Since the first dissent from a denial of rehearing en banc — or dissental1 — in 1943,2 dissentals have become increasingly common in the courts of appeals,3 and, consequently, the propriety of dissentals has become a subject of scholarly and judicial debate.4 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 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 Rather than dissent(al), a pair of judges used a “tactical concurral” to express disagreement and call for Supreme Court review.7 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 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 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 A “Notice Condition” requires grant recipients to have a mechanism for informing federal authorities of the release dates of aliens in their custody.11 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 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 The city, along with seven states that had received funding since the program’s inception,14 filed suit against the DOJ and the Attorney General, challenging the conditions under the Administrative Procedure Act15 (APA) and the Constitution.16
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 Judge Ramos, following courts in the Third, Seventh, and Ninth Circuits,18 held that the DOJ lacked statutory authority to enact the conditions.19 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 He also held that the conditions violated separation of powers principles by allowing the executive branch the power of the purse.21 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 The defendants appealed.
The Second Circuit reversed and vacated the district court’s injunction.23 Writing for a unanimous panel, Judge Raggi24 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 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 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 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 As applied to the Byrne program, § 1373 was a valid exercise of Congress’s spending power.29 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
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 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 a member of the panel, reiterated that the case involved mere “questions of statutory construction.”33 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 and that “reasonable judicial minds” could differ as to the DOJ’s statutory authority.35 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
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 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 where they had emphasized that states must “voluntarily and knowingly” accept conditions on federal grants.39 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 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
Judge Sullivan42 filed a short concurral to address the “erroneous” and “gratuitous point” Judge Lohier raised with respect to the court’s decision in Poole.43 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
Judge Pooler45 found the denial of rehearing en banc “[a]stonishing[]”46 and “astound[ing].”47 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 She also maintained that § 1373 had been rendered facially unconstitutional by the Supreme Court’s recent anticommandeering jurisprudence.49 For those reasons — and because of the “persuasive opinions from . . . sister circuits”50 — 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
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 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
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 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 Meanwhile, critics of dissentals decry their threat to collegiality,56 resemblance to unconstitutional advisory opinions,57 and potential to cause confusion for lower courts.58 Yet concurrals may also be susceptible to some of these very critiques59 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 However, when a concurral explicates a panel’s opinion — or is written by a panel member — its precedential effect may be misunderstood.61 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 Similarly, Judge Sullivan’s concurral provided guidance to lower courts regarding the decision in Poole.63 In the future, a court might be tempted to rely upon these detours, even though they have no precedential status.64
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 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 To be sure, what constitutes “exceptional importance” has not been conclusively defined, leaving the decision to proceed en banc within judges’ discre-tion.67 And the Second Circuit has traditionally resisted en banc procedures.68 While Judges Lohier and Hall decisively averred that New York contained issues of “exceptional importance,”69 they nevertheless argued that “the better course” was “for the Supreme Court to grant certiorari and reverse.”70 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 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 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 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 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
If the tactical concurral’s plea to the Court succeeds at gaining certiorari “next Term,”76 it will limit the dangers that this circuit split poses to the administration of the law77 and constitute an efficient use of judicial resources. Indeed, some tactical concurrals have met their goal by garnering Supreme Court review.78 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 which prevents tactically concurraling judges from knowing that their strategy will pan out.80 Should tactical concurrals fail, they undermine courts’ perceived institutional legitimacy.81 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 calling into question the judges’ own faith in the circuit’s decisionmaking process and legitimacy.83 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 This open disagreement and strategic maneuvering could decrease the courts’ legitimacy in a way that ultimately limits the efficacy of the judiciary.85
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 Only time will tell whether that assessment and the judges’ tactical decisions were correct.