The Board of Immigration Appeals (BIA) is the final stop within the federal executive branch for immigration adjudications. Earlier this week, the BIA issued an arresting invitation to “interested members of the public to file amicus curiae briefs” addressing the following question:
Is the Board of Immigration Appeals bound by Supreme Court of the United States (or applicable circuit court) precedent on issues of constitutional law, even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional?
The Supremacy Clause of Article VI makes the Constitution “the supreme law of the land.” Meanwhile, parties dissatisfied with BIA rulings can appeal to the federal appeals courts, whose rulings the BIA is bound to respect. Those appeals courts are, in turn, bound by precedents of the Supreme Court. Thus, although the BIA invitation cautions that amicus briefs may not exceed 30 pages, it is tempting to file a two-word brief: “yes, obviously.”
However, familiarity with how the BIA and other administrative agencies operate reveals greater complexity. The Supreme Court has long held that administrative agencies generally lack the power to declare acts of Congress unconstitutional, reaffirming that proposition in the 2012 case of Elgin v. Dept. of Treasury. Thus, the BIA appears to be concerned about a circumstance in which it is obligated to follow a Supreme Court or appeals court precedent, but doing so would require it to engage in the otherwise forbidden practice of declaring a congressional enactment unconstitutional. Seen from that perspective, the answer to the BIA’s question is far from obvious. Indeed, the question appears to be impossible to answer—as it would be impossible to comply with both the obligation to obey controlling precedent invalidating acts of Congress and the prohibition on declaring acts of Congress invalid.
There is a further twist. Following a reduction in size and various personnel changes, the BIA is now composed almost entirely of members appointed by President Donald Trump. Given the current administration’s preference for harsh enforcement of immigration laws and its resistance to legal constraints, it is possible that the question bespeaks a plan to defy either the courts or Congress. After discussing the BIA’s question on the assumption that it is asked in good faith, I turn to the risks posed by any answer in the current circumstances.
Are the Obligations Really Contradictory?
Suppose it were true that the BIA cannot simultaneously adhere to binding judicial precedent and avoid declaring a statute unconstitutional. If so, the latter principle would be the right one to sacrifice. After all, nothing in the Constitution forbids administrative agencies from declaring statutes unconstitutional. To be sure, invalidating an act of Congress is very consequential. That is why the Supreme Court has generally assumed that unless Congress says so expressly, it does not mean to confer that power on administrative agencies, reserving it to courts as a matter of judicial review. But so long as such judicial review is available to ensure that agencies aren’t willfully ignoring valid acts of Congress, agencies could exercise the power to declare federal statutes unconstitutional.
Still, it would be better if we could reconcile the two obligations. We can, so long as we draw some fine distinctions, and at least with respect to some number of cases.
Suppose that in Case A, the Supreme Court or a federal appeals court in the relevant geographic region holds that federal Statute X is unconstitutional. Now suppose that the BIA must decide Case B, in which one side relies on Statute X. The BIA can and should reject any claim or defense rooted in Statute X, lest it disregard precedent. In doing so, the BIA would not be finding a statute unconstitutional. In this example, either the Supreme Court or a federal appeals court has already found that X is unconstitutional. All that the BIA would be doing in Case B is applying the precedent of Case A.
But now suppose that in Case C, the Supreme Court or a federal appeals court in the relevant geographic region writes an opinion that announces some Principle P. In Case D, one side relies on Statute Y. The other side argues that Principle P entails that Statute Y is unconstitutional. In these circumstances, the BIA can adhere to all of the relevant binding precedents but still decline to declare Statute Y unconstitutional. In so doing, it would not be defying the precedent set by Case C, which did not declare Statute Y unconstitutional. The BIA would be declining to extend Principle P.
The two examples just given involve litigation to declare a statute unconstitutional in toto. However, the Supreme Court has generally disfavored such facial challenges, indicating a preference for as-applied challenges. Reconciling the BIA’s two directives with respect to as-applied challenges is genuinely tricky.
Suppose that a Supreme Court or appeals court precedent holds that Statute Z is unconstitutional as applied to the facts of Case E but does not invalidate Z on its face because of the possibility that it is valid in other circumstances. Now suppose that the BIA in Case F confronts a party arguing that the circumstances of F are so similar to those of E that finding Z unconstitutional as applied to the facts of F would not extend the precedent set in E but merely apply it; the opposing party argues that E and F are sufficiently different to trigger the BIA’s prohibition on finding statutes unconstitutional.
In this hypothetical scenario, the party arguing against the BIA’s ability to find Z unconstitutional as applied to F need not contend that Z actually is constitutional as applied to F. That party need argue only that there is sufficient current uncertainty about whether the precedent in E covers the circumstances of F that a declaration of Z’s invalidity as applied to F would be a forbidden new finding of unconstitutionality by the BIA.
In other settings, Congress and the courts have developed rules and standards for addressing this kind of gap between cases that are clearly “dictated by precedent” and those about which reasonable jurists can differ. The phrase “dictated by precedent” comes from a Supreme Court case, Teague v. Lane, in which the Court narrowed the circumstances in which a federal district court can issue a writ of habeas corpus on behalf of a state prisoner. Teague and later cases (as well as a provision of the Antiterrorism and Effective Death Penalty Act, or AEDPA) forbid habeas petitioners from relying on “new rules,” with the Court describing any result not dictated by precedent as new.
In cases like the E/F variation described above, the BIA could borrow a standard like that of Teague and AEDPA to navigate between the Scylla of the obligation to follow precedent and the Charybdis of the prohibition against finding acts of Congress unconstitutional. However, doing so would place much greater weight on the prohibition against declaring acts of Congress unconstitutional than on the obligation to follow precedent. That’s because, as critics of Teague and AEDPA have often noted, it is extremely rare for a result to be dictated by precedent. Congress (via AEDPA) and the Court (via Teague and its progeny) have nonetheless stuck with this very high bar because they place enormous weight on finality and federalism, the state interests implicated by federal habeas review of state convictions and sentences. But other interests are at stake in the conflict between the BIA’s duty to follow precedent and the prohibition on agency findings of unconstitutionality.
Accordingly, the BIA might wish to adopt a more balanced standard than the dictated-by-precedent approach of Teague. Or the BIA could adopt a stricter standard for declaring an act of Congress unconstitutional than for declaring a mere regulation unconstitutional. The former implicates separation of powers in ways that the former does not.
What if the BIA is Acting in Bad Faith?
The foregoing analysis assumes that the BIA is acting in good faith in seeking a means to reconcile apparently conflicting obligations. But what if it isn’t? What if the BIA is planning or hoping to defy one or the other of those obligations?
If the BIA seeks to avoid honoring immigrants’ statutory rights (and thus to defy Congress), it could broadly favor its obligation to follow precedent and downplay the prohibition on finding laws unconstitutional; it would then rule that it is merely applying binding precedent in refusing to honor statutory rights it deems unconstitutional.
Conversely, if the BIA seeks to defy judicial precedent recognizing constitutional rights that override some statute, it could broadly favor the prohibition on declaring laws unconstitutional and announce that the relevant judicial precedents are distinguishable from any case before it.
The good news is that no answer to the BIA’s question permits it to defy both Congress and the courts—at least not if the BIA is consistent. A reconciliation of the competing principles that downplays constitutional rights will result in upholding statutory rights, and vice-versa.
The bad news is that there is no reason to expect the BIA or any other federal agency run mostly by Trump appointees to act in good faith. Trump routinely complains about the imagined sins of his Democratic predecessors, even as he engages in much more blatant instances of the very conduct he condemns in his political opponents. His weaponizing of the Justice Department in the ostensible service of anti-weaponization is perhaps the most egregious example of such hypocrisy, but it is hardly unique.
Thus, it is entirely possible that the BIA will reconcile its conflicting obligations opportunistically and insincerely, not with a generally applicable principle but with a crass determination that immigrants almost always lose. Should it do so, it will then be up to the courts to reverse it. One hopes that the courts, which have also been staffed by a great many Trump appointees, would require an appropriately even-handed approach.