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Much of legal twitter is abuzz about Judge Frank Easterbrook’s brief yet blistering opinion in Baez-Sanchez v. Barr, in which he expresses incredulity at the Board of Immigration Appeals’ apparent willingness to disregard a decision of a reviewing appeals court.

The opinion should be read for the full effect, so here it is:

Jorge Baez-Sanchez, a citizen of Mexico, is removable as a criminal alien. His conviction for aggravated battery of a police officer renders him inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). He applied to the Department of Homeland Security for a U visa, which would allow him to remain in the United States. The U visa is available to some admissible aliens who have been victims of crime in this country. Baez-Sanchez asked the immigration judge assigned to his case to grant him a waiver of inadmissibility, which would allow the Department of Homeland Security to rule favorably on his visa application. A statute, 8 U.S.C. § 1182(d)(3)(A)(ii), permits the Attorney General to waive an alien’s inadmissibility. Exercising that authority, an immigration judge twice granted the request for waiver. After the initial grant, the Board of Immigration Appeals remanded with instructions to consider an additional issue. The immigration judge did so and reaffirmed her decision.

On appeal to the Board, the Department of Homeland Security contended that the immigration judge erred in finding that Baez-Sanchez had shown the extraordinary circumstances needed to justify a waiver and had abused her discretion in light of Baez-Sanchez’s criminal history and other negative equities. The Board did not address either contention. Instead, relying on Matter of Khan, 26 I. & N. Dec. 797 (BIA 2016), the Board concluded that the power to waive inadmissibility belongs to the Attorney General alone and may not be exercised by immigration judges.

On petition for review, we held that 8 C.F.R. § 1003.10(a) permits immigration judges to exercise all of the Attorney General’s powers, except those expressly reserved by some other regulation. Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017). No other regulation withdraws from immigration judges the power under § 1182(d)(3)(A)(ii), which means that the BIA erred. See also L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014).

Because the Board had not addressed any other question, principles of administrative law meant that we could not do so either. See SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943). We remanded with instructions to consider two possibilities that the Attorney General had raised in defense of the Board’s decision: first, that some statute, regulation, or reorganization plan transferred to the Secretary the Attorney General’s power to waive inadmissibility; second, that the power to waive inadmissibility may be exercised only in favor of aliens who apply from outside the United States. 872 F.3d at 856–57. We added that the Board also (or perhaps instead) could “decide whether to exercise in favor of, or against, Baez-Sanchez whatever discretion the Attorney General possesses.” Id. at 857.

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under § 1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under § 1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez-Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board’s decisions. 8 U.S.C. § 1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken—though it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

The Attorney General’s brief in this court does not defend the Board’s decision—but neither does it confess error. Instead it asks us to remand so that the Board may “address in an authoritative decision whether an immigration judge may adjudicate an application for a nonimmigrant waiver under 8 U.S.C. § 1182(d)(3)(A)(ii) in removal proceedings.” The request is bizarre. We have already held that immigration judges do possess this power, if the Attorney General himself retains it. We directed the Board to consider whether the power has been transferred by statute, regulation, or reorganization plan to the Secretary of Homeland Security. The Board chose not to address that question, and we are hardly going to remand so that the Board can write another opinion about whether we erred in construing 8 C.F.R. § 1003.10(a). That’s water under the bridge. The Attorney General contends that a new decision by the Board could be entitled to deference under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), but we held that the regulation is unambiguous. An agency is entitled to reinterpret an ambiguous regulation, see National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), but cannot rewrite an unambiguous one through the guise of interpretation. Change requires rulemaking.

The only remaining question is what should happen next. After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. See, e.g., Negusie v. Holder, 555 U.S. 511 (2009); Gonzales v. Thomas, 547 U.S. 183(2006); INS v. Orlando Ventura, 537 U.S. 12 (2002). Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity to have its say on an issue, a say that may reflect expertise and could be entitled to judicial deference. The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. That’s not the goal of the remand rule. Baez-Sanchez has waited long enough.

We deem all of the legal questions settled. For the purpose of this proceeding, at least, the Attorney General retains his power to grant waivers of inadmissibility, and immigration judges may exercise that power on the Attorney General’s behalf. An immigration judge has ruled in favor of Baez-Sanchez. If the Department of Justice were contending that the immigration judge had abused her discretion, then we would remand to the Board to address that subject. But the Attorney General’s brief in this court does not ask for a remand on the propriety of granting a waiver to Baez-Sanchez, in particular. The brief the Department of Homeland Security submitted to the Board on remand similarly does not contend that the immigration judge erred, if immigration judges possess the waiver power. All of the issues in this proceeding therefore have been finally resolved, and there is nothing more for the Board to do.

The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, which grants Baez-Sanchez a waiver of inadmissibility so that he may seek a U visa from the Department of Homeland Security.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, the Supreme Court heard oral argument in Espinoza v. Montana Dep’t of Revenue, an IJ school choice case. Click here for an account of the hearing from IJ’s Nick Sibilla. Or click here to ponder along with Anthony Sanders, the director of IJ’s Center for Judicial Engagement, what it means to have the gov’t on both sides of the case. Or click here for an IJ podcast that notes, among other things, that the U.S. stands nearly alone among the world’s democracies in providing so few educational options—pedagogical, secular, religious, private, public—to families.

• Zeta drug cartel assassins attack two American agents in Mexico, killing one and injuring the other. After extradition to the U.S., they are convicted of, among other things, killing an officer or employee of the United States and using a firearm while committing a crime of violence. Wait a minute! Do these laws even apply outside the U.S.? D.C. Circuit (creating a circuit split): We generally presume laws don’t apply extraterritorially unless there’s evidence Congress intended that. There is such evidence for the law about using a firearm but not for the other law. Remanded for resentencing.
• Operating a website with the intent to promote or encourage the prostitution of another person is a federal felony punishable by 10 years in prison (25 years in some circumstances). A coalition of sex-worker advocacy groups and others worried about running afoul of the law sue, alleging it violates the First and Fifth Amendments. D.C. Circuit: And at least two of them—the founder of a website that allows sex workers to share information about products and services they use and a massage therapist who can no longer advertise on Craigslist—have standing. Concurrence: But the law doesn’t reach the sort of pure issue advocacy the other plaintiffs engage in.
• Federal law bans people from obtaining firearms if they have been convicted of a “serious” crime that carries a potential punishment of over a year in prison. Does that violate the Second Amendment rights of a man who was convicted of DUI in 2005? Third Circuit: The conviction carried a maximum sentence of five years, so no gun for him. Dissent: We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.
• In 1878, workers in then-Danish colony of St. Croix, Virgin Islands set fire to 50 sugarcane plantations and burn much of the town of Frederiksted to the ground. (Among their grievances: a law that allowed them to change jobs only once a year—on one particular day of the year.) Starting in 2009, a St. Croix legislator obtains $90k in public funds to research the revolt—locally known as Fireburn—for a movie. Yikes! The legislator (who is also the author of a three-volume etiquette guide for young men) spends most of the money on other stuff. Third Circuit: Conviction affirmed.
• While visiting an inmate in a Virginia prison (who was suspected of running drugs in the prison), woman is observed adjusting her clothes in ways officers deem suspicious. They interrupt the visit to tell her that she must consent to a strip search if she ever wants to visit again. The crying woman is subjected to a full strip search, during which she is required to undress, remove her tampon, squat and cough, and expose her anus. (No contraband is discovered.) Was the search supported by reasonable suspicion? Fourth Circuit (over a dissent): Hey, she admits she touched her clothes; what else do they need to form a suspicion?
• Allegation: Augusta County, Va. police officer arrives outside woman’s home, encounters woman’s dog (a German Shepherd named Jax), and shoots the dog in the head. Woman sues. Officer: I reasonably felt threatened by the 150-pound Jax, who was advancing toward me and barking. Woman: Jax was tied to a zip lead, and it was obvious he couldn’t have reached the officer. District court: Qualified immunity.  Fourth Circuit: The case must proceed. A reasonable officer would have known that shooting the restrained Jax was unreasonable.
• “At worst, the officers heard reports that a man fitting Jones’s rough description was eating out of a dumpster.” So no qualified immunity, holds the Sixth Circuit, for the Elyria, Ohio officers who allegedly frisked, tackled, and tased a compliant Jones.
• Former U.S. Attorney General Eric Holder receives a voicemail saying, “former U.S. Attorney General Eric Holder, I am going to murder you.” Sixth Circuit: Which is indeed a true threat. Conviction upheld.
• Under Indiana law, if a woman in an opposite-sex marriage gives birth, her husband is presumed to be the child’s biological father and is listed on the birth certificate. If a woman in a same-sex marriage gives birth, only the birth mother will be listed on the birth certificate, even if the wife donated the egg. The only way to have both mothers listed on the birth certificate is to go through the adoption process. An equal protection violation? Clearly so, says the Seventh Circuit, though the district court’s injunction went a bit too far.
• An Illinois inmate with a year of miserable rectal pain will get a trial, holds the Seventh Circuit. His evidence—that a prison doctor insisted on treating anal warts rather than the fissure causing the pain—gets him past summary judgment.
• Seventh Circuit: In which Frank Easterbrook is having none of the DOJ’s bull@#$%.
• Allegation: While jogging through a St. Louis park, man stops to watch police officer conducting traffic stops. Concerned that a “suspicious person” is following her, the officer radios for assistance. When the jogger refuses to disclose his Social Security number to one of the dispatched officers, the officer frisks, cuffs, and detains him for 20 minutes before a supervisor orders the jogger released. Eighth Circuit (over a dissent): Any reasonable officer would know that you can’t detain someone just for quietly watching police at work. No qualified immunity; remanded to sort out factual disputes.
• After years in prison for murder, four Fairbanks, Alaska men enter into a settlement with the state under which their convictions are vacated. (For the backstory, take a look at this informative article about “the Fairbanks Four.”) Upon their release, they sue the city and four police officers for all manner of constitutional violations associated with their convictions. District court: No dice; your lawsuit would call into question the original convictions, which is not permitted. Ninth Circuit (over a dissent): Yes dice; the original convictions were vacated, so the case may proceed.
• Venerable legal news service sues Ventura County, Calif. court over its policy of prohibiting media access to newly filed complaints until after those complaints have been processed, which can take several days. After years of litigation, the court adopts a new policy, under which complaints received before 3:00 p.m. are immediately scanned and made publicly available, while complaints received after 3:00 p.m. are processed the following day. Unsatisfied, the news service challenges the new procedure. Ninth Circuit: The old procedure violated the First Amendment right of access, but the new one is fine.
• Environmental activists: The gov’t has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change. That violates the right to a “climate system capable of sustaining human life,” per the Due Process Clause of the Fifth Amendment. We demand a court order requiring the gov’t to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Ninth Circuit: We’re scared, too, but that isn’t something a federal court can do. Dissent: If courts can oversee desegregation orders, they can oversee this. Otherwise, “[w]hen the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”
• Property owners decline $56k offer for easement allowing pipeline to bisect their 40-acre Lake County, Fla. property. The pipeline company employs eminent domain, and the pipeline goes in anyway. Yikes! A jury awards the property owners over $300k in just compensation. New trial? Eleventh Circuit: Nope. Pay up.

Are you a law student? Are you on the East Coast? Do you want to learn how to turn an idea into a full-blown Supreme Court case or what the real difference between public interest law and private practice is? Then join the Institute for Justice at our second Legal Intensive—the premier one-day public interest law program. Students will be able to participate in IJ’s renowned student programming, including an inside look at our newest cases and cert petitions with IJ lawyers and staff. This event will be held in Arlington, Virginia on March 28, and we’d love to see you there! Click here to learn more and apply!

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In a major decision Thursday, the Florida Supreme Court reversed a 2016 ruling and declared that split juries can recommend death sentences.

In a majority opinion, Florida’s highest court ruled that it “got it wrong” when it decided that the state’s death penalty scheme, which allowed death sentences to be imposed by the recommendation of non-unanimous juries, violated the Florida constitution’s prohibition on cruel and unusual punishment.

“Lest there be any doubt, we hold that our state constitution’s prohibition on cruel and unusual punishment…does not require a unanimous jury recommendation—or any jury recommendation—before a death sentence can be imposed,” the majority opinion stated. “The text of our constitution requires us to construe the state cruel and unusual punishment provision in conformity with decisions of the Supreme Court interpreting the Eighth Amendment.”

The U.S. Supreme Court struck down Florida’s death penalty law on Sixth Amendment grounds in 2016 because it relied too heavily on determinations by judges, rather than juries. In response, state legislators rewrote the law, but the new law only required 10 out of 12 jurors to recommend the death penalty.

The Florida Supreme Court ruled several months later that the new law violated the state constitution’s ban on cruel and unusual punishment, which the court said required a unanimous jury recommendation in death penalty cases.

Since the 2016 decision, the court has flipped from liberal-leaning to majority-conservatives.

Alabama is the only other state that allows non-unanimous jury recommendations in death penalty cases. It also allows judges to override jury recommendations in capital cases. Delaware similarly allowed non-unanimous juries to impose capital punishment, but that state’s high court struck down the law in 2016.

According to a 2016 report by the Harvard Law School’s Fair Punishment Project’s, 89 percent of Florida and Alabama’s death penalty sentences since 2010 were decided by non-unanimous juries.

In a lone dissent to Thursday’s decision, Florida Supreme Court Justice Jorge Labarga wrote that the majority opinion “returns Florida to its status as an absolute outlier.” 

“The majority gives the green light to return to a practice that is not only inconsistent with laws of all but one of the twenty-nine states that retain the death penalty, but inconsistent with the law governing the federal death penalty,” Labarga wrote. “Further, the majority removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders. In the strongest possible terms, I dissent.”

According to the Florida Phoenix, Florida has had more exonerations of death row inmates than any other state in the country—roughly one for every three executions carried out by the state.

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Another day, another barrage of hysterical reactions to a marginal regulatory reform. The latest cause for concern is the White House’s finalized clean water rule that renounces the federal government’s ability to regulate ponds, puddles, and (some) ditches.

Yesterday’s regulation replaces the prior Waters of the United States (WOTUS) rule issued by the Obama administration in 2015. The Obama-era rule was controversial from the get-go, with multiple Red states filing legal challenges claiming it exceeded the federal government’s authority to regulate water pollution. A slew of federal court rulings stayed the implementation of the rule in over half the states.

The new rule released yesterday is intended to pare back the federal government’s regulatory powers to something closer to what Congress intended when it passed the 1972 Clean Water Act.

“All states have their own protections for waters within their borders, and many regulate more broadly than the federal government,” said Environmental Protection Agency (EPA) chief Andy Wheeler at a homebuilding conference in Las Vegas today. Wheeler’s department, alongside the Army Corp of Engineers, is responsible for writing and implementing the new clean water rule. “Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states.”

Most media outlets reporting on the rule change went with a different fram.

The Trump administration would “strip away environmental protections for streams, wetlands and groundwater, handing a victory to farmers [and] fossil fuel producers,” wrote The New York Times. “California will be hit hard as Trump administration weakens clean water protections,” warned the Los Angeles Times. “Trump erodes water protections,” declared Politico.

“This will be the biggest loss of clean water protection the country has ever seen,” Southern Environmental Law Center lawyer Blan Holman told the Times.

These articles all note that the new rules would remove federal authority from a huge percentage of streams, ponds, and other waters. That it has that effect is evidence, not of the Trump administration’s radicalism, but of the overreaching nature of the previous clean water rules, says Tony Francois, an attorney with the Pacific Legal Foundation.

“It may be factually true that this will regulate a smaller swath of private property,” Francois tells Reason, “but the reason for that is what they were doing before is illegal.”

Francois and the Pacific Legal Foundation have represented several clients who were hit with EPA lawsuits, fines, and in one case actual prison time for doing things like digging ditches on their own property.

They include Wyoming rancher Andy Johnson, who the EPA sued for millions of dollars after he dug a small pond on his property, and Chantell and Mike Sackett, who’ve been fighting a 13-year court battle with the EPA over whether they can build a house on a vacant lot they own in an Idaho subdivision.

All of the Pacific Legal Foundation’s clients were targeted for violating the less expansive, pre-2015 WOTUS rule.

Legal cases about the limits of what the federal government can regulate under the Clean Water Act stretch back decades. That law, which sets water quality standards and requires those emitting pollutants into regulated waters to obtain an EPA permit, gives the federal government power over the country’s “navigable waters.”

The law defines those navigable waters rather vaguely as “the waters of the United States.” For decades, federal agencies claimed the power to regulate stream beds that were dry most of the year, ponds on private property, and even roadside ditches, all on the theory that these small bodies of water would eventually filter into navigable waterways.

In the 2006 decision Rapanos v. United States, a plurality of the Supreme Court rejected what it saw as the feds’ effective claim of authority over all water in the country, instead saying that they could only regulate “relatively permanent, standing or flowing bodies of water” that had a “continuous surface connection” with “waters of the United States.”

But because that was only a plurality opinion, with then-Justice Anthony Kennedy writing a concurring opinion saying the federal government had power over anything with a “significant nexus” to a navigable waterway, legal and regulatory disputes over the scope of the Clean Water Act have continued to the present day.

When Obama’s EPA issued its 2015 WOTUS rule, it immediately attracted lawsuits, which resulted in federal courts in North Dakota, Texas, Georgia, and Oregon issuing rulings staying the rule’s implementation in 27 states. When Trump administration tried to delay implementation of the rule to 2020, the courts slammed that down too, so the rule went into effect in 22 other states. (There’s an open question over whether an injunction applies to New Mexico.)

To clear up some of this confusion, the Trump administration announced that it would be rescinding the 2015 WOTUS rule completely and replacing it with its own version. The result, called the Navigable Waters Protection Rule, is what was released yesterday.

The new rule specifically excludes certain types of waters from federal jurisdiction, including streams and pools that flow only as the direct result of precipitation, groundwater, small ditches, water-filled depressions created as part of construction, and waste treatment systems.

Francois calls the new rules a “mixed bag,” saying that they “properly remove physically isolated ponds and puddles from federal control” but still leave the EPA “in control of ‘streams’ that flow as little as a few days a year, in violation of the Clean Water Act and Supreme Court precedent.”

But most of the criticism has come from people who say the rules are too weak.

That includes the EPA’s Scientific Advisory Board (SAB), which wrote a letter opposing the revised rule when it was first proposed. Science, the board argued, had told them that legal precedent and the Trump administration’s statutory interpretation were wrong:

It was made clear that the EPA has chosen to interpret the [Clean Water Act] and subsequent case law as constraining them to limiting the definition of WOTUS to the language of the proposed rule. The SAB acts under no such constraint to give deference to shifting legal opinions in its advisory capacity and is in fact obligated by statute to communicate the best scientific consensus on this topic.

The trouble with arguments like this is that the proper interpretation of the Clean Water Act is not a scientific question.

The idea of a clear bright line distinguishing navigable waterways (or something with a “significant nexus” to a navigable waterway) is “somewhat nonsense” from a scientific point of view, Peter Van Doren of the Cato Institute said on a recent episode of Free Thoughts.

“Everything you put into some small thing eventually, through the filtration of groundwater, probably ends up eventually somewhere in a navigable water,” Van Doren said. “But everyone realizes that the writers of the [Clean Water Act] probably did not want the feds to have regulatory authority over everything. So this ends up not being a scientific decision but a policy wrestling match.”

Predictably, the administration’s attempt to put at least some limits on the feds’ regulatory authority is being treated not as a position in a policy wresting match, but as a broadside against science and clean water.

Francois argues that a lot of the commentary on the new rule is missing the damage done to ordinary Americans and their property rights by the federal governments’ claim to effectively limitless regulatory authority. His group’s clients “aren’t factories,” he says. “They’re not sewer treatment plants. They’re people trying to build their home, they’re people trying to build modest developments, they’re people trying to earn a living farming and ranching. That’s what’s at issue in these reforms.”

The new rule will go into effect 60 days after it is published in the Federal Register.

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