Immigration

What It Takes to Make a Federal Judge "Perplexed and Perturbed"

Judge Bybee's concurrence in decision rejecting challenge to "public charge" rule raises concerns about Congress's abdication of responsibility on immigration policy.

|The Volokh Conspiracy |

Last Thursday, a divided panel on the U.S. Court of Appeals for the Ninth Circuit stayed two preliminary injunctions that had been issued against the Trump Administration's effort to redefine the term "public charge" for purposes of immigration law. In City and County of San Francisco v. U.S. Citizenship and Immigration Services, the court concluded that the federal government was likely to prevail on the merits and that a stay was warranted. Whatever the policy merits of this change, the majority concluded, the federal government had adopted a permissible interpretation of the relevant statutory language, and adequately explained the basis for its interpretation.

Federal law provides that "[a]ny alien who, in the opinion of the [relevant government officials] is likely at any time to become a public charge is inadmissible." Prior to the Trump Administration, the Immigration and Naturalization Service (INS) only considered the receipt of cash benefits in making this determination. Under the Trump Administration rule, government officials would have to consider the receipt of certain non-cash benefits as well, a decision which will have the effect of rendering a greater proportion of aliens inadmissible.

. . . Congress has not spoken directly to the interpretation of "public charge" in the INA. Nor did it unambiguously foreclose the interpretation articulated in the Final Rule. Instead, the phrase "public charge" is ambiguous under Chevron. DHS has the authority to interpret it and "must consider varying interpretations and the wisdom of its policy on a continuing basis." Chevron, 467 U.S. at 863–64. Indeed, "the fact that the  agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute." Id. at 864 . . .

DHS is likely to succeed in its argument that the Final Rule should not be set aside as contrary to law. We will not minimize the practical impact of the Final Rule, but we will observe that it is a short leap in logic for DHS to go from considering in-cash public assistance to considering both in-cash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision to consider the receipt of in-kind government assistance as part of its totality-of-the-circumstances test is a reasonable interpretation of the INA and does not violate the Rehabilitation Act.

In addition to authoring the majority opinion, Judge Bybee also wrote an opinion "concurring, perplexed and perturbed." In it, he writes:

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.

E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018) (citations omitted). 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." Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 427 (2003); . . .

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. "[I]n 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." Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952).

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, 5 U.S.C. § 706. 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. Id. § 706(2)(B)–(D). 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. Id. § 706(2)(A). 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. Cf. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) ("[F]undamental policy questions appropriately resolved in Congress . . . are not subject to reexamination in the federal courts under the guise of judicial review of agency action.").

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 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.

Judge Owens also wrote a brief opinion concurring in part and dissenting in part noting he would have denied the government's motions to stay and preferred to "let these cases proceed in the ordinary course."

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  1. Congress is vestigial at this point. It has ceded its important powers to the other two branches.

  2. Are there any federal judges who have less credibility than Jay Bybee, the infamous and despicable signer of the “Torture Memos?”

    1. Yeah, Ruth Bader Ginsburg, who signed on to the opinion that gay men have a right to sodomize other men without protection.

    2. Judges who say a president cant rescind a previous presidents EO.

    3. Why not bring up guns and abortion as well?

      The comments below are proof of how terminally partisan some on here are. And they are not alone as the GOP slides into becoming a purely reactionary party into power for it’s own sake.

      1. as the GOP slides into becoming a purely reactionary party into power for it’s own sake

        Whatever the GOP may be sliding into becoming, your comment contradicts itself. A party that wants to be in power for its own sake doesn’t have directional policy commitments, it bends to whatever wind is blowing.

        A good, if approximate, example might be the British Conservative Party, which has happily amended its principles and policies over the years, in order to stay in power. As a result, it has succeeded in staying in power for about 60 of the last 100 years, plus about 10 more if you count coalitions in which is was the dominant partner.

        A reactionary party, by contrast, has a very clear directional policy commitment. It plans to reverse recent reforms which it regards as regrettable or dangerous, and to return to the old ways. A reactionary party is therefore no less committed to a definite course than a progressive party.

  3. Perhaps a judge who is retiring, as this one is, finds it easier to express his perplexity and perturbation than one who expects to convey judicial omniscience to the public for a few more decades.

    But this brings me to a tangential, or possibly parabolic, question. The Senate has just confirmed Patrick Bumatay to Carlos Bea’s slot on the 9th Circuit. Judge Bea has Bea has, apparently, “announced that he will take senior status upon the nomination, confirmation and appointment of his successor.”

    So it seems that the President can nominate and the Senate can confirm a Judge to a currently non-existant vacancy. Does this also apply to appointment ?

    How does this work exactly ? Suppose Mr Trump would like to replace 35 Clinton appointed judges on various Courts of Appeal. But they are still in post and have indicated no intention of retiring or taking Senior status. So Trump nominates and the currently R Senate confirms 35 replacements. In 2020, say, Trump is re-elected but the Rs lose the Senate. Should any of the 35 die off or retire, can Trump now appoint pre 2020 nominated and confirmed replacement to each post 2020 vacancy, notwithstanding the furious oppostion of the D controlled Senate ? Or can the D Senate withdraw its consent ? Or what ?

    How does this nominating and confirming for future vacancies work as a matter of law ?

    1. Federal judge appointments are for life. They can quit or die, or take senior status, or just phone it in and get ignored or impeached.

    2. Marbury v. Madison precisely answers that question, doesn’t it?

      1. Does it ? IANAL and I have not read M v M, but my understanding was that there were, in that case, actual judicial vacancies to be filled, and that Adams had completed the appointments by signing the commissions before leaving office. (Jefferson’s claim that delivery of the commissions was necessary to complete the appointment was rejected in M v.M.)

        Neither of these two particulars aligns well with my question which relates to nomination and confirmation in advance of a vacancy existing, and subsequent appointment without further reference to the Senate, when the vacancy does arise.

        But feel free to explain.

        1. You need a vacancy, an appointment, and a confirmation. That’s what Marbury holds (although SCOTUS can’t issue a writ to compel seating of the justice).

          The situation that occurs now is you have a vacancy that is conditioned on the confirmation of a replacement- but that’s fine, you still have vacancy, appointment, and confirmation.

          In your hypothetical, you never have vacancy, appointment, and confirmation all at the same time. The appointment gets withdrawn before the vacancy takes place.

          1. The situation that occurs now is you have a vacancy that is conditioned on the confirmation of a replacement- but that’s fine, you still have vacancy, appointment, and confirmation.
            Hmm, not really. You have :
            1. an announcement by the sitting judge that he plans to quit (I assume it’s in writing and I assume it’s revocable up until the stated date of retirement, or until the fulfilment of the stated conditions, but I may be wrong.) That’s not an actual vacancy, it’s a conditional future vacancy.
            2. then we have nomination and confirmation of the new judge, which presumably has to be of the form, legally if not explicitly, “Ms P is conditionally confirmed, the condition being the crystallisation of an actual vacancy from the future expected vacancy”
            3. the said crystallisation into an actual vacancy
            4. the President’s commission constituting the appointment
            So we have a conditional future vacancy, and a nomination and confirmation that are also conditional on the crystallisation of an actual vacancy.
            In your hypothetical, you never have vacancy, appointment, and confirmation all at the same time. The appointment gets withdrawn before the vacancy takes place.
            I don’t understand you. If Trump nominates Mr X as a replacement for Judge Y on the 4th circuit, but Judge Y hasn’t resigned yet, then we don’t have a vacancy yet. But so it was in the case of the old judge who says he’s going to retire on such and such a date, or on such and such conditions. In both cases we start with no vacancy, and we finish with a vacancy. (I am stipulating that Judge Y will die, resign or seek Senior status before the end of Trump’s (stipulated) second term. )
            The R Senate’s confirmation of Mr X is necessarily conditional on an actual vacancy opening up – just as is the case with Mr Bumatay. So what is it that prevents 2nd term Trump appointing Mr X, when Judge Y does retire, based on the R Senate’s prior (conditional) confirmation ? How is this different from the Bumatay case where the crystallisation of the actual vacancy also crystallises the conditional Senate confirmation, thereby creating an actual vacancy plus a Senate confirmed replacement al ready for the President’s signature on the commission ?
            Maybe the new D Senate has the power to revoke the confirmation given by the previous R Senate before Trump makes the appointment ? But maybe not.
            I don’t understand what you mean by “The appointment gets withdrawn before the vacancy takes place.” There’s no appointment made until after Judge Y has quit or died. How do you arrive at the notion of a withdrawn appointment ?
            So far as I can see the essential difference between the cases is that in the Bumatay / Bea case we have a presumably written intention to retire from Judge Bea, followed in due course by an actual retirement creating an actual vacancy, whereas in the Mr X / Judge Y case we have crickets followed by an actual vacancy. Which implies that the announcement of a plan to retire by a sitting Judge has some legal significance, presumably in some statute setting out details of how Congress expects inferior court nominations to proceed, or else in some case covering that ground.

            1. A new President can withdraw the appointment, and a confirmation would expire along with the end of Congress. So you never have vacancy, appointment, and confirmation at the same time.

              You are denying that a conditional retirement creates a vacancy, but it does, at the time the condition subsequent is fulfilled.

              1. A new President can withdraw the appointment

                I don’t think so. I think you mean that a new President can withdraw a nomination; or can choose not to appoint a nominee who has been conformed by the Senate. But in any event this is not relevant to my hypothetical, which is that the President remains unchanged and happy to make the appointment when the vacancy occurs.

                and a confirmation would expire along with the end of Congress.

                Is this so ? I am aware that there is a Senate rule that a nomination, if unacted upon before the end of a Congress, is returned to the President and so declined. The President has to have another go in the next Congress. But that is quite different from the expiry of a confirmation. It’s not obvious how the Senate can withdraw a confirmation once given, though in the case of a conditional confirmation for a future vacancy, it’s easier to see, so long as the withdrawal is effected before the condition is satisfied.

                But in any event, either there has to be a Senate rule in place saying that such conditional confirmations for future vacancies are deemed rescinded at the end of a Congress (is there such a rule ?) or there has to be a Statute saying something similar (and it seems unlikely that the Senate woud have ceded any part of its confirmation power to other players in the government.)

                You are denying that a conditional retirement creates a vacancy, but it does, at the time the condition subsequent is fulfilled.

                No, we are in full agreement on this point. There is no vacancy until the condition is satisfied, and then there is a vacancy. Thus in the Bumatay case, and in my hypo, there is no vacancy at the time of the Senate’s confirmation.

                And so, also, for the failing health of Judge Y. There is no vacancy till she dies, resigns or takes Senior status.

            2. 1. an announcement by the sitting judge that he plans to quit (I assume it’s in writing and I assume it’s revocable up until the stated date of retirement, or until the fulfilment of the stated conditions, but I may be wrong.) That’s not an actual vacancy, it’s a conditional future vacancy.

              You’re overanalyzing this. The judge is simply saying that he is retiring but will delay his date of retirement until his successor is confirmed.

              I did the same thing with a job I left some years ago.

              1. Sure, but what that means is that there doesn’t have to be a current vacancy for the President to nominate and for the Senate to confirm, a Judge, to a position that becomes vacant later.

                And I’m sure that must be right, since that’s what the Senate actually does.

                But that seems to leave some scope for a same party President and Senate to preposition successor Judges for future vacancies that haven’t been announced, against the risk that Senate control might change.

                1. We’ll make it personal.

                  1. Suppose Trump is confident of re-election in 2020, but not confident of the Rs retaining control of the Senate. (In reality the odds are probably the other way round, but let’s play the game.)

                  2. Suppose Justice Ginsburg is not taken from us before January 2021, but suppose Trump is fairly confident that Ginsburg will create a vacancy betweem 2021 and 2025.

                  3. What – as a matter of law / Constitution – prevents Trump now nominating, say, Amy Coney Barrett to Ginsburg’s seat on the Supreme Court, and the Senate confirming her before January 2021, even though Ginsburg is still on the court and has no plans to go.

                  4. If Ginsburg retires in say 2022, and Trump is still President, can he now go ahead and appoint Barrett without further action by the Senate, which we now assume to be controlled by the Ds ?

                  5. And if so, can the D Senate withdraw the confirmation given by the previous R Senate, prior to Trump actually appointing Barrett ?

                  1. You are getting all wrapped around your axel.

                    Ginsburg hasn’t resigned, there is no vacancy to fill.

                    If a judge resigns conditionally, then when the conditions are met then he’s resigned effective with the confirmation, and if it’s revocable then he has to revoke it before the confirmation.

                    1. Ginsburg hasn’t resigned, there is no vacancy to fill.

                      Neither has Judge Bea, and yet the Senate has confirmed his replacement.

                      If a judge resigns conditionally, then when the conditions are met then he’s resigned effective with the confirmation

                      No, that depends on the conditions. Judge Bea has said he’s taking Senior status when his successor has been nominated, confirmed and appointed. Judge Bybee, whose successor is easing through the Senate now, has set 12/31/2019 as his retirement date. In neither case is confirmation the effective date of resignation. (Though in other cases it could be if the retiring Judge chose to make it so.)

                      The point therefore is that there seems to be no difficulty legally with Senate confirmation (ie consent) being given before there is a vacancy.

                      So the question remains, why would such advance Senate confirmation be OK for a Judge who has not retired but who has announced his intention to retire, but not for one who has made no such announcement ? In both cases, there is no vacancy when the Senate consents, and in both cases we know there will be a vacancy in due course (absent divine intervention.)

                      then he’s resigned effective with the confirmation

                    2. I’ve never spent much time thinking about it, but I think Lee is correct. ISTM that there’s no vacancy until the judge has actually resigned, regardless of any statements of future intent. So how can there be a nomination or confirmation?

                      If I say — if I were a federal judge — “I am going to resign on June 1,” then I am still a judge until that date. There isn’t a vacancy until that date. Before then, how can the president nominate someone for my seat, and how can the senate confirm someone?

                      What if I don’t announce my intention? Can the president nominate someone tomorrow and the senate confirm that person, just in case I step down/die/etc.? Will that person be able to take over if I do?

                      What’s the distinction between those two scenarios?

                      Or is there none? Can the president tomorrow nominate someone for each of the 9 SCOTUS seats, just to be sure?

  4. I hate to admit it, but Bybee has a legitimate point.

    That “public charge” statute was always a loaded weapon. What is a “public charge”? In a world with so many government programs, it literally could be anything. I suppose the one thing it can’t be is sending a child to a public school, which is protected by the holding of Plyer v. Doe. But receiving assistance from any other government program could conceivably be termed becoming a “public charge” if BCIS decided to define it as such. It’s at best, an incredibly vague, mischievous standard for determining whether people get kicked out of the country.

    If we must be in the business of preventing “public charges” in our immigration policy, I’d much prefer that Congress simply create a list of programs and say “if you have X immigration status, you can’t receive benefits from any program on this list”, or maybe “you must wait Y years after achieving X immigration status before receiving these benefits”. That would accomplish the same goal as the “public charge” statute without the mischief of this statute.

    1. Even more broadly since carrying health insurance is an (unenforceable) obligation anyone who either fails to carry it or receives a subsidy would count as a public charge. Since that obligation begins immediately even someone immigrating with a job already lined up would qualify as a public charge unless their insurance started the moment they entered the US and they demonstrated sufficient funds until their first pay check.

      That’d be the Lawful Stupid interpretation, but we really ought to hold our legislature to a higher standard than Lawful Stupid.

    2. I would argue that Plyer v Doe cuts the other way. Bigly.

      P v. D did not conclude that the cost of educating a child in a public school was not a charge on the public purse, it merely concluded, on 14A grounds, that it was not a charge that the State could seek to avoid, by recovering costs from illegal immigrants.

      The law in question concerns decisions on whether to admit aliens, not how they should be treated once they have been admitted, and it envisages an estimation of future government costs should an alien be admitted :

      “[a]ny alien who, in the opinion of the [relevant government officials] is likely at any time to become a public charge is inadmissible.”

      Note the “likely at any time” – so, the fact that the government might reasonably hope to recover the cost of education in the form of future taxes is of no help. While the child is being educated at public expense, it represents a charge on the public purse.

      Moreover Plyer v. Doe makes it a charge that cannot lawfully be avoided by the government. So unless there’s convincing evidence of plans for private education or homeschooling, it’s hard to see how the immigration agent can do anything than read straight across from – this is a child who will have to be educated at public expense – to – this looks like a hefty public charge to me.

      Consequently, I should have thought Plyer v. Doe is positively the last case that anyone unenthusiatic about the policy effects of this ruling should be bringing to judicial attention.

      1. Unstated, but definitely a part of Plyer, is that the government can’t punish anyone (or anyone’s parents) for exercising the equal right to a public education.

        1. Anyone including anyones not within the jurisdiction of the United States ? Such as anyones seeking admission to the US ?

    3. Not determining whether people get kicked out, just determining whether they get allowed in. And then granted citizenship and voting rights.

      Your idea may seem reasonable, but actually we don’t want to create a large group of sort of second class residents/citizens not entitled to benefits, especially one that is also poorer and more in need and otherwise qualifying of such benefits.

      A better idea would be a simple immigration moratorium, meaning a cap on legal immigration that is roughly equal to the number emigrating, which is about 200,000 annually. And select those immigrants based on their likelihood of contributing to the economy and benefiting Americans, particularly working and middle class Americans.

      1. The public charge statute operates retrospectively. Someone does become a public charge and becomes deportable, because it violated the terms of their admittance.

        I am making a technical argument as to why that sort of statute is terrible. I have my skepticism about income-related tests for immigration, but I am assuming Congress has the power to enact them. What I am saying is if you want to do this, the way to do this is to simply list the programs that immigrants aren’t eligible for, rather than using this vague term “public charge” that can be defined to mean almost anything.

      2. Engaging your point more on the merits, caps on legal immigration already exist, but they are permeable, and honestly have to be set rather high, because setting them well below the levels of people who can practically get to this country simply results in floods of undocumented immigrants.

        You’d never get away with 200,000 people a year. You’d simply have millions of visa overstays and illegal border crossings every year if you did that. Plus, we WANT the population to increase, so it would really dumb to target it at zero population growth.

        1. “…we WANT the population to increase,…”

          Who is this we? And what population?

          1. We want the population of the United States to increase, because population growth is closely tied to economic growth. Places with declining populations tend to stagnate.

            And “any” population. The view that only white people should increase their population is racist.

            1. How wrong of you to think I was speaking of white people only. Shows where your mind is at. I was speaking about native born American citizens, no matter their race.

              The “we” in your equation is you, and open borders economists, and leftists who want immigrants who vote Democrat. Also, populations decline due to stagnation, not the other way around. Declining populations don’t lead to stagnation. Maybe, at most, you could say causality is reciprocal.

            2. That has always been the assumption because until recently it has been true; economic growth required more workers. Is that still true, or will it be in twenty or thirty years with the explosion of robotics? As a house builder I used to say that we needed population growth because how else could we continue to have enough demand for new houses. But we’ve seen that as people get more prosperous they get more of everything including houses.

              1. Very pertinent points. I ask Dilian Esper to answer, do we need a million immigrants a year into the foreseeable future when fully autonomous vehicles are on the horizon, and we have remarkable increases in industrial and agricultural production with fewer workers?

        2. Instead of any further rejoinder, let me thank you for responding with a civil discussion on the merits of the immigration levels. That to me is progress.

    4. Everybody who disagrees with something says it isn’t clear. This one is clearer than most. Public charge means being dependent on charity or welfare which is intended for people without means to support themselves.

      So the benefits involved are easily distinguishable from universal, non-means-tested benefits like public education.

      The argument here is a bit like someone arguing that federal law on Native Americans makes no sense on grounds that it makes no sense to require treating people from the Indian subcontinent differently at restaurants. If one uses only a dictionary to guide what an “Indian reservation” means and don’t have any idea what the term actually refers to in its history of use, of course one can make all kinds of arguments. This is similar. The possible dictionary meanings of “public charge” are as susceptible to all kinds of different interpretations as “Indian interpretation.”

      But the historical meaning of “public charge” is much clearer. And, as the 9th Circuit easily found, it doesn’t really make any difference whether the benefits involved are cash or in-kind.

      1. Indian reservation.

      2. That’s not true. The history of the public charge statute tells us nothing as to whether, say, receiving federallly subsidized emergency room treatment, receiving an affirmative action business set-aside, or getting a student loan guarantee constitutes being a public charge. Or 1000 other government programs.

  5. The band, Rush, famously said, “If you chose not to decide, you still have made a choice.”

    Congress exercises its legislative power as much by what it refrains from enacting, as by what it enacts. The decision not to change immigration law is a perfectly valid exercise of the legislative power.

    It isn’t abdication, it is a choice to retain the law as it is.

    1. As always, you miss the point, Brett. “The law as it is” is an abdication. Which immigrants should be excluded? Congress says that some should, but refuses to say which. (In this context. In some contexts they have.)

      1. David, your personal policy preferences are not so privileged that a decision not to enact them becomes “abdication”.

        Yes, Congress delegates too much decision making to Presidents. They do so deliberately. Unless such delegation is unconstitutional, it is a valid legislative decision, not a failure to decide. It is a decision to have somebody else do the deciding.

        And every time they do not change the law to be more to your liking, this, too, is a legitimate exercise of their legislative authority.

        1. David, your personal policy preferences are not so privileged that a decision not to enact them becomes “abdication”.

          I didn’t say what my preferences are. A decision to enact them is not an an abdication; a decision to enact other policy preferences instead is not an abdication; a decision not to enact any, however, is.

          Whether it’s constitutional or unconstitutional, it’s still an abdication.

    1. No, just bothered and bewildered.

  6. I’m perplexed that it takes Chevron deference to uphold this regulation. Yes, it’s a plausible interpretation of the law. And the other interpretation *doesn’t* seem very plausible.

  7. So an able-bodied 30 year old with obviously marketable skills – an engineer say – could be excluded because he might get Social Security and Medicare in 35 years?

    1. Or think of the non-cash benefits, such as use of public streets and streetlights.

      It is bizarre that the bigots appear to believe they’re actually going to be the winners this time around. I guess American history concerning successive waves of intolerance — Italians, Jews, blacks, Asians, Catholics, gays, the Irish, atheists, women, Hispanics, eastern Europeans, Muslims, other Asians, other Hispanics, etc. — isn’t stark enough for them.

    2. That seems to be the thinking of most people under 40 these days–that anyone receiving SS or Medicare benefits is a public charge. That they paid into the system for 50 years or so before receiving benefits doesn’t seem to register with them.

  8. What It Takes to Make a Federal Judge “Perplexed and Perturbed”
    Case law?

  9. 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.

    Is Judge Bybee wrong? I don’t think so. The Congress makes immigration law.

    Now if Congress is a reflection of the people who elect them, then what does Congressional inaction here say? It means there is no clear consensus to change what we have into something else. I don’t like that very much, but that is what we are contending with.

  10. In general, I think it’s quite reasonable behavior for a judge, occasionally, to write an opinion strictly on the law and then write a separate personal opinion recommending that the legislature consider changing the law. I don’t think this is an abuse of the judicial role. Judges are government officials experienced in the enforcement and consequences of laws and their opinion can be worth listening to. Moreover, being able to express a separate personal policy opinion about how they think law should be makes it easier for judges to separate that opinion from their legal analysis of what the current state of the law is.

    If it’s done too often, nobody will listen, and nobody may listen anyway. But I don’t think it’s an unreasonable thing to do, occasionally, when a judge particularly strongly believes the law should be changed.

  11. I think the 9th circuit is right on the issue. “Public charge” means dependent on means-tested benefits, benefits intended to support those unable to support themselves. Their’s no legal reason to distinguish cash- and non-cash benefits. This distinction was made based on a previous policy of leniency. But the current Administration is entitled to change that policy and enforce the law more strictly.

    One might disagree with the policy of the change. But their interpretation of what the law means is a perfectly reasonable one.

  12. Poor Judge Bybee.

    Perplexed. Perturbed.

    He stopped short of “tortured,” though.

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