it can carry it stated that “[t]he statute does direct the [AG] out whenever they please.”). Similarly, the to take custody of aliens immediately upon use of the phrase “when . . . released,” when their release from criminal confinement.” paired with the directive to detain, Rojas, 23 I. & N. Dec. at 122 (emphasis unambiguously requires detention with added). And even if the BIA had construed “some degree of immediacy.” Hosh v. the phrase not to require immediate Lucero, 680 F.3d 375, 381 (4th Cir. 2012). confinement, the statute would foreclose that construction because “when . . . released” Indeed, “[i]f Congress really meant unambiguously requires promptness. for the duty in (c)(1) to take effect ‘in the event of’ or ‘any time after’ an alien’s release Again, we start with the plain from criminal custody, we would expect language: “The Attorney General shall take Congress to have said so, given that it spoke into custody any alien who [commits an with just such directness elsewhere in the enumerated offense] when the alien is IIRIRA.” Castañeda, 810 F.3d at 38 (citing 8 released [from criminal custody].” 8 U.S.C. § U.S.C. § 1231(a)(5) (“[T]he alien shall be 1226(c). As Judge Barron observed, the first removed under the prior order at any time

394 after the reentry.” (emphasis added)); see once justified mandatory detention are still also Quezada-Bucio v. Ridge, 317 F. Supp. present. These considerations are prudently 2d 1221, 1230 (W.D. Wash. 2004) (noting reflected in Congress’s decision that these that Congress “easily could have used the individuals must be detained “when . . . language ‘after the alien is released,’ released,” and that if they aren’t, the AG may ‘regardless of when the alien is released,’ or detain them only if warranted under the other words to that effect”). But instead general detention provision of 8 U.S.C. § Congress chose words that signal an 1226(a), upon a bond hearing during which expectation of immediate action. See Jones v. an individualized assessment of risks is United States, 527 U.S. 373, 389 (1999) conducted. We therefore conclude that the (“Statutory language must be read in context phrase “when . . . released” connotes some [as] a phrase ‘gathers meaning from the degree of immediacy. words around it.’” (quoting Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961))). C. This word choice must be given its due weight. Finally, we turn to the government’s argument that even if § 1226(c)(1) Moreover, unlike the government’s unambiguously requires prompt detention, interpretation, our reading is consistent with we should nonetheless uphold the AG’s Congress’s purposes in enacting the authority to detain without bond an alien who mandatory detention provision—to address committed a covered offense even when the heightened risks of flight and dangerousness AG has violated the mandate of § 1226(c)(1). associated with aliens who commit certain The government points to a line of cases crimes, which are serious enough to give rise holding that: “[i]f a statute does not specify a to criminal custody. See Demore, 538 U.S. at consequence for noncompliance with 518–19 (describing evidence before statutory timing provisions, the federal courts Congress). These purposes are ill-served will not in the ordinary course impose their when the critical link between criminal own coercive sanction.” Barnhart v. Peabody detention and immigration detention is Coal Co., 537 U.S. 149, 159 (2003) (quoting broken and the alien is set free for long United States v. James Daniel Good Real stretches of time. Congress’s concerns over Property, 510 U.S. 43, 63 (1993)); see also flight and dangerousness are most id. at 158 (“Nor, since Brock [v. Pierce pronounced at the point when the criminal County, 476 U.S. 253 (1986)], have we ever alien is released. Consequently, we can be construed a provision that the government certain that Congress did not intend to ‘shall’ act within a specified time, without authorize delays in the detention of these more, as a jurisdictional limit precluding criminal aliens. And correspondingly, action later.”); United States v. Nashville, C without considering the aliens’ conduct in & St. L. Ry., 118 U.S. 120, 125 (1886); any intervening period of freedom, it is United States v. Dolan, 571 F.3d 1022, 1027 impossible to conclude that the risks that (10th Cir. 2009). Under this “loss-of-

395 authority” line of cases, the government’s this decision, our sister circuits have treated argument goes, the AG’s failure to timely Montalvo-Murillo as a “close[] analog” to the take into custody a criminal alien in no way dispute over § 1226(c)’s limitations. Sylvain, affects her ability to act pursuant to the 714 F.3d at 158. We find, however, that mandatory detention provision of § Montalvo-Murillo is readily distinguishable. 1226(c)(2). Several circuits have agreed. See Sylvain, 714 F.3d at 157; Lora, 804 F.3d at Critically, unlike in Montalvo- 612– 13; Olmos, 780 F.3d at 1324–26. Murillo, the government here invokes the loss-of-authority doctrine to justify extending The courts adopting this reasoning a statutory provision that in fact curtails, rely on United States v. Montalvo-Murillo, rather than expands, the government’s 495 U.S. 711 (1990), in which the Supreme discretionary authority. See Farrin R. Anello, Court interpreted a provision of the Bail Due Process and Temporal Limits on Reform Act that required judicial officers to Mandatory Immigration Detention, 65 hold a bond hearing “immediately upon the Hastings L. J. 363, 367 (2014) (“The [defendant]’s first appearance before the [mandatory detention provision] strips the judicial officer.” 18 U.S.C. § 3142(f)(2). immigration judge of her power to conduct a Montalvo-Murillo didn’t receive a timely bond hearing and decide whether the hearing under this provision, and the district individual poses any danger or flight risk, and court released him from custody. The likewise precludes DHS from making Supreme Court reversed, holding that “a discretionary judgments about whether failure to comply with the first appearance detention is appropriate.”). Indeed, the sole requirement does not defeat the practical effect of the district court’s decision government’s authority to seek detention of in this case is to reinstate the government’s the person charged.” 495 U.S. at 717. The general authority, under § 1226(a), to decline Court noted that nowhere did the statute to detain, or to release on bond, those provide for the release of pretrial detainees as criminal aliens who are not timely detained a remedy for the failure by judicial officers to under § 1226(c). In short, we decline to apply provide prompt hearings. Id. And it the loss-of-authority doctrine where, as here, concluded that “[a]utomatic release there is no loss of authority. contravene[d] the object of the statute, to provide fair bail procedures while protecting Moreover, unlike the district court’s the safety of the public and assuring the ruling in Montalvo-Murillo, our holding does appearance . . . of defendants . . . .” Id. at 719. not craft a new remedy inconsistent with the To hold otherwise, the Court reasoned, would statutory scheme. Whereas in Montalvo- “bestow upon the defendant a windfall” and Murillo the statute at issue did not identify a impose on the public “a severe penalty” by remedy for a delayed hearing, see United “mandating release of possibly dangerous States v. Montalvo-Murillo, 876 F.2d 826, defendants every time some deviation” from 831 (10th Cir. 1989) (per curiam) (noting that the statute occurred. Id. at 720. Looking to “Congress did not provide . . . the remedy”

396 for a violation of § 3142(f)), overruled by reserved for those aliens who pose the Montalvo-Murillo, 495 U.S. at 722), here the greatest risks. statutory structure makes clear precisely what occurs in the absence of prompt detention We therefore hold that the mandatory under 8 U.S.C. § 1226(c): the general detention provision of 8 U.S.C. § 1226(c) detention provision, 8 U.S.C. § 1226(a), applies only to those criminal aliens who are applies. Far from imposing a detained promptly after their release from judiciallycreated remedy for untimely criminal custody, not to those detained long detention, we are merely holding that under after. the statute, the conditions for the mandatory detention exception are not met when IV. detention is too long delayed. See Castañeda, 810 F.3d at 40–41 (distinguishing several In so holding, we are not suggesting cases where courts improperly fashioned that the mandate to detain “when . . . their own sanctions). released” necessarily requires detention to occur at the exact moment an alien leaves We do not share the Third Circuit’s criminal custody. The plain meaning of concern that failing to apply the loss-of- “when . . . released” in this context suggests authority doctrine “would lead to an outcome that apprehension must occur with a contrary to the statute’s design: a dangerous reasonable degree of immediacy. Accord alien would be eligible for a hearing—which Hosh, 680 F.3d at 381 (“[W]e agree that could lead to his release—merely because an Congress’s command . . . connotes some official missed the deadline.” Sylvain, 714 degree of immediacy . . . .”); Rojas, 23 I. & F.3d at 160. Congress’s design of protecting N. Dec. at 122 (“The statute does direct the the public by detaining criminal aliens is [AG] to take custody of aliens immediately undoubtedly premised on the notion that upon their release from criminal recently released criminal aliens may be confinement.”). Thus, depending on the presumed a risk. Such a presumption carries circumstances of an individual case, an alien considerably less force when these aliens live may be detained “when . . . released” even if free and productive lives after serving their immigration authorities take a very short criminal sentences. See Saysana v. Gillen, period of time to bring the alien into custody. 590 F.3d 7, 17–18 (1st Cir. 2009) (“By any logic, it stands to reason that the more remote This appeal, however, does not in time a conviction becomes and the more present the question exactly how quickly time after a conviction an individual spends detention must occur to satisfy the “when . . . in a community, the lower his bail risk is released” requirement. The class was defined likely to be.”). Indeed, the imposition of as those who were not “immediately robotic detention procedures in such cases detained” but were still taken into mandatory not only smacks of injustice, but also drains custody, and the government did not scarce detention resources that should be challenge the class definition on the ground

397 that it required further clarification as to the class of aliens who were not “immediately meaning of “immediately.” Nor did the detained” when released from criminal government appeal class certification on the custody, and that grant of relief accords with ground that the named class members were our interpretation of the statutory not typical of the class as a whole—even requirements. though the named Plaintiffs spent years in their home communities after completing * * * their criminal sentences, whereas some class members presumably were released for Under the plain language of 8 U.S.C. shorter times. We thus need not decide for § 1226(c), the government may detain purposes of the instant appeal exactly how without a bond hearing only those criminal promptly an alien must be brought into aliens it takes into immigration custody immigration custody after being released promptly upon their release from triggering from criminal custody for the transition to be criminal custody. immediate enough to satisfy the “when . . . released” requirement. The district court AFFIRMED. granted preliminary injunctive relief to a

398

“Supreme Court to Decide Whether Immigrants Jailed For Past Crimes Can Be Detained Pending Deportation”

The Los Angeles Times

David G. Savage

March 19, 2018

The Supreme Court agreed Monday to decide another case testing the Trump administration's power to arrest and jail The case, to be heard in the fall, sets up immigrants facing deportation, including another clash between "sanctuary" cities and longtime lawful residents who committed counties and federal immigration agents who minor offenses years ago. seek to detain and deport immigrants who have criminal records. The justices will review a class-action ruling from California that held that immigrants In deciding the case, the 9th Circuit said that who were released after serving time in local more 30,000 non-citizens are held every day and state jails may not be detained later by in the United States in "prison-like federal immigration agents for possible conditions" while they challenge the deportation and held indefinitely without a government's efforts to deport them. The hearing, if they pose no danger to the public judges said the mandatory-detention rule and are not likely to flee. covers those with a "broad range of crimes" Administration lawyers appealed the ruling on their records, from violent felonies to of the U.S. 9th Circuit Court of Appeals, simple drug possession. And it applies to arguing that federal law calls for "mandatory longtime, lawful residents who have lived detention" for all noncitizens who face and worked in the United States for decades, possible deportation because of a criminal they said. record. The lead plaintiff in the challenge to this They said the 9th Circuit's approach would provision, Mony Preap, was born in a lead to a "gap in custody" and "frustrate the Cambodian refugee camp and has been a [government's] ability to remove deportable lawful permanent resident since 1981. He criminal aliens from the United States." And was convicted on two counts of marijuana they placed part of the blame on "state and possession in 2006, a misdemeanor offense. local jurisdictions [that] do not always Agents of the Department of Homeland cooperate" with federal efforts to arrest Security took him into custody in 2013 under immigrants who are leaving jails. the disputed part of the immigration law, which says the DHS "shall take into custody

399 any alien" who was convicted of a on a different group of lawful immigrants "deportable" offense "when the alien is who had served jail time for a criminal released." offense.

Preap joined a class-action suit brought by Lawyers for Preap and the other plaintiffs in the American Civil Liberties Union to the case had urged the court to turn down the challenge the government's view that he was administration's appeal. "Instead of focusing subject to mandatory detention seven years mandatory detention on high-risk individuals after his release. A federal judge in San who are coming out of criminal custody, the Francisco and the 9th Circuit agreed with the government's expansive interpretation would challengers and said the phrase "when the sweep up individuals who have been living alien is released" referred only to the time of peaceably in the community for more than a their release. Because Preap had been decade and pose neither a danger nor a flight released years earlier, he was not subject to risk," they said. mandatory detention in 2013 for the past offenses, the appeals court said. They cited a second plaintiff, Eduardo Vega Padilla, who came to the United States as a "We therefore hold that the mandatory toddler and has been a lawful permanent detention provision … applies only to those resident since 1966. He was convicted of criminal aliens who are detained promptly drug possession in 1997 and for keeping an after their release from criminal custody, not unloaded pistol in a shed behind his house. to those detained long after," wrote Judge He served six months in jail, but was arrested Jacqueline Nguyen. 11 years later under the mandatory-detention The Supreme Court kept the government's provision of the federal law. Padilla was later appeal on hold while it decided a related case. released on bond because he posed no flight In Jennings vs. Rodriguez, the court ruled last risk. month that federal law did not give jailed immigrants a right to a bail hearing after six Preap was released after winning his fight months in custody. However, the justices sent against deportation. that case back to the 9th Circuit to rule on whether indefinite detention without a But the Supreme Court said it would hear the hearing violated the Constitution. case of Nielsen vs. Preap in the fall to decide whether federal law requires mandatory The new case, Nielsen vs. Preap, concerns a detention for all non-citizens who have past part of the same immigration law but focuses crimes that could trigger their deportation.

400

“Supreme Court to Consider How Fast Government Must Act in Detaining Immigrants For Deportation”

The Washington Post

Robert Barnes

March 19, 2018

There is a split in the lower courts on whether with President Trump’s vow to remove more federal officials must act immediately after noncitizens who have committed crimes that the person is released from criminal custody make them deportable. to detain them indefinitely as they await deportation proceedings. The case will be The 9th Circuit case involved two people in heard in the term that begins in October. unrelated cases.

The U.S. Court of Appeals for the 9th Circuit Mony Preap was born in a refugee camp after said that unless the arrest is prompt, the his parents fled Cambodia, and he has lived detainee should receive a hearing to legally in the United States since 1981. He determine whether they may be freed was convicted in 2006 of marijuana awaiting the outcome of the deportation possession, but was not picked up by federal proceedings. Immigrants would have to authorities after he was sentenced to time convince an immigration judge that they served. posed no danger to others and were not a He served another criminal sentence for flight risk. battery in 2013, a charge that is not a Other lower courts have agreed with the deportable offense. He was detained for government’s reading that detention is months, but was released and no longer faces mandatory no matter when the noncitizen is deportation. picked up. Bassam Yusuf Khoury has been a lawful The government argues that the 9th Circuit’s permanent resident of the United States since approach will lead to a “gap in custody” and 1976. In 2011, he was released after serving hamper the federal government’s ability to a 30-day sentence for a drug charge. Nearly remove deportable immigrants. The Trump two years later, federal authorities picked him administration said the efforts of “sanctuary up for deportation and he was detained for cities” reluctant to cooperate with federal more than six months before a judge said he authorities escalate the difficulties. could be released

The Obama administration took the same The issue concerns language in the federal reading of the law, but the stakes are higher law that authorizes the Department of

401

Homeland Security to seize someone for more than a decade earlier, and who therefore deportation “when the alien is released” from have an actual record of living at liberty in the criminal custody. community without posing any flight risk or danger to others.” The federal government says it could mean any time after the release, not just The court decided a related case last month. immediately after the release. On a 5-to-3 vote, the court said federal law did not require a bond hearing even after Lawyers for the detainees say that under the months or years of detention of those facing government’s reading, that would impose deportation. mandatory deportation “on individuals who have been released months, years, or even The case to be heard is Nielsen v. Preap.

402

“More Detained Immigrants Are Owed Bond Hearings: 9th Circ.”

Law360

Allissa Wickham

August 5, 2016

Only criminally convicted immigrants who were challenging their detention without enter immigration custody soon after being bond. The lower court granted the released from criminal custody can be petitioners’ motion for class certification and detained without bond hearings, the Ninth issued an injunction forcing the government Circuit decided Thursday in a ruling that also to hold bond hearings for all the class upheld a lower court’s class certification in members, according to the Ninth Circuit’s the case. ruling.

A three-judge appellate panel ruled that a The Ninth Circuit panel upheld the lower mandatory detention section of the court’s class certification ruling and the Immigration and Naturalization Act applies preliminary injunction. According to Keker exclusively to immigrants who were detained & Van Nest LLP, which served as co-counsel “promptly” after being let out of criminal for the plaintiffs, the Ninth Circuit’s ruling custody, not to people who were detained means that “thousands” of immigrants in much later. California can now make a case against being detained. “The statute unambiguously imposes mandatory detention without bond only on “The Court specifically struck down the those aliens taken by the [Attorney General] government’s practice of subjecting into immigration custody ‘when [they are] immigrants to mandatory detention based on released’ from criminal custody,” wrote crimes they may have committed years ago, Circuit Judge Jacqueline Nguyen. “And even if those individuals had long since because Congress’s use of the word ‘when’ rehabilitated themselves,” the firm said in a conveys immediacy, we conclude that the statement. immigration detention must occur promptly upon the aliens’ release from criminal Michael Tan, a staff attorney at the ACLU custody.” Immigrants' Rights Project, added in the statement, “Today's decision is a victory for The class action was filed by three fairness and due process of law.” The ACLU immigrants in late 2013, and although the also served as counsel for plaintiffs in the complaint isn't publicly available, a later case. order from the court stated that the plaintiffs

403

On the same day, the Ninth Circuit also Jingni Zhao and Anoop Prasad at the Asian affirmed a lower court’s order certifying a Law Caucus, by Ashok Ramani of Keker & class of immigrant detainees and finding the Van Nest LLP and by Michael K.T. Tan of class could have bond hearings in a case the American Civil Liberties Union called Khoury v. Asher. Matt Adams, legal Foundation. director for the Northwest Immigrant Rights Project, which represented plaintiffs in that The government is represented by Hans case, said in a statement that his team is “very Harris Chen, Leon Fresco and Troy David happy that the Court has rejected the Liggett. government's efforts to overstep their authority in denying thousands of individuals The plaintiffs in the Khoury case are their basic right to a custody hearing.” represented by Matt Adams and Christopher Strawn at the Northwest Immigrant Rights A representative for the U.S. Department of Project, by Robert Pauw at Gibbs Houston Justice did not respond to a request for Pauw, by Judy Rabinovitz at the ACLU comment. Immigrants' Rights Project, by Michael K.T. Tan at the ACLU and by Devin T. Theriot- Bond hearings are an active topic in the Orr of Sunbird Law PLLC. immigration legal world. In June, the U.S. Supreme Court decided to hear a case about The government in that case is represented by whether certain immigrants are entitled to an Timothy Michael Belsan, Hans Harris Chen, automatic bond hearing after six months of Leon Fresco and Lori Warlick. detention, adding another layer to the national debate over immigrant detention. The cases are Mony Preap, et al v. Jeh Johnson, et al, case number 14-16326, and The plaintiffs in the first case, Preap v. Bassam Khoury, et al v. Nathalie Asher, et al, Johnson, are represented by Julia Harumi case number 14-35482, at the U.S. Court of Mass at the ACLU Foundation of Northern Appeals for the Ninth Circuit. California, by Alison Edith Pennington,

404

Chevron Deference

405

“A Power Grab of Sorts, Buried in a Supreme Court Decision”

Bloomberg

Noah Feldman

June 24, 2018

As the U.S. Supreme Court’s swing justice, interpretation of the law, so long as it is Anthony Kennedy is used to making big reasonable. headlines in June. On Thursday, he did something just as important as issuing a For years, judges on both ends of the political major decision — but considerably harder to spectrum embraced the doctrine. Liberals capture in a few words. like Justice Stephen Breyer, a former academic scholar of administrative law, In a brief, solo concurrence in Pereira v. appreciated the way the doctrine empowered Sessions, Kennedy called for reconsidering technocratic experts at the agencies and and maybe overruling one of the cornerstones discouraged judges from second-guessing of modern administrative law, known as them. “Chevron deference.” If the Chevron precedent is overturned, judges would have Conservatives like the late Justice Antonin more direct power to overrule policy Scalia (who was also an administrative law decisions made by agencies like the scholar before becoming a judge) found the Environmental Protection Agency, the doctrine appealing because it reflected the Federal Communications Commission and value of judicial restraint, making it harder the Securities and Exchange Commission. for courts to reverse agency action from the Ronald Reagan era. Depending on how you count, Kennedy is the fifth sitting justice to call Chevron into doubt. In Scalia’s influential interpretation of His opinion is an opportunity to take a hard Chevron deference, the doctrine made look at whether the end of the doctrine would jurisprudential sense because Congress was be a bad thing or a good one. in effect telling judges to listen to the agencies. Scalia thought judges should listen The Chevron doctrine, created by the to Congress and do as little as possible on Supreme Court in 1984 in a case involving their own. the Chevron oil company, says that, when Congress has passed a law that is both But today’s judicial conservatism is not your ambiguous and directed to an administrative father’s judicial conservatism. Scalia’s agency, the courts will defer to the agency’s theoretical commitment to judicial restraint (never mind whether he consistently

406 practiced it) has been replaced by Chevron deference.” That suggests that Alito conservative judicial activism. could join his conservative colleagues.

Justice Neil Gorsuch, while still an appellate On the other hand, in last week’s case, Alito judge, openly criticized the Chevron doctrine wrote a separate dissent of his own saying for taking the power to interpret the law away that Chevron deference should have been from judges and giving it to agencies. That applied because the statute in question was resonates with a core value held by Kennedy, ambiguous. In his punchline, he wrote that that the judiciary (in practice: Kennedy) must “unless the court has overruled Chevron in a always have definitive say over the meaning secret decision that has somehow escaped my of the law. attention, it remains good law.”

Gorsuch clerked for Kennedy, and This may conceivably imply that Alito is not Kennedy’s new opinion reflects a circular ready to jettison Chevron. It’s noteworthy, path of influence: Kennedy taught Gorsuch too, that while Kennedy’s concurrence cited about judicial supremacy; Gorsuch used that opinions by Roberts, Thomas and Gorsuch, it to attack Chevron; now Gorsuch is didn’t cite any Alito opinion calling Chevron influencing Kennedy to apply his own values into question. to Chevron, too. If Alito is on board with the other Kennedy and Gorsuch make two. Justice conservatives, what then? Liberals are Clarence Thomas, the court’s only true, all-in already worrying that the end of Chevron originalist, has his doubts about whether would invite activist conservatives to administrative agencies, undreamed-of by the overturn agency action. That’s a logical fear. founders, are even constitutional in the first If the conservatives want to end Chevron, it’s place. You can be sure he doesn’t like a at least partly because they want to be able to doctrine that empowers the agencies. Chief constrain future Democratic-controlled Justice John Roberts hasn’t called for the agencies. No matter what happens after doctrine to go, but he has criticized the Donald Trump’s presidency, we are going to overuse of Chevron before. That makes four. have a more conservative judiciary because of his appointees. Justice Samuel Alito may be a wildcard. On the one hand, he has criticized agency Yet the truth is that liberals can’t really overreach in reliance on supposedly mourn the end of Chevron too hard, because “ambiguous” statutes. In a speech to the liberals like judicial activism. Most liberals conservative Federalist Society in 2016, since World War II aren’t really committed Alito went so far as to claim (with some to judicial restraint — except when liberals plausibility) that “before his death, [Scalia] don’t have five votes on the Supreme Court. was also rethinking the whole question of

407

Deep in liberals’ hearts, they know that But the end of judicial deference to agencies courts exist to interpret the law and must won’t be bad for the rule of law itself. That often do so in the light of values. Scalia’s rule is strengthened when judges — however fantasy that judges could be mere objective fallible, however motivated — use reason to rubber stamps is one that liberals must say what the law is, and take responsibility recognize as unrealistic in many situations. for their judgments.

Seen from this perspective, the end of Chevron could be bad for the environment, bad for the internet, bad for securities regulation, as conservative judges overturn agency regulation.

408

“The Federalist Society’s Chevron Deference Dilemma”

Law and Liberty

Christopher J. Walker

April 3, 2018

In 2016 here at Law and Liberty, come from the Hill, the federal bench, and the I asked whether administrative law’s judicial legal academy. Last year it was front and deference doctrines matter. Leveraging center during the Senate Judiciary my study with Kent Barnett Committee’s hearing on Neil Gorsuch’s on Chevron deference in the federal courts of nomination to the Supreme Court, as then- appeals, I argued that these doctrines do Judge Gorsuch had authored a matter. In this essay, I explore the related concurring opinion critical question of whether Chevron deference of Chevron deference and its progeny. That advances its stated objectives. In particular, Gorsuch concurrence was quite reminiscent does Chevron deference constrain of Justice Thomas’s earlier attack partisanship in judicial decisionmaking? The on Chevron deference in his concurring answer to this question has important opinion in Michigan v. EPA. Indeed, last implications for the current debate on week, the New York Times reported there’s a whether to narrow, or even new “litmus test” for judicial nominees, eliminate, Chevron deference. which was applied in the selection of Gorsuch for the Supreme Court: “reining in For the uninitiated, Chevron deference is the what conservatives call ‘the administrative judicial doctrine that federal agencies—and state.’” not courts—are the primary interpreters of statutes that Congress has charged the The call to eliminate Chevron deference has agencies to administer. “If a statute is largely come from those right of center. But ambiguous, and if the implementing agency’s it would be a mistake to conclude that construction is reasonable,” Justice Thomas everyone center-right is, or should be, in has explained, “Chevron requires a federal favor of eliminating administrative law’s court to accept the agency’s construction of deference doctrines. There is deep divide on the statute, even if the agency’s reading the right with respect to the role of federal differs from what the court believes is the courts in our constitutional republic. Some best statutory interpretation.” view courts as a critical safeguard of liberty, and thus encourage courts to actively engage In recent years, there has been a in checking the actions of the political growing call to branches. Think Randy Barnett and Philip eliminate Chevron deference. This call has Hamburger. Others, by contrast, argue that

409 because federal courts are not democratically agency charged with the administration accountable, they should exercise judicial of the statute in light of everyday restraint, embrace the “passive virtues” when realities.” possible, and otherwise adopt a minimalist and deferential approach to judicial review of In other words, Chevron deference strives to actions by the political branches. Think remove politics from judicial Michael Stokes Paulsen and Adrian decisionmaking. Such deference to the Vermeule. political branches has long been a bedrock principle for at least some judicial For years, if not decades, the proper role of conservatives. federal courts has thus been subject to an ongoing and vigorous debate within the Does Chevron deference achieve this goal of Federalist Society and related circles. removing politics from judicial decisionmaking? Indeed, the Chevron Court itself grounded this deference doctrine in part In an article forthcoming in the Vanderbilt on the need to reserve political (or policy) Law Review, Kent Barnett, Christina Boyd, judgments for the more politically and I attempt to answer this question accountable agencies: empirically. To do so, we leverage our Chevron dataset that includes every “Judges are not experts in the field, and published circuit-court decision that are not part of either political branch of involved Chevron or Skidmore deference the Government. Courts must, in some from 2003 through 2013. Over this eleven- cases, reconcile competing political year period, the federal courts of appeals interests, but not on the basis of the reviewed 1,613 agency statutory judges’ personal policy preferences. In interpretations in 1,382 published opinions contrast, an agency to which Congress where they considered applying either has delegated policy-making deference doctrine. responsibilities may, within the limits of that delegation, properly rely upon the Contrary to prior, more limited studies, we incumbent administration’s views of find that Chevron deference has a powerful wise policy to inform its judgments. constraining effect on partisanship in judicial While agencies are not directly decision-making. To be sure, we still find accountable to the people, the Chief some statistically significant results as to Executive is, and it is entirely partisan influence. But the overall picture appropriate for this political branch of provides compelling evidence that the Government to make such policy the Chevron Court’s objective to reduce choices—resolving the competing partisan judicial decision-making has been interests which Congress itself either quite effective. inadvertently did not resolve, or First, like earlier studies, we find that politics intentionally left to be resolved by the does play some role in how circuit courts

410 review agency statutory interpretations. interpretation, whereas liberal panels were as Liberal three-judge panels, for instance, are much as 14% more likely than conservative more likely to agree with liberal agency panels to find no ambiguity when reviewing interpretations and less likely to agree with conservative agency interpretations. conservative interpretations. Vice versa for Nonetheless, in contrast to Justice Scalia’s conservative panels. When we separate how view (rearticulated recently by Judge conservative and liberal panels act in cases in Kethledge), we do not find that conservative which they apply Chevron deference, judges are more likely to find statutes however, we find that Chevron deference unambiguous regardless of the valence of the significantly constrains judicial discretion. agency interpretation. For instance, the most liberal-judge panels agree with conservative agency statutory We also find no “whistleblower effects.” interpretations 51% of the time when they Whistleblower effects, as Cass Sunstein and apply the Chevron deference framework, others have explained, involve the compared to just 18% when they don’t. The phenomenon of group polarization, in that most conservative-judge panels similarly “[d]eliberating groups of like-minded people agree with liberal agency interpretations 66% tend to go to extremes.” The presence of a of the time with Chevron deference, and only panelist with opposing political preferences 18% without. can serve as a whistleblower of sorts, which helps rein in the majority’s preference of That does not mean that Chevron eliminates politics over legal doctrine in a given case. political behavior entirely. When it comes to conservative agency interpretations, there’s a Contrary to the famous Cross and 23% difference in the likelihood of panels Tiller study, we find no whistleblowing across the ideological spectrum agreeing with effects in the Chevron deference context: the agency under Chevron deference (and a Whether a panel is ideologically uniform or higher 36% difference when panels applied a diverse does not affect whether circuit courts lesser form of deference). We found a similar apply the Chevron framework, nor does it 25% difference for review of liberal agency affect agency-win rates on judicial review. interpretations under Chevron. When the Indeed, we find only minor differences at circuit courts do not apply Chevron, that even the ideological extremes, and those difference rises to a staggering 63% differences are strangely in the opposite difference. direction than expected. This finding might seem surprising in light of the earlier, most- When the circuit courts decide to apply limited empirical studies that found such the Chevron framework, they largely apply it panel effects. But it’s not too surprising in in a similar fashion, with only modest light of our other findings. ideological behavior. Conservative panels, Because Chevron deference itself largely for example, were as much as 21% more constrains partisanship in judicial decision- likely than liberal panels to find no ambiguity making, the ideological composition of the when reviewing a liberal agency

411 panel may have little, if any, additional conservative judges, such as Judges Frank constraining role to play. Easterbrook, Thomas Griffith, David Sentelle, and Jeffrey Sutton, similarly We also had a bit of fun looking at individual demonstrated counter-ideological voting judges who had at least 20 observations in our patterns. dataset. Some liberal judges, including Judge Stephen Reinhardt and then-Judge Sonia In sum, the findings from our study Sotomayor, affirmed 100% of liberal agency underscore one significant and largely interpretations. But a few liberal judges, overlooked cost of eliminating or including Judges Marjorie Rendell and narrowing Chevron deference: Such reform Robert Sack, indicate conservative behavior. could result in partisanship playing a larger Likewise, a number of conservative judges role in judicial review of agency statutory did not engage in ideological decision- interpretations. It may turn out that, even with making, though some did, including Judges this cost taken into account, some on the right Jane Roth and Michael Fisher. A number of would conclude that such reform efforts conservative judges more favorably reviewed produce a net benefit. For many, however, liberal interpretations than conservative ones. the cost of increased partisan judicial Judge Peter Hall voted to adopt 100% of decision-making should be a cause for liberal interpretations. Other prominent concern.

412

“Undue Deference”

National Review

Jonathan Wood

July 29, 2018

For the second time in two years, President change their minds at any time, for any Trump has nominated a justice to the reason; and to receive deference even for Supreme Court of the United States. His interpretations expressed retroactively,” the selection of Brett Kavanaugh, like the states acknowledge. But “there is a price to selection of Justice Neil Gorsuch before him, be paid for these conveniences, and it is paid shows the White House’s commitment to by those who are subject to the agency’s selecting judges “devoted to a legal doctrine regulatory authority.” that challenges the broad power federal agencies have to interpret laws and enforce California Sea Urchin regulations,” as the New York Times has put Commission demonstrates just how far we’ve it. strayed from the Constitution’s design of courts subjecting government actions to fair, If confirmed, that devotion may be quickly independent scrutiny. In 1986, Congress tested. Led by Texas, 17 states struck a compromise that would encourage have urged the Supreme Court to take the recovery of California’s sea-otter up California Sea Urchin Commission v. population while minimizing unnecessary Combs and end Chevron deference — the impacts on fishermen. That compromise held Court’s controversial and unconstitutional for decades, during which the otter practice of deferring to agencies on the population increased dramatically. meaning of statutes, rather than having independent judges interpret the law. But in 2012, a federal agency decided it no longer liked the deal Congress had struck. So For too long, the states argue, the it reinterpreted the compromise, concluding convenience of bureaucrats has been — conveniently — that the law allowed the weighted more heavily than fairness to the agency to keep its benefits from the bargain American people. while depriving the fishermen of theirs. Represented by Pacific Legal Foundation, the “It is doubtless convenient for federal fishermen sued, arguing that nothing in the agencies to have little restraint on their law passed by Congress gave the agency such interpretation of federal law; to be able to power to rewrite the law.

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meaning as fairly as possible” (i.e., a judge) Unfortunately, the Ninth U.S. Circuit Court with “an avowedly politicized administrative of Appeals — which embraces blind agent seeking to pursue whatever policy deference to federal agencies with more zeal whim may rule the day.” than most courts — concluded that this didn’t matter. The court ruled that a federal agency Chief Justice John Roberts has similarly can do whatever it pleases, so long as there’s raised an alarm about the concentration of no law that explicitly forbids the precise power in administrative agencies and the lack action. The court gave no answer as to just of meaningful checks and balances. “The how Congress was supposed to anticipate danger posed by the growing power of the every novel idea an agency might dream up administrative state,” the chief justice has over decades. cautioned, “cannot be dismissed.”

With Kavanaugh on the bench, the Supreme “We seem to be straying further and further Court may finally be ready to from the Constitution without so much as revisit Chevron and restore meaningful, pausing to ask why,” Justice Clarence independent scrutiny to the administrative Thomas has separately observed. state. The fundamental principles underlying our When courts reassert themselves and enforce Constitution are that government power must the law as written by Congress, it “helps be divided up, rather than concentrated, and preserve the separation of powers and those who exercise it must be accountable to operates as a vital check on expansive and the people. It’s difficult to imagine a greater aggressive assertions of executive departure from these principles than the authority,” Kavanaugh wrote in a recent D.C. concentration of near-limitless power in the Circuit ruling. His concern makes him a hands of unelected bureaucrats, combined fitting successor to Justice Anthony with a lack of oversight from Congress and Kennedy, who, in one of his final opinions, the courts. urged the Supreme Court to “reconsider” the premises underlying Chevron’s “reflexive With three sitting justices raising questions deference” to unelected bureaucrats. about Chevron deference and another on deck, it’s time for the Supreme Court to Justice Neil Gorsuch, Trump’s first nominee, address the issue head-on. has argued that excessive deference to agencies replaces “an independent decisionmaker seeking to declare the law’s

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Deferred Action for Childhood Arrivals (DACA)

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“The End of DACA Is the Next Big Immigration Fight”

Bloomberg

Noah Feldman

August 9, 2018

The struggle over the Deferred Action for Childhood Arrivals program and the fate of To understand the looming crisis, you have to the immigrants known as “Dreamers” is start with the rather remarkable fact that heating up again. There’s a strong probability DACA is still legally in place, even though that it will go all the way to the U.S. Supreme the Trump administration ordered it shut Court, and fast — conceivably even before down in September 2017. The reason that’s Judge Brett Kavanaugh gets a Senate vote on so remarkable is that DACA isn’t a law his confirmation. passed by Congress. It’s a unilateral presidential enactment adopted by Obama. The path to the Supreme Court passes through the possibility of dueling nationwide Ordinarily, what one president can do by fiat, lower-court injunctions. There are already another can undo by fiat. But in January, a orders mandating that President Donald federal judge in California ruled that the Trump’s administration keep in place Trump administration had acted arbitrarily DACA, which shields from deportation when it shut down the program. He ordered certain undocumented immigrants who came that DACA remain in place. Since then, a to the U.S. as children. A federal district court couple of other federal district courts agreed. in Texas could soon issue a contradictory order shutting it down. My own view is that these courts got it wrong. But Cass Sunstein, my colleague at That seems likely, because it’s the same Bloomberg Opinion and Harvard Law School judge who in 2015 blocked Barack Obama’s and (among many other things) the leading administration from implementing the administrative law scholar in the Deferred Action for Parents of Americans country, thinks the decision keeping DACA and Lawful Permanent Residents policy, or alive was “eminently reasonable.” I won’t DAPA, which would have extended the bore you with the disagreement, which DACA protections to Dreamers’ parents. centers on whether the Trump administration

416 gave a good enough reason for shutting the they maintain, there is no immediate need for program down when it asserted that DACA a preliminary injunction because the states was illegal. are suffering no irreparable harm from continuing the program. What matters practically is that the courts’ orders kept DACA going despite Trump’s I’m skeptical that Hanen will embrace that wishes. distinction. He previously ruled that state resources expended on DAPA were harmful That led directly to a new federal lawsuit, enough to issue his injunction. States are also filed by Texas and seven other states, arguing spending resources on DACA. that DACA is in fact unlawful, because it If and when Hanen strikes down DACA and exceeded Obama’s presidential authority. A orders a nationwide injunction against it, the hearing the case took place Wednesday. Trump administration will be whipsawed between competing court orders. Some It’s pure luck, but the judge who drew the courts are ordering it to keep DACA going, case, Andrew Hanen, is the same judge who and Hanen would be ordering the opposite. struck down DAPA. The U.S. Court of Appeals for the 5th Circuit upheld his opinion In the face of contradictory orders, the in that case. And the U.S. Supreme Court administration would seek expedited review then split 4-4 after Justice Antonin Scalia by courts of appeals. If those didn’t create died, leaving the appeals court ruling in uniformity immediately — and that is the effect. There can be little doubt that Scalia most likely outcome — then it would turn to would have voted to strike down DAPA. the Supreme Court. After all, the high court’s job is to ensure some modicum of legal As a matter of constitutional logic, if the uniformity across the country. program for parents was beyond Obama’s presidential authority, so was the program for All that could happen within days or even their children. And Hanen has already hours of a ruling and injunction by Hanen. demonstrated his willingness to issue a And Hanen could perfectly well rule at any nationwide injunction enforcing his ruling. time. He’s already thought through the So it’s a pretty safe bet that Hanen will at constitutional issues in issuing his DAPA some point rule DACA unconstitutional. opinion.

That leaves the question of timing — which Nevertheless, Hanen can use his discretion to could be all important here. choose when he wants to issue a decision and an injunction. And he has a pragmatic reason DACA supporters are arguing to Hanen that to take his time. unlike DAPA, which had not yet been implemented when Hanen blocked it, DACA That’s because the Supreme Court is evenly has been in place for several years. Therefore, split again, as it was when it voted on the 5th

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Circuit decision upholding Hanen’s DAPA compromise. But such a compromise would ruling. almost certainly have to include keeping DACA in place. If the current Supreme Court had to consider dueling nationwide injunctions, it could face So it makes sense for Hanen to wait until a serious crisis if i again divided 4-4. A split Kavanaugh is confirmed, and then issue his court can only uphold the decision on appeal ruling. before it. If a 5th Circuit decision upholding a Hanen opinion remained in place, it would If that’s what happens, Kavanaugh may have put the Trump administration into a legally to swing into action pretty darn fast. He untenable situation. would face his first controversial, emergency vote in a high-profile case where his vote Of course, moderates like Chief Justice John would be decisive. Roberts and Justices Stephen Breyer and Elena Kagan could hammer out a temporary It won’t be his last.

418

“Judge Upholds Order for Trump Administration to Restore DACA”

New York Times

Miriam Jordan

August 3, 2018

A federal judge on Friday upheld his new applications from those who meet the previous order to revive an Obama-era criteria to qualify. DACA recipients — often program that shields some 700,000 young called “Dreamers” — typically were brought immigrants from deportation, saying that the to the United States illegally as children Trump administration had failed to justify through no choice of their own. eliminating it. Judge Bates ruled in late April that the Judge John D. Bates of the Federal District administration must restore the DACA Court for the District of Columbia gave the program and accept new applications. He had government 20 days to appeal his decision. stayed his decision for 90 days to give the But his ruling could conflict with another Department of Homeland Security, which decision on the program that a federal judge runs the program, the opportunity to lay out in Texas is expected to issue as early as next its reasons for ending it. week. Kirstjen Nielsen, the homeland security The Trump administration announced late secretary, responded last month, arguing that last year that it would phase out the program DACA would likely be found known as Deferred Action for Childhood unconstitutional in the Texas case and Arrivals, or DACA, which protects therefore must end. She relied heavily on the undocumented young adults from memorandum that her predecessor, Elaine C. deportation and grants them two-year Duke, had issued to rescind the program and renewable work permits. The administration said that the department had the discretion to argued that President Barack Obama had end the program, just as the department under overstepped his authority and circumvented Mr. Obama had exercised discretion to create Congress when he created the program in it. 2012. Judge Bates, who was appointed by President The decision to end the program has faced George W. Bush, did not agree. He called the numerous legal challenges. Currently, the shutdown of the program “arbitrary and government must continue accepting capricious” and said that Secretary Nielsen’s applications to renew DACA status, if not response “fails to elaborate meaningfully on

419 the agency’s primary rationale for its “Princeton University’s continued success as decision.” a world-class institution of learning and research depends on our ability to attract Two federal judges, in Brooklyn and in San talent from all backgrounds, including Francisco, issued injunctions this year Dreamers,” he said. Brad Smith, the president ordering the government to keep the of Microsoft, said that finding a solution for program. But neither of those rulings DACA “has become an economic imperative required that the government accept new and a humanitarian necessity.” applications, as the ruling by Judge Bates does. The earlier decisions are pending Since the 2016 presidential campaign, the before appeals courts. young people who benefited from DACA have seen their hopes alternately elevated and Meanwhile, the State of Texas and several dashed, sometimes in the space of a week. other plaintiffs have sued the government to Neither a flurry of court decisions nor horse- rescind the program, contending that it is trading in Congress has settled the issue. illegal. In a statement on Friday, United We Dream, The District of Columbia lawsuit was an organization that represents Dreamers, brought by the N.A.A.C.P., Microsoft and offered a sobering assessment: “The situation Princeton University. The DACA program for DACA beneficiaries remains dangerous has broad bipartisan support in the business and unstable, as we do not know how the and academic worlds. administration will respond, and there are other court cases in progress.” Christopher L. Eisgruber, the president of Princeton, hailed the court’s decision.

420

“Kavanaugh Could Stymie Trump’s Immigration Policies”

Bloomberg Law

Laura D. Francis

July 10, 2018

President Donald Trump’s nomination of But “the conservative tilt to the court Judge Brett Kavanaugh to replace Justice becomes a big question mark when it comes Anthony Kennedy on the U.S. Supreme to immigration” because many of the cases Court isn’t necessarily a guaranteed win for involve a “strict” interpretation of the the president’s immigration policies. Immigration and Nationality Act, he said. That means conservative justices could go The Trump administration already is facing a against the Trump administration’s host of lawsuits on a variety of immigration interpretations of the INA, he said. issues: ending the Deferred Action for Childhood Arrivals program and temporary The Supreme Court “has given Congress protected status, state and local “sanctuary” plenary authority to write the immigration policies on whether to cooperate with federal law,” said Leopold, a past president and past immigration enforcement, and some general counsel of the American Immigration challenges to limits on business visas. Lawyers Association. So it’s possible that Kavanaugh and the other justices will “hold Kavanaugh hasn’t addressed many the Trump administration to the letter of the immigration cases while on the U.S. Court of law” when it comes to the INA’s provisions Appeals for the District of Columbia Circuit. on employment visas, he said. But he’s likely to face at least some if confirmed to replace Kennedy. Kavanaugh is “very much a careful jurist who looks at the statute and looks at the regulation “We’re going to see a lot more business and tries to determine whether the executive immigration litigation because of the branch’s regulation is consistent with the unreasonably restrictive decisions” from U.S. statute,” said Kevin R. Johnson, dean of the Citizenship and Immigration Services, David University of California, Davis, School of Leopold of Ulmer & Berne in Cleveland, Law. Ohio, told Bloomberg Law July 10. “He’s going to call it as he sees it,” Johnson Some of those cases may make their way up told Bloomberg Law July 10. “I don’t think to the Supreme Court. he’s going to allow the executive branch to go beyond what he views as the requirements ‘Question Mark’ on Immigration of the statute,” he said.

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The Immigration and Nationality Act “is of the president’s power not to enforce the clear on what constitutes a specialty law. occupation,” the type of job covered by the H-1B guestworker visa, Leopold said. The president “possesses a significant degree Instead of following that law, the of prosecutorial discretion not to take administration is “making it up as they go enforcement actions against violators of a along,” he said. federal law,” he wrote. In fact, because of separation of powers concerns, “Congress “Brett Kavanaugh is a superb choice to fill may not mandate that the President prosecute the current vacancy in the U.S. Supreme a certain kind of offense or offender,” Court,” Federation for American Kavanaugh said. Immigration Reform President Dan Stein said in a July 10 statement. “President Trump Johnson said it’s “very hard to tell” how should be commended for choosing a Kavanaugh would rule on the DACA issues. candidate who clearly understands the Considering that the Supreme Court tied 4-4 nation’s patchwork of immigration laws and when it considered the challenge to the how they are intended to protect both Deferred Action for Parents of Americans American workers and the overarching and Lawful Permanent Residents program, national interest,” he said. Kavanaugh could very well be the swing vote one way or another, he said. FAIR advocates for lower immigration levels. “The first question that comes to mind is where is he going to be on prosecutorial Pro-DACA? discretion,” Leopold said. Kavanaugh’s viewpoint in this area doesn’t just affect “With important immigration-related DACA, it “affects business immigration as decisions heading to the Supreme Court— well,” he said. including the challenge to the Obama-era Deferred Action for Childhood Arrivals ‘Tremendous Discretion’ (DACA)—Judge Kavanaugh will provide expert insight into the legality of the program The Immigration and Nationality Act gives and the ability of future administrations to “tremendous discretion to the executive,” circumvent Congress and create tailored Leopold said. amnesty programs for large groups of illegal That was the view of the sitting justices in the aliens,” Stein said. recent case involving the president’s travel But Kavanaugh’s views of the executive’s ban, which turned on the president’s authority may in fact result in a ruling in authority under the INA to block the entry of favor of DACA. certain immigrants.

In a 2013 decision involving nuclear waste “The court has a long history of deferring to storage, Kavanaugh took an expansive view the executive” when “it comes to national

422 security,” Leopold said. It’s possible that the Leopold said he thinks “the real challenge for justices may rule differently on immigration the justices” is “to set aside their political law questions involving employment, he opinions and not to permit politics into the said. courtroom.”

Johnson agreed, especially when it comes to “The hope is we have intellectual honesty,” Kavanaugh. “He might be more deferential to he said. the executive” in a case involving national security than in a “run-of-the-mill” immigration case, Johnson said.

423

“Judge’s Ruling Isn’t Going to Save the Dreamers”

Bloomberg

Noah Feldman

January 10, 2018

A federal judge in California on executive agencies and be sure their actions Tuesday blocked President Donald are based on reasoned policy logic. But Trump from rescinding the Deferred Action the law makes an exception for any decision for Childhood Arrivals program, which he that is “committed to agency discretion by had planned to phase out in March. The law.” impulse to protect the so-called Dreamers is admirable. But legally speaking, the opinion The original DACA order was based on the can’t be correct. If President Barack Obama president’s discretionary authority to decide had the legal authority to use his discretion to how to enforce federal immigration law. create DACA in the first place -- itself a close Recall that Dreamers have no statutory right legal question -- Trump must have the legal to be in the country -- they are the children of authority to reverse DACA on the ground that undocumented immigrants. DACA was, he considers it to have exceeded Obama’s formally speaking, an announced powers. discretionary decision by the executive branch not to deport Dreamers. District Judge William H. Alsup’s ruling was based on a provision of the Administrative In court, the Trump administration argued Procedure Act that says executive agency that if DACA was itself an exercise of actions must not be arbitrary and capricious. discretion, the decision to revoke DACA The court held that it was arbitrary for must similarly be an exercise of discretion Trump’s Department of Homeland Security and not subject to review under the to rescind DACA. It reasoned that because Administrative Procedure Act. In other DACA was legal, Homeland Security could words, the courts have no business telling the not rescind it for being illegal. president that he cannot reverse a discretionary decision by a previous This logic may sound plausible. But it runs president. into multiple legal problems. The federal judge rejected this argument by The first has to do with applying the arbitrary saying that while the decision not to deport and capricious standard to DACA in the first was indeed discretionary and not subject to place. The Administrative Procedure Act review, the decision to deport was not functions so that the courts can supervise discretionary in the same way. It added that

424 there was further reason to review Homeland The federal district court in California Security’s move because DACA had invited disagreed. It said that DACA was legal in the Dreamers “out of the shadows” and reversing first place, and that the Supreme Court never the program would subject them to said otherwise. It concluded that ending consequences that would infringe on the DACA “was based on the flawed legal liberty and property interests created by the premise that the agency lacked authority to original order. implement DACA.” And it rejected the notion that it was up to the executive branch There’s something appealing about this to decide whether to defend DACA in court, argument. Certainly prosecuting or deporting especially in the 5th Circuit where it is someone is active in the way that deciding not arguably illegal under the precedent of the to do so is not. Yet it’s difficult to accept that DAPA program. once the government decides not to prosecute or deport someone, it must then justify the This analysis cannot be correct. One decision to change its mind. The asymmetry presidential administration is entitled to isn’t especially consistent with general disagree with the legal analysis of another. principles of administrative law. What’s more, the president has the right to The second significant legal problem with the interpret the Constitution when it comes to California court’s decision is its assertion that the legality of his own actions. He doesn’t it was arbitrary and capricious for Homeland have to wait for a court to tell him something Security to rescind DACA. is illegal. He can judge for himself.

The main basis the government gave for And the legal judgment that DACA exceeds ending DACA was that it was illegal when presidential authority certainly isn’t arbitrary Obama enacted in the first place -- it or capricious. A federal court of appeals and exceeded his constitutional authority. This four Supreme Court justices have already was essentially the view taken by the federal said DAPA was. If it weren’t for Scalia’s district court in Texas that froze the Deferred death, it’s highly probable that the majority Action for Parents of Americans plan that of the justices would have taken that view. was DACA’s twin sibling, allowing the And it seems even more likely that Gorsuch undocumented parents of citizen children to would now provide the deciding fifth vote to stay in the country. The U.S. Court of say DACA is unconstitutional. Appeals for the 5th Circuit agreed. The U.S. Supreme Court split 4-4 on the issue after Trump’s Department of Homeland Security Justice Antonin Scalia’s death and before can’t have been acting arbitrarily because its Trump named Justice Neil Gorsuch to the judgment aligns with these authorities. court. The California judge cited Trump’s pro- DACA tweets as evidence that continuing the

425 program serves the public interest. That’s I deeply hope some version of DACA is cute, but misleading. Trump is calling for signed into law. But this judicial decision congressional legislation to continue DACA, isn’t going to save the Dreamers, no matter not for executive action. how well-intentioned it might be.

426

“A Judge Supports Dreamers and the Rule of Law”

Bloomberg

Cass R. Sunstein

January 16, 2018

The White House was quick to condemn a Though Democrats might celebrate, that’s a federal judge’s decision last week striking horrible idea. The executive branch can’t down the Trump administration’s efforts to simply assert that the decisions of its terminate the Deferred Action for Childhood predecessor were “illegal.” It has to justify Arrivals program. It called the ruling that conclusion. If it isn’t able to do that, it “outrageous,” and President Donald Trump must come up with better grounds for tweeted that it shows “how broken and unfair changing course. our court system is.” In a nutshell, that’s what Judge William But the judge’s decision to invalidate the Alsup told the Trump administration last program’s termination, and thus to protect week in his DACA decision. young immigrants who were brought to the U.S. illegally as children, was not As the judge explained, “DACA grew out of outrageous. Strictly as a matter of law, it was a long agency history of discretionary relief eminently reasonable — whatever Congress programs,” going back to the Dwight does or does not do in the coming days and Eisenhower administration and including weeks. major initiatives under Presidents Ronald Reagan and George H.W. Bush. Such To begin to understand why, imagine that in “programs had become a well-accepted 2021, a Democratic president — say, Bernie feature of the executive’s enforcement of our Sanders — starts repealing dozens of immigration laws, recognized as such by regulations issued during the Trump Congress and the Supreme Court,” Alsup administration, on the ground that the new wrote. attorney general believes those regulations are “illegal.” When it adopted the current DACA program in 2012, the Barack Obama administration said that the young people seeking to qualify

427 for its protections had to meet certain general was right to conclude that DACA was criteria. They had to have come to the U.S. illegal. before the age of 16, and they had to have resided continuously in the country for at The judge thought not. He said that “each least five years. They also had to have been feature of the DACA program is anchored in enrolled in school, and graduated from high authority granted or recognized by Congress school or obtained a GED, or been honorably or the Supreme Court.” In his view, the discharged from the U.S. military or Coast executive branch is perfectly entitled to Guard. And they could not pose a threat to conclude that DACA enrollees are low- national security or public safety. More than priority cases for removal and to direct its 650,000 young people residing in the U.S. enforcement priorities elsewhere. meet these standards. The Trump administration’s strongest Those who qualify under the DACA program response pointed to a 2014 appeals court are not to be detained or removed for two ruling, striking down a related Obama years from the time that they successfully administration program that protected the apply for its protections (unless they do parents of lawful permanent residents from something wrong). They can also obtain deportation. If that program is invalid, it Social Security numbers and receive could be argued that DACA is invalid, too. authorization to work. That’s not a crazy argument. But as Judge In September 2017, Attorney General Jeff Alsup emphasized, the DACA program is Sessions wrote a short letter to the acting quite different. Focusing specifically on secretary of Homeland Security, stating that children, it is more limited than the program the program was an “unconstitutional covering immigrant parents, and it builds exercise of authority by the Executive more incrementally on longstanding Branch.” Because it offered no serious practices; it stands on firmer legal ground. analysis of why that was the case, the letter was a shoddy document from a Importantly, the judge did not rule out the legal point of view. But the next day, Acting possibility that in the future the Trump Secretary Elaine Duke, referring to the letter, administration might be able to defend a rescinded DACA. decision to rescind the program. Agencies are perfectly entitled to change course, so long as In invalidating this rescission, Judge Alsup they offer a reasoned explanation for doing applied a well-established principle, widely so. ignored even by expert commentators: An agency’s action must be upheld or Perhaps the government could explain that invalidated only on the basis of the specific the program does not fit with the Trump reasons the agency itself has given. So the administration’s overall immigration only question was whether the attorney strategy, because the protection it affords is

428 too broad and categorical. The problem is officials must give reasons for their that it never made that argument. decisions.

A broader principle is at stake. A central They cannot simply assert their power or distinction between authoritarian and non- their will. In insisting on reason-giving, authoritarian systems is that in the latter, Judge Alsup’s ruling keeps faith with the best executive officials have an obligation to obey traditions of our legal system — and the rule the law. An equally central distinction is that of law.

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Sanctuary Cities

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“Full appeals court to hear case on injunction against Trump sanctuary policies”

Politico

Josh Gerstein

June 4, 2018

The full bench of the federal appeals court based in Chicago has agreed to consider There is no reason to expect the judges will whether a District Court judge went too far in vote along party lines, however. All three imposing a nationwide ban against judges who voted earlier this year to uphold enforcement of Trump administration the ruling in Chicago’s favor, including the policies seeking to block so-called sanctuary one who said he would narrow it, are cities from receiving Justice Department Republican appointees. grants. The April ruling rejected efforts by the In April, a three-judge panel of the 7th U.S. Justice Department to impose new grant Circuit Court of Appeals upheld the conditions requiring that cities, counties and nationwide inunction that the city of Chicago states cooperate with immigration obtained against the policy. However, one enforcement efforts in order to get so-called judge, Daniel Manion, said he would have Byrne Justice Assistance Grants. narrowed the injunction to protect only Chicago. In a strongly worded opinion, Judge Ilana Rovner said that allowing federal agencies to Attorney General Jeff Sessions, who has add conditions to grant funds without explicit railed against nationwide injunctions as a congressional authority could lead toward power grab by the judiciary, asked the entire “tyranny.” bench of the 7th Circuit to rein in the injunction. On Monday, the court said in an “The Attorney General in this case used the order that a majority of its active judges had sword of federal funding to conscript state voted to consider doing just that. and local authorities to aid in federal civil immigration enforcement,” Rovner wrote, in The en banc court could consist of as many an opinion joined by Judge William Bauer. as 13 judges: the court’s 11 active judges plus “But the power of the purse rests with the two senior judges on the original ruling. Congress, which authorized the federal funds The overall set of judges leans heavily in the at issue and did not impose any immigration Republican direction, with 11 GOP enforcement conditions on the receipt of such appointees and two Democratic appointees. funds. It falls to us, the judiciary, as the

431 remaining branch of the government, to act as explicitly endorsed the nationwide element of a check on such usurpation of power.” the ruling.

The narrower dispute going before the full Judges and activists on the right and left have bench of the 7th Circuit will solely involve defended the nationwide injunction practice whether U.S. District Court Judge Harry as appropriate in at least some cases, in order Leinenweber, based in Chicago, was right to to prevent disparate treatment in different apply his ruling nationwide, even though the parts of the country, particularly in city was the only plaintiff in the suit before immigration-related cases. him. The Supreme Court has never issued a In a speech last year, Sessions slammed what detailed opinion on the validity of nationwide he called the “activist” practice of judges injunctions, but one expert said there was issuing nationwide injunctions purporting to some chance the grant-related dispute could bind federal officials across the country and wind up getting the justices to square up to sometimes around the globe. the issue.

“Forgive me for feeling strongly about this,” “If the Supreme Court does not reach the the attorney general said at the time. “Today, scope of the injunction in the travel ban case, more and more judges are issuing nationwide this is the most likely vehicle for the question injunctions and in effect single judges … are to reach the Court,” UCLA law professor making themselves superlegislators for the Sam Bray said in an email, referring to the entire United States. … A single judge’s president’s disputed executive order banning decision can enjoin the entire federal entry into the United States by nationals of government from acting. It’s an extreme step. several countries, most of them majority- Too often, district court judges are doing it Muslim. “The Seventh Circuit’s decision to without following the law.” rehear en banc suggests growing judicial concern about national injunctions.” Sessions has repeatedly complained that the Trump administration has been swamped Even if the 7th Circuit lifts the nationwide with such injunctions, but he has injunction in the case about grants to cities acknowledged that they began to pick up with sanctuary policies, the Trump under President Barack Obama. At least one administration policies may still not take such order, a Texas federal judge’s 2015 effect. That’s because another federal judge, injunction blocking Obama’s expansion of based in San Francisco, also blocked the protection for certain illegal immigrants, won policies nationwide. His order is on appeal to praise from Sessions while he was a senator. the 9th Circuit. However, it’s unclear whether he ever

432

“Sanctuary cities as the next nationwide injunction test case”

SCOTUS Blog

Steve Vladeck

June 19, 2018

However the Supreme Court decides the The U.S. District Court for the Northern travel ban case in the next 10 days, it may District of Illinois agreed with the city with well avoid taking a position on one of the respect to two of the three challenged numerous issues raised in that litigation — conditions — the “notice” condition, which whether the district court in Trump v. requires advance notice to federal authorities Hawaii lacked the authority to issue a of the release date of persons in state or local nationwide injunction. But the justices may custody who are believed to be noncitizens, not be able to duck the broader debate over and the “access” condition, which requires the propriety of nationwide injunctions for local correctional facilities to provide access much longer, thanks to an unusual to federal agents to meet with those persons. application for a “partial” stay filed by Both of those conditions, the district court Solicitor General Noel Francisco on Monday ruled, could not be traced to any statutory in Sessions v. City of Chicago. authority, and therefore exceeded the attorney general’s authority to impose The City of Chicago case is one of several unilaterally. And because of considerations pending challenges to actions taken by the district court deemed unique to Attorney General Jeff Sessions under immigration law, not only did Judge Harry Executive Order 13,768, which provides that Leinenweber enjoin the attorney general certain “sanctuary jurisdictions” that refused from continued enforcement of the to comply with some immigration conditions against the city of Chicago, but he enforcement measures would not be “eligible issued the injunction on a nationwide basis. to receive Federal grants, except as deemed necessary for law enforcement purposes” by After refusing to stay the injunction pending the attorney general or secretary of appeal, a three-judge panel of the U.S. Court Homeland Security. As relevant here, the city of Appeals for the 7th Circuit affirmed in of Chicago sued challenging conditions that April 2018, unanimously concluding that no the attorney general subsequently imposed statute granted the attorney general the under the executive order on receipt of funds authority to impose the “notice” and “access” under the Edward Byrne Memorial Justice conditions. As for the nationwide scope of Assistance Grant Program, claiming that they the district court’s injunction, a majority of were both unlawful and unconstitutional. the 7th Circuit panel stressed that

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“nationwide injunctions should be utilized Given the full 7th Circuit’s refusal to rule only in rare circumstances,” but concluded immediately on the stay application, the that the city’s suit was one such solicitor general on Monday filed an circumstance, because “[t]he case presents application for a partial stay directly with essentially a facial challenge to a policy Justice Elena Kagan, in her capacity as applied nationwide, the balance of equities Circuit Justice for the 7th Circuit. The favors nationwide relief, and the format of the application asks Kagan to stay the nationwide Byrne JAG grant itself renders individual scope of the district court’s injunction relief ineffective to provide full relief.” Judge pending the en banc 7th Circuit’s disposition Daniel Manion dissented only with respect to of the government’s petition for rehearing — the nationwide nature of the injunction. As he which looks like it will be argued later this wrote, “Other jurisdictions that do not want summer — and, “if necessary, pending the to comply with the Notice and Access filing and disposition of a petition for a writ conditions were not parties to this suit, and of certiorari and further proceedings in this there is no need to protect them in order to Court.” Later on Monday, Kagan ordered a protect Chicago.” response to the application — by 5:00 p.m. on Wednesday, June 27 (by which point the The government sought en banc rehearing of Supreme Court may well have decided the the panel decision only with respect to the travel-ban case). nationwide scope of the injunction, and a stay of that aspect of the injunction (but not the Thus, although the government is not injunction itself) pending disposition of its challenging the substance of the district petition. On June 4, the 7th Circuit granted court’s injunction, it appears willing to use rehearing en banc “only as to the geographic that injunction as a vehicle to challenge the scope of the preliminary injunction entered propriety of nationwide injunctions more by the district court,” but deferred the generally — perhaps more so than in the government’s request for a ruling on its travel ban or DACA litigation. Whether the application for a stay until the Supreme Court justices are interested in such a challenge decided the travel ban case, which “may (especially in a case in which the government facilitate our disposition of the pending may be all-but conceding the weakness of its motions.” position on the merits) remains to be seen.

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“Judge: Trump overstepped in sanctuary city order”

Boston Herald

Kimberly Atkins

August 2, 2018

The battle between the Trump administration Other cases out of Philadelphia and Chicago and so-called “sanctuary cities” appears are also making their way through the courts bound for the U.S. Supreme Court after a and are likely bound for the U.S. Supreme federal appeals court declared Court — particularly if any appellate court unconstitutional the president’s executive rules in the administration’s favor, creating a order stripping funding from localities that circuit split. don’t cooperate with federal immigration authorities. Opponents of the order declared victory, as supporters said it still leaves the door open for The ruling was a mixed bag for the Trump Congress and the White House to take other administration, striking down the order while steps to press states and local governments to also lifting the nationwide ban against its cooperate with federal immigration implementation. authorities.

But 9th Circuit Court of Appeals Judge “Put simply, the president cannot use the Sidney R. Thomas held in the 2-1 ruling that threat of defunding as a weapon to force local Trump overstepped his constitutional governments to abandon politics that make authority, reasoning that only Congress has their communities safer,” said Santa Clara the power to grant or deny funding — a County, Calif., Counsel James R. Williams. power the president cannot circumvent. Jessica M. Vaughan of the Center for “Here, the Administration has not even Immigration Studies, which supports attempted to show that Congress authorized Trump’s order, said that it was good policy it to withdraw federal grant moneys from regardless of the court’s constitutional jurisdictions that do not agree with the reasoning — and said other courts, including current Administration’s immigration the Supreme Court, could see it differently. strategies,” Thomas wrote. “Nor could it. In fact, Congress has frequently considered and “What would be better is for Congress to thus far rejected legislation accomplishing clarify,” Vaughan said. “But Congress can’t the goals of the Executive Order.” get out of its own way on anything, especially immigration-related matters.”

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The vacancy on the high court, left by Justice Senate Judiciary Committee for a hearing Anthony Kennedy’s retirement this week, until September, committee chairman Chuck could delay a move by the justices to take up Grassley (R-Iowa) said yesterday. That the case to avoid a potential 4-4 deadlock. would put a vote on his confirmation some time in October — after the court’s new term Trump’s nominee to replace Kennedy, Judge has already commenced. Brett Kavanaugh, likely won’t go before the

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Affordable Care Act

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“Trump administration won’t defend ACA in case brought by GOP states”

The Washington Post

Amy Goldstein

June 7, 2018

The Trump administration said Thursday The bold swipe at the ACA, a Republican night that it will not defend the Affordable whipping post since its 2010 passage, does Care Act against the latest legal challenge to not immediately affect any of its provisions. its constitutionality — a dramatic break from But it puts the law on far more wobbly legal the executive branch’s tradition of arguing to footing in the case, which is being heard by a uphold existing statutes and a land mine for GOP-appointed judge who has in other recent health insurance changes the ACA brought cases ruled against more minor aspects. about. The administration does not go as far as the In a brief filed in a Texas federal court and an Texas attorney general and his counterparts. accompanying letter to the House and Senate In their suit, lodged in February in the U.S. leaders of both parties, the Justice District Court for the Northern District of Department agrees in large part with the 20 Texas, they argue that the entire law is now Republican-led states that brought the suit. invalid. They contend that the ACA provision requiring most Americans to carry health By contrast, the Justice brief and letter say insurance soon will no longer be many other aspects of the law can survive constitutional and that, as a result, consumer because they can be considered legally insurance protections under the law will not distinct from the insurance mandate and such be valid, either. consumer protections as a ban on charging more or refusing coverage to people with The three-page letter from Attorney General preexisting medical conditions. Jeff Sessions begins by saying that Justice adopted its position “with the approval of the A group of 17 Democratic-led states that President of the United States.” The letter have won standing in the case also filed a acknowledges that the decision not to defend brief on Thursday night arguing for the an existing law deviates from history but ACA’s preservation. contends that it is not unprecedented. While the case has to play out from here, the

administration’s striking position raises the

438 possibility that major parts of the law could University of Michigan law professor be struck down — a year after the Republican Nicholas Bagley, another ACA defender, Congress failed at attempts to repeal core went even further in a blog post. “If the provisions. Justice Department can just throw in the towel whenever a law is challenged in court, In an unusual filing just before 6 p.m. it can effectively pick and choose which laws Thursday, when the brief was due, the three should remain on the books,” he wrote. career Justice attorneys involved in the case “That’s not a rule of law I recognize. That’s — Joel McElvain, Eric Beckenhauer and a rule by whim. And it scares me.” Rebecca Kopplin — withdrew. Crusading against the ACA has been a The department’s argument, if adopted by priority of Trump’s since his campaign for U.S. District Judge Reed O’Connor, “would the White House. On his first night in office, be breathtaking in its effect,’ said Timothy Trump issued an executive order, directing Jost, a retired Washington and Lee law federal agencies to lighten the regulatory professor who follows such litigation closely. burden placed by the law. Last October, the “Of all of the actions the Trump president unilaterally ended a significant part administration has taken to undermine of the law that cushions insurers financially individual insurance markets, this may be the from an obligation to give discounts to most destabilizing. . . . [If] I’m an insurer, I decrease out-of-pocket costs to lower-income don’t know what I am supposed to do or not.” customers with ACA coverage.

Jost, an ACA supporter, noted that the More recently, the White House and administration’s decision not to defend the Department of Health and Human Services law comes during the season when have been working to make it easier for participating insurers must file their rates for consumers to buy relatively inexpensive next year with state regulators. It raises new health plans that exclude some of the benefits questions about whether insurers still will be the ACA requires. required to charge the same prices to all customers, healthy or sick. The new challenge comes six years after the Supreme Court’s divided ruling that the ACA And Topher Spiro, vice president of health is constitutional. That ruling hinged on the policy at the liberal Center for American reasoning that, while the government “does Progress, said the administration’s legal not have the power to order people to buy argument contradicts promises by Trump that health insurance,” as Chief Justice John G. he would not tamper with the ACA’s Roberts Jr. wrote for the majority, it “does protections for people with preexisting have the power to impose a tax on those medical conditions. without health insurance.”

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The case in Texas, which has attracted relatively little notice until now, emerges But the administration disagrees with that from the massive tax bill Congress passed position. Instead, Justice officials argue in late last year. In that, lawmakers decided to their brief that the ACA’s insurance eliminate the tax penalty the ACA requires requirement will not become unconstitutional people to pay if they flout the insurance until January, so that “the injury imposed by mandate. The enforcement of that the individual mandate is not sufficiently requirement will end in January. imminent” and that the judge could issue a final ruling in the case before then. As a result, the Texas lawsuit contends, “the country is left with an individual mandate to O’Connor, who is hearing the suit, was buy health insurance that lacks any appointed by President George W. Bush and constitutional basis. . . . Once the heart of the has ruled against the ACA in other cases the ACA — the individual mandate — is past few years. declared unconstitutional, the remainder of the ACA must also fall.” Until Thursday’s filing, the Trump administration had not indicated its position Texas and the accompanying states have on either this latest lawsuit or the Republican asked for a preliminary injunction that could states’ effort to block the law while the case suspend the entire law while the case plays moved along. out in court.

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“Trump’s Sabotage of Obamacare Is Illegal”

New York Times

Nicholas Bagley and Abbe R. Gluck

August 14, 2018

From the moment he took office, President part of the Affordable Care Act that they Trump has used all aspects of his executive could. That order has prompted a series of power to sabotage the Affordable Care Act. administrative actions aimed at undermining He has issued executive orders, directed the law. agencies to come up with new rules and used the public platform of the presidency in a To make it harder for people to enroll in blatant attempt to undermine the law. Indeed, Obamacare plans, for example, the he has repeatedly bragged about doing so, administration shortened the open enrollment making statements like, “Essentially, we are period on the health care exchanges from getting rid of Obamacare.” three months to six weeks; cut 90 percent of the funding that the exchanges had used to But Mr. Trump isn’t a king; he doesn’t have advertise open enrollment; and slashed the the power to dispense with laws he dislikes. funding available to groups that help people He swore to preserve, protect and defend the navigate the complex enrollment process. Constitution of the United States. That includes the requirement, set forth in Article To sow chaos in the insurance markets, Mr. II, that the president “take care that the laws Trump toyed for nine months with the idea of be faithfully executed.” eliminating a crucial funding stream for Obamacare known as cost-sharing payments. Faithfully executing the laws requires the After he cut off those funds, he boasted that president to act reasonably and in good faith. Obamacare was “being dismantled.” It does not countenance the deliberate sabotage of an act of Congress. Put bluntly: When Congress declined to repeal the Mr. Trump’s assault on Obamacare is illegal. Affordable Care Act, as Mr. Trump had requested, he said that he was taking on that Among Mr. Trump’s first acts in office was job himself: “So we’re going a little different to issue an executive order instructing his route.” agencies “to waive, defer, grant exemptions from, or delay the implementation of” any

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This month, the Trump administration dealt Trump’s attempt to destroy the law any way what may be its biggest blow yet to the he can is an unconstitutional usurpation of insurance markets. In a new rule, it power. announced that insurers will have more latitude to sell “short-term” health plans that That is also the message of a lawsuit — the are exempt from the Affordable Care Act’s first of its kind — filed this month in federal rules. These plans were designed to provide court in Maryland. Brought by several people insurance for small gaps in coverage, plaintiffs including the cities of Chicago, like those created when switching jobs. They Cincinnati and Columbus, the lawsuit had previously been limited to three months. recounts the “relentless and unlawful campaign to sabotage and, ultimately, to Under Mr. Trump’s new rule, however, such nullify” the Affordable Care Act. Taken plans can last for 364 days and can be individually, some of the Trump renewed for up to three years. That rule joins administration’s actions may be defensible. an earlier one that allowed businesses to join Taken together, they amount to a derogation together to create “association health plans” of his constitutional duties. that also evade the Affordable Care Act’s strictures. In effect, these rules are creating a The lawsuit asks the court to strike down the cheap form of “junk” coverage that does not administration’s new rules and to enjoin the have to meet the higher standards of president from further sabotage. To prevail, Obamacare. This sort of splintering of the the plaintiffs may have to overcome some insurance markets is not allowed under the procedural hurdles, including questions about Affordable Care Act as Congress drafted it. whether the courts have the authority or the institutional competence to prevent The Trump administration’s goal is not only violations of Article II’s requirement that the to weaken the Affordable Care Act but also president “take care that the laws be faithfully to trick the public into thinking, as opponents executed” — especially given the wide of the law like to say, that Obamacare is discretion that presidents traditionally have to “collapsing under its own weight.” Let’s be implement the laws. clear: If the Affordable Care Act collapses, it is because the president demolished it. But if there is ever going to be a viable claim along these lines, this is it. After all, no court Never in modern American history has a has ever held that the president has the power president so transparently aimed to destroy a to consciously aim, in bad faith, to destroy piece of major legislation. What makes Mr. Congress’ handiwork. Yet with his attacks on Trump’s sabotage especially undemocratic is this law, that is precisely what Mr. Trump has that Congress has repeatedly considered been doing. No matter how you feel about repealing the law — and repeatedly declined Obamacare, we should all care about that. to do so. In addition, the Supreme Court has twice sustained the Affordable Care Act in the face of major legal challenges. Mr.

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