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Date: 08-23-2016

Case Style: Hugo Rosario Gutierrez-Brizuela v. Lorett E. Lynch

Case Number: 14-9585

Judge: Gorsuch

Court: United States Court of Appeals for the Tenth Circuit on Petition for Review from an Order of the Board of Immigration Appeals

Plaintiff's Attorney: Timothy Lee Cook, Law Office of Timothy L. Cook, Oklahoma City, Oklahoma,
for Petitioner.

Defendant's Attorney: Monica Antoun, Trial Attorney, Office of Immigration Litigation (Benjamin C.
Mizer, Principal Deputy, Assistant Attorney General, and Joyce R. Branda,
Acting Assistant Attorney General, Civil Division, and Jennifer P. Levings,
Senior Litigation Counsel, and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, with her on the briefs) of the United States Department of
Justice, Washington, D.C., for Respondent.

Description: We recently confronted the thorny problem what to do when an executive
agency, exercising delegated legislative authority, seeks to overrule a judicial
precedent interpreting a congressional statute. In our constitutional history, after
all, judicial declarations of what the law is haven’t often been thought subject to
revision by the executive, let alone by an executive endowed with delegated
legislative authority. Still, in recent years the Supreme Court has instructed us
that, when a statute is ambiguous and an executive agency’s interpretation is
reasonable, the agency may indeed exercise delegated legislative authority to
overrule a judicial precedent in favor of the agency’s preferred interpretation.
See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984);
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. (Brand X), 545 U.S.
967 (2005). And that development required us to confront this question:
accepting that an agency may overrule a court, may it do so not only
prospectively but also retroactively, applying its new rule to completed conduct
that transpired at a time when the contrary judicial precedent appeared to control?
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015). Now that curious
question has returned, this time with a twist.
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Our story starts with two provisions buried in our immigration laws: 8
U.S.C. §§ 1255(i)(2)(A) and 1182(a)(9)(C)(i)(I). The first statute “grants the
Attorney General discretion to ‘adjust the status’ of those who have entered the
country illegally and afford them lawful residency.”
De Niz Robles, 803 F.3d at
1167. The second “provides that certain persons who have entered this country
illegally more than once are categorically prohibited from winning lawful
residency . . . unless they first serve a ten-year waiting period outside our
borders.”
Id. Observers have long noted the tension between the two laws and
wondered which should control. Employing the usual tools of statutory
interpretation, this court in 2005 determined that the Attorney General’s
discretion to afford relief without insisting on a decade-long waiting period
remained intact. Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d
1294, 1299-1301 (10th Cir. 2005), amended and superseded on reh’g by 453 F.3d
1237, 1242-44 (10th Cir. 2006).
That judicial declaration of what the law is turned out to be anything but
the last word. Not because the Supreme Court disagreed. But because in 2007
the Board of Immigration Appeals (BIA) issued In re Briones, 24 I. & N. Dec.
355 (BIA 2007). There the BIA offered its view that — as a matter of policy
discretion — the statutory tension should be resolved against affording the
Attorney General any discretion to consider applications for adjustment of status
when § 1182(a)(9)(c)(i)(I) applies. A conclusion directly at odds with the one we
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reached in Padilla-Caldera I. When the agency later sought to apply its new rule
announced in Briones to a petitioner in this court, we agreed that the two statutory
directives were ambiguous; that “step two” of Chevron required this court to
assume that Congress had delegated legislative authority to the BIA to make a
“reasonable” policy choice in the face of this statutory ambiguity; and that the
Supreme Court’s extension of Chevron in Brand X further required this court to
defer to the agency’s policy choice and overrule our own governing statutory
interpretation in Padilla-Caldera I. See Padilla-Caldera v. Holder (Padilla-
Caldera II), 637 F.3d 1140, 1148-52 (10th Cir. 2011).
But even that was hardly the end of it. Everyone accepts that, after
Padilla-Caldera II, all future petitioners must satisfy the ten-year waiting period
and may not seek discretionary relief from the Attorney General.
But what about
petitioners who applied for discretionary relief in express reliance on Padilla-
Caldera I, before the BIA’s announcement of its contrary interpretation in
Briones? In De Niz Robles, the BIA sought to apply Briones retroactively to
foreclose any chance of discretionary relief for this class of persons. This court
disallowed the attempt, holding that because the agency’s promulgation of a new
rule of general applicability under Chevron step two and Brand X is an exercise of
delegated legislative policymaking authority, it is subject to the presumption of
prospectivity that attends true exercises of legislative authority. 803 F.3d at
1172-74.
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The BIA isn’t one to give up, though. Today it brings us a new case that
involves a (slight) variation. Like Mr. De Niz Robles, Hugo Gutierrez-Brizuela
applied for adjustment of status in reliance on our decision in Padilla-Caldera I
during the period it remained on the books. About that much there is no dispute.
But unlike Mr. De Niz Robles, Mr. Gutierrez-Brizuela applied for relief during
the period after the BIA’s announcement of its contrary interpretation in Briones
yet before Padilla-Caldera II declared Briones controlling and Padilla-Caldera I
effectively overruled. The BIA suggests this factual distinction makes all the
legal difference. But we fail to see how. Indeed, the government’s position in
this appeal seems to us clearly inconsistent with both the rule and reasoning of De
Niz Robles.
Take the rule first. De Niz Robles held that Briones was not legally
effective in the Tenth Circuit until this court discharged its obligation under
Chevron step two and Brand X to determine that the statutory provisions at issue
were indeed ambiguous, that the BIA’s interpretation of them was indeed
reasonable, and that Padilla-Caldera I was indeed overruled. As we explained,
“[a]n agency in the Chevron step two/Brand X scenario may enforce its new
policy judgment only with judicial approval. So, for example, the BIA depended
on Padilla-Caldera II to render Briones effective.” Id. at 1174 n.7. Until this
court handed down Padilla-Caldera II, then, Padilla-Caldera I remained on the
books as binding precedent in the Tenth Circuit on which litigants were free (and
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expected) to rely, and Briones bore no legal force. Yet, despite De Niz Robles’s
clear holding on this very score, the BIA today seeks to apply Briones to conduct
in this circuit that predates Padilla-Caldera II — when Padilla-Caldera I was the
controlling law of this circuit and Briones was not. That De Niz Robles expressly
forbids. Cf. Bankers Trust N.Y. Corp. v. United States, 225 F.3d 1368, 1376 (Fed.
Cir. 2000) (noting that where “the original decision was based on direct judicial
construction of [a] statute, not deference” to the agency, it remains “the law of
this circuit” until it is “overturned” or a “later amendment to the statute is
effective”).
Next consider the reasoning. In De Niz Robles we explained that, to the
extent the executive is permitted to exercise delegated legislative authority to
overrule judicial decisions, logic suggests it should be bound by the same
presumption of prospectivity that attends true legislative enactments. 803 F.3d at
1172. After all, agents usually depend upon (and are limited to) the powers
enjoyed by their principals. See generally Restatement (Second) of Agency § 17
(1958). And we know that, if Congress had sought to amend the law to unseat a
judicial decision like Padilla-Caldera I, absent some clear direction otherwise
(and subject to constitutional limitations on retroactive legislation), its actions
would have controlled conduct arising only after the legislation went into effect.
See Landgraf v. USI Film Prod., 511 U.S. 244, 270-73 (1994). And here Briones
went into effect in this circuit only when this court handed down Padilla-Caldera
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II. Meaning that individuals like both Mr. De Niz Robles and Mr. Gutierrez-
Brizuela would have been free to rely on Padilla-Caldera I. Neither, as we
explained in De Niz Robles, can we think of a sound reason why persons should
be left in worse shape simply because they are the subjects of delegated
legislative action rather than subjects of true legislative action. Indeed, as we
noted in De Niz Robles, the Supreme Court itself has expressly recognized that
“[c]ongressional enactments . . . will not be construed to have retroactive effect
unless their language requires this result. By the same principle, a statutory grant
of legislative rulemaking authority will not, as a general matter, be understood to
encompass the power to promulgate retroactive rules unless that power is
conveyed by Congress in express terms.” 803 F.3d at 1172 (quoting Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (internal quotation marks
omitted)). And, of course, no one before us contends that Congress has expressly
conveyed to the BIA the power to declare its rules retroactive.1
1 At this point you might interject to question our analogy to legislative
action. After all, an agency may enforce its new policy judgment under Chevron
step two and Brand X only with judicial approval. And, quite unlike legislative
action, which is subject to a presumption of prospectivity, judicial action is of
course subject to a presumption of retroactivity. See De Niz Robles, 803 F.3d at
1170. But De Niz Robles already rejected an argument along these lines, see id.
at 1174 n.7, and the BIA does not pursue any such argument in this case — and
for good reason. The fact is, the agency rule a court ratifies in the Chevron step
two/Brand X scenario clearly proceeds from the agency exercising delegated
legislative authority, not the court. Consider first the fact that when announcing
its rule an agency is neither seeking the “best” reading of the statutory text nor
adopting a “once-and-for-always definition of what the statute means,” Garfias-
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The due process and equal protection concerns that animated our holding in
De Niz Robles also apply to this case. In De Niz Robles we explained that
legislation is presumptively prospective in its operation because the retroactive
application of new penalties to past conduct that affected persons cannot now
change denies them fair notice of the law and risks endowing a decisionmaker
expressly influenced by majoritarian politics with the power to single out
disfavored individuals for mistreatment. See 803 F.3d at 1169-70. These very
same concerns would arise if the BIA could apply Briones retroactively to Mr.
Gutierrez-Brizuela’s conduct. After all, back in 2009 the law expressly gave Mr.
Gutierrez-Brizuela two options: he could seek an adjustment of status pursuant to
Padilla-Caldera I or accept a ten-year waiting period outside the country.
Rodriguez v. Holder, 702 F.3d 504, 515-16 (9th Cir. 2012) (en banc), but seeking
instead to exploit a gap in the statute to implement its own (continuously
revisable) policy-influenced vision of what the law should be, De Niz Robles, 803
F.3d at 1176. Then consider the highly unusual nature of the court’s task under
Chevron step two and Brand X: the court doesn’t ask whether the agency’s
interpretation of the law is superior (or its prior interpretation wrong in some
way), only whether the agency’s interpretation falls within the scope of the
permissible. The court doesn’t attempt to say what the law is (our normal
function) but only whether the agency’s attempt is a reasonable one. And finally
consider that, when overruling our own governing precedent, a court may not
consult or speak a word about the principles of stare decisis that normally attend
to (and do much to discourage) the overruling of judicial precedent. Instead, the
court disregards all that and favors the agency ruling over its own precedent
simply because the agency has offered a permissible interpretation. See Padilla-
Caldera II, 637 F.3d at 1147. Under these circumstances, it seems to us “there
can be little doubt that,” while a court must approve the agency’s new rule, the
rule “emanates in substance” not from the court but from the agency exercising
delegated legislative authority. De Niz Robles, 803 F.3d at 1174 n.7.
- 8 -
Relying on binding circuit precedent, he chose the former path. Yet the BIA now
seeks to apply a new law to block that path at a time when it’s too late for Mr.
Gutierrez-Brizuela to alter his conduct. Meaning that, if we allowed the BIA to
apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he
could’ve spent complying with the BIA’s ten year waiting period and instead have
to start that waiting period now. The due process concerns are obvious: when
Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now
seeks to apply. And the equal protection problems are obvious too: if the agency
were free to change the law retroactively based on shifting political winds, it
could use that power to punish politically disfavored groups or individuals for
conduct they can no longer alter. See id. at 1168-69, 1174-75.
Beyond looking directly to the due process and equal protection
considerations that underlie the presumption of legislative prospectivity, in De
Niz Robles we also consulted both the doctrinal rubric the Supreme Court
suggested in SEC v. Chenery Corp. (Chenery II), 332 U.S. 194 (1947), for
deciding when to give retroactive effect to agency action, and our own similar
formulation in Stewart Capital Corp. v. Andrus, 701 F.2d 846 (10th Cir. 1983).
We found these authorities and their factors also counseled against allowing the
BIA to apply its decision to individuals like Mr. De Niz Robles. De Niz Robles,
803 F.3d at 1175-80. And we find they do the same thing today. Neither should
any of this come as a surprise, for the factors discussed in Chenery II and Stewart
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Capital simply seek to provide a doctrinal rubric for assessing the underlying due
process and equal protection implications associated with retroactive agency
action. And whether we analyze those concerns directly (as we just have) or
indirectly (using these doctrinal rubrics), the answer should of course be the
same. Id. at 1180.
To decide whether to permit retroactive agency action, both Chenery II and
Stewart Capital essentially counsel us to “weigh” the costs the petitioner would
encounter against the benefits the agency would enjoy. See id. at 1177. And in
this case, as in De Niz Robles, it seems to us that balance tips decidedly in one
direction. Consider the costs we would impose on petitioners. Normally, people
are entitled to rely on judicial precedents as definitive interpretations of what the
law is so long as those precedents remain on the books. See U.S. Bancorp Mortg.
Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994); AT&T Corp. v. Hulteen, 556
U.S. 701, 711-13 (2009). To allow the BIA to apply Briones here, to actions
during a period when Padilla-Caldera I was on the books and Briones was not the
law of this circuit, would upset this principle and invite individuals to disregard
on-point judicial precedent (maybe even Supreme Court precedent) because of its
potential susceptibility to revision by an executive agency. See De Niz Robles,
803 F.3d at 1178-79. It would also require the people to substitute reliance on
judicial declarations of what the law is with finely grained legal judgments about
the degree of ambiguity in the relevant statutory provisions and the
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reasonableness of agency pronouncements about them. Questions that frequently
provoke deep disagreement even among our most eminent jurists, let alone lay
persons. See, e.g., Michigan v. EPA, 135 S. Ct. 2699 (2015). Indeed, at the time
of Mr. Gutierrez-Brizuela’s application, just as at the time of Mr. De Niz
Robles’s, it was far from clear that this court would ever permit enforcement of
Briones. Back then it remained a distinct possibility that this court might find
either the statute unambiguously opposed to the agency’s position or the agency’s
interpretation an unreasonable one. See De Niz Robles, 803 F.3d at 1179 & n.10.
Are we really to expect that persons in such circumstances should have to bear the
cost of ignoring directly controlling judicial precedent in favor of the speculative
possibility that an executive revision might ultimately prevail? Add to that the
costs associated with imposing this kind of uncertainty on an entire class of
persons with significant interests at stake (the potential right to remain lawfully in
this country), and the BIA’s failure to identify any benefits of any kind that might
be vindicated through retroactive application of its new rule, see id. at 1179-80,
and we just do not see how the agency might prevail.
Confirming our assessment on this score is the fact that the BIA itself was
once — and not long ago — sensitive to the due process and equal protection
concerns associated with retroactive application of its new rules. It followed a
practice of deferring to adverse circuit precedent so long as that precedent
remained on the books, even when the agency may have disagreed with it. See,
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e.g., In re Anselmo, 20 I. & N. Dec. 25, 31 (BIA 1989) (collecting cases). In fact,
in Briones itself the BIA expressly refrained from deciding the applicability of its
new rule to cases arising in this circuit, given that we had previously adopted a
contrary view of the relevant statutes’ meaning. See Briones, 24 I. & N. Dec. at
370-71 & n.9. So it is that even the agency itself once suggested that Padilla-
Caldera I would and should continue to control in this circuit until overruled by
judicial authority. Given that, we are left at a loss to see how it would be
consistent with due process (fair notice) principles to permit the agency now to
take the opposite view. Effectively pulling out from petitioners like Mr.
Gutierrez-Brizuela a rug that the agency itself set under them.
To be sure, the BIA says that was then and this is now. Now the agency
replies that Briones must apply to all cases, even cases arising before its judicial
adoption in circuits with contrary precedent. It must, the agency says, because
“[f]or Brand X to have any practical application, the Board must be able to apply
Chevron step two, policy-type decisions immediately, regardless of the existence
of a prior, contrary judicial interpretation. Otherwise, the Board would never be
able to disagree with a prior, competing judicial decision” as Brand X says it may.
We just don’t see it. To be sure, our holding about the inefficacy of
Briones to decisions predating its approval by this court in Padilla-Caldera II
raises the interesting question how an agency might go about exercising its Brand
X powers to overrule prior judicial decisions. If the agency tries to apply a new
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rule to a pending case in a circuit where there is adverse judicial precedent, and if
the court replies that the judicial precedent controls until reversed, how is the
agency ever to get its new authority to take effect? The question may represent
yet another conundrum invited by Chevron step two and Brand X. But we have
no difficulty imagining a way out of this particular one that also allows us to
avoid due process and equal protection problems. Agencies could seek to enforce
their new interpretations and courts could then fulfill their Chevron step two and
Brand X obligation to sustain those new interpretations while also affording the
agency’s new rules only prospective effect and permitting the petitioner in the
case at hand to continue to receive the benefit of preexisting judicial precedent.
After all, decisions like Chenery II, Stewart Capital, and Bowen expressly
anticipate that there will be cases where administrative decisions should control
only conduct arising after they take legal effect. See Chenery II, 332 U.S. at
203-04; Stewart Capital, 701 F.2d at 848-50; cf. Bowen, 488 U.S. at 213-15.
Neither is practice of this sort entirely foreign in other areas of the law: not
infrequently courts will reach holdings that affect future litigants differently than
current ones. Consider, for example, qualified immunity cases where courts
sometimes find that a constitutional violation has occurred, but that the violation
was not clearly established, in the process binding future litigants in a different
way than current ones. See, e.g., Pearson v. Callahan, 555 U.S. 223 (2009);
Saucier v. Katz, 533 U.S. 194 (2001). Chevron step two and Brand X may mean
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that agencies exercising delegated legislative power can effectively overrule
judicial precedents. But that does not necessarily mean their decisions must or
should presumptively apply retroactively to conduct completed before they take
legal effect. If anything, and as we’ve seen in De Niz Robles and again today, the
opposite presumption should apply.
The petition for review is granted and the case remanded to the BIA for
further proceedings consistent with this opinion.
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No. 14-9585, Gutierrez-Brizuela v. Lynch
GORSUCH, Circuit Judge, concurring.
There’s an elephant in the room with us today. We have studiously
attempted to work our way around it and even left it unremarked. But the fact is
Chevron and Brand X permit executive bureaucracies to swallow huge amounts of
core judicial and legislative power and concentrate federal power in a way that
seems more than a little difficult to square with the Constitution of the framers’
design. Maybe the time has come to face the behemoth.
In enlightenment theory and hard won experience under a tyrannical king
the founders found proof of the wisdom of a government of separated powers. In
the avowedly political legislature, the framers endowed the people’s
representatives with the authority to prescribe new rules of general applicability
prospectively. In the executive, they placed the task of ensuring the legislature’s
rules are faithfully executed in the hands of a single person also responsive to the
people. And in the judiciary, they charged individuals insulated from political
pressures with the job of interpreting the law and applying it retroactively to
resolve past disputes. This allocation of different sorts of power to different sorts
of decisionmakers was no accident. To adapt the law to changing circumstances,
the founders thought, the collective wisdom of the people’s representatives is
needed. To faithfully execute the laws often demands the sort of vigor hard to
find in management-by-committee. And to resolve cases and controversies over
past events calls for neutral decisionmakers who will apply the law as it is, not as
they wish it to be.
Even more importantly, the founders considered the separation of powers a
vital guard against governmental encroachment on the people’s liberties,
including all those later enumerated in the Bill of Rights. What would happen,
for example, if the political majorities who run the legislative and executive
branches could decide cases and controversies over past facts? They might be
tempted to bend existing laws, to reinterpret and apply them retroactively in novel
ways and without advance notice. Effectively leaving parties who cannot alter
their past conduct to the mercy of majoritarian politics and risking the possibility
that unpopular groups might be singled out for this sort of mistreatment — and
raising — along the way, too, grave due process (fair notice) and equal protection
problems. Conversely, what would happen if politically unresponsive and lifetenured
judges were permitted to decide policy questions for the future or try to
execute those policies? The very idea of self-government would soon be at risk
of withering to the point of pointlessness. It was to avoid dangers like these,
dangers the founders had studied and seen realized in their own time, that they
pursued the separation of powers. A government of diffused powers, they knew,
is a government less capable of invading the liberties of the people. See The
-2-
Federalist No. 47 (James Madison) (“No political truth is . . . stamped with the
authority of more enlightened patrons of liberty” than the separation of powers).1
Founders meet Brand X. Precisely to avoid the possibility of allowing
politicized decisionmakers to decide cases and controversies about the meaning of
existing laws, the framers sought to ensure that judicial judgments “may not
lawfully be revised, overturned or refused faith and credit by” the elected
branches of government. Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S.
103, 113 (1948); see also Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n* (1792)
(“[B]y the Constitution, neither the Secretary . . . nor any other Executive officer,
nor even the Legislature, are authorized to sit as a court of errors on the judicial
acts or opinions of this court.”). Yet this deliberate design, this separation of
functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces
more than a little pressure from Brand X. Under Brand X’s terms, after all, courts
are required to overrule their own declarations about the meaning of existing law
in favor of interpretations dictated by executive agencies. Nat’l Cable &
1 See also, e.g., The Federalist No. 78 (Alexander Hamilton) (“[L]iberty
can have nothing to fear from the Judiciary alone” but “ha[s] everything to fear
from [the] union” of the judicial and legislative functions.); Stern v. Marshall,
564 U.S. 462, 483 (2011) (noting that “the framers considered it essential” to
liberty to keep the executive and judiciary and the legislature and judiciary “truly
distinct” (internal quotation marks omitted)); M. J. C. Vile, Constitutionalism and
the Separation of Powers 168-69 (2d ed. 1998); Neil M. Gorsuch, Of Lions and
Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res.
L. Rev. 905, 912 (2016).
-3-
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-85 (2005). By
Brand X’s own telling, this means a judicial declaration of the law’s meaning in a
case or controversy before it is not “authoritative,” id. at 983, but is instead
subject to revision by a politically accountable branch of government.
That’s exactly what happened to Mr. Padilla-Caldera. First this court read
the relevant immigration statutes to permit an alien who has entered the country
illegally to seek a discretionary adjustment of status from the Attorney General.
Then we remanded the case to allow the Attorney General to make that
discretionary decision in Mr. Padilla-Caldera’s case. Padilla-Caldera v. Gonzales
(Padilla-Caldera I), 426 F.3d 1294 (10th Cir. 2005), amended and superseded on
reh’g by 453 F.3d 1237 (10th Cir. 2006). But instead of undertaking that task, the
BIA interpreted the statutory scheme to reach the opposite conclusion we had,
applied its new statutory interpretation to Mr. Padilla-Caldera, and held him
categorically forbidden from receiving a discretionary adjustment of status. See
Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140, 1143-44 (10th
Cir. 2011). When the case returned to this court, we conceded that the relevant
statutes were indeed ambiguous and acknowledged that Brand X required us to
defer to the BIA’s new interpretation, in the end holding that Mr. Padilla-Caldera
was, as the agency said, categorically prohibited from applying for a discretionary
adjustment of status. Id. at 1147-53. Quite literally then, after this court declared
the statutes’ meaning and issued a final decision, an executive agency was
-4-
permitted to (and did) tell us to reverse our decision like some sort of super court
of appeals. If that doesn’t qualify as an unconstitutional revision of a judicial
declaration of the law by a political branch, I confess I begin to wonder whether
we’ve forgotten what might.
Of course, since Padilla-Caldera we have reentered the field and sought to
tame some of Brand X’s more exuberant consequences. So, for example, in De
Niz Robles and now again today we have held that an agency’s revision of a
judicial decision of what the law is may bear only prospective effect, governing
only future cases and controversies. As a result, an executive agency may no
longer revise a judicial decision about the law’s meaning with retroactive effect,
like the BIA managed to do in the case of Mr. Padilla-Caldera. No doubt that
addresses some of the due process and equal protection problems that follow from
allowing politicized decisionmakers to decide cases and controversies about the
meaning of existing law.
But even this doesn’t fully resolve the problem. When the political
branches disagree with a judicial interpretation of existing law, the Constitution
prescribes the appropriate remedial process. It’s called legislation. Admittedly,
the legislative process can be an arduous one. But that’s no bug in the
constitutional design: it is the very point of the design. The framers sought to
ensure that the people may rely on judicial precedent about the meaning of
existing law until and unless that precedent is overruled or the purposefully
-5-
painful process of bicameralism and presentment can be cleared. Indeed, the
principle of stare decisis was one “entrenched and revered by the framers”
precisely because they knew its importance “as a weapon against . . . tyranny.”
Michael B.W. Sinclair, Anastasoff Versus Hart: The Constitutionality and
Wisdom of Denying Precedential Authority to Circuit Court Decisions, 64 U. Pitt.
L. Rev. 695, 707 (2003). Yet even as now semi-tamed (at least in this circuit),
Brand X still risks trampling the constitutional design by affording executive
agencies license to overrule a judicial declaration of the law’s meaning
prospectively, just as legislation might — and all without the inconvenience of
having to engage the legislative processes the Constitution prescribes. A form of
Lawmaking Made Easy, one that permits all too easy intrusions on the liberty of
the people.2
Of course, Brand X asserts that its rule about judicial deference to
executive revisions follows logically “from Chevron itself.” 545 U.S. at 982.
And that assessment seems fair enough as far as it goes. If you accept Chevron’s
claim that legislative ambiguity represents a license to executive agencies to
render authoritative judgments about what a statute means, Brand X’s rule
2 See John F. Manning, Lawmaking Made Easy, 10 Green Bag 2d 191, 202
(2007); see also Dep’t of Transp. v. Ass’n of Am. R.Rs., 135 S. Ct. 1225, 1237
(Alito, J., concurring); United States v. Nichols, 784 F.3d 666, 670 (10th Cir.
2015) (Gorsuch, J., dissenting from the denial of rehearing en banc).
-6-
requiring courts to overturn their own contrary judgments does seem to follow
pretty naturally.
But acknowledging this much only brings the colossus now fully into view.
In the Administrative Procedure Act (APA), Congress vested the courts with the
power to “interpret . . . statutory provisions” and overturn agency action
inconsistent with those interpretations. 5 U.S.C. § 706. Congress assigned the
courts much the same job in the immigration field where we happen to find
ourselves today. 8 U.S.C. § 1252(a)(2)(D). And there’s good reason to think that
legislative assignments like these are often constitutionally compelled. After all,
the question whether Congress has or hasn’t vested a private legal right in an
individual “is, in its nature, judicial, and must be tried by the judicial authority.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803); Stern, 564 U.S. at 494-
95.3 Yet, rather than completing the task expressly assigned to us, rather than
“interpret[ing] . . . statutory provisions,” declaring what the law is, and
overturning inconsistent agency action, Chevron step two tells us we must allow
3 See also Wellness Int’l. Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1965
(2015) (Thomas, J., dissenting); The Federalist No. 78 (Alexander Hamilton)
(“The interpretation of the laws is the proper and peculiar province of the courts”
and it “belong[s] to [judges] to ascertain . . . the meaning of any particular act
proceeding from the [l]egislative body.”); Robert H. Jackson, Problems of
Statutory Interpretation, 8 F.R.D. 121, 123 (1948) (“Legislation is shaped by a
majority . . . [b]ut when a ruling majority has put its commands in statutory form
. . . the interpretation of their fair meaning and their application to individual
cases should be made by judges as independent of politics as humanly
possible . . . .”).
-7-
an executive agency to resolve the meaning of any ambiguous statutory provision.
In this way, Chevron seems no less than a judge-made doctrine for the abdication
of the judicial duty. Of course, some role remains for judges even under Chevron.
At Chevron step one, judges decide whether the statute is “ambiguous,” and at
step two they decide whether the agency’s view is “reasonable.” But where in all
this does a court interpret the law and say what it is? When does a court
independently decide what the statute means and whether it has or has not vested
a legal right in a person? Where Chevron applies that job seems to have gone
extinct.
Transferring the job of saying what the law is from the judiciary to the
executive unsurprisingly invites the very sort of due process (fair notice) and
equal protection concerns the framers knew would arise if the political branches
intruded on judicial functions. Under Chevron the people aren’t just charged with
awareness of and the duty to conform their conduct to the fairest reading of the
law that a detached magistrate can muster. Instead, they are charged with an
awareness of Chevron; required to guess whether the statute will be declared
“ambiguous” (courts often disagree on what qualifies); and required to guess
(again) whether an agency’s interpretation will be deemed “reasonable.” Who
can even attempt all that, at least without an army of perfumed lawyers and
lobbyists? And, of course, that’s not the end of it. Even if the people somehow
manage to make it through this far unscathed, they must always remain alert to
-8-
the possibility that the agency will reverse its current view 180 degrees anytime
based merely on the shift of political winds and still prevail. Neither, too, will
agencies always deign to announce their views in advance; often enough they
seek to impose their “reasonable” new interpretations only retroactively in
administrative adjudications. Perhaps allowing agencies rather than courts to
declare the law’s meaning bears some advantages, but it also bears its costs. And
the founders were wary of those costs, knowing that, when unchecked by
independent courts exercising the job of declaring the law’s meaning, executives
throughout history had sought to exploit ambiguous laws as license for their own
prerogative. See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 287-
91 (2014) (recounting James I’s effort to claim the right to interpret statutes, an
effort rejected by the courts in a campaign Roscoe Pound called a “valiant fight”
that confirmed the “supremacy of law”).
Some claim to see a way out of our apparent predicament. They suggest
that Chevron isn’t so much about permitting agencies to assume the judicial
function of interpreting the law as it is about permitting agencies to make the law,
to effect their own preferences about optimal public policy when a statute is
ambiguous. On this account, Chevron’s rule of deference isn’t about trying to
make judges out of agencies or letting them usurp the judicial function. Rather,
it’s about letting agencies fill legislative voids. When Congress passes
ambiguous legislation, Chevron means we should read that as signaling a
-9-
legislative “intention” to “delegate” to the executive the job of making any
reasonable “legislative” policy choices it thinks wise. And, to be sure, Chevron
itself espouses just this view. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 862 (1984). In both De Niz Robles and again today we
expressly acknowledge as much.
But however that may be, none of it rescues us from our riddle. For
whatever the agency may be doing under Chevron, the problem remains that
courts are not fulfilling their duty to interpret the law and declare invalid agency
actions inconsistent with those interpretations in the cases and controversies that
come before them. A duty expressly assigned to them by the APA and one often
likely compelled by the Constitution itself. That’s a problem for the judiciary.
And it is a problem for the people whose liberties may now be impaired not by an
independent decisionmaker seeking to declare the law’s meaning as fairly as
possible — the decisionmaker promised to them by law — but by an avowedly
politicized administrative agent seeking to pursue whatever policy whim may rule
the day. Those problems remain uncured by this line of reply.
Maybe as troubling, this line of reply invites a nest of questions even taken
on its own terms. Chevron says that we should infer from any statutory ambiguity
Congress’s “intent” to “delegate” its “legislative authority” to the executive to
make “reasonable” policy choices. See id. at 843-44. But where exactly has
Congress expressed this intent? Trying to infer the intentions of an institution
-10-
composed of 535 members is a notoriously doubtful business under the best of
circumstances.4 And these are not exactly the best of circumstances. Chevron
suggests we should infer an intent to delegate not because Congress has anywhere
expressed any such wish, not because anyone anywhere in any legislative history
even hinted at that possibility, but because the legislation in question is silent
(ambiguous) on the subject. Usually we’re told that “an agency literally has no
power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986). Yet Chevron seems to stand this
ancient and venerable principle nearly on its head.
Maybe worse still, Chevron’s inference about hidden congressional
intentions seems belied by the intentions Congress has made textually manifest.
After all and again, in the APA Congress expressly vested the courts with the
responsibility to “interpret . . . statutory provisions” and overturn agency action
inconsistent with those interpretations. 5 U.S.C. § 706. Meanwhile not a word
can be found here about delegating legislative authority to agencies. On this
record, how can anyone fairly say that Congress “intended” for courts to abdicate
their statutory duty under § 706 and instead “intended” to delegate away its
legislative power to executive agencies? The fact is, Chevron’s claim about
4 See, e.g., Lexington Ins. Co. v. Precision Drilling Co., — F.3d —, No.
15-8036, 2016 WL 3999896, at *2 (10th Cir. July 26, 2016); Kenneth A. Shepsle,
Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev.
L. & Econ. 239, 244-45 (1992).
-11-
legislative intentions is no more than a fiction — and one that requires a pretty
hefty suspension of disbelief at that.
Even supposing, too, that we could overlook this problem — even
supposing we somehow had something resembling an authentic congressional
delegation of legislative authority — you still might wonder: can Congress really
delegate its legislative authority — its power to write new rules of general
applicability — to executive agencies? The Supreme Court has long recognized
that under the Constitution “congress cannot delegate legislative power to the
president” and that this “principle [is] universally recognized as vital to the
integrity and maintenance of the system of government ordained by the
constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892). Yet on
this account of Chevron we’re examining, its whole point and purpose seems to
be exactly that — to delegate legislative power to the executive branch.
Not only is Chevron’s purpose seemingly at odds with the separation of
legislative and executive functions, its effect appears to be as well. While the
line between legislative and executive functions may sometimes be murky, history
does teach us a couple of things about that line. First, we know that, consistent
with the separation of powers, Congress may condition the application of a new
rule of general applicability on factual findings to be made by the executive (so,
for example, forfeiture of assets might be required if the executive finds a foreign
country behaved in a specified manner). See Cargo of the Brig Aurora v. United
-12-
States, 11 U.S. (7 Cranch) 382, 388 (1813). Second, we know Congress may
allow the executive to resolve “details” (like, say, the design of an appropriate tax
stamp). See In re Kollock, 165 U.S. 526, 533 (1897). Yet Chevron pretty clearly
involves neither of these kinds of executive functions and, in this way and as a
historical matter, appears instead to qualify as a violation of the separation of
powers. See Michigan v. EPA, 135 S. Ct. 2699, 2713-14 (2015) (Thomas, J.,
concurring); cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1877-79 (2013)
(Roberts, C.J., dissenting); Nichols, 784 F.3d at 671-72 (Gorsuch, J., dissenting
from the denial of rehearing en banc).
Of course, in relatively recent times the Court has relaxed its approach to
claims of unlawful legislative delegation. It has suggested (at least in the civil
arena) that Congress may allow the executive to make new rules of general
applicability that look a great deal like legislation, so long as the controlling
legislation contains an “intelligible principle” that “clearly delineates the general
policy” the agency is to apply and “the boundaries of [its] delegated authority.”
Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (internal quotation marks
omitted). This means Congress must at least “provide substantial guidance on
setting . . . standards that affect the entire national economy.” Whitman v. Am.
Trucking Ass’n, 531 U.S. 457, 475 (2001); cf. Touby v. United States, 500 U.S.
160, 165-67 (1991) (suggesting a heightened standard might apply in the criminal
setting). Some thoughtful judges and scholars have questioned whether standards
-13-
like these serve as much as a protection against the delegation of legislative
authority as a license for it, undermining the separation between the legislative
and executive powers that the founders thought essential.5
But even taking the forgiving intelligible principle test as a given, it’s no
small question whether Chevron can clear it. For if an agency can enact a new
rule of general applicability affecting huge swaths of the national economy one
day and reverse itself the next (and that is exactly what Chevron permits, see 467
U.S. at 857-59), you might be forgiven for asking: where’s the “substantial
guidance” in that? And if an agency can interpret the scope of its statutory
jurisdiction one way one day and reverse itself the next (and that is exactly what
City of Arlington’s application of Chevron says it can), you might well wonder:
where are the promised “clearly delineated boundaries” of agency authority? The
Supreme Court once unanimously declared that a statute affording the executive
the power to write an industrial code of competition for the poultry industry
violated the separation of powers. A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495, 537-42 (1935). And if that’s the case, you might ask how is
5 See, e.g., Ass’n of Am. R.Rs., 135 S. Ct. at 1246 (Thomas, J., concurring
in the judgment); Mistretta, 488 U.S. at 415-16 (Scalia, J., dissenting); Gary
Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 329 (2002)
(asserting that the Court has “found intelligible principles where less discerning
readers find gibberish”).
-14-
it that Chevron — a rule that invests agencies with pretty unfettered power to
regulate a lot more than chicken — can evade the chopping block.6
Even under the most relaxed or functionalist view of our separated powers
some concern has to arise, too, when so much power is concentrated in the hands
of a single branch of government. See The Federalist No. 47 (James Madison)
(“The accumulation of all powers, legislative, executive, and judiciary, in the
same hands . . . may justly be pronounced the very definition of tyranny.”). After
all, Chevron invests the power to decide the meaning of the law, and to do so with
legislative policy goals in mind, in the very entity charged with enforcing the law.
Under its terms, an administrative agency may set and revise policy (legislative),
override adverse judicial determinations (judicial), and exercise enforcement
discretion (executive). Add to this the fact that today many administrative
agencies “wield[] vast power” and are overseen by political appointees (but often
receive little effective oversight from the chief executive to whom they nominally
report), and you have a pretty potent mix. Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 499 (2010).7 Under any conception of
6 See Sanford N. Caust-Ellenbogen, Blank Checks: Restoring the Balance
of Powers in the Post-Chevron Era, 32 B.C. L. Rev. 757, 774 (1991) (Chevron
“upsets the balance created by the Supreme Court in its nondelegation doctrine.
It is one thing for Congress to set policy at an abstract level and delegate specific
implementation to the agency. It is quite another thing for Congress to delegate
policy-setting to the agency.”).
7 See also City of Arlington, 133 S. Ct. at 1877-78 (Roberts, C.J.,
dissenting); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245,
-15-
our separation of powers, I would have thought powerful and centralized
authorities like today’s administrative agencies would have warranted less
deference from other branches, not more. None of this is to suggest that Chevron
is “the very definition of tyranny.” But on any account it certainly seems to have
added prodigious new powers to an already titanic administrative state — and
spawned along the way more than a few due process and equal protection
problems of the sort documented in the court’s opinion today and in De Niz
Robles. It’s an arrangement, too, that seems pretty hard to square with the
Constitution of the founders’ design and, as Justice Frankfurter once observed,
“[t]he accretion of dangerous power does not come in a day. It does come,
however slowly, from the generative force of unchecked disregard of the
restrictions” imposed by the Constitution. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring).
What I suspect about Chevron’s compatibility with the separation of powers
finds confirmation in what I know. The Supreme Court has expressly instructed
us not to apply Chevron deference when an agency seeks to interpret a criminal
statute. Why? Because, we are seemingly told, doing so would violate the
Constitution by forcing the judiciary to abdicate the job of saying what the law is
and preventing courts from exercising independent judgment in the interpretation
2250 (2001); Stephen Breyer, Making Our Democracy Work 109-10 (2010).
-16-
of statutes. See, e.g., Abramski v. United States, 134 S. Ct. 2259, 2274 (2014)
(“Whether the Government interprets a criminal statute too broadly . . . or too
narrowly . . . a court has an obligation to correct its error.”). An admirable
colleague has noted that the same rationale would appear to preclude affording
Chevron deference to agency interpretations of statutes that bear both civil and
criminal applications. See, e.g., Esquivel-Quintana v. Lynch, 810 F.3d 1019,
1027-32 (6th Cir. 2016) (Sutton, J., concurring in part and dissenting in part);
Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 729-36 (6th Cir. 2013)
(Sutton, J., concurring). A category that covers a great many (most?) federal
statutes today. And try as I might, I have a hard time identifying a principled
reason why the same rationale doesn’t also apply to statutes with purely civil
application. After all, the APA doesn’t distinguish between purely civil and other
kinds of statutes when describing the interpretive duties of courts. Neither did the
founders reserve their concerns about political decisionmakers deciding the
meaning of existing law to criminal cases; Article III doesn’t say judges should
say what the law is or decide whether legal rights have or haven’t vested and been
violated only when a crime is alleged. And certainly Marbury did not speak so
meekly: it affirmed the judiciary’s duty to say what the law is in a case that
involved the interpretation of, yes, a civil statute affecting individual rights.
Some have suggested that criminal statutes should be treated differently
when it comes to Chevron because they are not “administered” by an agency. See
-17-
Gonzales v. Oregon, 546 U.S. 243, 264-65 (2006). I take this as a roundabout
way of suggesting that Congress hasn’t “delegated” its legislative authority in the
criminal context like it has in the civil. But as we’ve seen, the claim that
Congress has delegated legislative authority even in the civil context is no more
than a fiction. And for that matter it’s hard to see why the Justice Department
doesn’t “administer” criminal statutes in much the same way other agencies
“administer” various civil statutes. See, e.g., Crandon v. United States, 494 U.S.
152, 177 (1990) (Scalia, J., concurring in the judgment) (acknowledging that
“[t]he Justice Department . . . has a very specific responsibility to determine for
itself what this statute means, in order to decide when to prosecute”). Of course,
criminal law enforcement takes place in the courts, not before administrative
agencies. But often enough civil administrative actions also depend on court
approval for their effectiveness, and as we’ve seen this may be a matter not
merely of statutory but sometimes constitutional imperative. See 5 U.S.C. § 706;
Caust-Ellenbogen, supra, at 816; see also supra at 7.
Other arguments for rejecting Chevron deference (only) in criminal matters
seem equally shaky. Some suggest that principles of due process and equal
protection demand that the criminal law be clear and clearly given by judges.
Others suggest that prosecutorial agencies have too many incentives to interpret
criminal statutes expansively. But while concerns about due process and fair
notice surely reach their apex in the criminal context, I am uncertain why we
-18-
would view that as a license to neglect attending to them in the civil context. See
Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring)
(“Liberty is always at stake when one or more of the branches seek to transgress
the separation of powers.”). Especially given the power our modern
administrative state already enjoys, even without Chevron, to penalize persons in
ways that can destroy their livelihoods and intrude on their liberty even when
exercising only purely civil powers. See Free Enter. Fund, 561 U.S. at 499. And
given that the line between “criminal” and “civil” statutes has often proven tricky
enough to administer. See, e.g., Hudson v. United States, 522 U.S. 93, 99-100
(1997) (suggesting the use of a balancing test composed of seven non-exclusive
factors to tell the difference between civil and criminal statutory penalties).
Neither, too, are prosecutorial agencies known to be alone in their capacity and
willingness to interpret statutes aggressively. See, e.g., Michigan, 135 S. Ct. at
2713 (Thomas, J., concurring) (“[W]e should be alarmed that [the agency] felt
sufficiently emboldened by those precedents to make the bid for deference that it
did here.”); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia,
J., concurring) (noting that the FCC “has repeatedly been rebuked in its attempts
to expand the statute beyond its text, and has repeatedly sought new means to the
same ends”).
Beyond all that, Chevron has presented its fair share of practical problems
in its administration. By way of illustration, consider just two examples. First,
-19-
we once thought Chevron’s presumption of delegation for ambiguous statutes
applied uniformly to Congress’s work. Then we learned it doesn’t apply to
criminal statutes. Now we know it doesn’t always apply even when it comes to
purely civil statutes. In United States v. Mead Corp., 533 U.S. 218 (2001), the
Court added a “step zero” to the Chevron sequence, one that requires courts to
employ a multi-factor balancing test to decide whether to proceed to apply
Chevron to a civil statute. See id. at 227-31. So today courts will only sometimes
apply Chevron deference to ambiguous civil statutes. Neither, respectfully, does
looking to the Supreme Court’s case law supply a great deal of guidance on how
to apply Mead’s balancing test. In recent years, the Court has declined to apply
Chevron deference to arguably ambiguous civil statutes but it has only sometimes
cited the Mead balancing test as the reason, leaving more than a few litigants and
lower courts to wonder how they are supposed to proceed.8
Second, long lingering questions linger still about just how rigorous
Chevron step one is supposed to be. In deciding whether Congress has “directly
spoken” to a question or left it “ambiguous,” what materials are we to consult?
The narrow language of the statute alone? Its structure and history? Canons of
interpretation? Committee reports? Every scrap of legislative history we can dig
8 See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001); see also
William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference:
Supreme Court Treatment of Agency Statutory Interpretations from Chevron to
Hamdan, 96 Geo. L.J. 1083, 1097-1120 (2008).
-20-
up? Some claim to have identified at least three potential variants of Chevron
jurisprudence governing the line between step one and step two in the Supreme
Court’s case law.9
Of course, we often retain even mistaken judicial decisions because
reliance interests have arisen around them. But Chevron is a procedural rule, and
procedural rules generally receive little precedential consideration when
experience proves them problematic in their administration. Payne v. Tennessee,
501 U.S. 808, 828 (1991). No doubt this is because parties form reliance interests
primarily around substantive rules of law that allocate property and define the
limits of permitted behavior, while procedural rules merely govern how courts
will go about their own business when deciding disputes many years later that
parties often cannot foresee when arranging their affairs. And it is particularly
hard to see how Chevron might have engendered serious reliance interests by
individuals (if not agencies). Not only because of the uncertainties associated
with its administration. But because even when clearly and properly
implemented, Chevron’s very point is to permit agencies to upset the settled
9 See, e.g., Jack M. Beerman, End the Failed Chevron Experiment Now:
How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L.
Rev. 779, 817-22 (2010); see also Chevron, 467 U.S. at 842 (resolving a case
under step one only if “Congress has directly spoken to the precise question at
issue”); INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987) (“[e]mploying
traditional tools of statutory construction”); Dole v. United Steelworkers of Am.,
494 U.S. 26, 35 (1990) (same); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218, 225-27 (1994) (relying on plain meaning only).
-21-
expectations of the people by changing policy direction depending on the
agency’s mood at the moment. So if reliance interests count, they would seem to
count against retaining Chevron.
All of which raises this question: what would happen in a world without
Chevron? If this goliath of modern administrative law were to fall? Surely
Congress could and would continue to pass statutes for executive agencies to
enforce. And just as surely agencies could and would continue to offer guidance
on how they intend to enforce those statutes. The only difference would be that
courts would then fulfill their duty to exercise their independent judgment about
what the law is. Of course, courts could and would consult agency views and
apply the agency’s interpretation when it accords with the best reading of a
statute. But de novo judicial review of the law’s meaning would limit the ability
of an agency to alter and amend existing law. It would avoid the due process and
equal protection problems of the kind documented in our decisions. It would
promote reliance interests by allowing citizens to organize their affairs with some
assurance that the rug will not be pulled from under them tomorrow, the next day,
or after the next election. And an agency’s recourse for a judicial declaration of
the law’s meaning that it dislikes would be precisely the recourse the Constitution
prescribes — an appeal to higher judicial authority or a new law enacted
consistent with bicameralism and presentment. We managed to live with the
administrative state before Chevron. We could do it again. Put simply, it seems
-22-
to me that in a world without Chevron very little would change — except perhaps
the most important things.
-23-

Outcome: The petition for review is granted and the case remanded to the BIA for
further proceedings consistent with this opinion.

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