Notice & Comment

Ninth Circuit Review-Reviewed: Whither the Bend of Law’s Arc 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.

April Was the Cruelest Month (for Law’s Abnegation)

Does law’s arc bend steadily toward deference? Or does law invariably bend the knee to value preferences? These questions animate this section. 

In late 2016, Prof. Adrian Vermeule published Law’s Abnegation, about as blockbuster a book as is possible on the subject of administrative law. Broadly, Vermeule argues that courts and legal professionals (“the law”) willingly play second-fiddle to agencies when it comes to administrative policymaking (that’s the “abnegation” part).  

As a practical matter, abnegation entails the inexorable advance of judicial deference to agency decisions—particularly in areas historically understood to fall within “the law’s” wheelhouse, such as statutory interpretation and constitutional due process. 

Why has law allegedly abnegated? According to Vermeule, courts came to appreciate that agencies are comparatively expert regarding the technical minutiae and resource constraints attendant to the administration of complex enabling acts. On administrative law, judges realized they bring little to the table. 

Or so Vermeule argues. 

Subsequent history comports poorly with his sweeping claims. Last year, for example, was an annus horribilis for the book’s thesis: 

  • In 2019’s biggest administrative law case, Kisor v. Wilkie, the Supreme Court “maimed and enfeebled” a major deference doctrine. 
  • In the year’s other big controversy over administrative procedure, Azar v. Allina, the Court rejected the Department of Health & Human Services’s statutory and policy arguments. 
  • In BNSF Railway Co. v. Loos, Justice Gorsuch mocked the parties’ evident reluctance to employ Chevrondeference, “if it retains any force.”
  • Finally, in Gundy v. U.S., a critical mass of Justices expressed a willingness to revisit the nondelegation doctrine. 

During the time I’ve been writing these posts about the Ninth Circuit, I’ve observed a similar and sustained departure from Vermeule’s argument. Last month, the book’s break with reality was acute. 

Consider the court’s mandamus order in In re NRDC, a case that seems tailor-made for law’s abnegation. It involved technical subject matter and procedural decisions about the allocation of limited agency resources. Faced with a petition to pull a pesticide (“tetrachlorvinphos”) from the shelves—a discretionary action—the Environmental Protection Agency argued that competing nondiscretionary priorities precluded a final response until next year. Rejecting such “appeals to administrative efficiency,” CA9 concluded that EPA’s inaction “endanger[ed] the wellbeing of millions of children.” Thus, the court ordered the agency to respond and effectively dictated the terms of the compelled response. 

Although mandamus is an extraordinary remedy, this is the fourth time over the last five years that CA9 has resorted to the writ to force EPA’s hand. As the panel noted, the other three cases involved “circumstances materially similar” to those at issue in In re NRDC—that is, all were ideally suited for deference under the principles set forth in Law’s Abnegation.

Next, let’s turn to due process. In a world where law abnegates, courts don’t perform an independent analysis of whether an agency’s administrative procedures pass constitutional muster. Instead, judges are supposed to defer to the agency’s (minimally rational) construction of statutory and constitutional thresholds. Last month, however, CA9 twice demonstrated the opposite approach. 

In Zerezghi v. Citizenship & Immigration Services, the court addressed agency procedures to determine marriage fraud, a severe yet underdeveloped sanction in immigration statutes. Through regulatory interpretation, the CIS construed its burden in administrative proceedings to be something less than a preponderance of the evidence. Yet the Zerezghi panel dismissed the agency’s interpretation. After an independent assessment, the court concluded that “the Constitution requires at least a preponderance of the evidence.” 

A week earlier, in Aleman Gonzalez v. Barr, a split panel employed similar constitutional logic when it upheld a preliminary injunction requiring the CIS to provide a class of alien detainees with individualized bond hearings. In rejecting the government’s policy arguments, CA9 determined that constitutional procedural due process required the government to bear a “clear and convincing” burden of proof. 

Again, these decisions were not cherrypicked. April was indicative of the Ninth Circuit’s jurisprudence during the 18 months I’ve been following the court. IndeedI’ve blogged many other examples of the court conspicuously countering the tenets of Law’s Abnegation.  

So, what’s actually going on here? 

I suspect law’s arc doesn’t bend in any one direction, but instead twists about under utterly prosaic pressures. To be concrete, I think President Trump appointed two anti-administrativist Justices, which predictably influenced the Supreme Court in the manner described in the bullet points above. 

And, as I see it, Trump also is bending law’s arc in CA9, albeit in an altogether different manner—there, I think we’re witnessing a reaction to Trump’s substance and demeanor. 

Homeostatic Remedies for a “Broken” Court

In the lead section of last month’s post, I speculated that CA9 is “broken.” As evidence, I pointed to a steady stream of indignant or incredulous dissenting opinions, which I took to be a proxy for discord on the Ninth’s bench. A divided court, I argued, cannot stand. 

Since then, alas, the court continued this trend with at least two more testy exchanges. 

About a week ago, in Doe #1 v. Trump, Judge Daniel Bress bemoaned that the majority’s “grave” errors reflect a “bad day for the rule of law.” Only days before, in Cedar Point Nursery v. Shiroma, seven active judges joined Judge Sandra Ikuta’s dissent to a denial of full court review, in which she admonished that, “[w]e should have taken this case en banc so that the Supreme Court will not have to correct us again.” 

That’s the bad news. Here’s the good news: Since last month’s post, I’ve benefitted from two informed perspectives that mitigate my concerns. 

A Ninth Circuit scholar reached out to discuss the post, and he observed that many of the dissenting opinions are written by new judges. He further explained that new judges start with a lighter workload relative to their peers. His point was that new judges will have less time to pen forceful dissents when they ramp up to a full workload. This makes perfect sense to me! 

In a different conversation, another scholar mentioned that the D.C. Circuit formerly suffered from internal conflict among judges on her bench. Today, by contrast, that court is known as a place where judges get along to an unusual degree. According to this second scholar, CADC achieved its present state of sublime collegiality only after comity campaigns by Judges Harry Edwards and Douglas Ginsberg. If relationships were to deteriorate in CA9, then I’m heartened to learn that a sister circuit has shown how a court can right its own ship. 

(N.B. I’m a deadline junkie, and I ran out of time to ask these scholars for permission to use their names. I’m thankful for their input!). 

Loophole through Appointments Clause for Article III Judges? 

Last month, CA6 Senior Circuit Judge Danny Boggs sat by designation before panels on both CA9 and CA11. That’s pretty cool, and it piqued my curiosity. 

Such inter-circuit assignments are a function of statute, and only the Chief Justice has the authority to designate (active and senior) judges to serve in courts outside their circuits. Interestingly, when Congress first advanced the concept of visiting judges, back in the mid-19th Century, the original bill empowered the president to make these designations. During debate in the Senate, lawmakers switched this delegation to the Chief Justice. Imagine if that power resided with the president today! To better understand the history behind visiting judges, see this fantastic California Law Reviewarticle by Prof. Marin Levy. 

Congress further authorized intra-circuit transfers. Here, the decision maker is a circuit’s chief judge, who “may designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires.” 

I’d not known any of this. Frankly, I’m shocked intra-circuit transfers aren’t more controversial. There’s an entire bureaucracy associated with inter-circuit transfers (the Judicial Conference Committee on Intercircuit Assignments). By contrast, intra-circuit transfers seem akin to a black box, at least on CA9—I couldn’t find any elaboration on the process among the court’s general orders (if I’ve missed something, please reach out to me and let me know!). 

Presidential appointment and Senate confirmation of circuit court judges is among the most divisive subjects in modern American politics and law. Yet the chief judge of any circuit may exercise an analogous function with similar effect, and no one seems to get worked up. That surprises me. 

William Yeatman is a research fellow at the Cato Institute  

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