D.C. Circuit Review – Reviewed: Lies We Tell Our Children

by Aaron Nielson — Saturday, Dec. 26, 2015@Aaron_L_Nielson

Here’s a new Christmas experience: This year, I had to check with the federal government to make sure that “Santa’s” gift for my young son is legal. You see, I bought him a toy helicopter. It turns out that is now called a drone. And it also turns out that the FAA has begun regulating such “unmanned aircraft systems.” The upshot is that I found myself reviewing a government website to see if a $40 helicopter, purchased from Amazon, needs to be registered.* The experience prompted a question: Is it finally time to tell my son the truth about Christmas? To be sure, he already knows about Santa Claus. But I haven’t yet had the heart to tell him about the Code of Federal Regulations.

For good or ill, parents tell children falsehoods and half-truths all the time. Santa is a good example. I’m Burkean enough to accept the practice as (on the whole) beneficial or at least harmless. But it is odd that millions of parents lie to their children; it is odder still that the federal government helps them do it. And that isn’t the only lie we tell. We also spare our children from sadness or discomfort, either by omission or sometimes outright deception. I certainly haven’t had a heart-to-heart with my kids about the Islamic State of Iraq and al-Sham.

And that brings me to the Code of Federal Regulations. Even many educated people have never heard of it. And even for those who do know something about it, it is vague. I certainly wasn’t taught about the bureaucratic process in grade school. There, I was taught that Congress makes laws, the President enforces them, and the Supreme Court decides what laws mean—we have a “Three Ring Government,” right? I was probably about 10 years old when I first heard about the CFR. I’ll admit it, when I discovered the truth, I was devastated. “Wait, someone else makes the law? Really? In America?” You shouldn’t learn that sort of thing on the street.

Since then, of course, my understanding has grown more sophisticated. I get the “intelligible principle” idea—that agencies don’t really “make” the law but rather only “execute” it, even when promulgating regulations. As the Supreme Court has explained, under our Constitution, that “must be” the explanation (though, to be sure, Justice Stevens believes it “would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is ‘legislative power’” and Chief Justice Roberts wryly observes that “the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating”). Even more importantly, I appreciate the line-drawing problems that enforcing the nondelegation doctrines would create. But still, truth can be a shock to the system. Much of what I was taught about how government works is at best a simplification.

The D.C. Circuit thus is important; judicial review and other safeguards help ensure that we “have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts.” That can be a tricky line to walk. But it is the modern world.

The D.C. Circuit issued no opinions yesterday. Thank goodness. But earlier in the week, it did release four opinions (and denied rehearing en banc in United States v. Bell, which concerns the constitutionality of using acquitted conduct in sentencing; Judge Millett wrote what amounts to a cert petition asking the Supreme Court to review this issue, but unless something has changed from last year, that seems unlikely). In the interest of time, I’ll quickly summarize:

In Abtew v. DHS, Judge Kavanaugh (joined by Judges Rogers and Brown) resolved a FOIA challenge involving immigration. The appellant sought “the Department’s ‘Assessment to Refer’ regarding his asylum application. An Assessment to Refer is a short document prepared by a Department official after interviewing an asylum applicant. The Assessment summarizes the asylum interview and assesses the applicant’s credibility and consistency. It also recommends whether to grant asylum. The Department official who wrote the Assessment to Refer then forwards it to a supervisor, who in turn decides whether to grant asylum.” The Court explained that this document was shielded from disclosure “under the deliberative process privilege encompassed within FOIA Exemption 5.” It took seven pages.

In Friends of Animals v. Ashe, Judge Kavanaugh (this time joined by Judges Henderson and Pillard) ruled that an environmental group seeking to require “the U.S. Fish and Wildlife Service to list certain species of sturgeon as endangered or threatened” must “give 60 days’ notice to the Service before filing suit,” even if the agency has missed deadlines of its own. This case was a bit trickier than Abtew v. DHS; it took Judge Kavanaugh nine pages to resolve what “boils down to a very narrow and extraordinarily technical question regarding the timing of notice”: “what must a party do to bring suit when the Service sits on a listing petition for more than a year without making either an initial or final determination?” Even though it is not the “most efficient” scheme, the Court concluded that “Friends of Animals must first provide notice to the Service about the Service’s failure to make an initial determination; then, after 60 days have passed, Friends of Animals may sue to compel the initial determination. If and when the Service issues a positive initial determination, Friends of Animals must provide a new notice to the Service; then, after another 60 days have passed, Friends of Animals may sue again to compel the final determination.”

In Food & Water Watch, Inc. v. Vilsack, Judge Wilkins (joined by Judge Millett) determined that a group of individuals—and an organization—who “fear that new regulations promulgated by the United States Department of Agriculture may result in an increase in foodborne illness from contaminated poultry” lacked standing to challenge to those regulations. (Note, there is an interesting discussion of the intersection of standing and the preliminary injunction standard; the panel appliedObama v. Klayman, decided a few months ago.) The Court concluded there was no standing because plaintiffs could not “plausibly allege that the NPIS substantially increases the risk of foodborne illness when compared to the existing inspection methods.” Likewise, fear alone was not enough: “Plaintiffs cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” The Court also rejected organization standing because, inter alia, nothing “indicates that FWW’s organizational activities have been perceptibly impaired in any way.” Judge Henderson concurred in the judgment. She believed, among other things, that the individuals lacked standing for a more straightforward reason: If they don’t want to eat the chicken at issue, they can just buy chicken from a farmers’ market. Judge Millett also wrote separately, though she joined the Court’s opinion in full, to reiterate her concern with the law of organizational standing. (Judge Millett: “The majority opinion properly applies our precedent to keep a bad jurisprudential situation from getting worse, I concur. But I continue to believe that our organizational standing doctrine should be revisited in an appropriate case.”)

In TransCanada Power Marketing v. FERC, Judge Edwards (writing for Judges Tatel and Pillard) addressed a tariff revision and accompanying cost allocation. I am not a FERC lawyer. In an ordinary week, I’d try to climb the learning curve for this case and explain the ins and outs of the Court’s analysis. But a holiday week is no time for an opinion with a technical appendix. If you are a FERC lawyer, you should probably read this. For everyone else, here is my gift to you: I’m sure the opinion is excellent, but even so, skip it. You’re welcome.

So to loop back to where we started: Is today the day to tell my son where law comes from? Hmmm. Probably not; the two of us have an appointment with a hill of snow and a couple of sleds.

* Thankfully, it does not.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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