Since the first dissent from a denial of rehearing en banc — or dissental1×1. This comment adopts the shorthand “concurral” for “concurring in the denial of rehearing en banc” and “dissental” for “dissenting from the denial of rehearing en banc.” See Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601, 601 (2012). — in 1943,2×2. See Jeremy D. Horowitz, Not Taking “No” for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 Geo. L.J. 59, 66 & n.43 (2013). dissentals have become increasingly common in the courts of appeals,3×3. Id. at 69–70, 70 fig.1. and, consequently, the propriety of dissentals has become a subject of scholarly and judicial debate.4×4. Compare, e.g., Kozinski & Burnham, supra note 1, at 607–09 (listing the benefits of dissentals), with Marsha S. Berzon, Dissent, “Dissentals,” and Decision Making, 100 Calif. L. Rev. 1479, 1491 (2012) (arguing that dissentals have “minimal benefits” and “several important drawbacks”). Amid this focus on dissentals, their counterparts, concurrals (opinions concurring in a denial of rehearing en banc), have received comparatively less attention. However, the Second Circuit’s recent decision in New York v. U.S. Department of Justice5×5. 964 F.3d 150 (2d Cir. 2020). suggests that concurrals are worth a closer look. While a majority of the circuit declined to rehear en banc whether the Attorney General had authority to enact immigration-related stipulations on a federal grant program, the court issued three concurrals and two dissentals dividing on the merits of the appellate panel’s opinion.6×6. See id. at 150 (Cabranes, J., concurral); id. at 153 (Lohier, J., concurral); id. at 156 (Sullivan, J., concurral); id. at 157 (Pooler, J., dissental); id. at 166 (Katzmann, C.J., dissental). Rather than dissent(al), a pair of judges used a “tactical concurral” to express disagreement and call for Supreme Court review.7×7. See id. at 153 (Lohier, J., concurral). Although “tactical concurrals” may be appealing judicial tools for expeditiously resolving circuit splits, this potential benefit is outweighed by the harm such opinions may pose to judicial legitimacy if they are unsuccessful.
The Edward Byrne Memorial Justice Assistance Grant Program was created in 2006 to provide federal funding for state and local criminal justice programs.8×8. New York v. U.S. Dep’t of Just., 951 F.3d 84, 92 (2d Cir. 2020); see 34 U.S.C. §§ 10151–10158. On July 25, 2017, the U.S. Department of Justice (DOJ) enacted three immigration-related requirements for receipt of Byrne funds, which were designed to encourage sanctuary jurisdictions to facilitate enforcement of federal immigration policy.9×9. New York v. U.S. Dep’t of Just., 343 F. Supp. 3d 213, 221 (S.D.N.Y. 2018). Although the DOJ claimed that policies of “sanctuary jurisdictions” impede federal immigration enforcement, the district court found that this claim is incorrect. See id. at 221 n.2. First, a “Certification Condition” requires grantees to certify compliance with 8 U.S.C. § 1373, which in turn prevents jurisdictions from restricting officials from sharing information regarding citizenship or immigration status with immigration authorities.10×10. Id. at 222; see 8 U.S.C. § 1373. A “Notice Condition” requires grant recipients to have a mechanism for informing federal authorities of the release dates of aliens in their custody.11×11. New York, 343 F. Supp. 3d at 222. Finally, an “Access Condition” requires program participants to grant federal agents access to aliens in their correctional facilities to inquire about their immigration statuses.12×12. Id. Following the implementation of these conditions, the DOJ informed grantee New York City that it did not appear to be in compliance with § 1373 and was at risk of being ineligible for Byrne funding.13×13. New York, 951 F.3d at 100. The city, along with seven states that had received funding since the program’s inception,14×14. See New York, 343 F. Supp. 3d at 223. The city brought suit alongside Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Virginia, and Washington. Id. filed suit against the DOJ and the Attorney General, challenging the conditions under the Administrative Procedure Act15×15. 5 U.S.C. §§ 551, 553–559, 701–706. (APA) and the Constitution.16×16. New York, 951 F.3d at 100.
The district court granted the plaintiffs’ motion for partial summary judgment and enjoined the DOJ from enforcing the immigration-related conditions in their jurisdictions.17×17. New York, 343 F. Supp. 3d at 245–46. Judge Ramos, following courts in the Third, Seventh, and Ninth Circuits,18×18. Id. at 224–25 (citing decisions from the Seventh Circuit and district courts in the Third and Ninth Circuits). held that the DOJ lacked statutory authority to enact the conditions.19×19. See id. at 221. Judge Ramos rejected both of the DOJ’s proffered bases of authority, finding that the DOJ’s construction of 34 U.S.C. § 10102(a)(6) contravened that statute’s plain meaning and that Congress did not speak clearly to impose funding conditions in 34 U.S.C. § 10153(a)(5)(D). See New York, 343 F. Supp. 3d at 227–31. Furthermore, Judge Ramos found the application of § 1373 to states and localities to be facially unconstitutional under the Tenth Amendment, as § 1373 directs state and local government officials, rather than private parties, in violation of the anticommandeering doctrine.20×20. See New York, 343 F. Supp. 3d at 234–35. He also held that the conditions violated separation of powers principles by allowing the executive branch the power of the purse.21×21. See id. at 238. Finally, the court determined that the challenged conditions were “arbitrary and capricious” under the APA because the defendants had failed to address in the administrative record the “detrimental effects” that would result from them.22×22. Id. at 241. The defendants appealed.
The Second Circuit reversed and vacated the district court’s injunction.23×23. New York v. U.S. Dep’t of Just., 951 F.3d 84, 92, 124 (2d Cir. 2020). Writing for a unanimous panel, Judge Raggi24×24. Judge Raggi was joined by Judges Winter and Cabranes. acknowledged that the case “implicate[d] several of the most divisive issues confronting” the United States, but found that “[a]t its core,” it involved “questions of statutory construction.”25×25. New York, 951 F.3d at 90. Judge Raggi concluded that the Attorney General had statutory authority to enact the challenged restrictions under the plain text of several provisions authorizing the Byrne program.26×26. Id. at 104–06, 117–21. Judge Raggi reasoned that the Certification Condition was statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), New York, 951 F.3d at 104; that the Notice Condition was authorized by 34 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and 10155, New York, 951 F.3d at 116; and that the Access Condition was authorized by 34 U.S.C. §§ 10153(a)(5)(C) and 10155, New York, 951 F.3d at 121. Although “mindful that three sister circuits” had decided otherwise, the court concluded that those circuits had either neglected to consider the appropriate statutes, or had held an overly limited view of the scope of the Attorney General’s authority.27×27. New York, 951 F.3d at 102; see id. at 102–04 (critiquing decisions from the Third, Seventh, and Ninth Circuits). The panel also disagreed with the district court’s analysis of § 1373, as that statute’s constitutionality should have been “assessed . . . not on the face of the statute, but as applied to clarify a federal funding requirement.”28×28. Id. at 111. As applied to the Byrne program, § 1373 was a valid exercise of Congress’s spending power.29×29. Id. at 116. Lastly, the challenged conditions were not arbitrary or capricious, as the Certification Condition merely made an existing law applicable to the Byrne program, and the Notice and Access Conditions applied only to persons convicted of crimes, not law-abiding crime victims or witnesses, such that detrimental effects were unlikely.30×30. Id. at 122–23.
The plaintiffs filed petitions for rehearing en banc, and a majority of the active judges on the Second Circuit voted to deny review by the full court.31×31. See New York, 964 F.3d at 150 (Cabranes, J., concurral). The twelve participating judges issued five opinions — three concurrals and two dissentals — regarding the denial of rehearing en banc. Concurring in the denial of rehearing en banc, Judge Cabranes,32×32. Judge Cabranes was joined by Judges Livingston, Sullivan, Bianco, Nardini, and Menashi. a member of the panel, reiterated that the case involved mere “questions of statutory construction.”33×33. New York, 964 F.3d at 151 (Cabranes, J., concurral) (quoting New York, 951 F.3d at 90). Although he noted the circuit split, he argued that “[i]t does happen from time to time that our perspective differs from that of other [c]ircuits”34×34. Id. at 152. and that “reasonable judicial minds” could differ as to the DOJ’s statutory authority.35×35. Id. at 151. Judge Cabranes concluded that there was “little doubt that, in the fullness of time, the conflict among the [c]ircuits [would] be resolved by our highest tribunal.”36×36. Id. at 153.
In his concurral, Judge Lohier, joined by Judge Hall, remarked that “twelve judges . . . appointed by six different presidents, sitting in four separate circuits” had found that the Attorney General lacked the authority to impose the challenged conditions.37×37. Id. at 153 (Lohier, J., concurral). Judge Lohier argued that many of his concurring colleagues had voted inconsistently in granting rehearing en banc the year before in New York State Citizens’ Coalition for Children v. Poole,38×38. 935 F.3d 56 (2d Cir. 2019). where they had emphasized that states must “voluntarily and knowingly” accept conditions on federal grants.39×39. New York, 964 F.3d at 153 (Lohier, J., concurral) (quoting Poole, 935 F.3d at 59). He also criticized the panel’s statutory interpretation and highlighted that the Byrne program “was designed to aid [s]tates and cities in fighting crime, not immigration.”40×40. Id. at 155; see id. at 154–55. Judge Lohier concurred in the denial of rehearing en banc due to his belief that “[t]he task of remedying these very serious errors will now fall to the Supreme Court,” and a denial of rehearing would allow the Court to “do so sooner rather than later.”41×41. Id. at 153.
Judge Sullivan42×42. Judge Sullivan was joined by Judges Cabranes, Livingston, and Bianco. filed a short concurral to address the “erroneous” and “gratuitous point” Judge Lohier raised with respect to the court’s decision in Poole.43×43. New York, 964 F.3d at 156 (Sullivan, J., concurral). He argued that, in contrast to the grant at issue in Poole, the Byrne program gave applicants clear notice of relevant conditions and a fair exchange for federal funds.44×44. See id. at 156–57.
Judge Pooler45×45. Judge Pooler was joined by Judges Chin and Carney. found the denial of rehearing en banc “[a]stonishing”46×46. New York, 964 F.3d at 157 (Pooler, J., dissental). and “astound[ing].”47×47. Id. at 159. In her dissental, she disagreed with the panel’s interpretation of the Attorney General’s statutory authority, arguing that it violated the canon against surplusage, ignored the statutory context, and was unfaithful to the legislative history of § 1373.48×48. See id. at 159–61. She also maintained that § 1373 had been rendered facially unconstitutional by the Supreme Court’s recent anticommandeering jurisprudence.49×49. Id. at 163–65. Judge Pooler pointed to Murphy v. NCAA, 138 S. Ct. 1461 (2018), which held that a provision of a federal statute violated the anticommandeering doctrine by “dictat[ing] what a state legislature may and may not do.” New York, 964 F.3d at 164 (Pooler, J., dissental) (quoting Murphy, 138 S. Ct. at 1478); see id. at 163–65. For those reasons — and because of the “persuasive opinions from . . . sister circuits”50×50. New York, 964 F.3d at 158 (Pooler, J., dissental). — Judge Pooler found the case worthy of en banc reconsideration. In closing, she noted, however: “Perhaps the Appellees will find the relief they seek at the Supreme Court.”51×51. Id.
In his dissental, Chief Judge Katzmann noted his “reluctan[ce] to vote in favor of rehearing en banc, informed by the institutional experience of [the] [c]ircuit and the explicit policy of the Federal Rules that en banc rehearing is ordinarily ‘not favored.’”52×52. Id. (Katzmann, C.J., dissental) (quoting Fed. R. App. P. 35(a)). However, he believed that “the panel did not adhere to the normal rules of appellate litigation” in reaching its result because it had considered two novel arguments that had not been properly raised on appeal.53×53. Id. at 166; see id. at 166–67.
The opinions concerning the denial of rehearing en banc illustrate the unique situation facing the Second Circuit in New York. As to the decision to deny rehearing, the judges reached a clear majority — eight of twelve active judges voted to deny the en banc petition.54×54. The thirteenth active judge, Judge Park, did not take part in the decision. Id. at 150. However, behind the three concurrals and two dissentals, the judges split six to six on the merits of the panel’s decision. Judge Lohier and Judge Hall stood at the middle of this dichotomy, as their concurral vehemently dissented from the reasoning of the panel’s decision. Their opinion is a rare example of how a concurral may be used to express disagreement in an effort to expedite Supreme Court review. Although “tactical concurrals” potentially offer beneficial signaling capabilities, they are a worrisome innovation in the courts of appeals. Should tactical concurrals fail, they may threaten judicial legitimacy.
At first glance, concurrals appear too rare or too unremarkable to merit further study.55×55. See, e.g., Mitchell v. JCG Indus., Inc., 753 F.3d 695, 698 (7th Cir. 2014) (Posner, J., concurral) (“Published opinions dissenting from denials of rehearing en banc are rare; published opinions concurring in denials of rehearing en banc are virtually unheard of.”). Meanwhile, critics of dissentals decry their threat to collegiality,56×56. See, e.g., Bartlett v. Bowen, 824 F.2d 1240, 1243 (D.C. Cir. 1987) (Edwards, J., concurral) (“Collegiality cannot exist if every dissenting judge feels obliged to lobby his or her colleagues to rehear the case en banc in order to vindicate that judge’s position.”). resemblance to unconstitutional advisory opinions,57×57. See Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L. Rev. 1315, 1329. and potential to cause confusion for lower courts.58×58. See id. at 1363; see also Mario Lucero, Note, The Second Circuit’s En Banc Crisis, 2013 Cardozo L. Rev. de novo 32, 60 (“[Concurrals and dissentals] often compete . . . for the attention of the media, the academy, sister circuits, and the Supreme Court.”). Yet concurrals may also be susceptible to some of these very critiques59×59. For example, the tactical concurral in New York appeared to threaten collegiality. See New York, 964 F.3d at 151 n.4 (Cabranes, J., concurral) (criticizing Judge Lohier’s opinion for being “oddly focused on scolding several of his colleagues”). and have a greater potential to engender confusion. Concurrals have no binding effects on litigants, as the panel’s decision remains the law of the circuit.60×60. Sur, supra note 57, at 1333. This point distinguishes opinions relating to a denial of rehearing en banc from opinions relating to the denial of certiorari. While a concurral competes with an opinion from the same court, when the Supreme Court denies certiorari, “the dispute never lands on the Court’s agenda.” Id. at 1334; see id. at 1333–34. However, when a concurral explicates a panel’s opinion — or is written by a panel member — its precedential effect may be misunderstood.61×61. See id. at 1363 (arguing concurrals may be more dangerous than dissentals if they “are understood as attempts to revise the legal analysis offered in the challenged panel opinion”). In New York, Judge Cabranes, a member of the panel, devoted parts of his concurral to defending the panel decision against recent circuit court decisions, arguably extending the holding in the process.62×62. See New York, 964 F.3d at 152 n.9 (Cabranes, J., concurral). Similarly, Judge Sullivan’s concurral provided guidance to lower courts regarding the decision in Poole.63×63. See id. at 156–57 (Sullivan, J., concurral). In the future, a court might be tempted to rely upon these detours, even though they have no precedential status.64×64. As a potential solution to this issue, some observers argue that opinions relating to a denial of en banc review should simply address whether the requirements of Federal Rule of Appellate Procedure 35, which governs en banc proceedings, are met. See, e.g., Michael E. Solimine, Due Process and En Banc Decisionmaking, 48 Ariz. L. Rev. 325, 337 (2006). On this view, the merits should be discussed “only insofar as [they] bear on the application of the Rule 35 criteria.” Id.
Unlike dissentals and other concurrals, however, tactical concurrals pursue a particular strategic objective — hastening Supreme Court review by voting to uphold the panel’s decision despite disagreement with the outcome.65×65. See, e.g., New York, 964 F.3d at 153, 156 (Lohier, J., concurral). Other judges that may vote tactically on a rehearing en banc often do not publicize their votes in a separate opinion. Cf., e.g., United States v. Washington, 864 F.3d 1017, 1034 (9th Cir. 2017) (Hurwitz, J., separate statement) (stating, on a denial of rehearing en banc, that “[w]hen a judge chooses not to indicate views on the merits of a controversy, colleagues should not invent them”). Tactical concurrals argue that cases that fit the judiciary’s criteria for en banc review are — counterintuitively — less deserving of rehearing en banc. Under the Federal Rules of Appellate Procedure, even though rehearing en banc is “not favored,” it may be granted to “maintain uniformity” in a circuit or to rehear cases concerning questions of “exceptional importance.”66×66. Fed. R. App. P. 35. To be sure, what constitutes “exceptional importance” has not been conclusively defined, leaving the decision to proceed en banc within judges’ discre-tion.67×67. See Jon O. Newman, Foreword: In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev. 365, 371 (1984). And the Second Circuit has traditionally resisted en banc procedures.68×68. See Peter S. Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform, 108 Calif. L. Rev. 789, 807 n.103 (2020). While Judges Lohier and Hall decisively averred that New York contained issues of “exceptional importance,”69×69. New York, 964 F.3d at 155 n.5 (Lohier, J., concurral). they nevertheless argued that “the better course” was “for the Supreme Court to grant certiorari and reverse.”70×70. Id. at 156. To them, the denial of en banc review was a tool for expediency — to usher New York toward swifter Court review — rather than a reflection of the implications of the case.
Although tactical concurrals are rarely used,71×71. A review of circuit court (excluding the Federal Circuit, see Horowitz, supra note 2, at 97 n.184) concurrals published on Westlaw since 2000 revealed only nine cases with tactical concurrals (which expressly disagreed with the merits of the panel’s decision and called for Supreme Court certiorari). Spreadsheet on file with the Harvard Law School Library [hereinafter Spreadsheet]. Such concurrals are rare, but are not new. See, e.g., Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1020 (2d Cir. 1973) (Kaufman, J., concurral) (“I vote against en banc . . . because the case is of such extraordinary consequence that I am confident the Supreme Court will take this matter under its certiorari jurisdiction.”). this signaling feature may present an appealing tool to judges seeking a swifter path to finality and resolution of circuit splits. As the tactically concurraling judges in New York acknowledged, the panel’s decision created a circuit split with “serious consequences.”72×72. New York, 964 F.3d at 155 n.5 (Lohier, J., concurral). The ruling allows the DOJ to withhold Byrne program funds from sanctuary cities in seven states, possibly depriving them of millions of dollars for criminal programs.73×73. New York v. U.S. Dep’t of Just., 951 F.3d 84, 116 (2d Cir. 2020). Conversely, the scope of the decision allows sanctuary jurisdictions outside of the Second Circuit’s purview to continue to receive Byrne funding — and, because funding is divided among grantees, potentially more funding than they would normally receive.74×74. See City of Chicago v. Barr, 961 F.3d 882, 921–22 (7th Cir. 2020). Finally, if the DOJ can impose immigration-related conditions on Byrne grantees’ criminal justice programs, it may impose other, noncriminal conditions on future funding.75×75. New York, 964 F.3d at 155 n.5 (Lohier, J., concurral).
If the tactical concurral’s plea to the Court succeeds at gaining certiorari “next Term,”76×76. Id. at 153. it will limit the dangers that this circuit split poses to the administration of the law77×77. See Jonathan M. Cohen & Daniel S. Cohen, Iron-ing Out Circuit Splits: A Proposal for the Use of the Irons Procedure to Prevent and Resolve Circuit Splits Among United States Courts of Appeals, 108 Calif. L. Rev. 989, 996–98 (2020) (describing problems created by circuit splits). and constitute an efficient use of judicial resources. Indeed, some tactical concurrals have met their goal by garnering Supreme Court review.78×78. In the nine tactical concurrals written since 2000, see supra note 71, the litigants sought certiorari in all cases. Spreadsheet, supra note 71. The Court granted certiorari in five, with one petition still pending as of November 2020. Id. This compares favorably to studies of the efficacy of dissentals at garnering certiorari. See Horowitz, supra note 2, at 82 (finding that the Rehnquist and Roberts Courts granted approximately twenty-five percent of certiorari petitions in cases with dissentals). More research is needed to substantiate this finding. And as dissentals proliferate, tactical concurrals may become more effective signals to the Court.
But this possibility stands in tension with the reality of the Supreme Court’s shrinking docket,79×79. Cohen & Cohen, supra note 77, at 991 (“The federal appellate courts face the highest caseloads in their history, while the Supreme Court heard fewer cases in the 2018–2019 Term than in almost any other Term in modern times.”). which prevents tactically concurraling judges from knowing that their strategy will pan out.80×80. See Michael E. Solimine, Ideology and En Banc Review, 67 N.C. L. Rev. 29, 57 (1988) (“The Supreme Court has great difficulty in deciding which cases among its burgeoning caseload to review . . . . [I]t is no longer tenable, if it ever was, to shift en banc responsibility to the Supreme Court.”). Should tactical concurrals fail, they undermine courts’ perceived institutional legitimacy.81×81. This point is primarily based on sociological legitimacy. A decision “possesses [sociological] legitimacy . . . insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1795 (2005). Because the decision to deny rehearing en banc leaves untouched the law that sparked a tactical concurral, denial of certiorari cements in place a precedent that faces open disagreement. Should the Court deny certiorari in New York, it will solidify precedent that the tactically concurraling judges decried as unconstitutional,82×82. See New York, 964 F.3d at 153 (Lohier, J., concurral). calling into question the judges’ own faith in the circuit’s decisionmaking process and legitimacy.83×83. See Berzon, supra note 4, at 1491–92 (“Dissents from the denial of rehearing en banc indicate that we . . . are unwilling to stand behind the results of our decision-making processes. That unwillingness signals a breakdown in the process of adversarial collaboration, as well as an institutional lack of confidence in it.”). In addition, if certiorari isn’t granted, a tactical concurral suggests that a judge prioritized a tactical goal over the well-being of the litigants and, detrimentally, failed to achieve this goal.84×84. Cf. James L. Gibson & Gregory A. Caldeira, Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?, 45 Law & Soc’y Rev. 195, 213 (2011) (arguing that the Court’s “legitimacy seems to flow from the view that discretion is being exercised in a principled, rather than strategic, way”). This open disagreement and strategic maneuvering could decrease the courts’ legitimacy in a way that ultimately limits the efficacy of the judiciary.85×85. For example, legitimacy is needed to encourage people to abide by the law. See Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283, 286 (2003).
Judges Lohier and Hall, faced with a divisive issue and a divided circuit, likely viewed their tactical concurral as a tool to accelerate certiorari. But even if their votes to deny en banc review did not have a decisive effect on the outcome of the en banc petition, their decision to tactically concur will have a decisive impact on the judiciary if certiorari is denied. For their part, the judges appeared confident that certiorari was forthcoming.86×86. See New York, 964 F.3d at 169 (Katzmann, C.J., concurral) (“All of my participating colleagues . . . seem to agree that Supreme Court review is now inevitable.”). Only time will tell whether that assessment and the judges’ tactical decisions were correct.