Chevron’s Asylum: Judicial Deference in Refugee Cases

Abstract

Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases, when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet, in a highly politicized environment, political accountability is achieved at the expense of legal stability. Recently, some circuit courts have used arbitrary and capricious review as a limitation on Chevron deference, suggesting reservations about allowing an administration to radically depart from past interpretations of the law.

Keywords: Administrative Law, Immigration Law, Chevron, Arbitrary and Capricious

JEL Classification: K37, K23