dissenting:
I respectfully dissent from Part IV of the opinion, which holds that the attorney general has statutory authority to denatur-alize American citizens who attained citizenship by naturalization. As the majority concedes, Congress did not expressly confer that authority on the attorney general. Because the power to denaturalize is so important, and because it differs as a practical matter from the power to naturalize, I do not think we should infer its existence from delegation of the power to naturalize.
The delegation Congress expressly made to the attorney general was of “authority to naturalize” citizens.1 Congress expressly delegated to the attorney general only the power to cancel “certificates of citizenship,” expressly providing that such cancellations “shall affect only the document and not the citizenship status.”2 The express statutory procedure for de-naturalization says that United States attorneys are supposed to bring proceedings “in any district court.”3 Thus the express scheme plainly and unambiguously gives the attorney general the power to naturalize citizens and to cancel certificates of citizenship but not the citizenship itself, and gives to district courts the power to denaturalize citizens.
The only express provision from which the attorney general infers a power to denaturalize is a saving clause: “Nothing contained in this section shall be regarded as limiting, denying, or restricting the power of the Attorney General to correct, reopen, alter, modify or vacate an order naturalizing the person.”4 A saving *1127clause does not create anything; it merely preserves what is already there from repeal. This saving clause tells us not to infer a negative pregnant eliminating some power the attorney general has from the other provisions in the denaturalization statute. But absence of implied repeal does not amount to creation of some new power. Under the saving clause, what authority the attorney general has, she keeps, but it does not give her more.
The heart of the attorney general’s argument is that the power to denaturalize is inherent in the power to naturalize. I do not see why that should be so. There is no general principle that what one can do, one can undo. It sounds good, like the Beatles’ lyrics “Nothing you can know that isn’t known/ Nothing you can see that isn’t shown/ Nowhere you can be that isn’t where you’re meant to be,” but like those lyrics, “it ain’t necessarily so.” Even federal courts depend on an express and circumscribed grant of authority, approved by Congress, for their power to vacate their own decisions.5 If the power of courts to vacate their own judgments depends on an express rule approved by Congress, I do not see why an analogous power in the attorney general should be inferred from Congressional silence. The formula that what one can do, one can undo, is sometimes true, sometimes not. A person can give a gift, but cannot take it back. People can without court intervention marry, but not unmarry. A jury can acquit, and a judge render judgment on the verdict, but they cannot undo it and convict. Whether the attorney general can undo what she has the power to do, naturalize citizens, depends on whether Congress said she could.
If practicality required that the power to undo naturalizations reside in the same agency as the power to naturalize, then we might infer that Congress intended to give that power to the attorney general. The inference would rest on the implicit principle that Congress is presumed to do what makes sense. But there is no practical sense in supposing that because the attorney general can naturalize, she needs to have the power to denaturalize. The former power is typically exercised wholesale, the latter retail. An administrative agency is useful for performing large numbers of repetitive routine (from the agency’s viewpoint, not the new citizen’s) tasks that do not take away important liberties from individuals, such as naturalizations. But administrative agencies, accustomed to treating a case as “ ‘one unit in a mass of related cases,’ ”6 are dubious instruments for performing relatively rare acts catastrophic to the interests of the individuals on whom they are performed.
If the attorney general errs at a high rate in the high volume business of natu-ralizations, Congress might sensibly delegate naturalization power to her because the courts could not handle the volume and the errors were bearable, but conclude that the courts ought to handle denatural-izations, because there are fewer of them and they affect individual liberty too severely to tolerate a high error rate. The attorney general’s own auditors reported that the INS made at least one processing error in nine out of ten of the denaturalization cases sampled. “In 90.8% of the cases reviewed, INS and KPMG found that INS had made at least one processing error, with an average of two errors per case.”7 While many or most errors might not lead to an erroneous result, the audit reported that 3.7% of the naturalizations were erroneous in result.8 The Justice Department is now seeking to revoke the naturaliza-tions it performed on 369 of the 1,049,867 *1128people it naturalized from August 1995 through September 1996, and is reviewing another 5,954 for possible denaturalization proceedings.9
These numbers vitiate any argument that Congress must have intended to give the attorney general the power to denatur-alize, as a matter of practicality, when it gave her the power to naturalize. The federal judiciary could not have processed a million extra cases, even routine ones, in twelve months, but there is no reason to doubt that it can handle the few hundred, or at most a few thousand, denaturaliza-tions that result from high volume, high error rate naturalizations. It is at least as reasonable to think that Congress would delegate the power to naturalize in an administrative agency, and the power to denaturalize in district courts, based on the numbers of cases and the relative risks to individual liberty in the two kinds of cases, as it is to think that it intended to lodge both powers in the administrative agency.
Historically, Congress and the Supreme Court have been sensitive to the risk that the naturalization power might be improperly politicized. Indeed, the Declaration of Independence criticized the King of England for improperly politicizing naturalization: “HE has endeavored to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners.... ” The Supreme Court has, partly for that reason, construed the denaturalization statutes in such a way as to avoid delegation except to federal courts, except where an alternative delegation was clearly and unambiguously expressed. The Court said in Bindczyck v. Finucane10 that “elections could be influenced by irregular denaturalizations as well as by fraudulent naturalizations.” The Court gave the example, from a century ago, of how a “judge who had naturalized seven aliens on the supposition that they were members of his own political party promptly vacated his order when this supposition was corrected.”11 This risk of politicization of denaturalization was among the reasons why the Court in Bindczyck refused to infer the power to denaturalize from the power to naturalize.
Bindczyck is critical to resolution of this case. Under the statute then in effect, state courts had the power to naturalize citizens, and the question was whether they therefore had the power to denaturalize, by vacating their own orders of naturalization when procured by fraud. This question is analogous to the issue before us: does the power to naturalize carry with it an inherent power to denaturalize. The answer was (and is): No. The Court in Bindczyck said that despite their power to naturalize, the state courts did not have power to denaturalize. The Court rejected the argument that a court’s inherent power to vacate its own judgments included a power to denaturalize. It held that the statute giving the attorney general the duty to institute denaturalization proceedings 12 in certain designated courts was “a carefully safeguarded method for denatu-ralization” 13 and that the government’s statutory right to appear at any naturalization and the power of district courts to revoke naturalizations “provided a complete and exclusive framework for safeguarding citizenship against unqualified applicants.”14
Bindczyck forcefully rejects the argument (analogous to the one today’s majority accepts) that (1) grant of citizenship is a judgment; (2) an issuing court may revoke its own judgments for fraud; so (3) a state court that granted a judgment of naturalization may vacate its own judgment for fraud. The Court calls this “mechanical jurisprudence in its most glittering form” *1129that “disregards the capricious and haphazard results that would flow from applying such an empty syllogism to the actualities of judicial administration.”15
Congress abrogated the result in Bind-czyck by expressly conferring on state courts the power to revoke naturalizations they had granted. The majority notes a Second Circuit case that had said Bind-czyck was “overruled” by the statutory change,16 but obviously Congress cannot “overrule” Supreme Court decisions. What Congress did was to change the statute that Bindczyck had construed so that it no longer said or meant what it had when Bindczyck had construed it. The Supreme Court in United States v. Zucca17 expressly repudiated the notion that Bindczyck was overruled or rendered irrelevant by the statutory amendment, by declaring that “[t]he underlying philosophy of Bindczyck remains intact” despite the specific holding about state courts that was “abrogated” by the statutory change.18
That philosophy emphasizes the importance of citizenship and the safeguards against taking it away. In Zueca, where the denaturalization statute had prescribed how United States attorneys should file a case (with an affidavit), the Court held that they could not also proceed in the usual way (without an affidavit).19 The “underlying philosophy of Bindczyck ” that Zueca says “remains intact” is “safeguarding citizenship from abrogation except by a clearly defined procedure,”20 “clearly defined,” that is, by statute. Zueca applied the Bindczyck holding that the statutory de-naturalization procedure was “a self-contained, exclusive procedure that covers the whole ground.”21 That means, for this case, that the denaturalization procedure defined in 8 U.S.C. § 1451(a) is “exclusive” and “covers the whole ground.”
In United States v. Minker22 the Court said that denaturalization “may result in loss of both property and life; or of all that makes life worth living.”23 Minker adopts the rule that “where there is doubt it must be resolved in the citizen’s favor.” 24 This holding, as applied to the case at bar, means that if there is doubt whether the statute confers the power on the attorney general to denaturalize, or leaves it exclusively in the district courts, the doubt must be resolved against the attorney general. The best we can say of the attorney general’s proposed inference of a delegation of power from a saving clause in the case at bar is that it leaves some doubt, so the doubt “must be resolved in the citizen’s favor” under Mink-er. Any question whether that applies to administrative agencies is answered by Minker’s next sentence: “Especially must we be sensitive to the citizen’s rights where the proceeding is nonjudicial, because of ‘[t]he difference in security of judicial over administrative action....’”25
All these principles of construction— that the statutory denaturalization procedure exhausts the field, that the power to denaturalize does not imply a power to denaturalize, that doubts are to be resolved in the naturalized citizen’s favor, and that administrative action is to be deemed less secure than judicial — remain the law. The 1990 statutory amendments *1130shifted the power to naturalize citizens from federal and state courts to the attorney general, but left intact the district court denaturalization proceeding.26 The amendments also changed the saving clause, from one that saved to state and federal courts whatever power they had to vacate their own judgments with respect to naturalizations, to a new version that saved to the attorney general whatever power she had.27 This change in the saving clause is insufficient to accomplish a delegation, in the face of the holdings in Bindczyck, Zueca, and Minker.
I concede that an alternative construction, like the majority’s, is plausible from the words of the statute, if the statute is read without the gloss provided by the controlling Supreme Court decisions. One could reason that Congress would not have written a saving clause if there were nothing to save. But this inference from silence is not enough, under the Supreme Court cases holding that the express statutory procedure is exclusive and fully occupies the field, to imply a delegation. Nor can it necessarily be said that the alternative is to construe the saving clause as having no meaning. Possibly the agency has authority to correct clerical errors shortly after they are made, which authority the saving clause preserves, and certainly it has the other powers described in the saving clause, such as to reopen and correct naturalizations for errors such as misspelled and misdesignated names. Were we to infer a negative pregnant, we might do so more readily from the limitation on the attorney general’s power regarding cancellation of a certificate of citizenship. Congress provided that the attorney general can cancel a certificate fraudulently obtained, but the cancellation “shall affect only the document and not the citizenship status of the person in whose name the document was issued.”28 It is hard to see why Congress would limit cancellations in this way, unless the statutory procedure for denaturalization in federal district courts remains the exclusive means of revoking the citizenship of an individual who has been naturalized. The most Congress gave the attorney general regarding the power to denaturalize is silence, and “[n]ow and then silence is not pregnant.” 29
The attorney general not only grabbed the ball on denaturalizations, but ran out of bounds with it. The regulation reverses the ordinary burden of proof. The regulation not only says that the Immigration and Naturalization Service may revoke a naturalization.30 It goes so far as to say that the naturalized citizen “bears the burden of persuading the district director that, notwithstanding the evidence described in the notice, the applicant was eligible for naturalization....”31 An administrative appeal is allowed32 as well as judicial review.33 Although such review is de novo34 rather than for substantial evidence on the record as a whole, there is no express provision shifting the burden of proof back to the administrative agency, and of course nothing to relieve the naturalized citizen of the expense of fighting denaturalization three times instead of once, through two layers of administrative agency proceedings before getting to court. Taking over denaturalization proceedings, shifting the burden of proof from the government to the citizen, and imposing two layers of administrative proceedings before the naturalized citizen can get to court, is all quite a lot of power to infer from silence. Unless Congress changes *1131the statute or the Supreme Court changes the rules of construction, I do not think we can sustain the attorney general’s claim of authority, in the face of the express statutory procedure for denaturalizations to be prosecuted in federal district courts, and the absence of any express grant of authority to the attorney general.
. 8 U.S.C. § 1421(a).
. 8 U.S.C. § 1453.
. 8 U.S.C. § 1451(a).
. 8 U.S.C. § 1451(h).
. Federal Rule of Civil Procedure 60.
. Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1026 (9th Cir.1992), quoting Walter Gellhorn, Official Notice in Administrative Adjudication, 20 Tex.L.Rev. 131, 136 (1941).
. Department of Justice Press Release at 3, in Excerpts of Record, introducing KPMG Peat Marwick final audit of naturalizations of 1,049,867 individuals from August 1995 through September 1996.
. Id. at 4.
. Id. at 1-2.
. Bindczyck v. Finucane, 342 U.S. 76, 82, 72 S.Ct. 130, 96 L.Ed. 100 (1951).
. Id. at 82-83, 72 S.Ct. 130.
. The predeccessor to 8 U.S.C. § 1451(a).
. Bindczyck v. Finucane, 342 U.S. 76, 81, 72 S.Ct. 130, 96 L.Ed. 100 (1951).
. Id. at 84, 72 S.Ct. 130.
. Id. at 85, 72 S.Ct. 130.
. Simons v. United States, 452 F.2d 1110, 1114 (2d Cir.1971).
. United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964 (1956).
. Id. at 95 n. 8, 76 S.Ct. 671.
. The predecessor to 8 U.S.C. § 1451(a).
. Zucca, 351 U.S. at 95, 76 S.Ct. 671.
. Id. at 99, 76 S.Ct. 671 (quoting Bindczyck, 342 U.S. at 83-84, 72 S.Ct. 130).
. United States v. Minker, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185 (1956).
. Id. at 187, 76 S.Ct. 281 (quoting Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922)).
. Minker, 350 U.S. at 188, 76 S.Ct. 281.
. Id. (quoting Ng Fung Ho, 259 U.S. at 285, 42 S.Ct. 492).
. 8 U.S.C. §§ 1421(a), 1451(a).
. 8 U.S.C. § 1451(h).
. 8 U.S.C. § 1453.
. El Paso Natural Gas Co. v. Neztsosie, - U.S. -, -, 119 S.Ct. 1430, 1439, 143 L.Ed.2d 635 (1999).
. 8 C.F.R. § 340.1(a).
. 8 C.F.R. § 340.1(b)(6).
. 8 C.F.R. § 340.1(e).
. 8 C.F.R. § 340.1(f).
. 8 U.S.C. § 1421(c).