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Saturday, January 25, 2020

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistakenthough it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink


Thanks Practitioner1. I propose that in order to helpfully think about this further, we forget about the constitution altogether. Suppose Congress creates a fully freestanding entity, the Independent Board of Administrative Appeals. And it just so happens that the IBAA happens to have members who are appointed by the President, and confirmed by the Senate, and have life tenure and so forth. (Please grant me that assumption, ie, let's forget about the questions about whether Congress could constitutionally create independent officers with that kind of tenure.) Further suppose that Congress passes a statute saying "IBAA shall have appellate jurisdiction over all final decisions of the following administrative tribunals [...]" including the BIA.

Would it be reasonable, simply as a matter of statutory interpretation, to interpret Congress's grant of appellate jurisdiction to the IBAA to mean that the tribunals over which it exercises that jurisdiction may simply ignore its decisions? I think not---and further along the lines of thinking not would observe that legal systems with no notion of judicial supremacy still have both rights of appeal that issue in binding decisions and robust systems of judicial review over administrative action which entails the obligation of the executive to obey when a court says that it has violated a statute---judicial review in this sense exists in Britain, for example.

Posted by: Paul Gowder | Jan 26, 2020 11:16:19 PM


What I had in mind stems from the following passage in Easterbrook's opinion:

"[I]t should not be necessary to remind the Board...that the "judicial Power" under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board's decisions. 8 U.S.C. § 1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it."

I guess I understand "a statutory grant of authority to review" as still some distance away from the general notion that "once we reach a conclusion, both the Constitution and the statute require the Board to implement it." In other words, that a court has jx to hear a case need not entail that other branches are obligated to implement the court's decision. If they did not, that wouldn't mean the appellate court has become a "complaints box," unless you understand "complaints box" to mean that the judiciary has no means to enforce its decision -- which it doesn't! Sure, there would be problems of stability and administrability if the other branches believed they didn't have to respect and implement the court's decisions. But those are separate, self-standing considerations in support of judicial supremacy.

So when you write that "when a court unquestionably has jurisdiction over a case, that comes with it the authority to have its order obeyed," I guess I don't see that as being some sort of logical or conceptual necessity or inevitability, especially when the case involves not two private parties, but one of the co-equal branches of government.

Posted by: Practitioner1 | Jan 26, 2020 10:59:57 PM

Practitioner1: I don't quite see how the case in which Easterbrook just issued the opinion has anything to do with "judicial supremacy," or Cooper v. Aaron and whatnot. This is not a case where the court attempted to interpret the constitution and the other branches disagreed. This is a case where Congress, by statute, has created an administrative agency and has created appellate jurisdiction over that agency's decisions in the circuit courts. (I assume that the government hasn't claimed that the 7th circuit lacks statutory jurisdiction over the case.) Inherent in the concept of appellate jurisdiction is that the appellate body gets to set aside the decision of the lower body. Otherwise it isn't an appeal, it's just a complaints box. All Easterbrook is asserting is the uncontroversial position that when a court unquestionably has jurisdiction over a case, that comes with it the authority to have its order obeyed.

Posted by: Paul Gowder | Jan 26, 2020 9:55:27 PM

I have written in detail why the executive (or any other party) cannot ignore a judgment; so have Gary Lawson, Kevin, Walsh, and Will Baude. It all amounts to more than citing Plaut, although Plaut had an extensive discussion of that underlying history.

As for the second point: I think much of the media and the public also thinks in these sorts of judiciary-centric terms. In fact, that same group would claim to be shocked and appalled at the flip side of judicial departmentalism--that the executive can, outside of litigation, disregard precedent.

Posted by: Howard Wasserman | Jan 26, 2020 9:08:33 AM

It's staggering how unimpressive the reasoning of many court opinions are. In situations like this, it's simply amusing; in other situations like my upcoming article, the judiciary rewrites legislation or introduces requirements that aren't in the legislation simply because the judge(s) do not like the law.

After dealing with those (important) cases, I have supremely little sympathy for this judge's position.

Posted by: thegreatdisappointment | Jan 25, 2020 2:32:50 PM

I've read the opinion and seen the the posts on Twitter. I have one quick point and one quick question. First the question: to the extent we agree that the Supreme Court in cases like Cooper v. Aaron and Marbury v. Madison engage in simple bootstrapping -- the insistence that the judiciary has the specific power that the court says it has is not, in those cases, backed by anything other than the court's own interpretation of the Constitution, which is ultimately a circular form of reasoning given the particular conclusion it needs to reach -- aren't citations to cases like Plaut and Stauffer Chemical similarly empty and tautologous?

Suppose you want to show it's true that, as Prof. Wasserman writes, "the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable." Well, maybe not: that's partly what's at issue. if the only thing you can cite to in a case is a prior case, I think you miss the entire point of your interlocutor in the debate about departmentalism. There's gotta be a more persuasive argument in favor of judicial supremacy, right? Something better than, effectively, "we have this power because we say we do"?

Second, the quick point: it's telling that the people on Twitter noting the Easterbrook opinion are (from what I've seen) mostly law professors. Maybe something about the training in law school or the fact that law professors were often clerks tends towards the pro-judiciary side of the departmentalism question; but I can easily see how others without that background would be more sympathetic to the other side, or at least not impressed by the "reasoning" courts purport to provide when they talk about why their views are entitled to the deference they say it is.

Posted by: Practitioner1 | Jan 25, 2020 11:55:27 AM

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