Justice Kennedy Just Signaled He Has No Retirement Plans

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Kevin Daley Supreme Court correspondent
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Supreme Court Justice Anthony Kennedy plainly signaled Thursday that he has no imminent retirement plans.

The justice staked a groundbreaking position regarding immigration opinion, which suggests he hopes to remain engaged with the Court’s work in the coming years.

The case, Pereira v. Sessions, asked whether a notice to appear for immigration removal proceedings that does not designate a specific time or place triggers the stop-time rule. Noncitizens who have resided continuously in the U.S. for 10 years are eligible for a removal exemption, given their significant connection to American communities. However, an alien’s period of continuous residence ends when they receive a notice to appear in immigration court.

An eight-justice majority led by Justice Sonia Sotomayor found the stop-time rule is not triggered if the notice does not contain information about where and when the proceeding will take place. Justice Samuel Alito was the lone dissenter.

Lawyers representing the Trump administration during the April argument revealed that most notices omit the time and date of the removal hearing. The government defended the practice using a legal rule known as Chevron deference, which holds that courts must defer to a federal agency’s interpretation of ambiguous laws. Conservative jurists in recent years have mounted a determined assault on Chevron, as it effectively shields vast swaths of agency action from judicial review.

The Board of Immigration Appeals (BIA) issued guidance in 2011 advising that vague notices do in fact trigger the stop-time rule. In Pereira, the government argued that the justices should defer to the BIA’s finding, but the Court disagreed.

Kennedy joined Sotomayor’s ruling in full, but wrote a brief concurring opinion containing something of a bombshell. The justice announced his sympathizes with Chevron’s critics, arguing that agencies threaten the separation of powers by using the doctrine to expand their own power. (RELATED: Supreme Court Clears Way For State Sales Tax)

“The type of reflexive deference exhibited in some of these cases is troubling,” Kennedy wrote. “And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still.”

“Given the concerns raised by some members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision,” he added.

Other justices have criticized Chevron to varying extents, including Chief Justice John Roberts, as well as Justices Clarence Thomas and Neil Gorsuch.

Now that Kennedy is out of the Chevron closet, the Court will almost certainly hear a major challenge to agency power in the near future. Such a case could dramatically unsettle a major area of law, and set new limits on the constellation of agencies and regulators often called the fourth branch of government.

It’s not the sort of position one takes if they’re planning to retire.

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