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.

CA9 Chooses Wrong Controversy to Grow Judicial Review of President’s Statutory Powers 

Courts must set aside agency action that is unreasonable. But when reviewing the president’s statutory powers, courts don’t check for reasonableness. 

As a practical matter, this dichotomy makes little sense. Regardless whether Congress delegates to an agency or the president, each is a function of the legislative power. Why, then, should judicial review differ so drastically? 

Of greater concern, the absence of judicial oversight creates a perverse policymaking incentive. If courts won’t vet the president’s decision-making, then presidents may be unreasonable.  

What explains this unfortunate status quo?

Almost three decades ago, in Franklin v. Massachusetts, the Supreme Court held that the president is not an “agency” and, therefore, is not subject to the APA’s cause of action. A couple years later, in Dalton v. Specter, the Court clarified that Franklin also precludes review of an ultra vires claim that the president acted in excess of statutory authority. Together, these cases establish the modern doctrinal bar on judicial review of the president’s statutory powers. 

You might be thinking: What does all this have to do with CA9? 

The answer is that the Ninth Circuit, more than any of her sister courts, has been finding ways to review the president’s statutory powers during the Trump-era. 

I covered the first instance in a post whose title says it all, “Has the Ninth Circuit Beaten a Path around Franklin v. Massachusetts?” In that blog post, I discussed how a Ninth Circuit panel carved out an exception to Franklin/Dalton—namely, where the president’s determination is combined with an agency action that together creates an “operative rule of decision.” 

Last month, in John Doe #1 v. Trump, the Ninth Circuit made new inroads into judicial supervision of the statutory president. The controversy centered on  8 U.S.C. § 1182(f), which empowers the president to regulate (otherwise legal) immigration by aliens whose entry “would be detrimental to the interests of the United States.” (SCOTUS-watchers might remember this provision from Trump v. Hawaii.)

In the Fall of 2019, President Trump exercised § 1182(f) by issuing Proclamation No. 9945. The Proclamation determined that inadequately insured immigrants are inimical to the national interest because they burden the U.S. healthcare system. Based on this finding, the president prohibited family-sponsored aliens from entering the U.S. unless they acquired adequate insurance (as defined by the administration). 

Immigrant families and advocacy groups challenged Proclamation No. 9945 in federal trial court. Among other claims, the plaintiffs alleged that the President acted beyond the permissible scope of § 1182(f). After the district court issued a nationwide injunction enjoining the Proclamation, the government filed an emergency motion before CA9 to stay the lower court’s order pending appeal. 

In weighing a request for an emergency stay, a motions panel must assess, inter alia, “whether the Government has made a strong showing of the likelihood of success on the merits.” For its part, the government argued that the merits are immaterial, because there was “no basis” for judicial review. For support, the government cited Dalton (and, by extension, Franklin).  

Two judges on the motions panel ignored the government’s justiciability arguments; instead, they proceeded as if there were no doctrinal limitations on review! 

Consider the two judges’ reasoning that the Proclamation violates § 1182(f)’s requirement that restrictions be “temporary.” After reviewing the full record, the majority concluded that the president’s policy would fail to mitigate healthcare costs. Due to this “likely ineffectiveness,” the court reasoned that the president would never reach his stated goal. And because the president is likely never to achieve his goal, the policy might “continue in perpetuity.” Thus, the Proclamation purportedly contravened the statute’s temporal limits. 

For all intents and purposes, the majority layered speculation on top of hard look review. It’s an approach that is far removed from judicial review of the president’s statutory powers as set forth by black letter law. 

It’s unclear why the split panel believed such a fact-intensive review was available. The majority seemed to put a lot of stock in the distinction between foreign and domestic policy. While allowing that the president warrants great deference in foreign affairs, the majority posited that the president’s “power is more circumscribed when he addresses a purely domestic economic issue.” Here, the majority understood Proclamation 9945 to involve a “purely domestic economic issue”—healthcare costs. 

For my part, I’m torn by this motions panel.  

On the one hand, I think Massachusetts and Dalton are far too sweeping, and I love the majority’s rejection of a one-size-fits-all model for judicial review of the president. I think it’s a great idea for courts to calibrate their review depending on whether the president is exercising statutory authority in the domestic or foreign policy realm. On a practical level, I think this analytical bifurcation provides an excellent framework for the Supreme Court to consider. 

On the other hand, the facts of this case are horrible for the majority’s great idea. As noted by dissenting Judge Daniel Bress, “[e]nforcement of the Proclamation takes place all over the world at the consular officer level.” Quite literally, it involves foreign affairs. 

CA9 Closes Loophole through APA § 701(a)(2) 

About a year ago, I blogged about how CA9 had drilled a loophole through APA § 701(a)(2)’s preclusion of judicial review for action “committed to agency discretion by law.” Last month, the court largely closed this loophole.

Pursuant to regulation, the Board of Immigration Appeals may grant a motion to reopen removal proceedings sua sponte. Historically, the Ninth Circuit held that this authority is unreviewable under APA §701(a)(2) because there’s no law to apply. Recently, however, the court has developed a doctrinal end-around to substantive review of these determinations. 

In a series of cases since 2014, the court found “law to apply” where the BIA declined to exercise its sua sponte authority to reopen because the agency had based its refusal on a misunderstanding of its enabling act. 

In my prior post, I expressed reservations about this line of cases. My worries pertained to judicial adventurism. The agency has no duty to explain itself, so would the court start demanding justifications?  A court could probe endlessly into the agency’s legal reasoning—where does one draw the line?

Well, at least a few CA9 judges shared my concern. 

Last month, in Lona v. Barr, the petitioner wanted the panel to pry into the BIA’s reasons for refusing to reopen her removal proceeding. In denying the petition, the court clarified that its review in this context “is constricted to legal or constitutional error that is apparent on the face of the BIA’s decision and does not extend to speculating whether the BIA might have misunderstood some aspect of its discretion.” (formatting added). 

More Evidence CA9 Needs to Clean Up Its Motions Panels 

A few months ago, I bemoaned CA9’s “absurdly uneven jurisprudence” when it comes to weighing a request for an emergency stay. Last month provided more grist for this mill. 

In Nken v. Holder, the Supreme Court set forth four factors for lower courts to consider when weighing a government motion to stay an order pending appeal: 

1. whether the Government has made a strong showing of the likelihood of success on the merits;
2. whether the appellants will be irreparably injured absent a stay; 
3. whether a stay will substantially injure other parties; and 
4. where the public interest lies. 

In John Doe #1 (discussed above), a split motions panel started with the second Nken factor—the government’s irreparable harm. According to the majority, the first enumerated Nken factor—likelihood of success on the merits—may become superfluous if the government fails to demonstrate the second Nken factor. In a dissent, Judge Daniel Bress took issue with the majority’s inversion of the first two Nken factors. 

About a month later, a two-judge motions panel denied the government’s emergency motion to stay a trial court’s order vacating a nationwide water quality permitting program (discussed below). The panel relied *only* on a conclusory analysis of the first Nken factor. 

These approaches cannot be reconciled. Indeed, they’re so different as to cast doubt on the fairness of CA9’s stay jurisprudence. The full court should clean up this mess. 

Environmental Lightening Round

May was a blockbuster month for environmental law before CA9. Due to space constraints, I present these high-profile cases in bullet points below: 

• On May 28^th, a two-judge panel denied the government’s motion for an emergency stay of the trial court’s order in Northern Plains Resource Council v. Army Corps of Engineers, which had vacated a streamlined program for federal water permits (pending completion of the consultation process under the Endangered Species Act). This is a big deal, and it implicates the (seemingly ancient) controversy over the Keystone XL Pipeline. Regarding the panel’s May 28^th order, Hogan Lovells’s Sean Marotta Tweeted that he “expect[s] this to head to either the en banc Ninth Circuit or the Supreme Court next.” Marotta further described the trial court’s order as being “bonkers.”  
• In concurrently filed opinions issued on May 26^th, a three-judge CA9 panel returned two climate torts to state court. In separate suits initiated in 2018, California cities and counties pursued state common law claims against energy companies in state court. The energy companies removed to federal court, and the plaintiffs then moved for remand back to state court. In Oakland v. BP, Judge William H. Alsup denied remand; in San Mateo v. Chevron, Judge Vince G. Chhabria granted the motion. In each case, the loser appealed. In its May 26^th orders, the panel sided with the environmental groups. (Nota Bene—these controversies would make for ideal teaching aids in any Civ Pro or Fed Courts/Fed System lecture). 
• On May 4^th, in Bark v. U.S. Forest Service, a panel reversed the district court’s summary judgment in favor of the U.S. Forest Service. The case is important because it suggests fire suppression logging policies won’t escape full review under NEPA, notwithstanding recent and unprecedented wildfires in the west.  

William Yeatman is a research fellow at the Cato Institute in Washington, D.C.