Welcome back to Ninth Circuit Review-Reviewed!

In what was otherwise a slow December, the court did address one blockbuster controversy. In East Bay Sanctuary Covenant v. Donald Trump, a majority panel denied the government’s request to stay a temporary injunction imposed by a district court on the Trump administration’s recent policy to limit aliens’ eligibility for asylum.

The opinion made for juicy headlines because its confrontational tone fed the narrative of “Trump vs the Ninth Circuit.” Consider the following admonishment: “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office.” Burn!

Apart from demonstrating inter-branch competition, East Bay Sanctuary Covenant was an administrative law powerhouse. For example, the decision rests on the Ninth Circuit’s controversial theory for “organizational standing,” whereby a public interest group’s “diversion of resources” suffices to establish a concrete and particularized injury. The opinion also implicates the propriety of universal injunctions by district courts, another hot issue in administrative law. In addition, East Bay Sanctuary Covenant involves the Good Cause exception to APA procedural requirements, which long has been a controversial topic in administrative law circles.

For this month’s post, I want to discuss a separate administrative law issue raised by East Bay Sanctuary Covenant. To be precise, I’m going to raise the possibility that the opinion reflects a doctrinal evolution in how the Ninth Circuit reviews presidential policymaking under the Administrative Procedure Act.

To understand this exciting development, it is necessary to first appreciate the unique policymaking procedures underlying the asylum measures that were challenged in East Bay Sanctuary Covenant.

In support of its asylum regulations, the Trump administration relied on two statutory bases.

First, the Immigration and Nationality Act empowers the Attorney General to establish “limitations and conditions, consistent with [the Act], under which an alien shall be ineligible for asylum.” See 8 U.S.C. 1158(b).

Second, Congress delegated authority to the president to issue a proclamation that would “suspend the entry of all aliens or any class of aliens … or impose any restrictions” if he or she deems such a policy to be in the national interest. See 8 U.S.C. § 1182(f).

Pursuant to the first statutory authority listed above, the Justice and Homeland Security Departments published on November 9th a joint interim final rule providing that “an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation … suspending or limiting the entry of aliens along the southern border with Mexico.”

On the same day, President Trump acted on the second statutory authorization listed above by issuing a Proclamation that suspends “entry of any alien into the United States across the international boundary between the United States and Mexico,” but which excludes from the suspension “any alien who enters the United States at a port of entry and properly presents for inspection.” The suspension is limited to 90 days, effective on promulgation.
Independent of one another, the rule and the proclamation signify nothing. On the one hand, the rule limits eligibility for asylum only if an alien acts “contrary to a [presidential] proclamation.” Without a proclamation, therefore, the agencies’ joint rule is without effect. On the other hand, the presidential proclamation is meaningless on its own because it adds nothing to existing law. After all, it is already impermissible for aliens to enter the U.S. unless they present themselves for inspection at a port of entry.

And yet, although the rule and proclamation are impotent alone, together they precipitate major immigration policy—a 90-day bar to asylum when an alien enters the country in an unauthorized manner. By merging the agency rule and the presidential proclamation into a single regulatory unit, the Trump administration raised a very cool question about judicial review under the APA.

Of course, the agencies’ joint rule is subject to judicial review under APA 5 U.S.C. § 706. But the presidential proclamation is a different story. Famously, in Franklin v. Massachusetts, the Supreme Court relied on separation of powers concerns to hold that the president is not an “agency” whose actions are subject to judicial review under APA § 706. Under Franklin, presidential regulation by proclamation is typically subject to cursory (or “facial”) review that is far more deferential than “hard look” review. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018).

Given that the rule and the proclamation achieve substantive effect only in combination, but that each individual measure is subject to grossly different standards of judicial review, it was uncertain how the court would assess the likelihood of the government’s success on the merits—a crucial element of the court’s consideration of the Justice Department’s request to stay the temporary injunction.

In a brilliant stroke, the Ninth Circuit resolved this conundrum by turning to the APA’s definition of “agency action.” 5 U.S.C. § 551(13) (“agency action … includes the whole or part of an agency rule, order, license, sanction, relief, or the equivalent … thereof”). Because the proclamation was “part of” the “agency rule,” it was a component of the “agency action” and therefore became subject to judicial review under the APA.

As an administrative law nerd, I’m stoked about the majority panel’s reasoning here. Like many others, I’m uncomfortable with the Supreme Court’s Franklin decision. For starters, the opinion contravenes the remedial imperative by exempting major presidential policymaking from “hard look” review under APA § 706. Franklin, furthermore, exists in considerable tension with a common sense reading of the APA and its legislative history, as was recently noted in an excellent Notice & Comment post by Professor Kathryn Kovacs.

To my eyes, the Ninth Circuit’s majority holding in East Bay Sanctuary Coventry offers the prospect of “hard look” judicial review under APA § 706 for all presidential proclamations that are non-self-executing or which otherwise require agency action for implementation.

For example, under the Antiquities Act, the president may issue a proclamation that regulates millions of acres with one signature. Ultimately, however, either the Interior or Agriculture Departments must implement the proclamation. To date, parties injured by presidential policies under the Antiquities Act have challenged the proclamations themselves, which were reviewed under the cursory “facial” review standard. See, e.g. See, e.g., Mountain States Legal Found. v. Bush, 306 F.3d 1132 (D.C. Cir. 2002); Tulare Cty. v. Bush, 185 F. Supp. 2d 18 (D.D.C. 2001).

Under the Ninth Circuit’s reasoning in East Bay Sanctuary Covenant, a party injured by an Antiquities Act proclamation could wait until the implementing agency—either the Interior or the Agriculture Department—performed an agency action to execute the proclamation. At this point, the injured party could challenge both measures (the proclamation and the implementing rule) as a regulatory unit. In this manner, the plaintiffs would achieve “hard look” review of the proclamation, rather than facial review.

Chevron’s Nascency in the Ninth (A Riff off Chevron: Accidental Landmark)

In a December Notice & Comment post, Prof. Chris Walker drew attention to a great new short film about how Chevron v. NRDC evolved from a “puny little precedent” into the most famous case in administrative law. The documentary argues that the Justices who voted for Chevron understood the decision to reflect a mere restatement of existing law, and that factors largely extrinsic to the Supreme Court resulted in Chevron occupying its current pedestal.

The film, aptly titled Chevron: Accidental Landmark, is based on a law review with a similar name by Prof. Thomas Merrill. According to Prof. Merrill, two explanations seem “most possible” for Chevron’s ascension:

The first focuses on the D.C. Circuit, and posits that Chevron became a leading case initially in the D.C. Circuit, and then migrated back to the Supreme Court along with personnel who had previously served in the D.C. Circuit.

The second focuses on the role of the Executive Branch, and posits that Justice Department lawyers, perceiving the advantages of Chevron’s expanded rule of deference to administrative interpretations, became persistent and eventually successful proselytizers for use of the Chevron standard in reviewing agency interpretations of law.

As a former Justice Department lawyer when Chevron was decided, Prof. Merrill could personally attest to the second possible explanation. He observed that the decision “was quickly seized on as a kind of mantra by lawyers in the Justice Department, who pushed relentlessly to capitalize on the perceived advantages the decision presented.”

In order to investigate the D.C. Circuit’s role in Chevron’s evolution, Prof. Merrill examined all D.C. Circuit opinions citing to Chevron during the first three years after the decision was handed down. His review lent support for the contention that the D.C. Circuit was a Chevron pioneer. According to the Professor, “the D.C. Circuit picked up on the Chevron two-step framework for reviewing agency determinations of law very quickly”—within three months after Chevron v. NRDC. See Rettig v. Pension Benefit Guaranty Corp 744 F.2d 133, 150–51 (D.C. Cir. 1984). “By the end of the second year,” Prof. Merrill observed that the Chevron two-step “was already regarded as boilerplate doctrine in the Circuit.”

Inspired by the Prof. Merrill, I decided to create a comparative dataset of Ninth Circuit opinions reflecting the nascency of Chevron in that jurisdiction. Using a database search, I reviewed every majority or unanimous panel decision that cited Chevron from 1984 through 1987. The resultant data, which is available here, support Prof. Merrill’s conclusions.

The raw aggregate numbers are telling. Prof. Merrill reports that the D.C. Circuit cited the Chevron doctrine in 115 controlling opinions during the decision’s first three years. By comparison, the Ninth Circuit cited Chevron in only 44 controlling opinions from 1984 to 1987.

Yet it wasn’t just that the Ninth Circuit invoked Chevron far less often than did the D.C. Circuit in the mid-1980s when the decision was young. At the same time, the two circuits were applying a qualitatively different doctrine.

Whereas Prof. Merrill found that the D.C. had adopted the two-step formulation as “boilerplate” within two years of Chevron v. NRDC, the two-step framework never took root in the Ninth Circuit during the decision’s first three years. Of the 44 Ninth Circuit opinions that cited Chevron during this period, only 16 (36%) articulate the two-step formulation either expressly or impliedly. Nor was there any upward trend in the court’s adoption of the two-step; from 1984 to 1987, the court eschewed the framework at a consistent rate.

You might be asking: If Chevron v. NRDC generally did not stand for the talismanic two-step methodology in the Ninth Circuit from 1984 to 1987, then what did the decision signify? In fact, Chevron carried many different meanings for various panels.

In one opinion, a panel framed Chevron as “a recent restatement” of the law—terms almost identical to those employed in the documentary Chevron: Accidental Landmark.

Thirteen times, panels employed Chevron for the notion that agency interpretations merit generic deference, including all-purpose “great deference,” “considerable weight,” “considerable deference,” “substantial deference,” “the principle of deference,” “flexibility” or “latitude.” In at least three of these instances, Chevron v NRDC wasn’t even the first precedent cited in support of generic deference. Of greatest interest, the court cited Chevron v NRDC as an anti-deference doctrine in four decisions—about 9% of the time. In this type of opinion, the panel would stress the judiciary’s role at step one, then ignore step two, and thereby take the wind out of agency deference. For example, in Abramowitz v. U.S. E.P.A., the court presaged its rejection of the government’s statutory interpretation by advancing the following standard of review:

Although it is axiomatic that a reviewing court cannot substitute its judgment for that of the administrative agency, it is equally well established that a court cannot defer to agency discretion when the intent of the Act is clear. Chevron v. N.R.D.C., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 2781–82, 81 L.Ed.2d 694 (1984); American Cyanamid Co. v. EPA, 810 F.2d 493, 496 (5th Cir.1987).

In the remaining decisions that did not employ a two-step, Chevron stood for the principle that a “permissible” or “reasonable” agency interpretation

In sum, my review of Chevron’s early years demonstrates that the doctrine remained inchoate in the Ninth Circuit while the D.C. Circuit rapidly incorporated Chevron’s canonical two-step framework. This conclusion lends support to the thesis set forth in Chevron: Accidental Landmark.

The Best Appellate Twitter Insights into the Ninth (lightly edited for clarity): Exchange between Professors Steve Vladeck & Jonathan Adler

@Steve_Vladeck There goes the crazy liberal Ninth Circuit again—doing the exactly right thing by accepting the district court’s certification of a permissive interlocutory appeal in the Juliana climate change case.

@JAdler1969 They only did this because the SG went to SCOTUS, as the history of this case makes crystal clear.

@Steve_Vladeck Having clerked for Judge Berzon, I think this is a fairer assessment of the district court’s underlying certification decision than the Court of Appeals decision to accept the certificate.

William Yeatman is a research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.