The most significant developments in the past year suggest a potent originalist future.
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.