This is a transcript of Episode 62 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Dahlia Lithwick: Hi, and welcome to Amicus, a Slate podcast about the courts and the law. I am Dahlia Lithwick.
The Supreme Court was back in action this week, hearing cases and watching the cherry blossoms bloom in February. Later on in this show, we’re going to talk to Jeff Fisher, whose case before the high court this week, Esquivel-Quintana v. Sessions, raises a whole bunch of important questions about deportation, and criminality, and deference to federal agencies. All of which are about to become hugely important in the era of Donald Trump.
First, we want to talk a little bit about voting rights. Specifically, voting rights in the Jeff Sessions Justice Department. Yes, we’re going to talk a little about the Jeff Sessions in the Jeff Sessions Justice Department, but let’s talk about voting rights first.
For years now, the Obama DOJ has been fighting repressive state voter ID laws all around the country. They’ve actually racked up some really big wins in the courts. This past week, suddenly, the new Justice Department under Jeff Sessions did an about-face in an important voting rights case in Texas that has been bouncing around the courts for five years.
Suddenly, instead of challenging Texas’s voter ID law, they were signaling that actually, they have no problem with it. It left lawyers in Texas in the very strange position of not even knowing what the heck is going on in one of the biggest voter ID cases in the country. Joining us today to talk about the sea change at the Civil Rights Division at the Justice Department is Janai Nelson. She’s associate director counsel of the NAACP’s Legal Defense and Educational Fund and she’s one of the lawyers who represents the challengers to SB 14, this infamous voter ID law in Texas. She was back in court in Corpus Christi to argue this case and Janai, welcome to Amicus.
Janai Nelson: Thank you. Thanks for having me, Dahlia.
Lithwick: I should start by saying you argued on crutches, correct?
Nelson: I argued on a knee scooter, which is, I think, a little bit of an upgrade from crutches. Yes, I have a broken foot at the moment, and my mobility is a little limited.
Lithwick: Thank you for joining us. I want to start by just saying the thing that I think every single listener of this show is thinking, which is, “I know you’re going to talk about the Justice Department, but let’s first talk about Jeff Sessions.” Everyone’s eyes are on Jeff Sessions this week, not just because of the voting rights litigation in Texas but because of a question about his testimony about not having met Russians during the campaign.
Now, I know that LDF took strong positions on Sessions during his confirmation hearings, but I want to ask you if this week’s revelations about Sessions’ testimony and the fact that he may have been less than honest in his testimony is something that LDF is thinking about in a new way, in light of what came before at his confirmation hearings.
Nelson: Sure. No, I think what this has done is effectively affirmed so much of the concerns that we had about Jeff Sessions, starting with his initial nomination and the very reasons that we suggested he really was not fit to be the attorney general. There are many questions about his use of authority, about his integrity, about his honesty. I think those are all on display when we consider what the current allegations are about his meeting with the Russian ambassador and his truthfulness with respect to the testimony that he gave in his nomination and on his questionnaire.
It’s not the first time that we raised issues about the veracity of data on his questionnaire. He alleged that he played a primary and principal role in a number of civil rights cases and, in fact, he did not. There is a lot of evidence to show that he really was there only in a titular position. Yet he claimed credit for being, in many ways, the architect of the civil rights litigation that he thought would give him civil rights bona fides.
This, for us, is just more of the same. It’s obviously more damning and it’s cumulative. It shows the depth of his dishonesty and, for us, I think the most immediate concern is that not only does he recuse himself, which he’s already done, but that his entire office be recused because they, we believe, are tainted in the same way. Also that a special investigation be launched into all of these concerns to see whether he should remain the attorney general.
Lithwick: This is probably a good segue into my question about his thumbprint on the Justice Department. I mean, he’s only been in office—as he said this week at his press conference—he’s only been in office for a few weeks but, holy cow, we’ve seen some big shifts. The one I want to talk to you about is this sea change in the approach to the fight against voter ID laws.
Let’s explain what the initial violation was. Take us back to 2011. Texas passes this voter ID law. We can talk about the details, if you want. You can use a gun license as ID but you can’t use your student ID. There are folks needing to drive hundreds of miles in order to procure ID. It’s clearly impacting elderly voters, minority voters, poor voters in ways that would seem to be disenfranchising them, right? That’s the law. Can you take us through the very, very complicated history of litigation after that law is passed?
Nelson: Sure. The law was passed in 2011 and, at the time, we had in place in this country a really wonderful mechanism under the Voting Rights Act that required certain places with egregious histories of discrimination and voting to have to get pre-clearance to get approval, basically, from the government before any new voting laws could be put in place.
Texas, not surprisingly, is one of those jurisdictions that has a really awful history of racial discrimination in voting, dating as far back as all-white primaries in the 1920s, which is a case that Thurgood Marshall litigated, who founded our organization, where African Americans were excluded from Democratic primaries. That is just the tip of the iceberg in terms of discrimination that Texas has engaged in in well over a century.
In this case, when SB 14, which is the voting law that we’re challenging, when it was initially passed, Texas had to present it to the Department of Justice and make sure that that law would not put minority voters in a worse position than they already were. Basically, the test is: Is this law retrogressive? Is it going to put us backwards, frankly?
The Department of Justice said, “Yeah, actually, it will.” It will, because you’ve now narrowed the types of identification that Texas will accept and you’ve required certain photo identification that many minorities do not possess. It would be very difficult for them to possess because they may not have the underlying documentation, they may not have the flexible work schedules to be able to go to the various government agencies to get the documentation. They may not actually have the money to pay for the underlying documentation, like birth records, et cetera, that will allow them to prove where they were born and other details.
All of this was really new, right? Texans had been voting without incident up until that point by just using an identification certificate that the state issued. They no longer would be able to do that. SB 14 was not able to go into enforcement because it was shown that it would actually harm voters, and harm minority voters in particular. Then you had the really colossal development, in 2013, which was the case of Shelby County v. Holder. That was actually a Supreme Court case that struck down this incredible check on our democracy that I described and basically said that Section 5 of the Voting Rights Act could no longer be enforced because it was outdated.
That meant that places like Texas had free rein to begin to use the laws that it passed, that even if the Department of Justice said they were harmful and retrogressive, there was nothing stopping places like Texas to use those very same laws, even though they knew that they would have a discriminatory impact. That’s exactly what happened in Texas and it happened in many other states across the country that were now free to engage in discrimination.
Texas began using this law and, of course, we brought a challenge to it, along with the Department of Justice, along with many other civil rights groups who were cocounsel in this case. One of the lead plaintiffs in this was Representative Marc Veasey, from Texas, who was part of the legislative hearings and part of the discussions around SB 14 and knew firsthand that it was enacted with a discriminatory purpose.
Lithwick: Now stop for one second because I think it’s important here to clarify for listeners the difference between Section 2 challenges, which is how you brought this, and Section 5, which is, as you said, gone after Shelby County. It changes not only what you have to do but it changes the stakes, right? Can you talk about basically what’s left of the Voting Rights Act, Section 2, and how that changes everything that you have to do after when you bring this new challenge under Section 2 in 2013?
Nelson: The difference between Sections 2 and 5 of the Voting Rights Act are pretty stark. Section 5 is really a prophylactic measure. It allows anyone to challenge a law that was passed and to ask the government to conduct the analysis of whether that law is going to have a discriminatory impact on minority voters. Section 5 only covers certain jurisdictions. Again, those with a really bad history of racial discrimination and voting, or discrimination against language minorities, and there are other categories that it covers. Effectively, that was its primary aim to prevent racial discrimination in voting.
Section 2, on the other hand, is a way to challenge a law once it is in force. The damage has already been done, the law has already passed, it’s already being implemented. Then, you can challenge a law under Section 2 under one of two theories. You can say the law has a discriminatory impact, meaning it actually harms more minority voters than majority voters and, therefore, is unlawful because of its effect. You can also lodge an intent claim. You can say that not only does it have this impact but, actually, it was intended to have that impact.
In this case, with respect to Texas’s photo ID law, we lodged both claims. We have evidence that it was intentionally discriminatory and we have ample evidence of its effect. Section 5 is not part of this lawsuit. It was part of the precursor to this lawsuit and it also is part of the knowledge that the Texas legislature had going into this, knowing that a federal agency had already found that the law would have a discriminatory effect.
Another really key difference between Section 2 and Section 5 is the burden that it places on civil rights groups and the litigants in these cases. Section 2 cases are extremely costly and, again, as I pointed out, they happen after the harm has already occurred. Whereas Section 5 is something that involves the government, there is a cost involved to the state, and there is a cost for civil rights groups who monitor these cases and also prosecute them, but it’s of a much different scale than a full-out challenge under Section 2, where the plaintiffs bear the burden of proving that there is this discriminatory effect and discriminatory intent. It’s costly, it’s time-consuming, and it also doesn’t redress the harm, often, early enough, and elections pass, and people have lost their voting rights irretrievably.
Lithwick: You all win, the plaintiffs win in the district court, resoundingly. It goes up to the 5th Circuit Court of Appeals and the 5th Circuit decides that, yes, on effect, you’re clearly right. They kick it back to the district court for another hearing on this question of intent, right? Did the legislature mean to do this? Before we talk about that, I just want to play a little bit of audio from that 5th Circuit oral argument all the way back in 2015. Here is the hearing at the 5th Circuit Court of Appeals and Justice Department lawyer, Erin Flynn, arguing against the Texas voter ID law. Let’s just get a sense of what it was like, way back in the day, when the Justice Department was carrying the water of proving that this law cannot stand.
Erin Flynn: Find that the purpose, which could be one part of the purpose, which is racially discriminatory purpose, attempting to minimize voting opportunities for African American and Hispanic voters, given the seismic demographics shift that had occurred in Texas’s population over the past 10 years, combined with the fact of extremely racially polarized voting, which meant that any reduction in African—
Judge: Is that really true on the Hispanic vote? I mean, the most recent election, it was not nearly as polarized as you contend it was, in terms of the governor race, for example.
Flynn: It’s uncontested, Your Honor, that there is racially polarized voting in every county across Texas. It’s true that the Anglo—
Lithwick: I would love to hear your thoughts on what it was like after all these years in this litigation, to have the Justice Department right next to you, saying the same things in the same voice. “This law is discriminatory. It has a discriminatory effect, it has a discriminatory intent.”
Suddenly, effective Monday, the Justice Department under Jeff Sessions withdrawing the claim altogether that Texas had even enacted the law with a discriminatory intent. Going further in saying, “You know, we shouldn’t even really be hearing this litigation because the Texas legislature is passing another voter ID law. It’s going to cure whatever problems existed in the prior one.” As the Justice Department official said at this hearing, “It doesn’t even make sense because it’s a moving landscape, it’s a shifting landscape. It doesn’t even make sense for the courts to weigh in right now.”
Nelson: Yeah, the difference is stark. We operated in partnership with the Department of Justice in prosecuting this claim. We conferred and strategized and were all rowing in the same direction toward the enforcement of our civil rights laws. There was a significant reversal on Tuesday that we think really undermines the confidence in this Department of Justice because it is a direct retort to what the Department of Justice had been saying all along.
There are many complications with that. I mean, there are laws that potentially bar parties to litigation from switching positions midstream, and we obviously will consider whether that is what’s happening here. I think what’s most important is what it reflects in terms of the change of direction that this Department of Justice has with respect to protecting our democracy against racial discrimination in elections.
That couldn’t be more critical than any other time, given the false allegations of vote rigging and voter fraud, and how that potentially lays the groundwork for new laws that intimidate voters and that can suppress the minority vote. We were very disappointed by the Department of Justice’s stance in this case and we were in the interesting position of being able to cite back to the court the very strong and moving arguments that the Department of Justice had asserted earlier in this case, that stood in stark contrast to some of what they were suggesting now.
Lithwick: This leads me inexorably to the question about the scourge of vote fraud, which is the other side of this case, right? It has new salience because Texas certainly said, “Oh, we needed to put this voter ID law into place because the vote fraud is so unbelievably problematic.”
You and I may have joked about that a year ago but now we have a president who is saying that there were between three and five million illegal votes cast in this presidential election and is making promises, not only about doing an audit, but making promises and putting Jeff Sessions in as the attorney general in ways that really speak to this voter fraud thing, of which there is no evidence, is about to become a lever with which voter suppression really, really goes onto steroids, right? In this administration.
Nelson: Yeah. I mean, it’s interesting because before we changed administrations and we started to hear this reprisal of voter fraud as a justification for all of these heinous laws, I think there was beginning to be a much clearer understanding for at least some parts of the public, that this was such a bogus cry that it’s an exaggerated claim, that there are still so few instances of impersonation fraud, which is the type of voter fraud that laws like SB 14 try to address.
That any laws that impose draconian measures to keep people from voting because of a fear that somehow the election is going to be overtaken by a bunch of imposters who want to wait in long lines on Election Day to cast a phony vote is just preposterous. We were making gains and, I think, exposing that myth for what it was, for explaining to folks in very clear terms that you’re more likely to get struck by lightning twice or you’re more likely to win the lottery than you are to witness an instance of voter fraud.
It really is such a hyped-up claim, we presented evidence of this in our Texas case that, of all the voting that occurred over the course of a decade or so, there were millions of votes and one or two claims of voter fraud and one or two prosecutions. I think that’s a narrative that we’re going to have to continue to fight and try to combat because when you have a commander in chief who so freely throws about these false allegations without any evidence whatsoever, without any care about the truthfulness of what he’s stating and causes this sort of panic and unnecessary fear about the integrity of our elections, then we really do have an upward battle because we’re not dealing in fact, we’re dealing in myth, and that’s always a more challenging landscape.
Lithwick: Janai, before I let you go, I want you to talk more broadly, and part of this is going to be from your experience at LDF and part of it is just going to be based on a witness to what we’re seeing in the courts in the last few months. Am I right to say that your experience at this hearing in Corpus Christi mirrored a lot of what we’re seeing in the courts generally, in the last few weeks and months? Which is that judges are really seemingly more willing, not just in the voter ID context, but certainly after Whole Women’s HHealth and the abortion context, certainly in the Second Amendment context, that judges seem much more willing to pierce pretextual arguments, much more willing to say, “I don’t think that’s right.”
Is that a trend? Am I just being hopelessly optimistic, or are judges really digging down right now in a way that is maybe new and saying, “If you’re going to pass crazy laws with pretextual defenses, you better be prepared to show me evidence.” Is that a thing?
Nelson: You know, I hope you’re right. I do think that there are many instances where we’re seeing some really excellent judging and a new appreciation for the complexity of discrimination claims across the board. I think you’re right. I think there is a growth and understanding of how discrimination operates systemically, how it operates in very subtle ways, and we’re becoming much more sophisticated about our ability to identify it, analyze it, and our recognition of it.
I do think that you’re not imagining things, that there is some intellectual growth that’s responding to our times. It really could not happen fast enough because of the climate that we’re in. It’s interesting though because in some ways, we’re starting to see much more blatant and unfiltered hatred, and discrimination, and utterances. It’s an interesting time. We’re going to be battling both. I think much more overt instances of discrimination and harm to various groups as well as the subtle and systemic challenges that we’ve been engaging in for such a long time.
It’s going to be an upward battle but our courts, they’ve always been, in many ways, a checkpoint for us and a way in which to ensure that our democracy does not run amok and does not just shift with the political winds. I have a great deal of confidence in our judiciary, but really, they are going to play a critical and crucial role to keeping us on track in the coming years.
Lithwick: Janai Nelson is associate director counsel of the NAACP Legal Defense and Educational Fund and she was one of the lawyers in Texas this week, challenging SB 14. Janai, thank you very much for joining us this week on Amicus.
Nelson: Thank you so much for having me. This was great.
* * *
Lithwick: On Monday, the same day that the Justice Department was changing its stance in that Texas voter ID case, the U.S. Supreme Court was taking up another case that also holds all kinds of echoes of what’s happening now in America and what may be yet to come. The central issue in Esquivel-Quintana v. Sessions is whether a conviction for consensual sexual intercourse between a 21-year-old and a 17-year-old constitutes the “aggravated felony of sexual abuse of a minor” under the Immigration and Nationality Act. If so, it would qualify as a deportable offense for the Mexican immigrant at the center of this case. As we’ll discuss, the answer just isn’t as straightforward as you might think.
This case actually also raises a host of other questions, technical questions that oddly enough, may offer a preview of what we’re going to hear at the Neil Gorsuch confirmation hearings. These are questions about the value of so-called Chevron deference to federal agencies. Joining us to discuss this web of timely issues is Jeff Fisher. He’s co-director of Stanford Law School’s Litigation Clinic and he represented Juan Esquivel-Quintana in the high court on Monday. Welcome back to the show, Jeff.
Jeff Fisher: Thanks, always great.
Lithwick: Jeff, this is a super-easy case, right? I mean it’s completely simple. We have a guy, and he’s 20, and he has consensual sex with his 16-year-old girlfriend. Under California law, which is where he lives at the time, this is “an aggravated felony.” It’s even simpler because under 8 U.S.C. § 1101(a)(43), this aggravated felony of sexual abuse of a minor is the basis for removal. So, they send him back to Mexico. Easy, right?
Lithwick: Oh, OK.
Fisher: I have to disagree with you on that.
As you, I think, tongue-in-cheek suggested, there are a lot of legal layers to the case so maybe if I give you a couple of overall guideposts, that’ll help our conversation.
Fisher: Under the Immigration Nationality Act, otherwise known as the INA, people who are lawfully in the country, and I think that’s an important thing for the listeners to understand, that we’re talking here about people who are lawful, permanent residents or otherwise lawfully in the country. We’re not talking about undocumented people here. If they’re lawfully in the country but are not yet a citizen and they’re convicted of a serious crime, they can be deported. The INA lists a handful of what it views as the most serious crimes, things called aggravated felonies. In the first subprovision of that law are the crimes murder, rape, and sexual abuse of a minor.
The question in this case is whether his California conviction for statutory rape which, as you said, arises from consensual sex that we deem to be a crime because of the age of the younger partner, constitutes sexual abuse of a minor and, therefore, subjects him to automatic deportation without even the opportunity to argue that he ought to be allowed to stay in the country.
Lithwick: Let’s be clear, in California, the age is 18, but that’s an outlier, correct?
Fisher: Right. If you look across the states, the typical age of consent for purposes of statutory rape laws is 16. Anytime you’re having sexual relations with somebody that’s 16 or older, typically, across the country, that is perfectly legal and it is the same under federal law. California is one of seven states that have a particularly high age of consent at 18. In California, someone who is just shy of 18 having sexual relations with somebody who is 21 is a crime in the state of California.
At its core, that’s what this case is about. It’s about whether California and the six other states, there are seven total, whether people who are convicted under those very expansive statutory rape laws have committed the aggravated felony of sexual abuse of a minor.
Lithwick: OK, now let’s add this wrinkle. You’re right, my questioning was totally fatuous because it gets more complicated because your client moves to Michigan.
Fisher: Right, well that’s how we have a case. He was living in California after the conviction with no incident because the local federal court in California had said that violating this California statute does not constitute sexual abuse of a minor. He moved, at one point, to Michigan, to be closer to some family members. At that point, he was picked up by the federal authorities and charged with being deportable on the ground of committing sexual abuse of a minor.
What the federal government argued was that the local court in Michigan should refuse to follow the law out in California and hold that the federal statute was violated here. That’s indeed what the courts held, that first the immigration courts and then the federal courts. That’s how we landed in the U.S. Supreme Court was this situation, which the court deals with a lot, where different federal courts of appeals have come to different conclusions on federal law. For the reason you said, Dahlia, it’s particularly poignant in this case because you have a single individual who was subject to two different federal regimes and we have to figure out which one is correct.
Lithwick: OK, this is going to be my seamless segue to Chevron deference, Jeff, because I think that at the heart of this case is this very, very complicated notion about when and how we defer to an agency’s interpretation of its own rules. Can you just, for those of us who did not go to law school, explain the principle and then how it’s reflected in this appeal?
Fisher: Sure. Chevron is the shorthand that lawyers use to talk about deferring to the view of a federal agency on what federal law means. Chevron was just the title of a case in the ’80s where the Supreme Court really announced and crystallized this doctrine. The idea is that you start in any federal or statutory case with what Congress said when it passed the legislation and that hopefully, in most cases, just simply reading that statute and construing it in the ordinary ways will give you a clear answer.
What Chevron holds is that in situations where Congress has not given a clear answer, or sometimes it’s intentionally kick the can down the road to the agency. For example, Congress might say, “You shouldn’t pollute waterways with mercury,” but then leave it up to the EPA to announce how many parts per billion of mercury is too much. In all those areas where Congress has either explicitly or implicitly, through general laws, delegated to agencies the authority to engage in administrative lawmaking, the Supreme Court has held that as long as the agency adopts a reasonable view of the federal statute or what Congress would have intended, that the courts will defer to that.
While that started out as a small and uncontroversial principle when the court announced it in the ’80s, it has grown in significance, both as a matter of law, because courts are more and more, over the years, have been deferring to federal agencies, and in terms of our politics. The way that lawmaking has changed in this country in recent years is that agencies are more and more on the forefront of very important regulatory lawmaking on very salient issues of public concern. For all those reasons, lawyers and many people beyond just the bar now are starting to pay a lot of attention to this Chevron doctrine, what it means, and whether it’s valid.
Lithwick: Why is this an issue before the court this week? This is why I asked the initial question the way I did. Look, we have to defer, right? The immigration statute says what it says and judges need to stand back and let that be.
Fisher: Right. The reason Chevron is implicated, potentially at least, in this case, is because this case started in the administrative agency and culminated in that process with what’s known as the Board of Immigration Appeals. Which is the Executive Branch’s agency for deciding immigration cases. The Board of Immigration Appeals, as I think I noted earlier, held that the statute here was ambiguous and that it, therefore, had the authority to construe it broadly to cover the California conviction we’ve been talking about.
What the federal government now argues in the Supreme Court is that the court ought to defer to the BIA’s view that sexual abuse of a minor is a broad term that covers even expansive statutory rape offenses. That’s the way the issue gets put in front of the court. I’ll just sketch out quickly, if you’d like, what our response to that is.
Our response, in this particular case, is not to attack the Chevron doctrine entirely but to say for two reasons in this particular case, it shouldn’t apply. One reason is because the INA provision at issue here that renders, in the government’s view, my client deportable, is also a statute that is invoked in certain ways in criminal cases. We say that the idea of deferring to an agency certainly shouldn’t kick into play when you’re also construing something that’s a criminal law with criminal consequences for various reasons.
We secondly point out that even if you’re just talking about the immigration consequences, they’re so severe for people, and sometimes more important than a criminal conviction, more devastating than a criminal conviction, that an agency should not get the benefit of the doubt in that context. Rather, if there’s an ambiguous statute, we should give the noncitizen the benefit of the doubt. That’s how the issue gets teed up for the court. Maybe, boiled down to its essence, the question is whether the court and some justices want to use this case to take a first step, in terms of limiting the scope in which Chevron applies.
Lithwick: I want to play for you, on that very point, here’s some audio of Justice Sam Alito just asking you directly if your plan here is to gut Chevron. Let’s listen.
Justice Samuel Alito: Suppose that the definition here or the phrase here had no criminal application, it applies purely on immigration, OK?
Fisher: Mm-hmm [affirmative].
Alito: You’re not asking us to overrule Chevron?
Fisher: No, no, no.
Alito: All right. Why wouldn’t—
Lithwick: Jeff, we just heard you say, “No, no, no. No. No, it’s not that.” Is that exactly the example of what you were sketching out right there, which is the court is asking you, “Is this the opportunity to begin to pull the plug on Chevron?” and you’re saying, “No, you don’t have to do that here”?
Fisher: Frankly, I didn’t expect to get a question suggesting that I was asking for something quite that big, because I wasn’t. What I told the court later is, “No, all I’m asking for is a slight limitation on Chevron or, if you will look at it from the other direction, perhaps a slight exception.” I think the fact that he asked that question, and I think it was the second or third question of the oral argument, so they got right to that, shows that this is an issue very much on the forefront of the justices’ minds right now.
Lithwick: Jeff, I want to play a little bit of the colloquy between Justice Elena Kagan and the solicitor general’s office in this oral argument where Justice Kagan makes the point that not only is the California version of this law incredibly harsh and punitive but that it’s also a huge outlier, it does not reflect a consensus among the states about the age of consent in statutory rape. I think the point she’s making is you don’t pick the most punitive law as your baseline. Let’s have a listen.
Justice Elena Kagan: Understand that. You’re saying that it would be the clearly better reading to go to say, notwithstanding the federal statute, notwithstanding 30-plus state statutes, notwithstanding the Model Penal Code, we just know that when somebody talks about sexual abuse of a minor, they’re talking about age 18 with a three-year differential?
Solicitor General: I think it would just step back to say that when this court is giving content to the federal provision, at the first step of the categorical approach, it is engaging in a normal case of statutory interpretation, which brings to bear all of the normal tools—
Kagan: Well, I’m asking about that normal statutory interpretation.
Solicitor General: Sure. Normally, the court—
Kagan: How does normal statutory interpretation get you to think that out of our heads pops 18 plus a three-year differential—
Solicitor General: I see, so now you’re asking about the board’s interpretation.
Kagan: As opposed to looking at 30-plus states, the Model Penal Code, and the federal statute, which all define it differently.
Lithwick: Jeff, am I right that this goes to one of your fundamental arguments, which is, when you’re talking about life and death, deportation decisions, you don’t pick the one state test that is the strictest test and use it as the marker for deportability across the boards?
Fisher: Well, what our view is, and it’s just built on the court’s own prior cases dealing with other crimes that the court has considered as to whether they render people deportable is, if Congress doesn’t give a clear definition of the crime that it’s intending to cover, what you do is you look at how that crime is typically defined across the country.
What the court has done in the past is look for a consensus among the states and federal government as to the ordinary elements of something like burglary or robbery, or the like. What we said here is, “Yes, statutory rape might fall within the umbrella of sexual abuse of a minor, but you’d have to do that in a way that uses the ordinary elements of statutory rape.” In a state like California that is such an outlier, a statutory rape conviction, at least under this particular provision, shouldn’t subject somebody to automatic deportation.
Lithwick: Then the last bit of audio I want to play, just because we have to play Justice Kennedy on every episode. Here’s Justice Kennedy, I think trying to make the point that some kinds of Chevron deference are different than others.
Justice Anthony Kennedy: I can understand Chevron in the context of an agency that has special expertise in regulating the environment, or the forest service, or fisheries, or nuclear power. Why does the INS have any expertise in determining the meaning of a criminal statute?
Solicitor General: First of all, Justice Kennedy, I think it’s important to orient ourselves around the fact ...
Lithwick: What does that signal to you, Jeff, about where Justice Kennedy’s head might be in terms of whether this Chevron question is at the heart of this case and what he wants to do about it?
Fisher: Well, if you can read the tea leaves from that, Justice Kennedy seems to be saying that he thinks that Chevron shouldn’t be quite as expansive as some other people do and Chevron ought to be limited, really, to what its roots were, which is the notion that sometimes, the law’s ambiguous and the court would reasonably defer to an expert agency.
What’s happened over the years is many other courts and many other scholars have propounded a much broader view that the agency always gets to push the law to its outer boundaries, even if its not relying on any particular expertise. I think what it tells you about what Justice Kennedy might be thinking here, and what many judges and justices have started to argue, and particularly on the more conservative side of the spectrum, is that at a certain point, courts are just as well-equipped, if not better, to decide what federal law means.
“Yes, we’ll defer to an agency if it’s using some special expertise that the court doesn’t have.” If all you’re doing is giving the best reading of statutory terms, or looking at legislative history, or looking at consequences across the law, courts are better equipped and, arguably, more justified in our constitutional system in making those determinations than agencies are.
Lithwick: I guess I have to ask you, all this happens against a backdrop of a new administration coming in and saying, “One of the things we can promise is that we’re going to step up deportation, especially for people with criminal convictions.” How much is that on the court’s mind this week as they’re listening to you talk about a case that obviously isn’t specifically about that but certainly inflects intensely on that?
Fisher: You know, that’s a great question and a hard one to answer. You know, when you gave the case name at the top, it started out as Esquivel-Quintana v. Lynch, it’s now Esquivel-Quintana v. Sessions. It’s the same case with the same arguments from the government, so the Trump administration is not saying anything different than the Obama administration has said on this particular issue. You might say to yourself, “Oh, current politics has nothing to do with it, it’s just a case with the government against a noncitizen.”
At the same time, you can’t help but wonder whether the court will be influenced in this case, like so many others, by changing politics. Particularly when it thinks about whether it ought to be deferring to the government in various ways. One would expect that would be influenced by their confidence in the government, and its work, and its judgment, and its operations.
If the government’s going to change policy in various ways, the court’s going to ask itself, “Do we agree with that change in policy? Do we think it’s well-considered? Do we think we ought to be deferring to it or not?” I think that’s going to be in the background. I wouldn’t pretend to guess precisely how it will play out in this particular case, though.
Lithwick: You did say something interesting when we started talking about Chevron and the erosion of Chevron. You said a lot of that criticism was coming principally from the legal right.
Lithwick: I wonder if now what we’re going to hear is that as we have more doubts about how the EPA interprets its own regs, how government entities interpret their own regs, this is going to start to be a war in which the left takes up arms.
Fisher: Well, I think that’s going to be fascinating to watch. Until the election, I think it is fair to say you had a rising tide from the right against the notion of agency deference. In part, that was because of many of the Obama administration’s most important and significant policies were coming out of the administrative state, rather than out of Congress. If you were looking at outcomes, from a conservative point of view, you’d say you want to limit the power of agencies.
Now the politics have changed and the Republicans obviously own the administrative state, so to speak, right now. I think it’ll be interesting to watch and see whether the right decides to dial back its criticism here or whether the left, which was largely standing up, defending Chevron, starts to take a different view. The shoe’s not only on one side’s other foot—there’s a terrible metaphor. On both sides’ other feet. Whatever!
Lithwick: That’s got to be really hard to walk in.
Fisher: Yeah. It’s just a big mess.
I think it will be interesting. I think the last thing I should add, just in fairness, is that even before the election, and the same is true after, you can’t paint with a broad brush in terms of politics and Chevron because Justice Scalia was a big defender of Chevron, for example, whereas Justice Thomas is a big critic. You could pick people on the left and divide them up that way as well.
It really is one of these points where at least I would say, as a lawyer and a law professor, you hope that people will just sit down and put their thinking caps on and think about it in terms of a neutral principle. “What is the best governmental system and judicial system we can have?” Not, “What is the best set of rules to get me the best outcomes for the next two or three years?”
Lithwick: That leads to my last question, which is, we are headed into a Neil Gorsuch confirmation hearing and one of the things on which he has been incredibly outspoken is his feeling about Chevron deference. I think he aligns with those that think it’s a huge error. I think I’ve got quotes from him saying, pretty openly, “Chevron allows executive bureaucracies to swallow huge amounts of core judicial and legislative power.” “In a world without Chevron, very little would change except perhaps the most important things.” He is a fan of kneecapping Chevron.
Help our listeners locate this, both in terms of how they want to think about this dialogue that’s going to, I think, be a big part of his hearings. Where is Gorsuch in terms of thinking about these issues? You’ve said now Justices Scalia and Thomas take actually very different postures on this. Help us understand where Gorsuch is on this Chevron revolution.
Fisher: Well, as you just said, Judge Gorsuch wrote an opinion last summer calling for courts to, I think as he put it, “Take on the behemoth.” He is extremely skeptical, if not outright hostile, to the idea of Chevron deference, across the board, in fact. I have no idea of knowing, but when Justice Alito said, “Are you asking to overrule Chevron?” that’s what Judge Gorsuch suggested, not us, in this case.
It is a potentially very, very significant step and I think probably the easiest way to think about it, if he got on the court and if he could bring others around to that view, is that it really is, at the end of the day, a question about where you want lawmaking power to reside. Do you want it to be squarely and solely in the judicial branch when it comes to interpreting federal statutes, or do you think that sometimes the federal judge who confronts a question that maybe he or she doesn’t have a lot of experience or familiarity with ought to defer to a well-considered agency view on that issue? That’s the argument, in broad terms.
Then, if you think, “Oh, maybe sometimes we ought to defer, as a federal judiciary,” then you get into the more fine-grained questions like we have in Esquivel-Quintana. Which is maybe deference is a good idea sometimes but in other situations, it tramples other values that we might have about the way government ought to work or the way the judiciary ought to function.
Lithwick: Is it fair to say that it’s very difficult for someone who takes the position that we need to have a more active and more engaged judicial branch, that it’s going to be awfully hard to then talk about balls and strikes, judicial humility, a limited role for the judicial branch? It does open up Judge Gorsuch to a lot of questions about, are these fundamentally the same values that someone would hold if they say judges should do as little as possible most of the time?
Fisher: Yeah, well, two things. The first is, the two are not incompatible, at least in terms of the playing field right now. Many people hold views that counsel toward a strong judicial muscle in the statutory realm, whereas sitting back and being much more passive when you come to constitutional issues. There’s nothing, at least in the world that we live in right now, that requires one person to be consistent across both those lines.
Obviously, it’s a fair inquiry for Judge Gorsuch or for anybody else to say, “You seem to be propounding on the statutory side a very robust role for the courts to play and, on the constitutional side, maybe not so much. How do you fit those things together?” I think it’s an important question to explore at his hearings, among obviously many others.
Lithwick: Jeff Fisher is co-director of Stanford Law School’s Supreme Court Litigation. He argued Esquivel-Quintana this week at the U.S. Supreme Court. It is always a pleasure to have you on the show, Jeff. Thank you for being with us.
Fisher: Thanks, I hope it was helpful.
Lithwick: That is going to do it for this week’s episode of Amicus. We are eager, as always, to hear your thoughts and feedback. You can email us at Amicus@Slate.com or you can leave a comment for us at Facebook. You’ll find us at Facebook.com/AmicusPodcast. Please don’t forget, if you haven’t already left an iTunes review of the show, it’s such a great way to help folks who don’t know about this podcast find out about the show.
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