Ninth Circuit Judge to Congress: 'Don't leave the table and expect us to clean up.'

Public charge rule goes into effect today.

By John Miano on February 24, 2020

I previously posted a summary of the Public Charge Rule’s legal saga. In City & Cnty. of S.F. v. United States Citizenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019), the Ninth Circuit held that the Public Charge Rule was within the authority of the Department of Homeland Security.

Contrary to the disinformation published in the elite media, the Supreme Court did not affirm this decision -- it merely lifted the injunction against the administration's public charge rule, allowing it to go into effect today while the case continues to proceed through the courts.

Judge Jay Bybee wrote both the court’s opinion and a separate concurring opinion. The lack of attention the nation’s elite media has paid to the latter should not surprise anyone acquainted with the generally poor quality of reporting. However, the opinion is worth reading in full (citations omitted):

BYBEE, Circuit Judge, concurring, perplexed and perturbed:

I join the majority opinion in full. I write separately to emphasize two points — points that I feel must be made, but are better said in a separate opinion.

We as a nation are engaged in titanic struggles over the future of immigration in the United States. These are difficult conversations. As a court, the Ninth Circuit in particular has felt the effects of the recent surge in immigration. As we observed last year with respect to the asylum problem:

We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000 — nearly a twenty-fold increase. Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000 — about 26% of the immigration courts' total backlog of nearly 800,000 removal cases. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States.

Because of our proximity to Mexico, Central America, and East Asia, the brunt of these cases will find their way into our court. And we are well aware that we are only seeing the matters that find their way into federal court, and that the burdens of the increase in immigration are borne not only by our judges, but by the men and women in the executive branch charged with enforcing the immigration laws.

Our court has faced an unprecedented increase in emergency petitions arising out of the administration's efforts to administer the immigration laws and secure our borders. These controversial efforts have met with mixed success in our court and the Supreme Court.

My first point is that even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences. Whether "the iron fist [or an extended velvet glove] would be the preferable policy. ... our thoughts on the efficacy of the one approach versus the other are beside the point, since our business is not to judge the wisdom of the National Government's policy."

Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges' backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don't know of any judge — at least not this judge — who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes. "In our private opinions, we need not concur in Congress' policies to hold its enactments constitutional. Judicially we must tolerate what personally we may regard as a legislative mistake."

My second point is less politic. In this case, we are called upon to review the merits of DHS's Final Rule through the lens of the judicial review provisions of the Administrative Procedure Act. Our review is quite circumscribed. We can set aside agency action if it is contrary to law, if it exceeds the agency's jurisdiction or authority, or if the agency failed to follow proper procedure. Those are largely legal judgments, which we can address through the traditional tools judges have long used. With respect to the policy behind the agency's action, we are largely relegated to reviewing the action for arbitrariness and caprice. That is not a very rigorous standard and, as a result, an agency has broad discretion to administer the programs entrusted to it by Congress.

In the immigration context, whatever dialogue we have been having with the administration over its policies, we are a poor conversant. We are limited in what we can say and in our ability — even if anyone thought we were qualified to do so — to shape our immigration policies. We lack the tools of inquiry, investigation, and fact-finding that a responsible policymaker should have at its disposal. In sum, the  APA [Administrative Procedure Act] is the meagerest of checks on the executive. We are not the proper foil to this or any other administration as it crafts our immigration policies.

By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. Const. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation's immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration's actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don't leave the table and expect us to clean up.