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.
