Notice & Comment

Ninth Circuit Review-Reviewed: What Will Happen to Four Years’ Worth of Anti-Administrativist Jurisprudence in CA9?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business.

When Trump Is Gone, Will CA9 Start Abnegating?

If you’re an anti-administrativist, it’s been a great four years in CA9. During the Trump-era, the Ninth Circuit filled the Federal Reporter with orders and opinions that militate against administrative power.

Under black letter law, for example, an injunctive order prohibiting administrative action is an “extraordinary remedy”; nevertheless, such relief (preliminary & permanent) became routine in CA9. Mandamus relief is supposed to be rarer still, yet three times the court ordered the EPA to take affirmative action. More broadly, panels pushed the boundaries of standing to accommodate challenges against the Trump administration. 

Turning from civ pro to admin law, we see more of the same. Rulemaking exceptions narrowed, and deference waned. In particular, the APA’s review provisions underwent an extreme makeover, including: 

  • § 701(a)(2) (expanding judicial review of action committed to agency discretion)
  • § 701(b) (finding ways to review the president’s regulatory authority) 
  • § 702 (expanding waiver of sovereign immunity)
  • § 704 (broadening finality of agency action)
  • § 706 (pioneering pre-decisional, pretextual review of agency action)

For the last four years in CA9, we saw the opposite of “law’s abnegation”. What comes next?

We live, as then-professor Elena Kagan termed it, in a time of “presidential administration.” Sooner than later, Biden will reach for the “phone and pen” to achieve his agenda, just like all modern occupants of the Oval Office. 

So, what will happen to all this anti-administrativist jurisprudence currently on CA9’s books? Will these published opinions and orders get flushed down the memory hole? Or will Trump appointees make use of them? Or will it be some mix of both—largely depending on the draw of judges? I don’t know, but it’s something this blog will be following closely. Stay tuned. 

For Example . . .  

Last month, a split CA9 merits panel handed down an opinion in Sierra Club vs. Trump, a controversy which embodies much of what I discuss in the previous section. At issue was President Trump’s exercise of “emergency” statutory powers to fund a border wall. Without going into the details, trust me when I say this case is emblematic of CA9’s recent anti-administrativist jurisprudence (tenuous justiciability; preliminary injunctive action; etc.). 

Setting all that aside, allow me to draw your attention to the majority’s discussion of judicial oversight under the National Emergencies Act (NEA). With the NEA, Congress delegated “emergency” powers to the president. Here, we’re talking about a statutory regime that oozes deference to the political branches generally, and to the president in particular. Quite obviously, the NEA falls within Justice Jackson’s Youngstown category #1, where the president’s “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

The Sierra Club v. Trump majority, however, rejected such a deferential posture. According to the split panel, “judicial review of statutes conferring specific emergency powers to the President is critical.” Otherwise, the court “would undoubtedly have the effect of enlarging the President’s emergency powers.” Got that? The court says it must police the president’s statutory authority—even in areas that implicate Article II power—or else executive power will run amok. 

To be sure, I agree with the split panel! I bemoan the lack of judicial oversight of the president’s statutory powers. At the same time, I recognize that the panel’s reasoning falls way (way) outside the mainstream approach to judicial review in this context. Far from being an isolated case, moreover, Sierra Club v. Trump reflects the court’s antagonistic approach to “presidential administration” during the Trump era. 

Now, think ahead a few years down the road. Imagine that President Biden, after being denied by Congress, exercises the NEA to fight climate change, as demanded by progressive groups. Continuing with this hypothetical, imagine if conservative nonprofits and “red states” brought a legal challenge to the Biden administration’s use of the NEA for these purposes. Finally, let’s say this imaginary lawsuit was heard by a CA9 panel including the same two judges that comprised the majority in Sierra Club v. Trump (Chief Judge Thomas & Judge Wardlaw). Would they remain so bullish on justiciability and judicial oversight? 

How Many Different CA9 Panels Could Issue Published Opinions in One Controversy? 


That’s how many *different* CA9 panels could publish opinions in any one controversy: 

  1. Pre-merits panel to hear motion for an administrative stay
  2. Pre-merits panel to hear motion for an administrative stay pending appeal
  3. Merits panel
  4. En banc (11-judge)
  5. En banc (29-judge)

To my knowledge, the Ninth Circuit never has resorted to the fifth option—a 29-judge en banc bench. However, such review has become much more probable given the current composition of the court. For example, imagine a scenario whereby an 11-judge en banc panel drew a majority of Trump-appointees, who then issued an opinion opposed by the “liberal” majority (16-13) on the full court. Stay tuned. 

A Bit about Me

In the time I’ve been writing these posts, I’ve never formally introduced myself. I work on administrative law issues for the Cato Institute’s Robert A. Levy Center for Constitutional Studies. In this capacity, I participate in our amicus program and perform policy analysis. Below, I’ve listed some of our recent work that might be of interest to readers of this blog. 



William Yeatman is a research fellow at the Cato Institute

Print Friendly, PDF & Email