Contradictory Statutory Commands: "Remain in Mexico" Edition
by Michael C. Dorf
(1) A statutory provision tells the federal government that undocumented immigrants seeking asylum "shall be detained;"
(2) but Congress has never appropriated nearly enough money to pay for the cost of detaining all but a relatively small fraction of such asylum seekers;
(3) not withstanding the detention obligation, the same statutory provision states that the Attorney General "may return" asylum seekers to a contiguous country (i.e., Mexico or Canada) from which they entered, although of course the government cannot do that without the contiguous country's agreement;
(4) yet another statutory provision authorizes the Secretary of the Department of Homeland Security "in his discretion" to "parole" otherwise not-yet-admitted undocumented immigrants (including asylum seekers) "into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit."
The core issue in the case (apart from the procedural challenge to the Biden Administration's effort to change the policy) is how to fit these provisions together. (There's another provision involving bail, but it plays a minor role, so I'll ignore it for present purposes.) Texas, which prevailed in the lower courts, says that the baseline obligation is to detain asylum seekers; because the government cannot (given its funding levels) comply, it must use the alternatives; the case-by-case nature of parole makes that available for only a small number of asylum seekers, so the vast majority must be returned to a contiguous country--here, Mexico--pursuant to the policy dubbed "remain in Mexico."
The federal government argues that if this reading is correct, then every administration since the laws went into effect has been violating them, which is implausible. The federal government says that it does provide case-by-case review of each undocumented immigrant it paroles, so that is permissible, and also argues that the approach of the lower court and Texas would convert statutory discretion--"may" send to a contiguous country--into a mandate.
For what it's worth, I find the Solicitor General's argument persuasive. But for now, I want to ask what the Court should do if it finds neither side persuasive. In other words, what should the Court do if the various statutes Congress has enacted--including the under-funding laws--are simply incompatible?
Chief Justice Roberts hit upon that question early in the argument. He asked the SG what the Court is supposed to do if the Justices conclude that the government cannot be required to send people back to wait in Mexico, lacks the resources to detain most asylum seekers, and (contrary to the SG's argument) cannot rely on the case-by-case provision en masse. "In that situation," the Chief asked, "what are we supposed to do? It's still our job to say what the law is. And if we say what the law is and you tell us we can't do anything about it, where does that leave us?"
SG Prelogar didn't really ever answer that question. Instead, she (pretty effectively) fought the hypo by arguing for her view of the parole provision. Fair enough. She's an advocate. But what about the question?
Long-time readers of this blog will know that Chief Justice Roberts was asking a statutory version of a question with which Professor Buchanan and I wrestled a decade ago in a series of articles arising out of the debt ceiling crises. We asked then what the President should do when faced with multiple commands, such that all of the options--including doing nothing--are unconstitutional. Our answer then: Choose the least unconstitutional option. Accordingly, it probably won't come as a surprise that I would answer Chief Justice Roberts by trying to identify the option that involves the government doing the least illegal things.
Before coming to that answer, however, I want to be clear that the issue will rarely present itself. A court will conclude that legal actors--such as individuals, firms, and government agencies--face mutually contradictory statutory duties only after considering other possibilities. As an initial matter, a court will try to construe the various legal obligations in a way that harmonizes them. Just as courts try to construe statutes to avoid finding them unconstitutional, they'll construe each statute to avoid contradicting the others, even if that requires some fancy footwork.
For example, in Biden v. Texas, Texas proposes harmonizing the statutes by construing "may" in the contiguous-territory provision to mean "must," where the government is not able to detain the vast majority of asylum seekers. Meanwhile, the federal government would construe "case-by-case basis" to cover the vast majority of cases, thus rejecting the suggestion that it necessarily implies a limited number of exceptions. I think the latter harmonization is better but my point is that each side seeks a harmonization precisely because each side knows that the Justices' first move will be to try to use their interpretive tools to avoid a conflict.
If a court finds it impossible to harmonize various statutes, it can conclude that the later-in-time provision repeals the earlier-in-time provision to the extent of the conflict. Although courts typically say that repeal by implication is disfavored, that is ultimately only a presumption, rebuttable by the existence of irreconcilable conflict.
But now we come to what is perhaps the most intriguing puzzle. What if two or more provisions that were adopted as part of the same statute irreconcilably conflict? The last-in-time rule is inapplicable and, by hypothesis, the contradictory commands cannot be reconciled. I understood Chief Justice Roberts to be asking what happens then. And I took his invocation of the Marbury "say what the law is" proposition to mean that in those circumstances the courts should declare that the regulated actor (here the government but private actors in other settings potentially) cannot simultaneously comply with its various legal obligations.
What then? In our debt ceiling work, Professor Buchanan and I pushed back hard on the suggestion (which a number of other scholars had made) that where the President faces irreconcilably conflicting obligations, she has complete discretion about what to do. Our view was (and remains) that the President should try to minimize the constitutional violation. In a debt ceiling crisis, that means borrowing beyond the debt ceiling but only enough to cover the gap between revenues and appropriations. The particulars aren't important now. The main point is that even when facing mutually incompatible obligations, it should be possible to limit the scope of the violation of one or more of them.
Something similar makes sense in the statutory context. Suppose a simpler version of the statutory provisions at issue in Biden v. Texas. Suppose that there was a law with no exceptions obligating the government to detain every asylum seeker who crosses the border without proper documentation. And suppose that Congress appropriates enough money to detain no more than a third of such asylum seekers. The fact that the government is unable to detain all of the asylum seekers would not mean it could choose to detain none of them. Rather, a sensible resolution would be to say that under those circumstances, the government is obliged to detain as many asylum seekers as it can given the resources afforded it.
Of course, in the foregoing example, it's pretty clear what it means to minimize the statutory violation, because there's only one obligation. But what if minimizing the violation of one provision entails increasing the violation of another? Suppose, for example, that the Fed's mandate to fight inflation and to minimize unemployment were stricter and numerical. Let's say, for example, that Congress wrote instructions to the Fed as follows:
The Federal Reserve must keep inflation between 1 and 3 percent annually and must keep unemployment under 5 percent.
Now suppose that the state of the economy makes it impossible to comply with both obligations at least in the short run. Raising interest rates could keep inflation just below 3 percent but will cause unemployment to exceed 5 percent; lowering rates would have the opposite effect. Is the Fed free to choose whether to prioritize its inflation-fighting versus its unemployment-fighting mandate?
As a practical matter, I think the right answer is that the Fed or other agency in such circumstances should be given substantial deference from the courts if the issue ends up there. However, I also think that even here, where there is a necessary tradeoff between complying with one mandate or another, there is some constraint. If there's some statutory indication that Congress places a higher priority on fighting either inflation or unemployment, then the Fed should choose that priority. But by hypothesis, if this is a case in which the contradictory commands are irreconcilable, Congress will not have prioritized. In that circumstance, absent strong reason to believe that one policy or the other will be better overall in the long run, I would want the Fed to more or less average out the violation: exceed the inflation cap and the unemployment cap modestly, rather than comply with one cap and violate the other by a large measure.
Finally, to reiterate, in Biden v. Texas the Court has a variety of ways to harmonize the statutes in question, so the thoughts above are sparked much more by the Chief Justice's question than by the facts and circumstances of the case.