About a year ago I wrote a post entitled Precedential Musings; a few months later I wrote a post entitled A Question Answered.* This week, the D.C. Circuit returned to the issue.

In Qassim v. Trump, Judge Millett, joined by Judges Pillard and Edwards, concluded that D.C. Circuit precedent (most notably, Kiyemba v. Obama) merely holds that Guantanamo Bay detainees cannot assert substantive due process arguments (and even that formulation may be too broad), not procedural due process arguments, and that Kiyemba’s statement that “the due process clause does not apply” must be understood narrowly. Judge Henderson — who was on the Kiyemba panel — strongly disagrees. Kiyemba was authored by Judge Randolph and Judge Rogers (the third member of the Kiyemba panel) wrote separately in Kiyemba to reject the breadth of the majority’s view.

This week, we have another case that again raises the issue: Ali v. Trump. And who is on the panel? As fate would have it, Judge Millett (author of Qassim), Judge Randolph (author of Kiyemba), and Judge Rogers (who wrote separately in Kiyemba to reject Randolph’s theory).

Here is how Judge Millett begins the panel’s opinion:

Relevant to our discussion, the panel majority says this:

And this:

Judge Randolph wrote separately to explain why, in his view, Qassim is inconsistent with precedent:

And this:

And this:

Because the Court declined to rehear Qassim, it is a safe bet that Ali isn’t going en banc. But a number of judges may continue to object — perhaps strongly — to Qassim. Notably, Judge Millett’s opinion today cites her opinion in Association of American Railroads v. DOT, in which Judge Tatel also protested that the majority took an overly narrow view of precedent. Presumably that citation was not by coincidence. This is an issue worth watching. It appears that there is no consensus across the circuit about how to determine the scope of precedent.

(The Court also decided another case; Kiewit Power Constructors Co. v. Secretary of Labor. Judge Henderson (joined by Judges Griffith and Millett) addressed a couple of fascinating issues: the relationship between the Occupational Safety and Health Administration and the Secretary of Labor and when notice-and-comment rulemaking is required in this context. Here is a quick summary: the Administration must defer to the Secretary’s reasonable interpretations where, as here, it is unclear what Congress intended. If you want the full version, give it a read. Be warned, though: This is a complicated case. I learned a lot about OSHA, quick-drenching eyewash facilities, Chevron Step Two, a safety-standards carve-out from notice-and-comment, and cross-application of safety standards.)

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* Unfortunately, both of those posts are (somewhat) broken. When we changed the format here at Notice & Comment, some images in old posts disappeared. We’re trying to fix it.

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