Notice and Comment, Behavioral Economics, and United States v. Texas, by Daniel Hemel

by Daniel Hemel — Monday, Jan. 25, 2016

In many respects, the Supreme Court’s cert grant earlier this week in United States v. Texas was utterly unsurprising. The Fifth Circuit Court of Appeals affirmed a nationwide injunction blocking a Department of Homeland Security policy that would have allowed approximately 4 million parents of U.S. citizens and lawful permanent residents to seek “deferred action” and temporary authorization to work in the United States. The Supreme Court’s own Rule 10 says that in deciding whether to grant cert, the Court considers whether a lower court has ruled on “an important question of federal law that has not been, but should be, settled by this Court.” United States v. Texas meets that standard by any measure.

In one respect, though, the cert-stage proceedings in United States v. Texas pose a puzzle. (And no, I’m not referring the Court’s decision to add a fourth question regarding the Take Care Clause of Article II; as Marty Lederman and others have explained, the Court had reason to add that question even if it has no intention of going Texas’s way on the constitutional issue.) I’m referring instead to the third question: “Whether the Guidance was subject to the APA’s notice-and-comment procedures.” Of course, there is no mystery as to why the Supreme Court granted cert on that question: the notice-and-comment issue is one of two independent bases for the Fifth Circuit’s ruling, so the Supreme Court would need to reach that issue if it wants to overturn the Fifth Circuit’s decision on the merits. The puzzle is why the Obama administration is still litigating this issue despite the fact that DHS could moot the notice-and-comment question if it wanted to.

A bit of background: In November 2014, Homeland Security Secretary Jeh Johnson sent a memo to top DHS officials outlining new policies for exercising prosecutorial discretion. Most significantly, the Johnson memo directs DHS officials to establish a process that will allow parents of U.S. citizens and permanent residents to apply for “deferred action.” The memo states that applications will be evaluated on a “case-by-case basis,” and that deferred action will be limited to parents who—among other criteria—have not been convicted of a felony or significant misdemeanor. DHS’s approval of an application for deferred action means that the Department has decided to forbear from removing the applicant for three years. Successful applicants also may seek work authorization for a three-year period. The program is known as “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), and DHS planned to begin accepting applications in May 2015.

In December 2014, Texas and 25 other states sued in federal district court seeking to enjoin implementation of DAPA. Texas’s substantive arguments are (1) that DHS lacks statutory authorization for DAPA, and (2) that DAPA violates the Take Care Clause of Article II. Texas’s procedural argument is that DAPA is subject to the Administrative Procedure Act’s notice-and-comment requirements, and that DHS failed to comply with those requirements entirely. In February 2015, a federal district court held that Texas was likely to prevail on its notice-and-comment argument, and the court entered a nationwide preliminary injunction against implementing DAPA. In November, a Fifth Circuit panel voted to 2-1 to affirm the injunction—on the procedural ground that DHS failed to go through notice and comment and on the substantive ground that DHS lacks statutory authority for the DAPA program.

I am not the first to observe that DHS could moot the notice-and-comment question by publishing the Johnson memo in the Federal Register and then finalizing it 30 or more days later. That’s all that the APA’s notice-and-comment provision requires. To be sure, the notice-and-comment process is not costless, but it is also not prohibitively expensive. The White House’s regulations.gov website shows 221 proposed rules published in the last month—ranging from a proposal to end the endangered-species status of the scarlet-chested parakeet to a proposal to clarify the number of charity stamps that the Postal Service can sell at any one time. The costs of notice-and-comment rulemaking are likely higher for higher-profile rules (for one thing, DHS is likely to receive more comments on its deferred action policy than on its ammonium nitrate security regulations). On the other hand, the deferred action policy is a top administration priority, and it seems like it would be well worth DHS’s time to wade through a pile of public comments (most of which are electronic anyway) if going through the notice-and-comment process increases the probability that the deferred action policy will pass judicial muster.

So why doesn’t DHS just go ahead with the notice-and-comment process? (And why didn’t DHS do this last year, when the district court first ruled on the issue?) Here are a handful of hypotheses:

— (1) The administration may believe that taking the notice-and-comment issue off the table won’t measurably increase its chances of victory. The issues in United States v. Texas fall into three categories: (i) threshold questions of standing and reviewability; (ii) substantive questions as to whether the administration has the statutory and constitutional authority to implement DAPA; and (iii) the procedural question (notice and comment). If the administration wins on a threshold question, then the whole case goes away and DHS can implement DAPA. If the administration loses on the threshold questions, then it must win on both the substantive and procedural questions in order to have the Fifth Circuit’s decision reversed.

Let pt be the administration’s probability of success on the threshold issue; let ps be the administration’s probability of success on the substantive questions; and let pp be the administration’s probability of success on the procedural point. The administration’s overall probability of success (P) is equal to:

pt + (1 – pt)(ps x pp)

The administration may think that pt is so close to 1 that the rest of the terms in the equation don’t matter. That is, the administration might think its arguments on standing and reviewability are airtight, and that the Court won’t even reach the substantive and procedural questions. Or, the administration may think that pp is close to 1: its arguments on notice-and-comment are so strong that if the Court rules for Texas on the threshold issues, all that really matters are the substantive questions. Less likely, the administration might think that ps is close to zero—if it can’t win on standing, it won’t win on the substance—in which case the procedural question also won’t be outcome-determinative. A fourth possibility is that the administration thinks that a five-Justice majority will only rule for Texas on standing if it’s dead-set on striking down DAPA—in which case an ideologically motivated majority will side with Texas on the substance as well. Put differently, the administration may think that pt and ps are closely correlated—in which case the notice-and-comment issue also wouldn’t matter.

— (2) The administration may think that proceeding with notice-and-comment will reduce its chances of securing Supreme Court review. The administration may want to resolve the DAPA issue ASAP so that it can begin to implement the policy before President Obama’s second term is out. Maybe the worry is that if DHS proceeds with notice-and-comment, the Supreme Court will remand to the Fifth Circuit to determine whether DHS had rendered the procedural issue moot. To be sure, there would still be a live case and controversy on the substantive questions (insofar as there is a “case or controversy” to begin with). But a remand to the Fifth Circuit would delay matters for months, pushing oral argument over to the Supreme Court’s October 2016 Term.

It seems pretty clear, though, that the procedural question would be moot once DHS completed the 30-day notice-and-comment process. The Court resolved an analogous question in the tax contextfour decades ago, and there is no reason why the Court would need to remand to the Fifth Circuit to figure it out. If there were any lingering doubt on the matter, the Supreme Court could hear arguments on the threshold and substantive questions and then remand to the Fifth Circuit if necessary. (There would be no remand if the Court rules against Texas on standing/reviewability or if the Court rules for Texas on the substance.) Which is to say: If the Supreme Court wants to hearUnited States v. Texas this spring, DHS’s initiation of notice-and-comment proceedings won’t be an obstacle. And if the Supreme Court wanted to delay consideration until the fall, it could have relisted the case for a few more weeks before granting cert.

— (3) The administration may think that going through with notice and comment on DAPA would establish a bad precedent. Notice and comment is not required under § 553 for “general statements of policy.” The administration maintains that the Johnson memo qualifies as such a statement. Note, though, that executive agencies routinely publish planned actions in the Federal Register and solicit comments from the public even while maintaining that the APA’s notice-and-comment requirement does not apply. (For a few recent examples, see here, here, and here.) DHS could easily take that route in this case, going through with notice-and-comment while sticking to its view that notice-and-comment is unnecessary.

— (4) The administration may think that Supreme Court review on the notice-and-comment question will establish a favorable precedent. That is, maybe the administration actually wants the Supreme Court to weigh in on the notice-and-comment question. In recent years, the Fifth and D.C. Circuits have whittled down the notice-and-comment exemption for “general statements of policy.” Those courts say that a guidance document only falls within the exemption if it “genuinely leaves the agency and its decisionmakers free to exercise discretion.” Even when the language of the guidance appears to allow discretion, the Fifth and D.C. Circuits will look to the agency’s post-guidance conduct to decide whether the guidance is binding “as a practical matter.” Put differently, the Fifth and D.C. Circuits decide whether notice and comment was required at time t by looking at the way the agency acted at time t + 1. The Fifth Circuit decision in this case extends that approach even further. The Fifth Circuit held that the Johnson memo was a rule subject to the notice-and-comment requirement rather than a “general statement of policy” because there is “a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion.” In other words, the Fifth Circuit held that notice and comment was required at time t based on the court’s prediction as to how DHS would act at time t + 1.

The Fifth Circuit’s approach has no basis in statutory text or in Supreme Court case law. Just last Term, in Perez v. Mortgage Bankers Association, the Supreme Court reversed the D.C. Circuit for conjuring up a “judge-made procedural right” to notice and comment that had no root in the APA. The administration may be looking for a similar ruling here. But if so, United States v. Texas would seem like a strange vehicle. One would think that the administration would choose to challenge the Fifth and D.C. Circuit’s approach in a case with low ideological valence—like Mortgage Bankers, in which the underlying dispute was about overtime pay for loan officers. And if one were trying to choose a case with low ideological valence, United States v. Texas would be just about the last pick.

— (5) A final possibility—perhaps not the most likely, but probably the most interesting—is that the administration’s litigation strategy is informed by insights from behavioral economics. (President Obama issued an executive order in September 2015 calling on agencies to incorporate behavioral science insights into their programs and policies; maybe DHS and the Solicitor General are taking a cue from the White House.) One of the more robust results in the behavioral economics literature is the “compromise effect.” As stated by Itamar Simonson, the “compromise effect” is the finding that “an alternative’s choice probability tends to increase when it becomes a compromise choice in the set.” In one well-known study, Simonson and co-author Amos Tversky offered consumers a $170 camera and a $240 camera; 50% of subjects chose the $170 camera and 50% chose the $240 option. But when Simonson and Tversky added a third, more expensive alternative (a $470 camera), the share that chose the $240 camera jumped from 50% to 57%, and the share that chose the cheaper camera fell from 50% to 22%. (The remaining 21% opted for the high-end option.) That is, the $240 camera became more attractive when it was presented as the middle of three options, and the $170 camera became less popular when it was the cheapest of the three.

Retail stores make use of the compromise effect all the time: Starbucks knows that offering a “venti” size in addition to a “tall” and a “grande” makes the “grande” look more attractive because it appears to be a compromise. Mark Kelman and coauthors have also documented a “compromise effect” in legal decisionmaking. Experimental subjects role-playing as jurors gravitate toward whichever punishment is framed as the middle option rather than one of two extremes.

What does any of this have to do with United States v. Texas? If the Supreme Court reaches the merits questions in the case, then it (1) could reverse the Fifth Circuit on the substantive and procedural questions; (2) could reverse the Fifth Circuit on the substance but affirm on the procedural question; or (3) could affirm the Fifth Circuit on both the substantive and procedural questions. (There technically is a fourth option—affirm on substance and reverse on procedure—though if DAPA fails on substantive grounds, it is difficult to see why the Court would bother reaching the notice-and-comment issue.) So framed, Option 2 is the moderate option bookended by two extremes. The behavioral economics literature on the compromise effect suggests that this framing makes it more likely that the Court will choose Option 2. By mooting the notice-and-comment issue, however, DHS would leave only Option 1 and Option 3 on the table if the Court reaches the merits.

Of course, the administration would prefer that the Court choose Option 1. (Actually, it would prefer that the Court reverse on standing/reviewability and thus never reach the merits.) But most of all, the administration wants the Court not to choose Option 3. Option 3 means the death of DAPA. Option 2 means that the administration can implement DAPA after it goes through a 30-day notice-and-comment process. At least in relative terms, Option 2 would be a resounding victory for the administration. And if the compromise effect holds here, keeping Option 2 in the mix makes Option 3 less probable.

Take this last hypothesis with several grains of salt. It’s worse than predicting what’s going on in the mind of Anthony Kennedy; it’s predicting what’s going on in the minds of Donald Verrilli and Jeh Johnson as they predict what’s going on in the mind of Anthony Kennedy. The bottom line, though, is that while the administration’s strategy on the notice-and-comment issue initially seemed befuddling, it might turn out in the end to be brilliant.

This post has been cross-posted on the University of Chicago Law School Faculty Blog.

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