doctrine

Opinion analysis: Justices leave agency deference doctrine in place – with limits (Updated)

June 26, 2019 by admin Leave a Comment

Editor’s Note: This post, originally published at 11:49 a.m., was expanded at 1:26 p.m.

A divided Supreme Court issued a major opinion on administrative law today. The justices declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” But in an opinion by Justice Elena Kagan, the court made clear that the doctrine has limits, and it will not apply in every scenario in which an agency is interpreting its own rules. That was not enough, however, for Justice Neil Gorsuch, who complained that today’s ruling had left the doctrine a “paper tiger” and warned that the court would almost certainly have to address the issue again soon.

Justice Kagan with opinion in Kisor v. Wilkie (Art Lien)

The Auer deference doctrine – named after the 1997 case Auer v. Robbins – is also sometimes called Seminole Rock deference, after the 1945 case Bowles v. Seminole Rock & Sand Co. It rests on the idea that agencies have more expertise in the subject covered by a law than courts do and are therefore better suited to interpret both gaps in a federal law and their own regulations. Supporters of the doctrine also believe that the doctrine provides predictability and consistency: Courts are more likely to uphold regulations, they say, because judges only have to determine whether the agency’s interpretation is reasonable, not whether it is the best interpretation. But opposition to the doctrine has grown in recent years, particularly among conservatives and business groups, who believe that it gave federal agencies too much power.

This high-stakes legal issue came to the Supreme Court in the fairly unremarkable case of James Kisor, a Vietnam veteran who applied for benefits for his post-traumatic-stress disorder. The Department of Veterans Affairs agreed with Kisor that he suffers from PTSD but rejected his request for benefits dating back to 1983. When Kisor appealed the VA’s decision to the U.S. Court of Appeals for the Federal Circuit, the court of appeals deferred to the VA’s interpretation of its own regulation and sided with the agency.

Last year Kisor asked the Supreme Court to weigh in, and today the Supreme Court gave him a partial victory. It declined to overrule the Auer doctrine, as he had asked, but it sent his case back to the Federal Circuit for it to take another look.

In her opinion for the court, Kagan stressed that courts should not reflexively defer to an agency’s interpretation of its own regulation. Instead, she explained, deference should be given only if the agency’s regulation is genuinely ambiguous. If it isn’t ambiguous, she continued, the “regulation then must means what it means—and the court must give it effect, as the court would any law.” And she suggested that courts must try hard to resolve any ambiguities that it thinks it sees in a regulation: She acknowledged that “regulations can sometimes make the eyes glaze over,” but emphasized that “hard interpretative conundrums, even relating to complex rules, can often be solved.”

Even when a regulation is genuinely ambiguous, Kagan continued, that is not enough for deference. First, she indicated, the agency’s interpretation must also be reasonable – which, she warned, is “a requirement an agency can fail.” And the interpretation must also reflect the agency’s official position in an area of its expertise. “The upshot of all this,” Kagan concluded, is that, when it applies, “Auer deference gives an agency significant leeway to say what its own rules mean.” “But,” she cautioned, “that phrase ‘when it applies’ is important—because it often doesn’t.”

Kagan added that the principle of stare decisis – the idea that courts should not overrule their prior cases unless there is a good reason to do so – weighs “strongly” against overruling the Auer doctrine. This is particularly true, she observed, because the doctrine isn’t just one case, but “a long line of precedents—each one reaffirming the rest and going back 75 years or more.” And overruling the doctrine now would inject “so much instability into so many areas of the law,” Kagan suggested, because Auer deference is so widespread.

And in any event, Kagan noted, because this is not a constitutional issue, Congress is free to pass a law that would overrule Auer. “Instead,” she observed, “for approaching a century, it has let our deference regime work side-by-side with” federal administrative laws “delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine.”

Having outlined these limits on Auer deference, the court sent Kisor’s case back to the Federal Circuit for it to take another look at whether the doctrine should apply there. Kagan suggested that the lower court both “jumped the gun in declaring the regulation ambiguous” and “assumed too fast that Auer deference should apply in the event of genuine ambiguity.”

Justice Neil Gorsuch agreed with the decision to send Kisor’s case back to the Federal Circuit, but he – in a ruling joined in full by Justice Clarence Thomas and in part by Justices Samuel Alito and Brett Kavanaugh – was sharply critical of the court’s decision not to overrule Auer, which he described as “more a stay of execution than a pardon.” He made clear that he would “stop this business of making up excuses for judges to abdicate their job of interpreting the law and simply allow the court of appeals to afford Mr. Kisor its best independent judgment of the law’s meaning.”

Gorsuch characterized the Auer doctrine as “really little more than an accident” that “began as an unexplained aside in a decision about emergency price controls at the height of the Second World War.” The doctrine “sat on the shelf, little noticed, for years,” Gorsuch continued, and only recently came into being as “the reflexive rule of deference to regulatory agencies we know today.”

The doctrine, Gorsuch suggested, is deeply flawed. Among other things, it conflicts with the obligations of courts under the Administrative Procedure Act, which “instructs reviewing courts to ‘decide all relevant questions of law’ and ‘set aside agency action’” that does not comply with the law, and it “sits uneasily with the Constitution,” which gives courts the power to interpret the laws.

It is not at all clear that the principle of stare decisis applies to Auer deference, Gorsuch posited, because the court is not “dealing with a precedent that purported to settle the meaning of a single statute or regulation or resolve a particular case.” Instead, Gorsuch reasoned, the Auer doctrine “claims to do much more than that—to prescribe an interpretative method governing every future dispute over the meaning of every regulation.” But even if the principle of stare decisis does apply, Gorsuch continued, there are still good reasons to overrule Auer, because it is flawed and has not provided a workable standard.

Chief Justice John Roberts agreed with the court’s decision not to overrule Auer and its discussion of the limits on Auer deference going forward. However, both Roberts and Justice Brett Kavanaugh (who, like Gorsuch, agreed only with the result in the case) wrote separately to emphasize that, although Kagan and Gorsuch disagree on whether to keep Auer in place, their approaches “should lead in most cases to the same general destination.” If, Kavanaugh wrote, a court tries hard to resolve any ambiguities in a statute, it “will almost always reach a conclusion about the best interpretation of the regulation at issue” and won’t need to defer to the agency’s interpretation. Roberts and Kavanaugh also took pains to make clear that today’s decision is limited to Auer deference and does not affect the doctrine known as Chevron deference, which generally requires courts to defer to an agency’s interpretation of ambiguous statutes enacted by Congress.

This post was originally published at Howe on the Court.

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Opinion analysis: Vagueness doctrine as a shield for criminal defendants

June 24, 2019 by admin Leave a Comment

Today, as expected, the Supreme Court invalidated 18 U.S.C. § 924(c)(3)(B). In United States v. Davis, the court declared that the categorical approach is dead, and with it Section 924(c)(3)(B). Justice Neil Gorsuch wrote the opinion for a 5-4 majority (joined by the four more liberal justices), and Justice Brett Kavanaugh wrote the dissent.

This case involved the constitutionality of a federal criminal statute — Section 924(c). Section 924(c) makes it a crime to use a firearm during or in relation to a crime of violence, and Section 924(c)(3)(B) (now defunct) defined a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In Sessions v. Dimaya, the Supreme Court held that the identical language was unconstitutionally vague when it appeared in Section 16(b), the general federal definition of a crime of violence. Today in Davis, the court said what is good for the goose is good for the gander: Section 924(c)(3)(B) is unconstitutionally vague as well.

In Davis, the federal government had agreed that Section 924(c)(3)(B), as currently interpreted, is unconstitutionally vague. Courts interpret Section 924(c) using the so-called categorical approach, which requires courts to assess whether the “typical version” of the defendant’s offense, defined by its elements, involves a substantial risk of force.

The government had urged the Supreme Court to kill the categorical approach in order to save Section 924(c). In its place, the government would have had courts assess whether the defendant’s actual conduct involved a substantial risk of force. Gorsuch’s majority opinion begins by conceding that a statute requiring an inquiry into the defendant’s actual conduct would not be unconstitutionally vague.

But, the majority continues, Section 924(c) is not that statute. Rather, after engaging in a straightforward exercise of statutory interpretation, the majority concludes that the text, structure and context of 924(c) all suggest that the statute requires courts to look at a generic offense and assess the risk of that offense, rather than the defendant’s conduct. The “language in the statute before us,” the majority goes on to say, “isn’t the language posited in the dissent’s push poll.” After determining the proper interpretation of Section 924(c), there was not much left for the majority to decide, because the court had already found that interpretation to be unconstitutionally vague in Dimaya.

Gorsuch’s majority opinion contains an interesting passage on the relationship between the doctrine of constitutional avoidance and the rule of lenity, which requires ambiguous criminal laws to be read in a defendant’s favor — an issue that he had raised at oral argument. The government had urged the court to invoke the canon of constitutional avoidance and interpret Section 924(c) in a way that would make it constitutional. The majority opinion primarily rejects the application of the canon of constitutional avoidance because the (much) better reading of the statute is that it requires the categorical approach.

But Gorsuch’s majority opinion suggests that the canon of constitutional avoidance is inapplicable for another reason as well. The opinion reasons:

[N]o one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it… Employing the avoidance canon to expand a criminal statute’s scope would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests.

The majority opinion thus ensures that the canon of constitutional avoidance can function as a sword for criminal defendants. But it also declares that the vagueness doctrine operates as a shield to protect criminal defendants from attempts by the government to wield the constitutional-avoidance canon against them.

The opinion in Davis underscores an important jurisprudential difference in criminal cases between the two most recent nominees to the Supreme Court, Kavanaugh and Gorsuch. The tone of the majority opinion — and its concern about judges’ broadening already expansive criminal statutes — is very different from the tone of Kavanaugh’s dissent. The dissent opens with the claim that “crime and firearms form a dangerous mix,” and it then proceeds to discuss various statistics about violent crime. Against this backdrop, the dissent finds ways to interpret Section 924(c) that would save the statute, perhaps to rescue us from that “dangerous mix” of “crime and firearms.”

As I wrote in my argument analysis, Section 924(c) may be the last Johnson domino to fall — that is, the last criminal statute the Supreme Court invalidates on the basis of the court’s opinion in Johnson v. United States, which invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague.

Johnson was a significant opinion, and so is Davis. But the reach of Johnson — and of Davis — will be dictated by the procedures that judges use to implement those decisions. For example, courts are addressing whether a defendant may be resentenced if the court that sentenced the defendant did not specifically identify which definition of “crime of violence” the court relied on — an invalid one, or one of the surviving ones. Another question that has divided the courts is whether a defendant who can be resentenced in light of Johnson (and now Davis) may rely on the Supreme Court’s subsequent decisions that interpret the scope of the other, still valid definitions of the phrase.

Those procedural questions will determine the reach of Davis and Johnson. Whether the Supreme Court will take up those questions, in addition to the flashier issues about whether particular provisions are unconstitutionally vague, remains to be seen.

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Opinion analysis: Court refuses to resurrect nondelegation doctrine

June 21, 2019 by admin Leave a Comment

The Supreme Court today refused to resurrect the nondelegation doctrine, the long-dormant principle that Congress cannot transfer its power to legislate to another branch of government. The case, Gundy v. United States, involved a provision of the Sex Offender Registration and Notification Act that confers on the attorney general the authority to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment. For Herman Gundy, the petitioner, the decision has a straightforward and immediate meaning: his sentence will stand. For the nondelegation doctrine, the significance of Gundy lies not in what the Supreme Court did today, but in what the dissent and the concurrence portend for tomorrow.

Justice Kagan with opinion in Gundy v. U.S. (Art Lien)

The Gundy vote was badly fractured and only eight justices participated in deciding the case, because Justice Brett Kavanaugh had not yet been confirmed to the court when the case was argued last October. Justice Elena Kagan’s plurality opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Neil Gorsuch’s dissent was joined by Chief Justice John Roberts and Justice Clarence Thomas. Justice Samuel Alito concurred in the judgment only, which both deprived Kagan of a majority and prevented a 4-4 per curiam affirmance.

Gundy had contended that SORNA conferred “unguided,” “unchecked” and “plenary” power upon the attorney general to create, remove or revise registration requirements for pre-act offenders. If read that way, said Kagan, the provision would indeed pose a “nondelegation question.” But Kagan did not read the statute that way. Taking the approach hinted at by her questions at oral argument, Kagan instead construed SORNA “to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible.” She pieced together support for this construction from SORNA’s declaration of purpose (to establish “a comprehensive national system” for sex-offender registration); its definitional provision (defining “sex offender” as an “individual who was convicted of a sex offense”); and its legislative history. Returning to the text of the key phrase, Kagan wrote that “‘[s]pecify the applicability’ … does not mean ‘specify whether to apply SORNA’ to pre-Act offenders at all, even though everything else in the Act commands their coverage. The phrase instead means ‘specify how to apply SORNA’ to pre-Act offenders if transitional difficulties require some delay.”

Is there a nondelegation problem with a statute that instructs the attorney general to apply registration requirements to pre-act offenders as soon as feasible? “That question is easy,” wrote Kagan: “[N]o.” Citing a string of very broad delegations that the Supreme Court has upheld since 1935, Kagan sized SORNA’s delegation as “distinctly small-bore” in comparison. Moreover, she added, “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” Congress is “dependent” on the “need to give discretion” to executive officials charged with implementing its programs. The court’s long-standing course of refusing to second-guess these “necessities of government” is, Kagan concluded, one of both “wisdom” and “humility.”

At 33 pages, Gorsuch’s dissent is nearly twice as long as Kagan’s 18-page plurality. On the question of how to interpret SORNA, Gorsuch took the polar opposite view of the statute from the plurality: SORNA “endow[s] the nation’s chief prosecutor with the power to write his own criminal code.” As Gorsuch read it, the breadth of SORNA’s delegation is “vast” and gives the attorney general “free rein.” The statute says “nothing about feasibility,” argued Gorsuch, and nothing in the particular provision at issue, the statute’s statement of purpose, its definitional terms or its legislative history can be regarded as cabining the breadth of the power that SORNA delegates to the executive or as supplying a standard by which to exercise that power.

That statutory analysis of SORNA bookends the dissent. Its long middle portion contains Gorsuch’s analysis of the history of the nondelegation doctrine and why it should be revived. Gorsuch argued that nondelegation doctrine honors the Constitution’s original text and design, and that it promotes stability, fair notice, the protection of minority rights, political accountability, and broad social consensus in lawmaking. Noting that the court has “an obligation to decide whether Congress has unconstitutionally divested itself of its legislative responsibilities,” he next asked: “[W]hat’s the test?” Gorsuch set out three types of delegations that are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to “fill up the details”; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power, such as foreign affairs.

Gorsuch then pointed to “the evolving ‘intelligible principle’ doctrine” as the explanation for the Supreme Court’s “quiescence” since the 1930s on the delegation front. Gorsuch did not disapprove of the decision in J.W. Hampton, Jr., & Co. v. United States, in which the court announced the intelligible principle doctrine, instead rationalizing it as consistent with older tests; “the [J.W. Hampton] Court’s reference to an ‘intelligible principle’ was just another way to describe the traditional rule that Congress may leave up to the executive the responsibility to find facts and fill up details.” Instead, Gorsuch wrote, it was in the late 1940s that the “mutated version” of the intelligible principle test appeared. In subsequent years, he explained, the court has sometimes reached the right result while applying this test, for example in cases such as Loving v. United States, which involved the president’s independent Article II power. In other areas, he said, other doctrines have picked up the slack: “We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.” Gorsuch cited the major-questions exception and vagueness cases as examples of these “hydraulic pressures” at work.

Gorsuch closed by explaining that SORNA is unconstitutional under this stricter version of the nondelegation doctrine. He argued that SORNA does not involve filling up the details or “deciding the factual predicates to a rule set forth by statute”; nor does it involve an area of “overlapping” inherent Article II authority, such as the field of foreign affairs. Allowing SORNA’s delegation to stand, Gorsuch said, would “invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”

Finally, Alito concurred only in the judgment, saying: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Alito thus indicated that he would be receptive to future nondelegation challenges, but that he was not willing to rule in Gundy’s favor here: “[I]t would be freakish to single out the provision at issue here for special treatment.”

The lineup in Gundy shows that there are four justices on the court willing to reconsider the nondelegation doctrine from the ground up. It also shows that there are four justices who are still willing to use the tools of statutory interpretation to fend off the nondelegation problem—a technique the court has employed on many occasions in the past. In the next nondelegation challenge, it may fall to Kavanaugh to break that tie.

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Opinion analysis: Justices uphold “separate sovereigns” doctrine

June 17, 2019 by admin Leave a Comment

The Constitution’s double jeopardy clause guarantees that no one shall “be twice put in jeopardy” “for the same offence.” Today the Supreme Court upheld a longstanding interpretation of that clause, known as the “separate sovereigns” doctrine. By a vote of 7-2, the justices rejected a challenge to the doctrine by an Alabama man who argued that he could not be prosecuted for both federal and state gun charges arising from the same traffic stop.

Justice Alito with opinion in Gamble v. U.S. (Art Lien)

The case now before the court began in 2015, when Terance Gamble was pulled over by police for having a faulty headlight. The police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun.

Alabama charged Gamble with violating state drug laws; both the state and the federal government also charged him with being a felon in possession of a firearm. A state court in Alabama sentenced Gamble to one year in prison.

Gamble urged the federal trial court to throw out the charge against him, arguing that prosecuting him in federal court after the state had charged him would violate the double jeopardy clause. The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The trial court sentenced Gamble to nearly four years in federal prison, followed by a year of supervised release. The U.S. Court of Appeals for the 11th Circuit upheld the district court’s ruling and Gamble’s sentence. Gamble asked the Supreme Court to weigh in; the justices considered his case at 11 consecutive conferences before agreeing to do so.

Justice Samuel Alito wrote the majority opinion, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. Alito began by explaining that the “separate sovereigns” doctrine is not an exception to the double jeopardy clause at all, but instead is part and parcel of the clause itself because the clause bars successive prosecutions for the same offense – not for the same conduct. Offenses, Alito continued, are defined by laws, which are in turn defined by sovereigns. “So where there are two sovereigns,” Alito concluded, “there are two laws,” and therefore two offenses.

Alito emphasized that the Supreme Court has repeatedly reaffirmed this principle, for over 170 years. And it makes sense, Alito suggested, because different governments can have different interests. For example, he observed, if “only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court,” even if the U.S. government lacked confidence in the foreign court or had different reasons for wanting to punish that conduct.

Gamble argued that the Supreme Court’s line of cases on the “separate sovereigns” doctrine conflicts with the understanding of the Founding Fathers who ratified the double jeopardy clause. But that argument, Alito countered, must overcome principles of stare decisis – the idea that courts should not overrule their earlier decisions unless there is a very good reason to do so. “This means,” Alito wrote, that Gamble would have to offer “something more than ambiguous historical evidence.” But Gamble cannot do so, Alito concluded after reviewing early cases and treatises in some detail, “much less do so with enough force to break of chain of precedent linking dozens of cases over 170 years.”

Thomas joined Alito’s opinion, but he filed his own concurring opinion that focused on what he described as the “proper role of stare decisis.” Thomas’ view appeared starkly different from the majority’s, as he explained that, “if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent.” Perhaps with an eye toward upcoming battles over issues like abortion, Thomas lamented that “proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible,” and he lamented that the doctrine of stare decisis “has had a ‘rachet-like effect,’ cementing certain grievous departures from the law into the Court’s jurisprudence.”

Justices Ruth Bader Ginsburg and Neil Gorsuch each filed their own dissents from the court’s opinion. Ginsburg complained that the “division of authority between” the federal and state governments was intended to provide extra protection for the rights of the people, but that today’s decision takes advantage of that division to take away some of those rights. Adding that the “separate sovereigns” doctrine “has been subject to relentless criticism by members of the bench, bar, and academy,” she would reverse Gamble’s conviction.

Gorsuch made some of the same points as Ginsburg in his dissenting opinion, but he was significantly more critical of the majority’s opinion on stare decisis. Gorsuch acknowledged the need to “pay heed to the considered views of those who have come before us, especially in those cases,” but he emphasized that “stare decisis isn’t supposed to be the art of being methodically ignorant of what everyone knows.” “Indeed,” Gorsuch continued, “”blind obedience to stare decisis would leave this Court still abiding grotesque errors like” the Supreme Court’s 1857 decision holding that blacks were not citizens and could not bring a lawsuit in U.S. courts or its 1944 decision upholding the internment of Japanese-Americans during World War II.

Gorsuch closed his dissent by contending that when “governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first—and there is nothing to stop them from being the last.”

Today’s decision leaves the “separate sovereigns” doctrine in place, but the effects of a ruling for Gamble could have been significant. As Justice Stephen Breyer noted at the oral argument last fall, a ruling that struck down the doctrine would have made it harder for the federal government to prosecute domestic violence among Indian tribes. And in the 1990s, federal prosecutors relied on the doctrine to try the Los Angeles police officers accused of beating motorist Rodney King on federal civil-rights charges after the officers were acquitted in state courts.

Gamble’s case also drew attention because of the effect that a ruling in his favor could have had if President Donald Trump pardons friends and administration officials who face federal charges. In March, Manhattan district attorney Cyrus Vance charged Paul Manafort, the president’s former campaign manager, with more than a dozen state felonies, including mortgage fraud. The charges came after Manafort had been sentenced in federal court to more than seven years in prison; the state charges are intended to ensure that Manafort would still face prison time even if Trump eventually pardons him for the federal crimes.

This post was originally published at Howe on the Court.

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