Should Federal Courts Defer to Jeff Sessions in Deportation Case?

Back when Steve Bannon was in the White House, he proclaimed that the mission of the Trump Administration was the “deconstruction of the administrative state.” One of the apparent weapons in this struggle was the nomination of Justice Neil Gorsuch, who as a circuit court judge had warned about the powers of the “titanic administrative state.” Breitbart News cheered his arrival on the High Court, because he would restrain “the unelected mass of executive agency staff that actually creates most of the rules and regulations by which Americans live.”

It might come as a surprise to many readers of Breitbart that when then-Judge Gorsuch complained from the bench about an overbearing administrative state, he was talking about the way the federal government treats immigrants. This is ironic only because Breitbart (like the Trump Administration generally) is known for stridently anti-immigrant politics. When they talked about reigning in administrative agencies, they probably were not thinking about Immigration and Customs Enforcement (ICE).

But there is a broader legal issue here. Judge Gorsuch came to national prominence because he used the case of a Mexican man, Hugo Rosario Gutierrez-Brizuela, to critique the legal doctrine known as Chevron deference. Under this rule, federal courts should defer to the executive branch on the interpretation of ambiguous statutes passed by Congress. Since the late 1980s, Chevron has been the dominant doctrine in administrative law. In theory, it strengthens the hand of administrative agencies, who gain latitude to impose their own view of what the law should be.

Chevron has long attracted critique, mainly from conservative jurists and scholars because it seems to weaken the role of the judiciary to say what the law is. In terms of the usual paradigms of partisan politics, Chevron seems favorable for progressives and problematic for conservatives because it empowers regulators vis-à-vis business. Thus, when Gorsuch was nominated to the Supreme Court, a talking point from Democratic senators was that he would make it harder for government agencies to impose public health and environmental regulations.

Immigration inverts these political dynamics, but also offers a chance to clarify some of the limitations of judicial deference. It is hard to find any constituency that suffers more from an overbearing and unaccountable administrative state than immigrants. In immigration enforcement, an administrative agency (ICE) arrests people without making any specific showing of probable cause to a neutral magistrate. The resulting deportation case will be adjudicated not by a real court, but by immigration judges and by members of the Board of Immigration Appeals (BIA), all of whom are employees of the Department of Justice. The Attorney General retains the right to appoint, remove, or reassign any of them. Or, if the Attorney General disagrees with the BIA in a particular case, he can simply overrule the decision.

At the end of the administrative process, an immigrant on the verge of deportation may file a last ditch petition for review to a federal court of appeals. It is here that Chevron deference becomes relevant. Government lawyers are likely to tell the court that under Chevron it should defer back to the Attorney General on difficult questions of law.

To put this in blunt terms as this plays out in 2018: federal judges are asked to defer to Jeff Sessions, who not long ago told the immigration judges he supervises that “dirty immigration lawyers” are conspiring with clients to submit fraudulent claims to stay in the United States, and complained that asylum claims are too easily granted.

If the court agrees to give Chevron deference, then the limited judicial review that to which immigrants have access will be curtailed considerably. That is the theory. However, the practice is more complicated. Empirical research has shown that the Supreme Court in particular is inconsistent about its own application of Chevron deference, even as it continues to maintain it as a central rule of administrative law. Immigration cases are no different. In 2014, in the case of Scialabba v. Cuellar de Osario, the Court said that Chevron deference is  “especially appropriate in the immigration context.” But then in Torres v. Lynch, an immigration case decided in 2016, the Court entirely ignored Chevron. This apparent tendency by the Court to say one thing and do another is pretty common in administrative law, and has led to considerable cynicism about Chevron.

But cynicism might prevent us from detecting an important pattern. In a new study that will be published in the Iowa Law Review, I show that the Supreme Court actually applies Chevron quite consistently in certain kinds of immigration cases, and consistently avoids it in other cases. In cases that involve applications for visas or other immigration benefits, the Supreme Court seems devoted to Chevron deference, in word and in deed. But the Court is consistently reluctant to defer to the executive branch in cases that concern legal grounds of deportation or detention of immigrants. This pattern makes a great deal of sense. Deportation and detention involve the government using its brute force to physically confine someone, or to take them by force to a place they do not want to go. It is the ultimate infringement on individual freedom.

The Supreme Court’s practice follows what I call Chevron’s liberty exception. Judicial deference to the executive branch is uniquely inappropriate when the government seeks to deprive a person of his physical liberty, a fully independent judicial interpretation of the law is essential. Thus, the Court has good reason to avoid deference in cases concerning grounds of deportation, and detention.

To be clear: This exception to Chevron does not mean that the government cannot enforce immigration law. In fact, with or without Chevron deference, the government often wins these cases. But the point is to protect separation of powers and the checks and balances that come with it. The government has to actually convince judges that it is applying the law correctly, rather than just ask for their deference and indulgence.

To be clear, the Supreme Court has never actually said that there should be no deference in deportation and detention cases. I have suggested elsewhere that the Supreme Court seems to signal its approach to administrative deference through a mixture of loud and soft decisions. As a result, the Supreme Court often appears to be applying Chevron deference arbitrarily, when it actually may be following a pattern.

But despite the Court’s silence, the pattern continues to hold. We have seen it continue in 2018, with the Supreme Court’s decision in Jennings v. Rodriguez. This case considered whether Congress authorized lengthy detention without bond for immigrants with certain kinds of criminal convictions, while their deportation cases are pending before the Department of Justice. The Court, in a narrow with a narrow 5-3 decision (with Justice Kagan recused), ruled that Congress has indeed authorized such detentions. But the Court decided to remand the case to consider whether the immigration detention statute is constitutional. And the majority decision by Justice Alito made absolutely no mention of Chevron. This is striking because the government in its brief pointedly claimed that its interpretations of the law governing detention of immigrants “warrant full deference under Chevron.” Yet, the word “defer” appears nowhere in the Supreme Court’s decision.

The Court needs to articulate the physical liberty exception to Chevron, so as to explain its own precedents and to protect essential constitutional safeguards against government overreach. At the same time, immigration cases should offer an opportunity to bridge a liberal-conservative divide about Chevron.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 27, 2018 at 09:41:42 am

Chevron deference is a Frankenstein monstrosity of unintended consequences. It was created by a conservative Court at the urging of well-intentioned Reagan advocates motivated, not to expand government, but rather to restrict it. Yet, now as then, the monster has its value, particularly where agency expediency and efficiency are paramount concerns and constitutional protection of little concern.

Expediency and administrative efficiency would seem to be most important and constitutional sensitivity least important in matters of immigration detention and deportation so that there a "physical liberty exception to Chevron" is counter-intuitive and would seem to be legally least justified and most counter-productive.

But that anomaly characterizes the entirety of the constitutional illogic of insisting that illegal immigrants, here for whatever reason and through whatever means and charged with whatever crime, are entitled, nevertheless, to near-full protection of the constitution.

That should not be the case. That it is the case is as suicidal an effect of bad constitutional law as the Court's woeful decision that being born here makes one a citizen of the US.

read full comment
Image of timothy
on March 27, 2018 at 11:57:43 am


Avoid the pitfalls of further "Chevron-ing" by simply recognizing that those who OUGHT not to be here OUGHT not to be provided those protections provided to those who OUGHT TO BE HERE!!!!

read full comment
Image of gabe
on March 28, 2018 at 11:11:04 am

I noticed the in the article the writer makes no distinction between illegal and legal immigrants. This is of importance, if you are not a citizen (and you are caught at the border), unless you ask for asylum, send back immediately. And asylum should be an administrative process not a legal one. No court, no appeals. (The only exception is if you are abused by an officer or have a crime committed against you but even then you must get treatment you need, return to your country and come back for the trial).

read full comment
Image of Ajpdmiv
on March 30, 2018 at 19:22:21 pm


Good points and I am mostly in agreement; on your last point, however, I am unclear. I'm not a lawyer so please bear with me. To my understanding, with rarest exception, hasn't birth on American soil always been a(the)primary basis of conferring automatic citizenship (this irrespective of her/his parent's citizenship status)? So I may better understand, what is this court case to which you refer, where the Court established this right of citizenship?

Also, if you know, what is/has been the U.S. policy towards illegal immigrants who give birth to a child once in the U.S.; is(are) the parent(s) permitted to remain in the U.S., or are they subject to deportation, along with their born U.S. citizen child?

Thanks - Paul

read full comment
Image of Paul Binotto
Paul Binotto
on March 30, 2018 at 19:55:48 pm

good to hear from you, Paul:

Case is United States v. Wong Kim Ark.
Court held that a person born in the United States who is "subject to the jurisdiction thereof" acquires automatic citizenship.
Court has never addressd the ambiguity in the "subject to the jurisdiction" language of the constitution's citizenship clause (14th amendment, section 1) so that the Wong Kim Ark interpretation prevails to this day: that it means only that the person born on US soil is obliged to obey US law. Thus if a person is born on US soil, he she or it (cis-gendered, haha) are US citizens according to this suicidal and ridiculous Supreme court ruling.

Hence, if a pregnant illegal immigrant sneaks into the US and has a baby on US soil (even in the desert or on the banks of the Rio Grande) the kid is an American who, like all other citizens, cannot lose his citizenship for any reason.

But that is not true of the illegal immigrant parents, either of them.

read full comment
Image of timothy
on March 30, 2018 at 20:19:17 pm

Interesting piece and I would be interested in reading the author's study.

I personally am in the camp that Chevron type deference's are not only Constitutionally problematic on "separation of powers" basis, but more importantly because in exercising them, the Court is not exercising its Constitutional duty that each judge render an independent and unbiased decision in every case. Of course, there is also 5th Amendment due process protections that deference severely compromises or denies. In short, Chevron & Auer, etc. deference is unconstitutional on at least three grounds, in my view.

Having said this, in my view, this so-called, "physical liberty exception to Chevron” is actually nothing more than the constitutional means of adjudicating a case. And, Chevron, et al is actually an exception, to constitutional adjudication.

Under my view, as such, lawyers who argue for deference are also legally & ethically in violation of the constitution.

read full comment
Image of Paul Binotto
Paul Binotto
on March 30, 2018 at 20:43:29 pm

It occurs to me, given your interest in the constitutionality of administrative law, that you would be interested in the writing of Columbia Law Prof Phillip Hamburger. His ground-breaking book is "Is Administrative Law Unlawful." Rather than pointing you toward the cost and trouble of reading that, I suggest you read his brief article in Hillsdale College's "Imprimus" which nicely summarizes Hamburger's major assertions as to why the entirety of modern Admin Law is unconstitutional. Here is that link:

He also can be found on this web blog. Here is that link:

read full comment
Image of timothy
on March 31, 2018 at 11:17:14 am


You are very kind and thoughtful to suggest these sources of Prof. Hamburger! Its interesting that you should, as coincidentally, in fact, my own self-study has already brought me to each of these three sources you recommend, but in differant order. And, other's; ie. Amicus briefs touching the same topic, etc. The ideas expressed above are, in truth, largely attributable to his theory; I normally would credit him, but have done so much here before, that I didn't this time, in fear I am sounding more groupie than disciple - vicariously so, in my case - ha!

I find this subject positively captivating and fascinating, as odd as it may (must) seem, and try to read everything that comes along that relates. I've been jovially accused of having a strange idea of pleasure, but I am anxiously awaiting the publication of his latest book, "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech" due out some time this April.

Thanks again, Timothy - Sending you & yours my best wishes for a Happy & Blessed Easter, -Paul

read full comment
Image of Paul Binotto
Paul Binotto
on July 28, 2019 at 19:01:46 pm

In regard to the above comment: You may not like it but constitutional (and other legal) protections apply to those you think OUGHT NOT be here. We are still have a rule of law in the USA even if our current president would like to override it.

read full comment
Image of BigEd

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.