SapperGuest Commentary

By Arthur G. Sapper, Senior Counsel with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in its Washington, DC office, where he practices both appellate litigation and administrative law, with an emphasis on OSHA matters.**

Chevron deference is increasingly coming under fire from the justices of the U.S. Supreme Court. That came through loud and clear in Pereira v. Sessions, issued on June 21, 2018. Not only did the approach of the majority opinion appear to be at odds with the Court’s past approach to Chevron deference, but Justice Kennedy stated in a concurring opinion that “it seems necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts have implemented that decision.” Justice Alito asserted in dissent that “the Court, for whatever reason, is simply ignoring Chevron.”


A federal immigration statute states that an immigrant subject to removal proceedings but continuously present in the United States for 10 years may be eligible for cancellation of his or her removal from the country. Another provision stops the running of that 10-year period when the immigrant is served a “notice to appear under section 1229(a).” That provision requires that immigrants in removal proceedings receive written notice “specifying . . . [t]he time and place” of the removal hearing.

The question before the Court was whether the issuance of a notice that does not state the time and place of the removal hearing, but states that a hearing will be held at a time and place to be later specified, stops the running of the ten-year period.

The Chevron deference doctrine requires that federal courts defer to an agency’s interpretation of a statute if (1) the statute is ambiguous (Step One); and (2) the agency interpretation is “reasonable” (Step Two). The Board of Immigration Appeals (BIA) found the statute ambiguous as to whether the 10-year period would stop running from the issuance of an initial notice lacking in date and time information if a subsequent notice contained that information. Six courts of appeals agreed that the statute was ambiguous and that the BIA’s interpretation was reasonable.

The Supreme Court’s Decision

The Supreme Court disagreed with these courts of appeals, holding that the statutory text requiring specification of date and time in the notice to stop the running of the statute was “clear and unambiguous.” Therefore, it reasoned, Chevron was inapplicable.

What is unusual is that the Court reached this conclusion even though—

  1. It devoted eight pages of its slip opinion to explaining and defending its plain-language conclusion;
  2. Its conclusion that the statute was not ambiguous overrode contrary conclusions by six appellate courts and the specialized adjudicatory body that decides such cases; and
  3. It appealed to “common sense” and rejected concerns about the administrative practicality of its conclusion, discussions not previously thought relevant to a Chevron Step One analysis. (The Court asserted, for example, that “today’s advanced software capabilities” would permit hearings to be scheduled accurately, and that any confusion caused by the more frequent need to issue amended hearing notices would be less than the confusion caused by unspecific initial notices).

In the past, such a strenuous effort to explicate plain meaning, a disagreement with six appellate courts and the responsible agency over whether the statute is ambiguous, and such deep involvement in practical considerations would likely have suggested sufficient ambiguity or sufficient policy-laden considerations to have triggered Chevron.

Justice Kennedy’s Concurrence—“Appropriate to Reconsider [Chevron’s] Premises”

Justice Kennedy penned a concurrence that called into question Chevron—or at least the way it “has come to be understood and applied.”

He first alluded to the instability caused by Chevron, noting that an emerging consensus among the appellate courts “abruptly dissolved” not long after the BIA found the statute ambiguous and offered its own interpretation. Although six appellate courts later deferred to the BIA’s view, Justice Kennedy called their analysis so “cursory” as to “suggest[] an abdication of the Judiciary’s proper role in interpreting federal statutes.” He continued, “The type of reflexive deference exhibited in some of these cases is troubling.”

Justice Kennedy then stated that “[g]iven the concerns raised by some Members of this Court” (the Chief Justice, Justice Thomas, and Justice Gorsuch (while on the Tenth Circuit)) in previous cases, “it seems necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts have implemented that decision.” Citing an opinion by the Chief Justice, Justice Kennedy wrote, “The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.” Justice Kennedy was apparently alluding to the view, argued by others, that Chevron is inconsistent with the declaration in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

Justice Alito’s Dissent—Chevron “Increasingly Maligned”

More eyebrows likely rose in response to Justice Alito’s dissenting opinion. The Court’s decision, he stated, “implicates the status of an important, frequently invoked, once celebrated, and now increasingly maligned precedent, namely, Chevron . . . [A] straightforward application of Chevron requires us to accept the Government’s construction . . .  I can only conclude that the Court . . . is simply ignoring Chevron.”

After arguing at length that the statute is ambiguous and that the BIA’s view is permissible under Chevron, Justice Alito ended with what amounted to a demand that Chevron be either openly reexamined or followed: “In recent years, several Members of this Court have questioned Chevron’s foundations [citing Justice Kennedy’s concurrence and previous opinions by Justices Thomas and Gorsuch]. But unless the Court has overruled Chevron in a secret decision that has somehow escaped my attention, it remains good law.”

Deference Questioned More Widely—Auer Deference “On Its Last Gasp”?

Chevron is not the only deference doctrine to have come under severe criticism by the justices.  In recent years, a different deference doctrine has come under fire: the doctrine, exemplified by Auer v. Robbins, that requires deference to agency interpretations of their own regulations. (Chevron applies to statutes.)

In Decker v. Northwest Environmental Defense Center, the Chief Justice (joined by Justice Alito) suggested that Auer be reexamined. Moreover, the late Justice Scalia argued there that Auer “contravenes one of the great rules of separation of powers.” Later, in Perez v. Mortgage Bankers Association, Justice Thomas likewise suggested that Auer deference “raises constitutional concerns.” Justice Alito stated there that the separate opinions by Justices Thomas and Scalia “offer substantial reasons why the [Auer] doctrine may be incorrect.”

All this led Justice Thomas to write that, “Any reader of this Court’s opinions should think that the [Auer] doctrine is on its last gasp.”

It was clear that the Court was searching for a good case in which to reexamine Auer. Now the same appears to be true for Chevron.

**This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.