Kagan on Chevron's Liberty Exception

Michael Kagan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Chevron's Liberty Exception (Iowa Law Review, Forthcoming) on SSRN.  Here is the 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…

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