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‘Wow’: Chief Justice Roberts, Justice Kavanaugh, and Justice Jackson Audibly Surprised by Biden Admin’s Position on Administrative Law and Judicial Review


Chief Justice John Roberts (L) Justice Brett Kavanaugh (C) and Justice Ketanji Brown Jackson (L)

During oral argument at the U.S. Supreme Court on Tuesday in a high-stakes and high-profile immigration case, an argument about the administrative state from the Biden administration prompted an unusual – and unusually animated – alliance between three justices.

The proceedings involved the government’s challenge of an injunction in United States v. Texas, blocking the Department of Homeland Security’s guidance in setting its immigration enforcement priorities. But the issue that united the justices did not revolve around U.S. immigration law or policy.

Instead, it was the government’s argument that all nationwide injunctions of its kind — not just the one that barred this administration’s rule-making — were impermissible.

In legal briefs and in court, Solicitor General Elizabeth Prelogar advanced an expansive view that the Administrative Procedure Act (APA) does not countenance nationwide injunctions being issued by district courts against agency rule-making. Discontent about the federal judges blocking the federal government’s policies through APA litigation is a long and bipartisan tradition, with the executive branch typically seeking ways to expand its power and avoid court oversight.

After Donald Trump’s administration lost a record number of APA cases, former Attorney General Bill Barr wrote an editorial in the Wall Street Journal titled “End Nationwide Injunctions.” His predecessor Jeff Sessions wasn’t fond of them, either. The reason for their disapproval was obvious: The Trump DOJ lost a record number of cases under the APA, as courts reversed the administration’s marquee policies. Those includes Trump’s attempt to rescind the Deferred Action for Childhood Arrivals program, add a citizenship question to the decennial census, and in the early stages of litigation, the so-called Muslim ban.

For Trump’s DOJ, however, outrage at nationwide injunctions remained confined to the conservative opinion pages. The Biden administration brought the controversy to the nation’s highest court, bringing together strange bedfellows on the nine-justice bench.

The argument advanced by the Biden administration cuts to the quick and the heart of the administrative state as it is presently constituted – particularly the outsized role in which the U.S. Court of Appeals for the D.C. Circuit has handle APA cases for several decades.

Specifically, the Biden administration argued, the legal concept of vacatur is not appropriate or lawful under the APA’s §706, the same part of the statute that has given birth to the concept of “arbitrary and capricious,” that legal term of art which has been transmogrified into a part of the common American lexicon. As widely understood, a court can simply axe – nullify and void writ large – an agency action that has been found arbitrary and capricious, rending such action or rule inoperable nationally. Not so, says the Biden administration.

Here’s the argument from the government’s petition:

The district court read Section 706(2) to authorize universal vacatur of a rule by any district court hearing an APA challenge. Properly interpreted, however, Section 706(2) merely directs a court to disregard an unlawful agency action in resolving the case before it. That understanding is consistent with fundamental principles of judicial review. A court that “sets aside” an unconstitutional statute, for example, denies effect to the statute but does not nullify it or render it void. Of course, when a court sets aside agency action, as when it sets aside a statute, it may grant relief to the parties before it. But in the absence of a special review statute, 5 U.S.C. 703 remits courts to traditional party-specific remedies like injunctions and declaratory relief. The district court’s contrary interpretation would transform the APA from a codification of pre-existing principles into a radical departure from them.

The three justices who previously served on the D.C. Circuit – Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson – appeared to take the argument as a personal attack on their own judicial careers.

“Your position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit,” Roberts told Prelogar. “You know, five times before breakfast, that’s what you do in an APA case. And all of a sudden, you’re telling us, no you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA?

“Yes,” the government’s high court attorney replied. “I acknowledge, Chief Justice, that the lower courts, including the D.C. Circuit, have, in our view, been getting this one wrong. They have reflexively assumed that vacatur is authorized under Section 706 of the APA.”

“Wow,” the chief justice said, interrupting. “I mean this is a long – that’s what’s the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.”

In a long soliloquy, the solicitor general stuck to her guns:

But they haven’t been doing it with any attention to the text, context, and history of the provision. So, it’s not as though there are decisions out there that have really engaged with these arguments and come out the other way. Instead, it seems like this happened and came about because courts just reflexively transposed remedies that were available under special statutory review provisions – which do sometimes authorize vacatur – to the APA context writ large. And our argument is that if you actually drill down on the text of 706 and look at its context – and also look at the history of the APA – which was not intended to create any kinds of new remedies, but instead to simply provide for the remedies that had preexisted the statute’s enactment and the traditional forms of legal under Section 703, it demonstrates that the courts have erred here.

Roberts was aghast at the implications raised by Prelogar’s argument.

“How many cases would you say that we have issued over the past year, decade, whatever, where we have upheld decisions vacating agency rulings under the APA?” the chief justice asked, pausing to allow the solicitor general to briefly speak before cutting her off: “Thousands.”

Notably, as the chief justice expressed his perplexity, at least one other justice was repeatedly heard snickering in the background.

Kavanaugh’s own stab at the “set aside” argument began with his own lengthy speech – his voice audibly rising at times:

I have some problems with that as you might imagine. “Set aside,” you said the judges on the D.C. circuit haven’t paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat alongside judges like Silverman, and Garland, and Tatel, and Edwards, and Williams. They paid a lot of attention to that. And the government never has made this argument – in all the years of the APA. At least not that I remember; sitting there for 12 years. I haven’t seen it made. It’s a pretty radical rewrite, as the chief justice says, of what’s been standard, administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years and the government comes up and acknowledges that in case after case after case with the labor, energy, environmental.

I think it’s a big step. you say they are not paying attention to the text. Yeah, we did. “Set aside” means “set aside.” That’s always been understood to mean the rule is no longer in place. No one’s really had a – no case has ever said what you’re saying. Anywhere. It’s a recent law review proposal. Good for that. But that has not been the law. And, so, I find it pretty astonishing that you come up here – and make – and I realize that’s not the main part of your submission. But I’m just gonna push back pretty strongly on those three pages for –  just toss out decades of this court’s law, of circuit law. You’ve got Public Citizen and Texas coming after you on this. They don’t usually unite in an administrative law case in my experience. They both say your position is completely unprecedented. That’s not really a question, but that is a comment on what I think is a pretty extreme argument.

After that, however, Prelogar backtracked a bit to say she didn’t mean the D.C. Circuit was not, in general, considering “text, context, and history.” She clarified that the administration’s position is that this is something more like an incident of first impression for the Supreme Court – noting that universal vacatur has, in fact, been considered and deemed “not permissible under the APA” by some lower courts.

“I would like to circle back to the concerns the chief justice and Justice Kavanaugh raised about vacatur and the argument you are making in this case,” Jackson said.

Justice Elena Kagan briefly interjected to note that there “seems to be a D.C. Circuit cartel.”

Jackson laughed, agreed, and then tore into Prelogar’s position:

The conceptual problem that I am having with your argument – you point to text, context, and history – and I understand those things. But ordinarily, there is a symmetry between the claim that is being made in a case and the remedy that is provided to a successful plaintiff. And your remedy, the way you are reading this, actually creates a disconnect for me.

Here is what I mean: It is clear that the claim under the APA is about the manner in which the agency has exercised its discretion. And we know, we know, that agencies have no inherent authority. They get all of their power, to make valid and legally binding policies, from Congress. And Congress has said in the APA that, in order to make valid and legally binding policies, agencies have to follow certain procedures. So, when a plaintiff is making a claim under the APA, they are complaining about the agency’s failure to follow the procedures that are necessary in order to reach a valid and legally binding result. Given that that is the case, I think there is a disconnect to say that the successful plaintiff only gets a remedy that is about the application of that rule to them. Because their complaint is not about the application. Their complaint is that the agency did not have the authority to do what it did, because it didn’t follow the procedures under the APA. It is as though they are saying what the agency did is void, it’s a null set – because they didn’t follow the procedures that Congress required.

So, I just don’t even understand— setting aside how you read the statute to get to that result, it seems to me to not make sense to say that the remedy is to allow the agency to apply its void, defective rule to anyone else who is not the plaintiff.

Prelogar did, for what it’s worth, appeared to have a receptive ear for her textualist argument from Justice Neil Gorsuch – who is also, maybe coincidentally, considered somewhat disdainful of the modern administrative state.

“You don’t erase them from the books,” Gorsuch said, when considering the administration’s argument about “set aside.”

[Images via Getty Images]

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