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 last month’s controversies.

On 6^th June, a Ninth Circuit panel granted the government’s request to amend the court’s March order in Barbosa v. Barr. While the amendment is incidental, the panel’s reissuance of its Barbosa opinion provides an ideal segue to our first topic: How the Supreme Court’s recent decision in United States v. Davis bolsters a cause celebre on the Ninth Circuit—namely, the growing belief that deporting aliens for “crimes involving moral turpitude” (CIMT) is unconstitutional.

As I reported previously, Judge Marsha Berzon in Barbosa  “join[ed] the chorus of voices calling for renewed consideration as to whether the phrase [CIMT] is unconstitutionally vague.” Only a month before, Berzon’s colleague Judge William Fletcher made the same point with a masterful concurrence to Islas-Veloz v. Whitaker. Prior Ninth Circuit panels had raised similar red flags about the constitutional propriety of punishing aliens for CIMTs.

The object of these critics’ ire is immigration law that deports noncitizens for convictions of morally turpitudinous crimes. Indeed, the United States brought removal proceedings against over 135,000 noncitizens for CIMTs from 1996-2006—and that was during a period of immigration-friendly administrations relative to now.

So, what is a crime involving moral turpitude? The problem is that no one knows.

As repeatedly observed by the Ninth Circuit, CIMT “is perhaps the quintessential example of an ambiguous phrase.” According to the Justice Department, CIMTs are “measured against contemporary moral standards,” which means they’re a moving target. In practice, courts look to two sources when discerning CIMTs: 1) crimes previously deemed morally turpitudinous; and, 2) the Justice Department’s interpretation of what constitutes a CIMT (to which courts defer).

At face value, such a nebulous concept invites concern about vagueness. But these worries are amplified by the impossibly convoluted methodology by which noncitizens are penalized for CIMTs under immigration law. As set forth by the Justice Department, determining whether an alien has been convicted of a CIMT involves a three-step sequential application of the “categorical,” “divisibility,” and “modified categorical” frameworks.

At step one—the “categorical” approach—the agency works with two types of information. The first is the Justice Department’s case-specific definition of a morally turpitudinous crime (which, again, is based on either previously identified CIMTs or a novel interpretation that purports to reflect society’s ever-changing ethics); the second is the statute pursuant to which the noncitizen was convicted. Thus equipped, the agency compares its generic CIMT to the elements of the state statute. In so doing, the agency focuses on the minimum conduct that has a “realistic probability” of being prosecuted under the statute of conviction. If all the elements of the state criminal statute comport with the generic CIMT, then the state conviction is categorically a crime involving moral turpitude.

Sometimes, however, statutes are “overbroad,” meaning they criminalize conduct that goes beyond the elements of a generic CIMT. In such cases, the agency turns to step two: determining whether the state statute is “divisible” or “indivisible.” If the statute is indivisible, the agency’s inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense.

Only when a statute is overbroad and divisible does the agency turn to step three—the “modified categorical approach.” At this step, the Justice Department may examine certain documents from the defendant’s record of conviction to determine what elements of the divisible statute the noncitizen was convicted of violating. These documents include the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.

Given the complexity of this three-step analysis, it’s unsurprising that circuit courts have adopted disparate glosses on the process. For example, there are three distinct methods among circuit courts regarding how to execute the “categorical approach” at step one. Also, the “modified categorical approach” at step three is necessarily idiosyncratic, because it relies on the record of conviction unique to the purported CIMT. Finally, at least one court allows for a fourth step, whereby the agency may look to the facts of the underlying case beyond the record of conviction.

In sum, the phrase CIMT, per se, is inherently vague, and its tortuous implementation invites even greater uncertainty. The proof is in the pudding. As demonstrated with copious examples provided in an excellent law review article by Professor Simon-Kerr, CIMTs make little sense when compared across categories. For example:

• Moral turpitude jurisprudence today suggests that society condemns as immoral the petty thief, but not the person who attacks a police officer.
• [A]ggravated fleeing’ is inherently base, vile, and depraved, while some forms of aggravated assault do not violate community norms of morality.
• Drunk driving repeatedly is deemed not to involve moral turpitude, but drunk driving with a suspended license is assessed differently.

These conspicuous contradictions animate CIMTs critics on the Ninth Circuit. In their minds, deporting aliens for amorphous CIMTs contravenes the “first essential of due process of law”—that statutes must give people “of common intelligence” fair notice of what the law demands of them. Simply put, these critics believe that CIMTs are unconstitutionally vague.

Although the Supreme Court in 1951 upheld CIMTs in immigration law against a void-for-vagueness constitutional challenge, recent jurisprudence puts that decision in doubt. In 2015, the Court revitalized the doctrine of unconstitutional vagueness in Johnson v. United States. The Johnson Court struck down a criminal statute due to the “indeterminacy of the wide-ranging inquiry” associated with its implementation. Last year, in Sessions v. Dimaya, the Court extended its newly “exacting vagueness standard” to the immigration context, albeit one distinct from CIMTs. As noted by immigration scholars, the reasoning of Johnson and Dimaya calls for a reconsideration of the Court’s 1951 holding that penalizing noncitizens for CIMTs is constitutionally permissible.

The latest salvo from SCOTUS came last month in U.S. v. Davis, which the Court delivered in the final weeks of its most recent term. By a 5-4 vote, the Davis Court struck down a criminal statute (18 U. S. C. §924(c)) for being unconstitutionally vague. With respect to CIMTs, the Davis Court’s holding is less important that its dicta. Between the controlling and dissenting opinions, all nine Justices indicate that constitutional vagueness concerns are heightened for statutory provisions, like CIMTs in immigration law, which impose additional penalties based on prior convictions (as opposed to statutes, like the one at issue in Davis, which focus on the defendant’s current conduct during the charged crime).

In the wake of Johnson, Dimaya, and Davis, there is now considerable wind in the sails of the Ninth Circuit’s critics of CIMTs.

Regardless whether the Supreme Court ultimately changes its mind on the constitutionality of CIMTs, the Ninth Circuit could remedy its CIMT concerns whenever the court so desired. As I previously reported, the Ninth Circuit gives Chevron deference to Justice Department interpretations of generic CIMTs, even though Chevron is an uneasy doctrinal fit. By granting binding judicial deference to these interpretations, the Ninth Circuit exacerbates the underlying problems with CIMTs. In a recent and thoughtful article, Prof. Jennifer Koh explains how the Justice Department has leveraged such deference to steadily expand the contours of morally turpitudinous crime.

I agree with the criticisms of CIMTs in immigration law, and I hope the Supreme Court eventually strikes down these penalties. At the same time, I think that the CIMT critics on the Ninth Circuit are directing their concerns at the wrong source. Instead of lambasting the Supreme Court’s status quo, these judges first should set their own house in order by jettisoning the Ninth Circuit’s practice of according Chevron deference to the Justice Department’s interpretation of societal morality.

Abortion Regulation Case Has Potential to Alter Administrative Law

State of California v. Azar is a case that administrative law nerds should keep an eye on. It bears all the hallmarks of a potential Supreme Court blockbuster: divisive subject matter; participation by many sovereignties; and controversial administrative law doctrines.

Title X of the 1970 Public Health Service Act creates a grant program for pre-pregnancy family planning services. Section 1008 of Title X prohibits funds from being “used in programs where abortion is a method of family planning.” In a 1998 regulation interpreting this provision, the Department of Health & Human Services prohibited Title X grantees from providing counseling or referrals for, or otherwise encouraging, abortion.

In 1991, the Supreme Court upheld the 1988 regulations in Rust v. Sullivan. Almost a decade later, however, the 1988 rule was suspended during the waning months of the Clinton administration. In its stead, the Department of Health & Human Services issued a rule that largely reflected the pre-1988 regime.

Earlier this year, the Health Department once again revised its Title X regulations by promulgating regulatory language that substantially reverts to the 1988 rule.

After the issuance of the 2019 rule, a group of state governments and existing grantees sought preliminary injunctive relief before federal courts in three states (California, Washington, and Oregon). The district courts in all three states granted the plaintiffs’ preliminary injunction motions.

In State of California v. Azar, a three-judge panel of the Ninth Circuit unanimously stayed these injunctions pending appeal, and the court’s per curiam order is rife with administrative law principles.

For example, a crucial claim of the plaintiffs-appellees is that the 2019 rule is “not in accordance with law” (under APA 706) because it contravenes an appropriations rider that “all pregnancy counseling shall be nondirective.” In holding that the government was likely to prevail on this claim, the panel relied on Chevron deference for the agency’s interpretation of “counseling” and “nondirective.”

Regarding the other statutory challenge—that the 2019 rule is “not in accordance” with a provision of the Affordable Care Act—the per curiam opinion reasoned that the plaintiffs-appellees likely had forfeited this claim because they failed to bring it up during the notice & comment period. This “preservation doctrine,” which was imported from the D.C. Circuit, is a creation of the courts that arguably conflicts with the expansive judicial review provided by the Administrative Procedure Act.

Finally, the panel reversed the lower courts regarding the likelihood of the government surviving APA “hard look” review. The unanimous panel observed that the lower courts had ignored the Trump administration’s “reasoned analysis” in support of its decision, and the panel further noted that the Supreme Court in Rust v. Sullivan had upheld the reasonableness of the 1988 regulation, on which the 2019 rule is based.

On 3^rd July, the full Ninth Circuit voted to rehear State of California v. Azar. Given the subject matter and the involvement of many sovereign states, this controversy has a higher chance than most of being reviewed by the Supreme Court. Were such review to occur, the Court might have opportunity to weigh in on numerous important matters in administrative law, including

• Rethinking the Chevron doctrine wholesale, or, at least clearly articulating whether Chevron is appropriate for interpretations of appropriations legislation;
• Passing judgment on the “preservation doctrine,” whereby regulated parties must participate in notice & comment processes to sustain claims before Article III courts; and,
• Applying the “bad faith doctrine” (also known as “harder look review”) set forth recently in Department of Commerce v. New York—after all, few policies are more readily associated with pretextual justifications than family planning.

It bears noting that the politically-charged nature of abortion policy lends the potential for strange-bedfellow coalitions among jurists considering these matters on the merits.

En Banc Quirks

As I reported in the prior section, the Ninth Circuit agreed to rehear California v. Azar before an en banc panel. Because the Ninth Circuit is so large, its en banc panels consist of eleven judges, rather than the whole court. California v. Azar was a per curiam order, which made me curious whether the original three judges would participate in the en banc rehearing. According to the court’s rules, however, the eleven judges will be drawn from the total pool of active judges. (See Rule 35-3 & accompanying notes). The upshot is that the government won unanimously before a three-judge panel, but could (theoretically) lose unanimously before an en banc panel.

A similarly wacky outcome is implicated by the en banc dynamics of a Ninth Circuit panel’s order in Torres v. Barr, an immigration controversy that was decided on 12^th June. In Torres, the court sided with the government out of respect for circuit precedent. Nonetheless, all 3 judges on the Torres panel joined a concurring opinion arguing that the circuit’s precedent was wrongly decided. Yet only an en banc court can overturn a three-judge panel’s precedent. It follows that if the full court were to vote against an en banc rehearing, then the petitioner in Torres would have persuaded a unanimous three-judge panel on the merits, yet still lost.

William Yeatman is a research fellow at the Cato Institute.