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.


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."