Friday, December 06, 2019

City & County of San Francisco v. USCIS (9th Cir. - Dec. 5, 2019)

It's a hot-button topic.  The Trump administration issued an executive order that bars people who have previously received non-cash public benefits (e.g., SNAP and Section 8) from immigrating.  That doesn't really affect people who seek to come to the U.S. from other countries; those people haven't typically gotten non-cash benefits, since they haven't even been here.  It instead primarily stops people who are in the U.S. (e.g., undocumented aliens) from legalizing their status, even if they're otherwise eligible.

The district court entered a preliminary injunction against the order.  The Ninth Circuit stays that injunction -- thereby letting the executive order go into effect -- in a split opinion.

Not surprisingly, the majority opinion is a long one.  Seventy-three pages long.  When you know something's high-profile, you're typically going to spell out your reasoning at length.

The other thing that's not surprising is how the case comes out.  In the majority are Judges Bybee and Ikuta.  Dissenting on the merits is Judge Owens.  This is exactly as one would have expected once the panel was drawn.

What's a little bit surprising is nonetheless the brevity of Judge Owens' dissent.  As I said, Judge Bybee's majority opinion is super long.  Yet I can quote Judge Owens' dissent in full; it's that short.  He says:  "While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted))."  Okay then.  I assume we'll see more once the merits are addressed (rather than merely the stay), but for now, that's all that Judge Owens feels the need to say.

What's only a little bit surprising is that Judge Bybee not only authors the majority opinion, but also a brief concurrence of his own.  As I've often said, Judge Bybee is often smart and insightful, and while I'm not a huge fan of concurring in one's own opinions, I think it sometimes makes sense, particularly in high-profile cases in which you want to make a specific or non-legal point.  So I was interested in Judge Bybee's particular take.  Was I particularly excited that he labeled his concurrence "BYBEE, Circuit Judge, concurring, perplexed and perturbed"?  No.  I was not.  Those types of labels aren't especially compelling to me.  Particularly when you're responding to your own opinion.  You won.  Being "perplexed and perturbed" seems especially unusual in such a setting.  There's no real need, in my mind, to add these adjectives.  They detract rather than add.

But whatever.  Go ahead.  It's just sort of a lame start to the thing.

I was more interested in two particular components of Judge Bybee's very short (five-page) self-concurrence.

Judge Bybee's central point therein is his reminder that things that you think might be political aren't always political.  That sometimes, including here, things are actually based on law, and aren't purely naked ideological preferences.

I thought that entirely appropriate, as well as beneficial.  Of course everyone's going to think that this decision is purely political.  You've got two extremely conservative Ninth Circuit judges, appointed by a Republican president, in the majority in an opinion that reaches a conservative political result on a hot-button topic (immigration), and a lefty judge appointed by a Democratic president dissenting.   It's not a surprise that people might -- indeed, assuredly will -- view this as a politically-based result.  So it makes perfect sense to me for the author of that opinion to confront the elephant in the room head on.  And to do so in a concurring opinion.  Good job.  That's at least an effort at transparency, and one that adds rather than detracts.

And Judge Bybee makes that argument concisely, which is another bonus.  Whether you find that claim persuasive, of course, is another matter.  But I'll leave that for others to decide.  All that I want to mention in that regard is the exceptionally narrow claim that Judge Bybee elects to make.  He goes out of this way to point out that a judge's political and ideological preferences don't uniformly map on to the legal outputs of that same judge.  He says:  "Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes."

The limited nature of that last line seems telling (and somewhat surprising) to me.  Judge Bybee merely says therein that the judges he knows can point to at least one opinion in their career that does not align with their political preference.  ("I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes.") (emphasis added)  Well, yeah.  I'm sure that's true.  But what an incredibly limited claim to make:  that in the hundreds or thousands of opinions one has written or joined, we can point to one that would not reflect a judge's naked political preference.  If that's the best defense one can make to the claim that judges decide cases politically, rather than legally, then that's fairly telling.  Particularly when articulated in a high-profile case that came out exactly on preexisting political lines.

Personally, I'd go further.  I honestly believe that judges routinely issue lots of opinions that are not in accord with their preferred policy objectives.  Not just one or two.  And would be happy to say so.

Do judges issue lots of opinions that are in accord with their preferences?  Of course.  Are those desires or pressures greater, perhaps, in high-profile cases on hot-button topics?  I suspect they are.  So I wouldn't make an overly strong (or absurd) claim that political preferences are meaningless, at least as a descriptive (as opposed to normative) matter.  There are tons of cases in which I think the correct legal result is X even though my ideological desire is Y.  That's what it means to engage in legal analysis rather than merely articulating (or justifying) one's political preference.

So I thought that Judge Bybee's defense in this regard was a little damning with faint praise.

The other thing that I thought was unusually soft was how Judge Bybee ended his concurrence.

After making several salient points about the non-ideological nature of judging etc., Judge Bybee concludes his concurrence with the following paragraph:

"By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up."

I get that point on multiple different levels.  For one thing, when you've written an opinion that will hack off a ton of people and will have them calling it unjustly political, it makes sense to blame someone else.  And who better to blame than a "feckless" Congress, one of the least trusted American institutions?  So as a matter of pure deflection, ending the concurrence that way makes sense.  Plus, Congress really does pass a lot of totally ambiguous (or confusing, or contradictory) statutes and leave it to the judiciary to "clean up the mess."  So, as a general matter, I get that point as well.

But, dude.  In this case, we're dealing with the validity of an executive order.  Something that the President did.  On his own.  That expressly went around Congress.  And that was promulgated only in August 2019, a mere four months ago.

What the heck does a swipe at Congress have to do with the validity of the executive order at issue here?!  If there's a problem with that order, it's a problem that was generated by the President, not Congress.  Full stop.  It's not that Congress left the judiciary with a mess to clean up.  It's that the presidential decision to bypass Congress made a potential mess.  The alleged ire seems to me to be directed at exactly the wrong party.

So when the concurrence says that Congress "left the table" here, it's me that's left "perplexed and perturbed."  What exactly did Judge Bybee want Congress to do here?  Instantly pass legislation that overruled the executive order?  Yeah, that's going to happen.  We have a split Congress, half of which (the Senate) is controlled by the President's party and who's likely in favor of the executive order at issue and the other half (the House) that goes the other way.  What the heck do you want a political institution of that nature to do here?  And let's say they did make it easy for the judiciary; say, both the House and Senate passed a bill that said that non-cash benefits couldn't be counted.  Do you have any doubt whatsoever about whether the President would veto such a bill?  A veto that no way gets overruled by two-thirds.

Whenever people complain about "Congress" not doing something, they constantly ignore the fact that Congress alone can do extraordinarily little, and that a failure to act is often the direct result of presidential obstruction and/or lack of initiative.  It generally takes the approval of Congress and the President to pass a statute.  Blaming the former while ignoring the latter is classically just a way of ignoring the role of the person you like while putting the onus on a diffuse body virtually no one respects.

And, again, we're dealing with an executive order here.  Whatever your views on executive power -- too strong, not strong enough, just about right -- whatever problems exist in the present case arose because the President exercised that power.  He was the one who not only "left the table" and told the judiciary to "clean up," but who excluded Congress from the table in the first place.  For the same reason Judge Bybee shouldn't blame me for any mess arising from a dinner at his house to which I was not invited, so too, in my mind, should Judge Bybee not blame Congress for any mess arising from an executive order that in no way, shape or form was the doing of Congress.

So I get the expression of frustration at Congress.  Both politically and on the merits.  But not here.  And, to me, it makes Judge Bybee's concurrence end with a whimper rather than a bang.  He saves the worst argument for the very end, and one that (in my mind) again detracts rather than adds.  At least as applied here.