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
SUMMARY

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... (see full summary)

 
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491
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.CHEVRONS UNSTEADY STATUS ...................................................... 496
A.INCONSISTENT, CRITICIZED, AND CANONICAL ........................... 496
B.THEORETICAL FOUNDATIONS, TENSIONS AND CRITIQUES .......... 500
C.AN INCREASING CONTEXT-SPECIFIC ORIENTATION? .................. 505
D.LOUD AND SOFT APPROACHES .................................................. 508
III.CHEVRON IN IMMIGRATION CASES ................................................. 512
A.THE WIDE VARIETY OF “IMMIGRATION LAW ............................ 512
B.PROCESS PROBLEMS WITH CHEVRON DEFERENCE IN
IMMIGRATION CASES ............................................................... 513
C.NON-REMOVAL IMMIGRATION ................................................. 517
D.CRIMINAL GROUNDS OF REMOVAL CASES .................................. 522
E.PHYSICAL LIBERTY AND SEPARATION OF POWERS ...................... 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.IMMIGRATION DETENTION ....................................................... 533
B.OTHER LIBERTIES ................................................................... 535
C.RELIEF FROM REMOVAL ........................................................... 537
D.THE LENITY QUESTION............................................................ 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.ht ml; Steven Dav idoff Solo mon, 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, W
ASH. POST (Feb. 23, 2017), https://www.washingtonpost.com/news/
powerpost/wp/2017/02/23/bannon-trump-administration-is-in-unending-battle-for-deconstruction-
of-the-administrative-state; see also Matt Ford, Judge Gorsuch Goes to Washington, ATLANTIC (Mar. 20,
2017), https://www.th eatlantic.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, C antwell 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 i mmigration 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. DEPT 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, Tex as,
U.S. Dep’t of Justice (Apr. 20, 2017), https://www.justice.gov/opa/speech/att orney-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.
DEPT OF JUSTICE (Apr. 11, 2017), https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-
announces-department-justice-s-renewed-commitment-criminal.

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