The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively.
An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling away the judicial role while expanding agency authority, significantly transforming traditional deference doctrine. In its immigration docket, the Court is shifting 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 immigration agency have already constrained judicial review. However, the reformulation of Chevron occurring in immigration law may threaten to remake administrative law generally. Unfortunately, these developments have received little scholarly attention. Understanding this transformation is imperative as ultimately we may be heading towards “Chevron without the Courts”—wherein the judicial interpretive role is being constrained in the very instances where agencies are least able to function effectively
