Chevron without the Courts? The Supreme Court's Chevron Revision Project Through an Immigration Lens
Document Type Article
The limits of administrative law are undergoing a seismic shift. Chevron divides interpretive and decisionmaking authority between the federal courts and agencies in each of two steps. The Supreme Court is now transforming this division in largely unrecognized ways. These shifts, playing out most sharply in the immigration arena, are reshaping deference jurisprudence by handing more power to agencies just when they are least able to handle it effectively.
An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling the judicial role while expanding agency authority, significantly transforming traditional deference doctrine. The Court has shifted the judicial role away from questions of statutory interpretation and towards a mere evaluation of when the agency’s interpretation should be granted deference. Assessment of the “reasonableness” of the agency’s action has given way to marking the outer boundaries of agency action, merging the court’s traditional oversight analysis into a form of “arbitrary and capriciousness” review.
The costs of the Court’s reformulation of Chevron are particularly visible in immigration law because recent legislation and structural changes at the agency have already constrained judicial review. The reformulation of Chevron beginning in immigration law threatens to remake administrative law generally. Unfortunately, it has received little scholarly scrutiny. Understanding this transformation is imperative as ultimately we may be heading towards “Chevron without the Courts”—where the judicial interpretive role is being constrained at the very time agencies are least able to fulfill their interpretive role.