Notice & Comment

Chevron Goes Missing In An Immigration Case. Again.

The Supreme Court issued its decision in Nielsen v. Preap today. The words “Chevron” and “defer” do not appear anywhere in any of the opinions. Not in the majority opinion by Justice Alito. Nor in the dissent by Justice Breyer. Nowhere.

Nielsen v. Preap (SCOTUSblog page here) is about the interpretation of the mandatory detention statute in the Immigration and Nationality Act. In short, if the Department of Homeland Security fails to take a person into custody immediately after she is released from criminal jail or prison, is she still subject to mandatory detention? As of this morning, the answer to this question is definitively “yes.”

I won’t get into the statute’s technicalities here. But suffice it to say that if Chevron deference meant what the Admin Law textbooks say it means, it would seem to matter in a case like this. Or at least, it would merit a mention. The statutory interpretation problem was close enough question that it divided the Supreme Court 5-4. The Solicitor General spent three pages in his opening brief arguing for Chevron deference, and then another three pages on it in his replyThe Respondents argued strongly that Chevron should not apply. Chevron seemed important to everyone involved. Except for the nine who mattered most. They acted like Chevron doesn’t exist. 

We should not be surprised. As I explored in a recent article, the Supreme Court consistently ignores Chevron in immigration cases concerning deportation or detention. By contrast, Chevron does seem important to the Supreme Court in other types of immigration cases, most of the time anyway. Nielsen v. Preap is just another case following this pattern. This case is was about detention, so Chevron didn’t matter.

In full disclosure, I was part of an amicus brief in Nielsen v. Preap arguing that the Court should articulate a physical liberty exception to Chevron, which would explain its consistent practice in deportation and detention cases. The justices (all of them!) ignored us. But their decision – which does not defer to the executive in interpreting a statute governing detention – is consistent with our argument.

It is possible, I guess, to say that this was really a Chevron Step One decision because the Court thought congressional intent was clear in the statute. But if this is Step One, what does Step One even mean in practical terms? Sure, Justice Alito said the statute was “clear.” But so did Justice Breyer. I guess there is an interesting jurisprudential question here: Can a matter of statutory interpretation really be “clear” if it is difficult enough that it divides the Supreme Court 5-4? But I won’t go any farther down that rabbit hole right now.

The point is that if this was a true Chevron Step One decision, it is weird that Justice Alito didn’t say that’s what it is, especially since the parties argued the Chevron issues extensively. I am old enough to remember when Justice Alito complained that the Court was ignoring Chevron in an immigration case.  But that was way back in April 2018.

While we should not be surprised by Chevron’s practical irrelevance in Nielsen v. Preap, we should be frustrated by the justices’ continued refusal to explain why Chevron doesn’t matter in cases like this.  As the government argued, the Court has repeatedly said that Chevron applies in cases concerning the immigration statute. Close examination shows that the Court has only said this in cases that do not involve grounds of deportation or detention. But the Court has never explained the rule that way.  And that is a problem, because it leaves lower courts with conflicting instructions. Should they follow what the Supreme Court says? Or what the Supreme Court does?

I do hope that the Court will state the rule one day soon. While there are many situations in life where actions speak louder than words, Supreme Court decision-making is not one of them. I think it’s time for the justices of the Supreme Court to actually explain what they have been doing consistently for awhile now.


One more quick note on Nielsen v. Preap. After Zadvydas v. Davis, the canon of constitutional avoidance became an attractive tool for immigrant rights advocates. In theory, this canon allows a court to reinterpret a statute (often quite aggressively) without directly saying that the statute is unconstitutional.  But last year, the Supreme Court made clear that it thinks constitutional avoidance needs to be used only exceptionally, and it reaffirmed that today.

But that’s where things might get interesting. Justice Alito, for the Court, and Justice Kavanaugh in a concurrence, were at pains to say that they were only interpreting the statute today. They were not ruling on whether its application is constitutional in all situations, especially in cases of long term detention. And they seemed to be inviting constitutional challenges raising this question. It’s just that they want the challenges to be brought directly.


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