Chevron's Liberty Exception

66 Pages Posted: 28 Feb 2018 Last revised: 4 Oct 2018

See all articles by Michael Kagan

Michael Kagan

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: February 18, 2018

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, and also has seemed reluctant to do so in cases concerning immigration detention. It is a logical extension of the established rule that Chevron deference does not apply to questions of criminal law. 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.

Keywords: Administrative Law, Immigration Law, Chevron

JEL Classification: K23, K37

Suggested Citation

Kagan, Michael, Chevron's Liberty Exception (February 18, 2018). 104 Iowa Law Review (Forthcoming 2019); UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3125736

Michael Kagan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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