Gamifying the Law
James Ward
James Ward • Nov 18

Gamifying the Law

by James Ward

Ask any lawyer: Administrative Law and Federal Courts are two of the hardest classes you can take.  They're complex and involve endless searching through arcane statutes.  Seriously - they're only for the super nerds, and that's rarified air when you consider that everyone who goes to law school is already a super nerd.

At the heart of Admin Law is something called the Administrative Procedure Act, which outlines how federal agencies can, and must, behave.  And one key aspect of Fed Courts is the doctrine of the standard of review, which is the degree of deference courts give federal agencies when reviewing a decision.  Together, they are the core of what a federal judge must consider when they look at a case involving what an agency does.

At the heart of Admin Law is something called the Administrative Procedure Act, which outlines how federal agencies can, and must, behave. 

Hard Cases Make Bad Law

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So what?  This morning I read a piece about the US Supreme Court's order in the "Remain in Mexico" case -- a lawsuit over the Biden Administration's revocation of the Trump policy that asylum seekers had to stay in Mexico while they waited for the outcome of their asylum application.  The procedural history in the case -- Texas v. Biden -- is really complicated, so I'll lay it out in a way that I think clarifies it:

  • Typically, asylum seekers were allowed to cross the US border and wait for their case to go through the administrative courts.

  • The Trump Administration established a new policy - the "Migrant Protection Policies" - requiring asylum applicants to wait in Mexico until their proverbial day in court -- something that can take years -- effectively ensuring that they remained outside of the US.

  • In April the Biden Administration's Department of Homeland Security (which is responsible for the borders) rescinded the Trump policy in a memorandum, which is effectively a documented order explaining the agency's decision. Notably, this was done in a "two sentence, three line memorandum" with no appendixes or documents attached.

  • Texas and Missouri sued the Biden Administration, claiming that the change was improperly documented and that it would lead to an influx of unlawful immigration into their states.

  • In June, the Biden Administration made the revocation of the MPP permanent

  • The Texas and Missouri case goes to trial in July, the District Judge (a Trump appointee) agrees with Texas and Missouri, and orders the government to reinstate the MPP.

  • The Biden Administration appeals, and asks for a stay, or a delay in enforcing the lower court's ruling that MPP must be reinstated immediately.  The Supreme Court's order from last night effectively denied the request for a stay. DHS must reintroduce MPP, though the scope of the reintroduction is questionable while the case is under full appeal.

There are other details (and they do matter), but as soon as the Supreme Court gets involved everyone only focuses on that. In reality, the underlying trial decision is what counts, and the primary question there is this: did the Secretary of Homeland Security get it wrong in how he rescinded the MPP?

The trial judge in Texas certainly thought so, but the way he reached his ruling is troubling, very troubling.  It would have been enough to say that the Department hadn't properly addressed the requirements of the relevant statutes.  If the court had concluded that the DHS had misinterpreted the law, that likely would have been the end of it, because a) agencies get virtually no deference from courts on questions of pure law, and b) given how restrictive the relevant immigration laws passed in 1996 and 1997 are, that's probably the right conclusion, in this instance.

That's not what happened.  Instead, the trial judge went into a length discourse on the reasons behind the MPP, why it was a valuable program, why it met the needs of the country, why it was successful, and why it needed to remain in place.  He did this in the factfinding section of his opinion by citing memoranda drafted by the DHS and DOJ officials who promulgated and enforced the MPP (that is, Trump Administration officials).  Concluding that these were facts is very important, not because it establishes them as true in reality, but because it's almost impossible to reject a factfinding by a trial judge.  Fed Courts 101: findings of fact from the lower court are entitled to a very high degree of deference.

Concluding that these were facts is very important, not because it establishes them as true in reality, but because it's almost impossible to reject a factfinding by a trial judge.

Next, the trial judge concluded that the DHS decision to end MPP was "arbitrary and capricious." That's a very specific phrase with a very specific meaning in Administrative Law.  Effectively, A&C means that an agency just kind of made things up for no reason.  Imagine if the Department of the Interior issued a new policy that stated that it would only open National Parks on days when the Secretary was wearing novelty socks -- that's arbitrary and capricious.

Who Decides? (And Who Decides Who Decides?)

But that doesn't appear to be what happened here, at all.  The June DHS memorandum had a fairly substantive explanation for its decision to rescind the MPP, with its own factfinding and conclusions.  The trial court determined that these facts were insufficient and that DHS's reasoning didn't address all of the conclusions that the previous administration's multiple memos on how great MPP was.  But no administration ever does that, largely because, if they're from a different party, they completely reject many of the theories behind the prior policy.

Think of it this way: in April 1929, Herbert Hoover's Treasury Department writes a long memo about why traditional economic analysis means that pumping cash into the economy doesn't work.  Then: the Crash, the Depression, Election of 1932. FDR comes into office, and his Treasury writes a memo that says that Keynes has it right and it's time to prime the pump.  Does the FDR memo need to refute the Hoover memo?  Is that even possible with two entirely differing views of economics?  How can a court decide which is right?

It can't. That's not what courts are for, that's what elections are for.  We choose presidents and Congresses with the knowledge that they will make policy choices based on what they think is correct.  Making choices that way is the privilege and power of the elected branches.  Courts lack the competence and (usually) the expertise to decide whether one policy is better than another, but that's irrelevant compared to the structural point that courts lack the authority, too.  With very rare exceptions completely inapplicable here, courts don't get to say which reasons they find more compelling when looking at an agency decision, nor do they get to say that they think Congress's reasons for a law were misguided.  They look at the law, see if it's constitutional, and that's it.

The District Judge here didn't, and that's why Texas v. Biden is so problematic.  He went out of his way to embrace one Administration's view of the facts over another's and, in so doing, transformed Administrative Law into high school debate, where if you don't refute every single point the other side makes, you lose.  It transforms the judicial process into a game where the only way to win is to raise the stakes.

It Doesn't Look Good

Now, I want to be fair: Admin Law and Fed Courts are hard.  Really hard.  I know a lot of smart lawyers who've broken like waves on a rock trying to figure out the APA.  Some of these cases are so tough that they confuse even Supreme Court Justices.  But the trial court's decision here was wrong -- really wrong.  And I'm not talking about the judge's views the policy stuff, because takes on the MPP or immigration generally are politics, and they're fit for argument.

No, what's wrong here is the approach to the ruling.  It manages simultaneously to overgeneralize and engage in hair-splitting, neither of which gives you confidence in judicial impartiality.  And given that this was a judge appointed by the previous administration, it should have been doubly important for him to avoid the appearance of bias in favor of his patron's policies.  If you've ever watched Law & Order, you know that Jack McCoy always got in trouble about the "appearance of impropriety."  Not just impropriety itself, even the appearance of it -- because trust in the law is a fragile thing.  If something even looks like the fix was in, it undermines public confidence in the courts.

Texas v. Biden is the case that proves the rule.  The pedantry, the selective use of materials, the tautological fact-finding -- it all creates a very unpleasant picture of a judge enforcing his policy preferences, even if he wasn't.  I want to reiterate: it doesn't matter if you agree with the outcome here.  The important point, as always with the law, is precedent.  This time, a judge cherry picks facts and law in a way you like, tomorrow another judge does it in a way you don't.  You're enthralled by the former, repulsed by the latter, and radicalized into thinking that it's all a game.

You're enthralled by the former, repulsed by the latter, and radicalized into thinking that it's all a game.

It isn't.  But when judges treat it like it is, they surrender the last vestige of independence and reliability the courts have.  And they do so at their own peril, given that judicial independence is not exactly the norm worldwide. 

There's an old expression that hard cases make bad law, meaning that an extremely difficult scenario isn't helpful as a guide to most situations. But doing the hard cases poorly -- sloppy reasoning, gamesmanship, tautology -- doesn't just make bad law, it makes bad judges. It only takes a few of those to undermine confidence and the utility of the entire judiciary, and that's not a price worth paying, no matter how much you want to win the game.


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James Ward
James Ward

James Ward is a lawyer, privacy advocate, and fan of listing things in threes. Nothing he says here should be considered legal advice/don’t get legal advice from social media posts. He promises he’s not as smug as he looks in his profile picture.

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