Chevron's Liberty Exception

• Author: Michael Kagan
• Position: B.A. Northwestern University, J.D. University of Michigan Law School. Professor of Law, The University of Nevada, Las Vegas, William S. Boyd School of Law
• Pages: 491-544

Chevron ’s Liberty Exception Michael Kagan * ABSTRACT: This Article argues that the Supreme Court’s practice in immigration cases reflects an unstated but compelling limitation on Chevron deference. Judicial deference to the executive branch is inappropriate when courts review the legality of a government intrusion on physical liberty. This norm is illustrated by the fact that the Court has not meaningfully applied Chevron deference in cases concerning deportation, nor in cases concerning immigration detention. By contrast, the Court applies Chevron deference fairly consistently in other kinds of immigration cases, which suggests that the Court is not displaying an inclination toward immigration exceptionalism when it treats deportation cases differently. Instead, the Court’s practice is best explained by broadly applicable and deeply rooted constitutional principles regarding separation of powers and the safeguarding of individuals against the government. The Supreme Court should articulate a rule explaining its consistent practice: a physical liberty exception to Chevron . I. INTRODUCTION ............................................................................. 492 II. C HEVRON ’ S UNSTEADY STATUS ...................................................... 496 A. I NCONSISTENT , C RITICIZED , AND C ANONICAL ........................... 496 B. T HEORETICAL F OUNDATIONS , T ENSIONS AND C RITIQUES .......... 500 C. A N I NCREASING C ONTEXT -S PECIFIC O RIENTATION ? .................. 505 D. L OUD AND S OFT A PPROACHES .................................................. 508 III. C HEVRON IN IMMIGRATION CASES ................................................. 512 A. T HE W IDE V ARIETY OF “I MMIGRATION L AW ” ............................ 512 B. P ROCESS P ROBLEMS WITH CHEVRON D EFERENCE IN I MMIGRATION C ASES ............................................................... 513 C. N ON -R EMOVAL I MMIGRATION ................................................. 517 D. C RIMINAL G ROUNDS OF R EMOVAL C ASES .................................. 522 E. P HYSICAL L IBERTY AND S EPARATION OF P OWERS ...................... 532 * B.A. Northwestern University, J.D. University of Michigan Law School. Professor of Law, The University of Nevada, Las Vegas, William S. Boyd School of Law. I am grateful to Gil Kahn for ideas, input, and interest that made this Article possible. My thanks are due to Gabriel “Jack” Chin, Jill E. Family, César Cuauhtémoc García Hernández, David Rubenstein, Rebecca Sharpless, and Christopher J. Walker for helpful suggestions. All errors are mine. 492 IOWA LAW REVIEW [Vol. 104:491 IV. BEYOND DEPORTATION CASES ...................................................... 533 A. I MMIGRATION D ETENTION ....................................................... 533 B. O THER L IBERTIES ................................................................... 535 C. R ELIEF FROM R EMOVAL ........................................................... 537 D. T HE L ENITY Q UESTION ............................................................ 539 V. CONCLUSION ................................................................................ 543 I. INTRODUCTION When the Senate considered Neil Gorsuch’s nomination to the Supreme Court in 2017, much of the opposition to him focused on his criticism of Chevron deference. 1 Since the late 1980s, Chevron has been the central doctrine in administrative law. It calls on courts to defer to executive branch agencies on the interpretation of ambiguous statutes. In the process, it gives agencies more space in which to craft public policy, and seems to minimize the role of the judiciary in saying what the law is. While the general public probably does not know that “Chevron” is anything but a petroleum company, Judge Gorsuch’s criticism of a “titanic administrative state” 2 seemed to fit a broader political narrative. Around the time when President Trump nominated Judge Gorsuch, presidential advisor Steve Bannon declared that the Trump Administration would be working toward the “deconstruction of the administrative state.” 3 The Gorsuch nomination seemed to be a step in this direction. This narrative has been explicitly embraced and applauded in Breitbart News , which has become a prominent institution in right-wing media. 4 Reflecting an analogous, if more critical, understanding of Gorsuch’s views, Sen. Maria Cantwell, a Democrat, protested that Gorsuch’s desire to overturn Chevron “could make it easier for 1 . See, e.g. , Peter J. Henning, Gorsuch Nomination Puts Spotlight on Agency Powers , N.Y. TIMES (Feb. 6, 2017), https://www.nytimes.com/2017/02/06/business/dealbook/gorsuch-nomination-puts-spotlight-on-agency-powers.html; Steven Davidoff Solomon, Should Agencies Decide Law? Doctrine May Be Tested at Gorsuch Hearing , N.Y. TIMES (Mar. 14, 2017), https://www.nytimes.com/ 2017/03/14/business/dealbook/neil-gorsuch-chevron-deference.html. 2. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1155 (10th Cir. 2016) (Gorsuch, J., concurring). 3. Philip Rucker, Bannon: Trump Administration is in Unending Battle for ‘Deconstruction of the Administrative State , ’ WASH. POST (Feb. 23, 2017), https://www.washingtonpost.com/news/ powerpost/wp/2017/02/23/bannon-trump-administration-is-in-unending-battle-for-deconstructionof-the-administrative-state; see also Matt Ford, Judge Gorsuch Goes to Washington , ATLANTIC (Mar. 20, 2017), https://www.theatlantic.com/politics/archive/2017/03/judge-gorsuch-goes-to-washington/ 520230; Henry Gass, Gorsuch Hearings: Should Agencies—or Courts—Decide the Law? , CHRISTIAN SCI. MONITOR (Mar. 22, 2017), https://www.csmonitor.com/USA/Justice/2017/0322/Gorsuch-hearings-Should-agencies-or-courts-decide-the-law. 4 . See, e.g. , Ian Mason, Neil Gorsuch is Ready to Take on Administrative State , BREITBART (Nov. 17, 2017), https://www.breitbart.com/big-government/2017/11/17/gorsuch-ready-administrative-state. 2019] CHEVRON ’S LIBERTY EXCEPTION 493 courts to overturn important agency decisions protecting public health and the environment.” 5 For those who are familiar with Chevron as a legal doctrine, there are obvious ironies in this political narrative. For one thing, the original Chevron decision upheld a Reagan Administration policy that environmentalists opposed. But perhaps even more interesting given the politics of the Trump Administration, then-Judge Gorsuch issued his broadside against the Chevron doctrine in an immigration case, to defend the interests of a Mexican citizen who was trying to adjust his status to become a legal resident. 6 This is just one recent indication that there is potential for alliance between immigrant rights advocates and conservative critics of Chevron . 7 It is difficult to find a more striking example of a largely unchecked administrative state imposing itself against the liberty of individuals than immigration enforcement. In a deportation case, the Department of Homeland Security operates as police, jailer, prosecutor, and deporter, while the Department of Justice plays the role of judge through its Immigration Courts. Both departments answer to the same Chief Executive, and can easily work together in pursuit of a more aggressive enforcement policy. 8 Recently, the Attorney General—who supervises the Immigration Courts—has been one of the loudest voices in favor of stricter enforcement of immigration laws. 9 A person detained and subject to deportation through the immigration system only reaches the judicial branch of government late in the adjudication 5. Maria Cantwell, Cantwell Statement on Judge Neil Gorsuch’s Nomination to U.S. Supreme Court , MARIA CANTWELL: U.S. SENATOR WASH. (Mar. 30, 2017), https://www.cantwell.senate.gov/news/ press-releases/cantwell-statement-on-judge-neil-gorsuchs-nomination-to-us-supreme-court. 6 . See discussion infra Part III. 7 . See Jill E. Family, Immigration Law Allies and Administrative Law Adversaries , 32 GEO. IMMIGR. L.J. 99, 122–26 (2017); Sarah Madigan, Revisiting Deference to Agencies in Criminal Deportation Cases , REG. REV. (Nov. 16, 2017), https://www.theregreview.org/2017/11/16/madigan-revisiting-deference-criminal-deportation (summarizing arguments for immigration-specific exceptions to Chevron ). See generally Gabriel J. Chin et al., Chevron and Citizenship , 52 U.C. DAVIS L. REV. 145 (2018) (questioning the application of Chevron in citizenship adjudication). 8 . See, e.g. , ATTORNEY GENERAL, MEMORANDUM FOR THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW: RENEWING OUR COMMITMENT TO THE TIMELY AND EFFICIENT ADJUDICATION OF IMMIGRATION CASES TO SERVE THE NATIONAL INTEREST 1–2 (Dec. 5, 2017) (calling on Immigration Judges to work toward “an end to unlawfulness in our immigration system” and stating that the manner in which immigration cases are adjudicated directly impacts sovereign interests). 9 . See, e.g. , ATTORNEY GENERAL, REMARKS TO THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (Oct. 12, 2017) (criticizing liberal interpretations of asylum law and “dirty immigration lawyers”); Jeff Sessions, Attorney General Jeff Sessions Delivers Remarks on Violent Crime to Federal, State and Local Law Enforcement , U.S. DEP’T OF JUSTICE (Apr. 28, 2017), https://www.justice.gov/opa/ speech/attorney-general-jeff-sessions-delivers-remarks-violent-crime-federal-state-and-local-law; Jeff Sessions, Attorney General Jeff Sessions Delivers Remarks Before Media Availability in El Paso, Texas , U.S. Dep’t of Justice (Apr. 20, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-media-availability-el-paso-texas; Jeff Sessions, Attorney General Jeff Sessions Announces The Department of Justice’s Renewed Commitment to Criminal Immigration Enforcement , U.S. DEP’T OF JUSTICE (Apr. 11, 2017), https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-announces-department-justice-s-renewed-commitment-criminal. 494 IOWA LAW REVIEW [Vol. 104:491 process, as a last resort when all administrative...