Error of Will—Or Matter of Framing?

The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.

—Antonin Scalia

The Supreme Court’s invalidation of the Trump Administration’s wind-down of an Obama-era relaxation of immigration law has triggered criticism of the Court and Chief Justice. Many critics, including commenters at the Wall Street Journal and jurists like Professor John McGinnis, have harkened to arguments voiced in dissenting opinions by Justice Alito and, even more, Justice Thomas.

Numerous amici—friend-of-the-court parties—appeared in Department of Homeland Security v. Regents of the University of California (or DHS), to argue that the disputed Obama-era program had been set in place at the stroke of a pen and cried out for recission. Justice Thomas warmly embraced that position; the government was notably cool. It urged instead that the wind-down be upheld as a reasonable, indeed unreviewable, enforcement policy.

The first rule of administrative advocacy is that defenders of agency action must dance with the partner who brought them to the party; you must defend administrative decisions using the agency’s own rationale—even if you wish also to go beyond the agency’s reasoning. The government in DHS forgot this elementary rule.

As for assessing the Court, we leave—for now and to Professors McGinnis and Adler—the question of the “Real John Roberts.” Focusing more narrowly, this essay conveys one lawyer’s view that careful appraisals of Supreme Court opinions are essential, and the DHS Court essentially got things right—at least in light of how the case was framed by the parties.

Let’s Define Terms

We confront a crisis of constitutional misunderstandings—fundamental and dangerous misunderstandings among much of the legal left; partial and logical misunderstandings by everyone else.

To overcome such misunderstandings, it is sometimes helpful to consider constitutional law and advocacy in terms adapted from modern logic and economics. One concept that comes to mind in connection with the reception of DHS is the difference between internal and external perspectives. Another is the concept of the affirmative negative.

Professor McGinnis, for example, overlooks the distinction between internal and external perspectives. This distinction is seen in various guises in diverse disciplines. A sociologist might associate it with Max Weber; lawyers encounter it mostly through H.L.A. Hart. For myself, the seminal frame of thought comes from Adam Smith and his related pronouncements that, although we can never fully comprehend, or “survey,” our own “sentiments and motives,” we can, “in some measure, with the eyes of other people, scrutinize the propriety of our own conduct.”

The gravamen of Professor McGinnis’s DHS analysis is that the majority opinion, written by the Chief Justice, is a “results-oriented,” “error of will” that “seems a transparent effort to avoid an unpopular ruling.”

The fallacy of this analysis lies in making assertions from the internal perspective of the Court and Chief Justice—about results-orientation, errors of will, unpopular rulings—and then switching viewpoints and supporting the assertions with evidence from the external perspective of a reader of published opinions.

Before making assertions grounded in the internal perspective of the Court, we need to survey that perspective.

A Dispute over Procedure?

Devised as a substitute for immigration-reform legislation, DACA invites unauthorized migrants who entered the United States as children to apply for “forbearance of removal” for a fixed number of years. Accepted applicants become eligible for work authorizations and government benefits.

After Attorney General Jeff Sessions assumed office, he declared DACA “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of authority by the Executive Branch.” Soon thereafter, in adherence to the Attorney General’s opinion, the Department of Homeland Security rescinded the program, and litigation followed.

The challengers to DACA’s recission pressed arguments under the Administrative Procedure Act. The APA generally requires agencies to consider relevant factors and offer reasoned explanations for administrative actions. The challengers contended the explanations supporting DACA’s recission were incommensurate with the vast “reliance” at stake in the program’s continuation. After all, they insisted, the recission may potentially — or will inevitably— affect thousands upon thousands of lives.

In Justice Thomas’s eyes, reliance on DACA forbearance is beside the point, and the lawfulness of the DACA recission is clear. According to Justice Thomas, “reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take,” and “[n]o amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it.” He concludes, “No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio.”

By embracing this reasoning, Justice Thomas supplies from the bench argument left out at the bar—what’s known as “backfilling” or, less commonly, “off-road driving.”

Harmony of Argument

To see the stark difference between the government’s presentation and Justice Thomas’s opinion, compare the excerpts above with the four soft-pedaling paragraphs addressing DACA’s legality (pages 20-21) in the government’s final written submission. How do we explain the difference?

There surely is organizational friction at work, as well as the difficulty of the particular case. But by far most important, on one view, are matters of institutional interests, experience, familiarity, and capability.

The government’s characteristic approach to Supreme Court advocacy betrays comparatively little concern for reinforcing positions across arguments and briefs, relative inexperience with affirmative constitutional challenges, aversion to hypothetical illustrations, and, most relevant here, hesitance in drawing hard-and-fast distinctions.

From the government’s perspective, the key to winning the DHS case was putting up a staunch defense of General Sessions’s conclusion that DACA contravenes both immigration laws and the Constitution. Admittedly, fully dressing this position requires hard thinking and careful writing. But some cases are harder than others, and this one may have been the hardest of the most recent Supreme Court term.

To its great detriment, the government decided simply to live with tension between arguments based on DACA’s out-and-out illegality, the government’s stated reason for rescinding the program, and arguments that DACA’s recission was an unreviewable exercise of policy discretion, the government’s preferred grounds for defending its case.  To the extent the government managed this tension, it did so by characterizing the recission more as sound immigration policy, less as rule-of-law reclamation project. This position attracted one member of the Court—Justice Kavanaugh, who declined to join Justice Thomas’s dissent.

Meanwhile, the government neglected to develop fully and press insistently arguments bearing on DACA’s (un)lawfulness. (See oral argument: JUSTICE KAGAN: “So what did DACA violate?” GOVERNMENT ATTORNEY: “I’m saying two things, Your Honor. First, I’m saying you don’t really have to address this issue…”)

If DACA affronts the law, and its rescission upholds the law’s sanctity, then why not get on with it, as Justice Thomas urges?

With the government’s arguments out of harmony, DACA’s defenders intoned a consistent theme: DHS failed to furnish adequate, contemporaneous explanations for how DACA contravened law or how its wind-down accounted for reliance on the program by affected migrants. This position walked a fine line. It conceded DHS’s authority to rescind DACA; it challenged DHS’s implementation of that authority.

One has to admire the footwork of California Solicitor General Michael Mongan in support of this line of argument. Asked by the Court what “would be sufficient” in terms of agency explanation for a rescission, General Mongan responded:

I think, as a general matter, an agency could base a discretionary decision on [a] reasoned analysis like that. I suspect that if we saw that decision, we would challenge it under the particular circumstances.

“[A]s a general matter” an agency might satisfy the law and rescind DACA; challengers would assail such a recission under virtually any “particular circumstances.” The DACA litigation, as crafted, was procedural in form, substantive in effect.

Difficult to Execute

The government’s best hope of exiting this procedural merry-go-round, certainly in retrospect, was to insist that DACA contravened law and maintain that its recission lies beyond ordinary review principles under the Administrative Procedure Act—precisely because, in Justice Thomas’s terms, it was “void ab initio.”

To force such an up-or-down decision, the government should have characterized DACA as establishing a new immigration status; shown the pre-existing legal significance of this description; conceded the recission may be reviewed for legal error; fashioned a telling hypothetical analogue for DACA; and brought the Constitution into play. Such a presentation would include difficult-to-execute elements stretching the government’s advocacy in unfamiliar directions.

The most sensitive of these steps, by far, is the final one: vindicating General Sessions by developing the intuition that the Constitution demands DACA’s recission. Such an argument might well draw upon Blackstone’s assertion that no parliamentary act can be insulated by an enacting parliament against repeal by a future parliament. For instance, no British Parliament, or United States Congress, could validly enact a law that establishes a super-majority requirement for its own repeal.

Likewise, or so the argument would go, no executive act, demonstrably ultra vires ab initio, may lawfully be insulated against repeal by a future executive—whether via requirements for the contemporaneous explication of governing law, consideration of relevant decisional factors, adherence to mandated procedures, or otherwise.

Too Much to Backfill?

If DACA affronts the law, and its rescission upholds the law’s sanctity, then why not get on with it, as Justice Thomas urges?

Because backfilling from the bench turns judges into advocates and lets counsel off the hook for their litigation choices. And because embracing backfilled argument causes quality-control failures in resolving far-reaching legal questions.

An underdeveloped dimension of Justice Thomas’s DHS opinion is constitutional analysis. The opinion fails to address the contention, pressed in earlier rounds of the controversy, that leaving DACA undisturbed would represent abdication of the President’s constitutional responsibility to “take Care that the Laws be faithfully executed.” It also fails to consider a claim that the review sought by DACA’s defenders would, if granted, produce an unconstitutional delegation of legislative authority by allowing one presidential administration (partially) to bind its successors.

To be sure, Justice Thomas does offer a reference—briefly and in a footnote—to his landmark, foundationalist discussion of the Constitution’s non-delegation doctrine. But the case that occasioned that discussion involved delegated authority “to craft generally applicable rules of private conduct.” DHS arose in a different context—an agency’s claimed authority to mandate generally applicable rules for official conduct, including rules for initiating removal proceedings, granting work-permits, and bestowing benefits. Justice Thomas’s brief constitutional reference is of marginal relevance.

More problematic is Justice Thomas’s failure to define precisely the legal test he thinks should be used in examining recissions of unlawful administrative initiatives. Justice Thomas observes that “unlike the typical prior policy,” DACA “is unlawful,” and he goes on to contend, no decision “cited by the majority addresses what an agency must do when it has inherited an unlawful program,” and, “[t]he majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope.”

If you agree with Justice Alito that our constitutional system “is not supposed to work [this] way,” an implication is that today’s constitutional lawyers may be in need of remedial instruction in what it takes to sustain our system of government.

But the explanation Justice Thomas is seeking leaps to mind for every administrative lawyer. One of the two most famous administrative-law cases on the books goes out of its way to emphasize (perhaps overbroadly) that a “recission or modification” of an agency’s program should be reviewed according to the same legal test as a program’s initiation.

Justice Thomas evidently is proposing that this principle be qualified. His view—and there is much to say for it—appears to be that recissions of actions demonstrably ultra vires ab initio need not be scrutinized “under the arbitrary and capricious microscope.” But Justice Thomas fails to announce directly that this is his intention; or to grapple with prior cases that might be cited to the contrary; or to give the rationale for why this qualification is warranted.

If one were to imagine reasons for Justice Kavanaugh not joining Justice Thomas’s opinion, here is where to start.

Affirmatively Negative

Using terminology similar to what’s found in Professor Bart Wilson’s excellent book, Ashley Parrish and I have introduced lawyers to the idea of affirmative influences from things not present. We note that today’s Court differs from earlier Courts in its reliance on such influences. For example, “One non-doctrinal, logical building block of recent Supreme Court decisions holds that a persisting non-use by the political branches of an ‘attractive’ and obvious governmental power is potent evidence that the power is not constitutionally available.”

Along similar lines, the Banquo’s Ghost propelling the DHS decision was likely a never-written opinion that dissects the current shape of Justice Thomas’s and Justice Kavanaugh’s reasoning. As for Justice Kavanaugh, the non-opinion argues that DHS was bound by General Sessions’s determination that DACA represents an “unconstitutional exercise of authority by the Executive Branch” and concludes that DACA’s lawfulness and the constitutional dimension of its recission had to be tackled head on—not side-stepped as in the Kavanaugh opinion.

And as for Justice Thomas, the ghostly opinion becomes a diatribe: questioning Justice Thomas’s handling of administrative precedent; emphasizing the government’s coolness to the Thomas position; invoking, perhaps, Justice Scalia’s admonition against self-directed judicial inquiry; and concluding that upholding DACA’s recission on such grounds represents—you guessed it—a transparent, results-oriented, error of will.

To be sure, Justice Thomas’s view is the contrary. According to Justice Thomas, the DHS decision “must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.” And further, “Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”

Those are strong words from an eminent jurist. But on the other hand several insistent, albeit non-existent, things were staring the DHS Court in the face and, we may presume, influencing its ruling: lacunae in the government presentation filled by Justice Thomas; lacunae in the Thomas opinion that would best be filled before upholding DACA’s rescission; and, just perhaps, an anticipated dissent accentuating the off-road legal ground that would have to be covered to uphold DACA—and the risk of error assumed in traversing this distance.

Viewed from its internal perspective, there were two basic ways for the Court to resolve the DACA recission cases. It might have pursued a further plane of analysis, absorbing whatever of value might be gleaned from amicus submissions but risking error and ensuring criticism. Or else, it might have tried to do as little damage as possible to the fabric of the law while sending the case back to the Executive. It chose the latter course.

A Lament for Lawyers

Our present crisis is attributable at bottom to our cadre of learned, skillful, energetic, enthusiastic attorneys, Democrat and Republican, who lack an understanding of what it is that they were taught and what it is they learned in their legal training.

Elite legal academies impart knowledge and develop proficiency in certain modes of legal reasoning. They provide training in doctrine, history, criticism, advocacy, and journalism. But they leave the vast majority of graduates, at least those with keen interests in constitutional law and advocacy, in a state of perplexity about basic elements of our great Constitution. The inevitable result is marvelously skilled but dangerously blinkered practitioners who too often play unwitting foe, and too seldom play vigilant handmaid, of a governable democracy.

A final word must be allowed, then, to Justice Alito’s resonant DHS dissent. That opinion may be read on one level as a lament about how often legal jockeying ends up defeating the law. Through deftly shaping substantively fatal procedural claims, litigants in DHS stalled and may have blocked an essentially lawful recission of an essentially unlawful action.

If you agree with Justice Alito that our constitutional system “is not supposed to work [this] way,” an implication—at least for me and perhaps also for Professor McGinnis—is that today’s constitutional lawyers may be in need of remedial instruction in what it takes to sustain our system of government. As the constitutional misunderstandings of elite attorneys imperil our country as never before, we do well to bear in mind these sobering thoughts.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on August 04, 2020 at 07:57:03 am

Well written, careful and deliberate. Correctly sees the case as an attempt to preserve administrative sanctity in the face of Constitutional insistence. There is no Constitutional authority for an Executive, or agency, to 'relax' the requirement of law, though that has been the practice, permitting the Executive and the agencies to 'legislate' in the absence of due process in the underlying law making, and there for over 80 years! CJ Taft is rolling in his grave! And there is no Constitutional requirement that the Executive suffer an administrative process in dispensing with outright illegality, unless one were under a Constitutional duty in subordination to administrative policy!? Nowhere in the Constitution does it declare government by administration. And Americans are losing their rights in the 'administrative' policies of suborning illegal privilege as a consequence, DACA a perfect example! Due process of law is not subordinate to administrative discretion or procedure, and there in the unlawful delegation, ab initio. Let's cut to the chase without the intermeddling niceties.

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on August 04, 2020 at 14:47:23 pm

Agreed. The underlying problem is in the APA and the traditions and abuses which have come in its wake. But the Chief Justice came from the DC Circuit, and before that was a practitioner of Administrative law, so it is not surprise that, working from within, he is a defender of it, and insists that its requirements be taken seriously. We've seen this before, for example with the Census case. If the government is going to play the Administrative Law game, it has to play by the established rules of the game, and those rules, for better or worse, are somewhat "extra-constitutional." Some day there may come a case for reconsideration of Chevron and Auer, and the Administrative Law framework may begin to crumble. But that was not the case presented here by the government.

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on August 04, 2020 at 10:03:19 am

Oh my!
The Court screwed up. How it screwed up is easily understood. Four of the majority votes were votes sub silentio for Obama. These four votes can be dismissed intellectually and taken for granted as offered up for no reason other than that they were votes cast against Trump and for Obama. Thus, knowing why the Court screwed up requires only one task: addressing the Supreme Court's very own "Strange Case of Dr. Jekyll and Mr. Hyde," Chief Justice Roberts' aporetic conflict between law and animus on matters Trump.

The essay does none of that. It fails to acknowledge that the Court was in error, to explain how it was in error and even to speak to the reason for that fifth vote, which is why the Court was in error. But whatever the essay does (if anything) it does at inordinate length and with verbal pretension, pomposity and opacity as pretense for intellectual substance, making it suitable for expansion into a law review article.

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on August 04, 2020 at 12:00:07 pm

This essay strikes me as an exercise in the legal use of proper technique - and nothing more. Technocratic pomposity masking an inability or unwillingness to acknowledge the Courts fundamental error in not permitting the recission of an eminently illegal arrogation of power by the Obama Executive Branch. Note well that The Administrative State is now, according to SCOTUS, entitled to the appellation "Branch" and is afforded such deference as has heretofore been afforded the constitutionally authorized Branches.
Yet, it is clear that the Court recognized the illegality AND still chose to defer to the Administrative Branch's somewhat arcane procedural requirements (initiated and sustained by the courts own "arbitrary and capricious" doctrines - Ok a bad pun).
The most sensible and accurate argument advanced in the above essay is this:
"...is that today’s constitutional lawyers may be in need of remedial instruction in what it takes to sustain our system of government. As the constitutional misunderstandings of elite attorneys imperil our country as never before, we do well to bear in mind these sobering thoughts."
I would only add that these same *constitutional* lawyers may be in need of a reduction in ego and that they should use their *clever and crafty" disputatious nature to advance something other than their own standing and reputations; perhaps, as the essayist suggests - maybe the Constitution.

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Image of gabe
on August 04, 2020 at 19:04:32 pm

Harrumph. Harrumph. Harrumph, harrumph, harrumph. We high-minded, august defenders of a proceduralist, technocratic framing of the law ... Blah, blah, blah ...

And if Nero did in fact fiddle while Rome was burning the author of this piece could be expected to point to the need for a well made and properly tuned fiddle.

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Michael Bond
on August 04, 2020 at 20:59:10 pm

While the APA is inapplicable to the repeal of a regulation void ab initio, what makes the Regents decision even more disturbing is that before the illegal DACA regulation was cancelled DHS provided public notice of a written analysis of why the rule was being cancelled, a statement which would have satisfied the APA, but to which the Court gave no attention.
Further, the author's notion is preposterous that the argument embraced by Justice Thomas (the correct analysis) could not be considered because the government did not raise it in Court. Ha Ha! As if the Court is not wholly free to rule on proper legal and constitutional grounds because that grounds was raised by a Justice. Sometimes the Court will ask for additional briefing on a matter not raised by the parties, but it is silly to argue that the Court must rule the wrong way because (arguably) the argument supporting the correct analysis and decision was raised by a Justice, not the parties. (I recall losing a case against the U.S. in the First Circuit on the basis of an argument first raised in oral argument by Chief Judge Campbell, an argument which the DOJ failed to raise at trial and the Solicitor General failed to raise on appeal.)

The Court's decision in Regents has nothing to do with the APA, nothing to do with the U.S. alleged failure to raise the correct argument and everything to do with the disingenuous, highly political CJ Roberts and "The Strange Case of Dr. Jekyll and Mr. Hyde." Roberts deployed the APA gambit in Regents just as he used his novel tax analysis as a ploy in Obamacare and his novel concern with pretextual motivation in the census case, in each case to block the Court's capacity to uphold the constitution when doing so conflicted with his personal political bias or hyper-inflated concern for the Court's reputation visa vis a Democrat Congress and inflamed public opinion.

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on August 06, 2020 at 17:25:11 pm

Not only that BUT the Court has, shall we say, "facilitated" the introduction of what some members of the Court deemed a more proper argument via a clever introduction of judicial queries from the bench. did not roberts execute a similar trick in the initial Obamacare arguments in order to permit the case to be heard - the infamous a "Tax is not a tax" UNTIL such time as IT MUST BE ONE in order to save this abortion of a bill. (I am only slightly misquoting the Roberts decision - Ha!).

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.