The Department of Justice’s “Longstanding” General Practice of Intracircuit Nonacquiescence
During oral argument in the birthright citizenship cases, Justices Kagan and Barrett seemed very troubled by Solicitor General Sauer’s description of the Department of Justice’s “general” policy concerning circuit precedent. It seems pretty clear that the Solicitor General was talking about DOJ’s policy concerning intracircuit nonacquiescence. What is intracircuit nonacquiescence, you might ask? I discuss this topic in my 2019 article in the Georgetown Law Journal, The Irrepressible Myth of Cooper v. Aaron:
Despite these criticisms, there have been efforts to extend the principle of judicial universality to the lower courts—what oxymoronically might be called “inferior universality.” At various times, the U.S. government has asserted a policy known as “intracircuit nonacquiescence.” Under this controversial doctrine, the Executive Branch directs agencies to disregard certain unfavorable circuit precedent, even if their decisions will ultimately be appealed in that circuit.183 The courts have uniformly rejected this practice for flouting circuit law.184
183. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 687 (1989) (defining “intracircuit nonacquiescence” as a circumstance “when the relevant venue provisions establish that [judicial] review will be to a particular court of appeals and [an administrative] agency nonetheless refuses to follow, in its administrative proceedings, the case law of that court”); Note, Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality, 99 HARV. L. REV. 847 (1986).
184. See Estreicher & Revesz, supra note 183, at 699–704; see also Collateral Estoppel and Nonacquiescence, supra note 183, at 856–57.
Yet, despite pushback from the courts, intracircuit non-acquiescence remains the Department of Justice’s policy. And I can prove it. In March 25, 2010, the Office of Legal Counsel issued an opinion concerning the Obama Administration’s decision to no longer defend the Defense of Marriage Act. Who was the Solicitor General at the time? Elena Kagan. This topic was actually a big deal at her confirmation hearing: DOJ filed a petition for cert before judgment in Windsor, even though the government agreed with the ruling declaring DOMA unconstitutional.
OLC Head David Barron, now a First Circuit Judge, stated the issue plainly:
As explained below, this conclusion accords with the longstanding position of this Office, and the consistent, publicly declared position of the Executive Branch, that an executive agency may “nonacquiesce” in a court of appeals ruling—a practice whereby the agency, despite an adverse court of appeals decision, continues to act in accordance with its own contrary interpretation of the law with respect to persons who were not parties to the judgment. The Executive Branch’s traditional view that nonacquiescence is permissible includes even “intracircuit” nonacquiescence, or nonacquiescence in situations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision.5
FN5: 5 See, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Sub-comm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General, Civil Division) (“Preston Testimony”); see generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692–718 (1989) (describing agency practice).
There you have it. DOJ has a longstanding practice of nonacquiescence. Consider a classic example. The Second Circuit issues a ruling concerning the Social Security Act. Even though that judgment only binds a single claimant, that precedent may affect thousands of individual claimants. The executive branch will chose to either seek en banc, or certiorari. In the process, the executive will not acquiesce to the circuit precedent, and continue applying the earlier precedent to the thousands of other claimants. This has long been DOJ’s policy. Solicitor General Rex Lee wrote an influential opinion on this topic.
This issue arose again during the Obama Administration. In the run-up to King v. Burwell, the Department of Justice stated that it would limit any adverse D.C. Circuit precedent to the named parties.
I discussed this litigation in National Review:
Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
