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The Department of Justice's "Longstanding" General Practice of Intracircuit Nonacquiescence
A response to questions from Justices Kagan and Barrett.
During oral argument in the birthright citizenship cases, Justices Kagan and Barrett seemed very troubled by Solicitor General Sauer's description of the Department of Justice's "general" policy concerning circuit precedent. It seems pretty clear that the Solicitor General was talking about DOJ's policy concerning intracircuit nonacquiescence. What is intracircuit nonacquiescence, you might ask? I discuss this topic in my 2019 article in the Georgetown Law Journal, The Irrepressible Myth of Cooper v. Aaron:
Despite these criticisms, there have been efforts to extend the principle of judicial universality to the lower courts—what oxymoronically might be called "inferior universality." At various times, the U.S. government has asserted a policy known as "intracircuit nonacquiescence." Under this controversial doctrine, the Executive Branch directs agencies to disregard certain unfavorable circuit precedent, even if their decisions will ultimately be appealed in that circuit.183 The courts have uniformly rejected this practice for flouting circuit law.184
183. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 687 (1989) (defining "intracircuit nonacquiescence" as a circumstance "when the relevant venue provisions establish that [judicial] review will be to a particular court of appeals and [an administrative] agency nonetheless refuses to follow, in its administrative proceedings, the case law of that court"); Note, Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality, 99 HARV. L. REV. 847 (1986).
184. See Estreicher & Revesz, supra note 183, at 699–704; see also Collateral Estoppel and Nonacquiescence, supra note 183, at 856–57.
Yet, despite pushback from the courts, intracircuit non-acquiescence remains the Department of Justice's policy. And I can prove it. In March 25, 2010, the Office of Legal Counsel issued an opinion concerning the Obama Administration's decision to no longer defend the Defense of Marriage Act. Who was the Solicitor General at the time? Elena Kagan. This topic was actually a big deal at her confirmation hearing: DOJ filed a petition for cert before judgment in Windsor, even though the government agreed with the ruling declaring DOMA unconstitutional.
OLC Head David Barron, now a First Circuit Judge, stated the issue plainly:
As explained below, this conclusion accords with the longstanding position of this Office, and the consistent, publicly declared position of the Executive Branch, that an executive agency may "nonacquiesce" in a court of appeals ruling—a practice whereby the agency, despite an adverse court of appeals decision, continues to act in accordance with its own contrary interpretation of the law with respect to persons who were not parties to the judgment. The Executive Branch's traditional view that nonacquiescence is permissible includes even "intracircuit" nonacquiescence, or nonacquiescence in situations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision.5
FN5: 5 See, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Sub-comm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General, Civil Division) ("Preston Testimony"); see generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692–718 (1989) (describing agency practice).
There you have it. DOJ has a longstanding practice of nonacquiescence. Consider a classic example. The Second Circuit issues a ruling concerning the Social Security Act. Even though that judgment only binds a single claimant, that precedent may affect thousands of individual claimants. The executive branch will chose to either seek en banc, or certiorari. In the process, the executive will not acquiesce to the circuit precedent, and continue applying the earlier precedent to the thousands of other claimants. This has long been DOJ's policy. Solicitor General Rex Lee wrote an influential opinion on this topic.
This issue arose again during the Obama Administration. In the run-up to King v. Burwell, the Department of Justice stated that it would limit any adverse D.C. Circuit precedent to the named parties.
I discussed this litigation in National Review:
Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest!
[Mike Carvin representing] The plaintiffs shot back, incredulous that the government had an "apparent intention to lawlessly flout this Court's binding order." In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to "vacate the IRS Rule" in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.
The DOJ letter stated the issue plainly: in the absence of class certification, the relief will be limited to the named parties.
We respectfully submit a supplemental authority that bears on plaintiffs' assertion, made for the first time in reply, that "[i]t does not matter that this 'is not a class action'" and that the Court could extinguish the tax-credit claims of individuals who live in "states like Texas." Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, "before an absent class member's right of action [is] extinguishable due process require[s] that the member 'receive notice plus an opportunity to be heard and participate in the litigation'" and "'an opportunity to remove himself from the class.'" Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a "constitutional requirement" that a "'named plaintiff at all times adequately represent the interests of the absent class members.'" Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.
Sounds familiar?
Will Baude defended this strategy in a then-controversial New York Times Op-Ed:
But luckily the Constitution supplies a contingency plan, even if the administration doesn't know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court's judgment — but only with respect to the four plaintiffs who brought the suit.
This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court's reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue. . . .
There are legal wrinkles, of course. Lower courts have sometimes claimed legal authority to invalidate a regulation (which is at issue in this case) even for parties who aren't before the court. And some employers might be able to bring lawsuits that would call their employees' subsidies into question. But the administration has already raised legal defenses to those potential problems in other lawsuits and could press those defenses here, too.
In hindsight, Baude was right and I was wrong. I criticized Baude in harsh terms. I was mistaken, and I apologize. In candor, I didn't quite understand the policy of non-acquisence at the time. Indeed, Baude's op-ed brought me down the path of learning about this topic--long before anyone ever thought about a nationwide injunction.
Back to the oral argument in the birthright cases.
First, Justice Kagan pressed Sauer on what would happen if the Second Circuit ruled that the executive order was unconstitutional, absent a universal injunction. Would the federal government still apply the EO to people within the Second Circuit who were not parties to the judgment?
JUSTICE KAGAN: Does the government commit to not applying its EO in the entire Second Circuit, or does it say, no, we can continue to apply the rule as to everybody else in the Second Circuit?
GENERAL SAUER: I can't say as to this individual case. Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.
JUSTICE KAGAN: Yes, that is generally your practice -( Laughter.)--and I'm asking whether it would be your practice in this case.
GENERAL SAUER: I can't answer because it would depend on what the lower decision said. So there are circumstances, as I was suggesting, where we think that we want to continue to litigate that in other district courts in the same circuit as well as other circuits.
Justice Kagan tried to make fun of Sauer for making up a policy--the emphasis was on your practice. But indeed intracircuit non-acquiescence has long been part of the Department of Justice's policy. Her own Justice Department reaffirmed this practice. I don't know why Sauer did not cite this policy; there was an easy answer to the question.
I've made this point before and I'll make it again. Justice Kagan used to be one of the sharpest questioners on the bench. But she is slipping a bit and getting sloppy. She seems more focused on one-liners and zingers than on making sharp points. (You know who was sharp yesterday--BK brought his A-Game, more on that later.) I think Justice Kagan is frustrated with the state of things on the Court now, and I do not think she gets enough support from her left flank. From watching oral argument, I get the sense that Justice Kagan gets annoyed when Justice Sotomayor and Jackson go down tangents that do nothing to garner five votes. There is a lot going on at the Court beneath the surface.
Justice Barrett returned to the theme. She was very much troubled that Sauer did not answer Justice Kagan's questions.
JUSTICE BARRETT: General Sauer, I want to ask you about a potential tension -well, no, not a potential tension, an actual tension that I see in answers that you gave to Justice Kavanaugh and Justice Kagan. You resisted Justice Kagan when she asked you whether the government would obey, within the Second Circuit, a precedent -distinguishing between opinions and judgments here. Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York because you might disagree with the opinion?
GENERAL SAUER: Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice. It is --and that is not a new policy.
JUSTICE BARRETT: This administration's practice or the longstanding practice of the federal government? And I'm not talking about in the Fourth Circuit are you going to respect a Second Circuit. I'm talking about within the Second Circuit. And can you say is that this administration's practice or a longstanding one?
GENERAL SAUER: As I understand it, longstanding -
JUSTICE BARRETT: Really?
GENERAL SAUER: --policy of the Department of Justice, yes, that we generally -as it was phrased to me, generally respect circuit precedent but not necessarily in every case. And certain --some examples might be a situation where we're litigating to try and get that circuit precedent overruled and so forth.
JUSTICE BARRETT: Well, okay, so I'm --I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm talking about in this kind of situation. I'm talking about this week the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week.
GENERAL SAUER: Generally we follow that.
JUSTICE BARRETT: So you're still saying "generally."
GENERAL SAUER: Yes.
JUSTICE BARRETT: And you still think that it's generally the policy, longstanding policy of the federal government to take that approach?
GENERAL SAUER: That is my understanding.
This was a very snarky "Really?" from Justice Barrett. It reminded me of the "Really?" sketch from Weekend Update with Seth Meyer and Amy Poehler. But really, Justice Barrett seems unaware of the DOJ's longstanding policy. Granted, Justice Barrett never served in the Department of Justice like Justice Kagan did, but ACB was a FedCourts professor. I would think this topic is covered in most classes, though I did a quick scan of the latest issue of Hart & Wechsler, and it is only mentioned briefly with a citation to Estreicher and Revesz.
Things get worse from there. Justice Barrett brings up quite possibly the worst federal courts decision of all time, Cooper v. Aaron. This is a precedent that should never be mentioned--like Voldemort. I've already written about Judge Wilkinson's flawed invocation of Cooper. Now, for reasons not entirely clear, Justice Barrett has joined the fray.
JUSTICE BARRETT: Okay. So --but it sounds to me like you accept a Cooper versus Aaron kind of situation for the Supreme Court, but not for, say, the Second Circuit? In other words, you would respect the opinions and the judgments of the Supreme Court, and you're saying you would respect the judgment but not necessarily the opinion of a lower court.
GENERAL SAUER: And, again, and I think in the vast majority of instances our practice has been to respect the opinions as well, in --in the circuits as well, but my understanding that has not been a categorical practice in the way respect for the precedence and the judgments that the Supreme Court has been.
JUSTICE BARRETT: So you're not hedging at all with respect to the precedent of this Court?
GENERAL SAUER: That is correct. I -I believe the -
JUSTICE BARRETT: All right.
GENERAL SAUER: --quotation from our application directly addresses that.
JUSTICE BARRETT: Okay.
GENERAL SAUER: And we stand by that completely.
What exactly is Justice Barrett saying here? Let me take a detour back to my 2019 article. Scholars have long debated whether the principle of judicial supremacy articulated in Cooper v. Aaron is limited to the Supreme Court, or whether all inferior courts that exercise the judicial power can establish the supreme law of the land. In effect, a universal injunction is an act of judicial supremacy: the judgment extends to everyone and everywhere, whether they are parties or not. Here is an excerpt from my article:
Two courts have [rejected intracircuit nonacquiescence] by relying on Cooper v. Aaron. In Lopez v. Heckler, the Ninth Circuit concluded that through the Social Security Administration's policy of intracircuit nonacquiescence, "the executive branch def[ied] the courts and undermin[ed] what are perhaps the fundamental precepts of our constitu-tional system—the separation of powers and respect for the law." Judge Stephen Reinhardt, writing for the panel, did not see Cooper as limited to the Supreme Court's construction of constitutional law. Rather, he wrote, Cooper's doctrine also applied to the circuit court's interpretation of "federal statutory law," which is part of the "supreme Law of the Land." All Executive Branch officials, the panel concluded, are bound to "faithfully execute" this law as interpreted by the inferior courts.187 Ultimately, the Supreme Court granted certiorari in Lopez, vacated the panel opinion, and remanded the case in light of the recently enacted Social Security Disability Benefits Reform Act of 1984. The constitutional issue was not further discussed on remand.
In Stieberger v. Heckler, the Southern District of New York likewise ruled that Cooper's statement of judicial universality was not limited to the Supreme Court but also extended to the district courts. The Second Circuit vacated the injunction issued in Stieberger in light of the Secretary's representation that it was mod-ifying its policy of nonacquiesence. The Supreme Court has a plausible—but unpersuasive—claim that its judgments have a constitutional nature because the Supreme Court itself is created by the Constitution. The same cannot be said for the inferior courts, which Congress can "ordain and establish" or even abolish. Their judgments have no claim to this source of constitutional authority. Beyond these two isolated citations, the lower courts have mostly shied away from relying on judicial universality.
Is Justice Barrett really lining up with Judge Reinhardt's view of judicial supremacy for inferior courts? Cooper v. Aaaron is bad enough with regard to the Supreme Court. It should not be extended to 700 federal district court judges who are suffering from god complexes. I think this issue warrants some further percolation.
