# Split Panel Demonstrates Modern Perversion of Justice Stevens’s Chevron “Legacy.” 

August 9, 2019 • Commentary 

By [William Yeatman](https://www.cato.org/people/william-yeatman) 

This article appeared in *[Yale Journal on Regulation](https://www.yalejreg.com/)* on August 9, 2019. 

Welcome back to [*Ninth Circuit Review-Reviewed*](https://yalejreg.com/nc/?s=ninth+circuit+review-reviewed), your monthly recap of administrative law before [arguably](https://yalejreg.wpengine.com/nc/ninth-circuit-review-reviewed-inaugural-edition-by-william-yeatman/) “the second most important court in the land.”

With the passing of Justice John Paul Stevens, RIP, I’ve [read](https://www.law360.com/articles/1179279/justice-stevens-chevron-legacy-under-attack) [commentaries](https://dailycaller.com/2019/07/19/supreme-court-chevron-stevens/) suggesting his *Chevron* deference “legacy” is at risk. In fact, these pundits are mistaken. While it’s true that Justice Stevens penned the opinion that gives the *Chevron* doctrine its name, he never thought he was articulating some novel and grand principle of administrative law. Rather, the opinion took on a life of its own in the lower courts and thus morphed into its current form. This unfortunate evolution is the subject of a fine recent film, [*Chevron: Accidental Landmark*](https://www.youtube.com/watch?v=ngeAU_vl_90).

Instead of “[reflexive deference](https://scholar.google.com/scholar_case?case=8804355772954981894&q=pererria+v+sessions&hl=en&as_sdt=20003),” Justice Stevens’s interpretive method reflected his common-sense understanding that there are some legal questions that courts are more expert to answer, and others which agencies are more expert to resolve. Under this level-headed approach, interpretive primacy goes to whichever institution—courts or agencies—is more expert (considering the context lent by the statutory text). Judges commonly employed this comparative-advantage framework before *Chevron* became what it has (alas) become.

Justice Stevens most famously demonstrated this old-school approach in [*INS v. Cardoza*](https://scholar.google.com/scholar_case?case=8382431444026854396&q=INS+v+Cardoza&hl=en&as_sdt=20003), a staple of administrative law textbooks. His *Cardoza* opinion denied deference to the government’s interpretation of how two statutory provisions interact. Justice Stevens called the controversy “a pure question of statutory construction …well within the province of the Judiciary.”

What does this all have to do with the Ninth Circuit, you ask? The answer is that the court last month rendered a perfect example of the evolved *Chevron* doctrine. That is, it adopted the opposite of Justice Stevens’s wise method.

On the 23rd of July, a split Ninth Circuit panel sided with the government in [*Diaz-Quirazco v. Barr*](http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/16-72387.pdf)*,* holding that the petitioner is ineligible for relief from being deported. At issue was the meaning of the word “convicted” in the Immigration and Nationalization Act, which implicated two discrete questions of statutory interpretation.

The first question involved judicial methodology. The Supreme Court has developed a technique, known as the “categorical approach,” to determine when a person’s prior criminal conviction can be counted against them for deportation. The [purpose](https://scholar.google.com/scholar_case?case=18086068128501628848&q=876+F.3d+280&hl=en&as_sdt=20003) of this methodology is to “avoid\[\] unfairness to defendants by directing the focus of later courts only to those elements that the government was required to prove beyond a reasonable doubt.” Typically, the statutory term “convicted” triggers the categorical approach. Nevertheless, the Board of Immigration Appeals (“BIA”) claimed that the term “convicted” in the immigration statute is ambiguous, due to a supposed tension between it and a different provision of the law. Having found an ambiguity, the agency then adopted a reading of the statute that did not require the categorical approach.

The second interpretive controversy involved the substantive meaning of “convicted.” Specifically, the Ninth Circuit panel faced the question of whether Mr. Diaz-Quirazco was “convicted” under immigration law—and, therefore, ineligible for relief from deportation—when an Oregon court issued a contempt judgment against him. As the Ninth Circuit panel observed, the term “‘conviction’ generally connotes a judgment in a criminal proceeding.” Under Oregon law, however, a punitive contempt proceeding isn’t criminal, nor does it conform to state requirements for criminal proceedings. Notwithstanding the commonly-held (perhaps even plain) meaning of “conviction,” the agency argued that the phrase is ambiguous. According to the Board of Immigration Appeals, Mr. Diaz-Quirazco’s contempt of court judgement was a “conviction,” even though it wasn’t a crime, because it was “criminal in nature.”

On both these questions, the Ninth Circuit sided with the agency due to controlling deference. Indeed, the majority panel applied an unusually robust *Chevron* framework, even by modern standards. According to the court, the agency’s interpretation was permissible unless “Congress has unambiguously foreclosed the \[BIA’s\] interpretation.” Twice the split decision alluded to how *Chevron* requires the agency to prevail even if the court felt it had a better interpretation.

For my part, I’m galled that the court justified its resort to *Chevron* by pointing to the agency’s putative “expertise.” How is the agency an expert in judicial methodology? Are not courts more expert than agencies when it comes to the meaning of a quintessentially legal concept like “conviction”? Is not the interplay between statutory provisions a “pure question of statutory construction,” as Justice Stevens argued?

Surely, the court’s reasoning does not reflect the great man’s true *Chevron* “legacy.”

**Court Seems to Grow Loophole to APA § 701(a)(2)**

[A few months back](https://yalejreg.com/nc/ninth-circuit-review-reviewed-critiquing-the-step-1-5-loophole-in-apa-%c2%a7-701a2-by-william-yeatman/), I criticized the Ninth Circuit’s drilling of a loophole through APA § 701(a)(2)’s preclusion of judicial review for actions “committed to agency discretion by law.” Pursuant to regulation, the Board of Immigration Appeals (“BIA” or “Board”) may “in its discretion” certify for appeal “any case” within its jurisdiction. This provision, in practice, allows the BIA to hear appeals that are otherwise barred by procedural defects.

At face value, the Board’s regulation seems to fall squarely within the ambit of APA § 701(a)(2) and is, therefore, unreviewable. Yet the Ninth Circuit, in a line of curious cases, identified “law to apply” in reviewing this provision.

Where did the agency locate this “law to apply”? Wherever the agency misperceived the law in exercising its discretion. So, if the Board based its denial on a misreading of the statute, then the court would find “law to apply.”

Notwithstanding my fascination, I [criticized](https://yalejreg.com/nc/ninth-circuit-review-reviewed-critiquing-the-step-1-5-loophole-in-apa-%c2%a7-701a2-by-william-yeatman/) the court’s doctrinal innovation as being unruly. To be precise, I doubted that lines could be drawn to limit the court’s search for “law to apply.”

My fears seem to have been borne out by the Ninth Circuit’s order in [*Menendez-Gonzalez v. Barr*](http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/03/17-36038.pdf), which the court delivered on July 11th. Previously, the starting point for the court’s “law to apply” analysis was the agency’s announcement explaining why it denied its *sua sponte* authority. Mr. Menendez-Gonzalez, however, didn’t ask the court to investigate what the agency had said in its denial of his petition. Instead, he alleged that the agency had departed from its custom of granting *sua sponte* review for petitions like his. The court accepted his analytical framework, but it ruled against him because he had failed to establish a settled prior practice by the Board.

In this manner, the court has bored wider its loophole through APA § 701(a)(2)’s preclusion of judicial review. Now, it appears that the Ninth Circuit could find “law to apply” apart from the reasons the Board gives for exercising its (self-created) discretionary authority to initiate *sua sponte* review.

**Ninth Regresses on *Chevron* & Morality**

A [major](https://yalejreg.wpengine.com/nc/ninth-circuit-review-reviewed-supreme-court-puts-wind-in-sails-of-courts-critics-of-morally-turpitudinous-crimes-in-immigration-law-by-william-yeatman/) [pet peeve](https://yalejreg.wpengine.com/nc/ninth-circuit-review-reviewed-courts-constitutional-critics-of-crimes-involving-moral-turpitude-should-start-with-chevron-by-william-yeatman/) of mine is the Ninth Circuit’s practice of giving *Chevron* respect to the Board of Immigration Appeals’s interpretations of “crimes involving moral turpitude” for deportation purposes. Indeed, I find it highly objectionable that the court gives controlling deference to the agency’s perception of evolving societal morality. Not only does the Board lack any expertise in discerning morals, but *Chevron* in this context contravenes the Rule of Lenity.

Given my strong feelings on the matter, I read with dismay the Ninth Circuit panel’s decision last month in [*Betansos v. Barr*](http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/15-72347.pdf). Upholding the Board’s determination that Mr. Betansos was ineligible for relief from deportation, the court concluded that it “must” defer to the agency’s interpretation of a “crime\[\] involving moral turpitude”—even though the court had previously adopted the same interpretation advanced by Mr. Betansos. The court expressed that, due to [*Brand X*](https://scholar.google.com/scholar_case?case=9224020825253625133&q=Brand+X&hl=en&as_sdt=20003), its hands were tied. Worse still, the court permitted the agency to apply its interpretation retroactively.

In this blogger’s humble opinion, *Betansos v. Barr* did a disservice to justice.

**First Confirmed *Kisor* Sighting in the Ninth**

How will [*Kisor v. Wilkie*](https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/) influence [the *Auer* doctrine](https://yalejreg.wpengine.com/nc/reflections-on-seminole-rock-the-complete-online-symposium/)?

Some scholars [claim](https://yalejreg.com/nc/never-jam-today-by-adrian-vermeule/) that *Auer* lives; others, [including me](https://www.cato.org/blog/auer-doctrine-suffers-pyrrhic-victory-kisor-v-wilkie), argue that *Kisor* effectively killed the *Auer* doctrine by [imposing so many conditions](https://yalejreg.com/nc/what-kisor-means-for-the-future-of-auer-deference-the-new-five-step-kisor-deference-doctrine/).

While only time will tell how the lower courts react, the first evidence is in at the Ninth Circuit. On the 29th of July, a three-judge panel affirmed the lower court’s judgment in favor of the plaintiff-appellee in [*Winding Creek Solar v. California Public Utilities Commission*](http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/29/17-17531.pdf). In support of its case, the defendant-appellant had relied on a regulatory interpretation by the Federal Energy Regulatory Commission (“FERC”), but the Ninth Circuit wasn’t having any of it. Finding the regulatory text to be “clear,” the court would “not defer to FERC’s unreasoned conclusion to the contrary.” The panel cited *Kisor*, and the explanatory parenthetical stated that “*Auer* deference is only appropriate if the regulation being interpreted is ‘genuinely ambiguous’ and the agency’s interpretation ‘reflect\[s\] fair and considered judgment.’”

**Court Condones CFTC’s Expansive Take on Own Authority**

The Commodity Futures Trading Commission scored a big win before the Ninth Circuit in [*CFTC v. Monex*](http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/18-55815.pdf), which the court delivered on July 25th. [According to industry watcher Gary DeWaal](https://bridgingtheweek.com/Commentary/PrintCommentary/2513#MyViews2), the court unleashed the “wild junkyard dog of \[the CFTC’s\] enforcement arsenal.” For comprehensive analysis of the opinion, I highly recommend Mr. DeWaal’s blog, [*Bridging the Week*](https://www.bridgingtheweek.com/Commentary/PostDetails/2569#.XUQ_tlVKiUm).

**The Lighter Side of Law**

Try to read without giggling the Ninth Circuit’s order in [*Edge v. City of Everett*](http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/03/17-36038.pdf), filed on the 3rd of July. In it, the court performs a void-for-vagueness analysis of the phrase “lewd acts” as it appears in a municipal ordinance targeting “bikini baristas.” It’s a G‑Rated exposition of a G‑string controversy.

##### About the Author 

[![William Yeatman](/sites/cato.org/files/styles/author_picture/public/2021-01/Will%20Yeatman.jpg?itok=cX7wRQR4)](/people/william-yeatman) 

##### [William Yeatman](/people/william-yeatman)

Senior Legal Fellow, Pacific Legal Foundation