Summary
Last Friday, the Supreme Court declared dead its 40-year-old doctrine of “Chevron deference”. In the realm of administrative law, such deference to federal agency interpretation of federal statutes is based on the Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. NRDC. Lower courts have applied Chevron deference” thousands of times. It embodies, and has solidified, the modern American “administrative state”. In Chevron, the Supreme Court laid down the doctrine:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
- Chevron deference has had an extraordinary run. We now return, for better or worse, to judicial primacy, as envisioned by the Founding Fathers in the Constitution and by Congress through the Administrative Procedure Act. The demise of Chevron will obviously be disadvantageous to the administrative agenda of the administration in power, though it is not clear to what extent. The most obviously activist federal courts, such as the Ninth Circuit, seem to have an uncanny ability to determine — regarding disfavored (by the court) agency interpretations of federal statutory provisions — that the provisions are not ambiguous, or, to the extent they are, have been impermissibly interpreted by the agencies.
- In terms of immigration policy, the same can be said, though the Department of Justice’s Board of Immigration Appeals may turn out to be the biggest loser, as in the context of removal proceedings the BIA has been rather successful in using Chevron to bypass detrimental judicial interpretations of statutes. For a possible second Trump administration, this may be especially detrimental for aggressive enforcement efforts that are upheld by the BIA (or by the attorney general after he has certified BIA decisions to himself for review).
- On the other hand, for a possible second Biden administration, the demise of Chevron deference may make it harder for the Biden administration to sustain in court immigration benefits programs created without a clear statutory foundation and based on tenuous and opportunistic statutory interpretations, such as its abusive use of the parole power to circumvent the Immigration and Nationality Act.
The Birth and Death of Chevron Deference
What is “Chevron deference”? As Michael Kagen, professor at the University of Nevada, Las Vegas’s William S. Boyd School of Law, has quipped, “the general public probably does not know that ‘Chevron’ is anything but a petroleum company”. But, in the realm of administrative law, “Chevron deference” to federal agency interpretation of federal statutes is based on the Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. NRDC. And in terms that the Chevron oil and gas company would understand, Chevron has been a gusher. As Supreme Court Justice Elena Kagen wrote in her dissent in last Friday’s decision in Loper Bright Enterprises v. Secretary of Commerce and Relentless, Inc. v. Department of Commerce, “This Court alone, acting as Chevron allows, has upheld an agency’s reasonable interpretation of a statute at least 70 times … . Lower courts have applied the Chevron framework on thousands upon thousands of occasions, having been cited in more than 18,000 federal-court decisions.” Chevron deference embodies, and has solidified, the modern American “administrative state”.
In Friday’s decision, Chief Justice Roberts wrote in his majority opinion that “part of ‘judicial humility[]’ … is admitting and in certain cases correcting our own mistakes, especially when those mistakes are serious … . This is one of those cases.” And so the Supreme Court terminated its doctrine of Chevron deference.
Harvard Law School professor Lawrence Tribe quickly declared that “The administrative state just died.” The question I ponder is what this “death” means for immigration policy and the ability of presidential administrations to shape such policy for better or worse. In short, will the demise of Chevron deference make our immigration crisis better or worse?
In Chevron, the Supreme Court laid down its doctrine as such:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
The Court further explained this new doctrine, popularly known as “Chevron Deference”:
Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.
Why did the Chevron Court create this doctrine 40 years ago? The Court on Friday explained that:
[The doctrine] was justified, according to [Chevron], by the understanding that administering statutes “requires the formulation of policy” to fill statutory “gap[s]”; by the long judicial tradition of according “considerable weight” to Executive Branch interpretations; and by a host of other considerations, including the complexity of the regulatory scheme, [the Environmental Protection Agency’s] “detailed and reasoned” consideration, the policy-laden nature of the judgment supposedly required, and the agency’s indirect accountability to the people through the President.
Chief Justice Roberts explained the Court’s view of the foundational error it had made in Chevron:
Chevron defies the command of [1946’s Administrative Procedure Act] APA that “the reviewing court”— not the agency whose action it reviews — is to “decide all relevant questions of law” and “interpret ... statutory provisions.” It requires a court to ignore, not follow, “the reading the court would have reached” had it exercised its independent judgment as required by the APA ... . And although exercising independent judgment is consistent with the “respect” historically given to Executive Branch interpretations … Chevron insists on much more. It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time … . Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else — unless the prior court happened to also say that the statute is “unambiguous.” [referring to the Court’s 2005 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services (Brand X)]… That regime is the antithesis of the time honored approach the APA prescribes.
Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The “law of deference” that this Court has built on the foundation laid in Chevron has instead been “[h]eedless of the original design” of the APA.
Roberts then explained why the Court’s error in Chevron was so “misguided”:
[E]ven if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same —“the reading the court would have reached” if no agency were involved … . It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.
Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment … . Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation [of a statute] is in play. The very point of the traditional tools of statutory construction — the tools courts use every day — is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power — perhaps the occasion on which abdication in favor of the agency is least appropriate.
The Court thus ruled that:
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
Justice Neil Gorsuch explained in his concurring opinion that “Under Chevron, executive officials can replace one ‘reasonable’ interpretation with another at any time, all without any change in the law itself.” But is this good or bad? Here is an exchange between Justice Brett Kavanaugh and Paul Clement, counsel for Loper Bright Enterprises, during the case’s oral argument:
JUSTICE KAVANAUGH: [W]hen the agency changes position every four years, that's going to still get Chevron deference … .
MR. CLEMENT: Absolutely… . [I]f you look at some of the things that Justice Scalia said in the beginning, when he was enthusiastic about the [Chevron deference] doctrine … he viewed the fact that agencies could flip-flop under Chevron as being an affirmative virtue.
Justice Neil Gorsuch explained why he considers this bad:
[The Chevron doctrine] forces judges to abandon the best reading of the law in favor of views of those presently holding the reins of the Executive Branch. It requires judges to change, and change again, their interpretations of the law as and when the government demands. And that transfer of power has exactly the sort of consequences one might expect. Rather than insulate adjudication from power and politics to ensure a fair hearing … Chevron deference requires courts to “place a finger on the scales of justice in favor of the most powerful of litigants, the federal government.”… Chevron deference guarantees “systematic bias” in favor of whichever political party currently holds the levers of executive power … . Whenever we confront an ambiguity in the law, judges do not seek to resolve it impartially according to the best evidence of the law’s original meaning. Instead, we resort to a far cruder heuristic: “The reasonable bureaucrat always wins.” And because the reasonable bureaucrat may change his mind year-to-year and election-to-election, the people can never know with certainty what new “interpretations” might be used against them. This “fluid” approach to statutory interpretation is “as much a trap for the innocent as the ancient laws of Caligula,” which were posted so high up on the walls and in print so small that ordinary people could never be sure what they required.
[A]uthorities long thought reserved for Article III [the Judicial Branch] are transferred to Article II [the Executive Branch] … the scales of justice are tilted systematically in favor of the most powerful … legal demands can change with every election even though the laws do not, and … the people are left to guess about their legal rights and responsibilities.
What Does the Death of Chevron Deference Mean for Immigration? The Immediate Reaction
Mass Immigration Advocates
Following Friday’s decision, Kelli Stump, president of the American Immigration Lawyers Association (AILA), stated that:
[The Supreme Court] overturning the longstanding Chevron doctrine will have a significant impact on many immigration adjudications. This now means that an agency’s interpretation of the INA doesn’t automatically prevail, which could level the playing field for immigrants and their families and employers. In removal cases, those seeking review of immigration judges’ or Board of Immigration Appeals [BIA] decisions should now have more opportunity to do so. Employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also benefit.
However, Stump also stated that:
We note possible negative consequences as well, as the decision has severely handicapped the executive branch’s power to modernize our immigration system through policy updates or regulations. Valuable immigration benefits created by regulations may be threatened if not clearly based on statutory language.
What, immigration benefits should be clearly based on statutory language? Sacré bleu!
Interesting, AILA had stated before the Court’s decision that:
[I]t appears that the Court may decide to limit or overrule Chevron. Whether such a ruling will help or hurt immigrants when challenging ambiguous agency decisions or interpretations is unclear.
There will be winners and losers, and some unintended consequences may occur in limiting previously afforded deference to federal agency decision making. For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or [BIA] decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker. However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.
Following the decision, Emma Winger at Immigration Impact wrote that:
Immigration and criminal justice advocates — who may not always agree with conservative groups — have also attacked Chevron as giving too much power to flawed immigration agencies. Advocates have argued that courts should not defer to immigration agencies when the consequences are deportation or serious criminal penalties.
Without Chevron, courts may be more free to protect the rights of immigrants by imposing their own interpretations of immigration laws. But courts may also hamper the ability of federal agencies to do their important work — like regulating pollution and protect fragile fish populations. For advocates who want to defend immigrants and also the environment, the end of Chevron is likely to be bittersweet.
Immigration attorney Carl Shusterman wrote before the decision that “While overturning, or limiting, the Chevron Deference Doctrine will have negative consequences in some areas, it would revolutionize the ability of persons to challenge immigration denials by federal agencies … based on restrictive interpretations of U.S. immigration laws.”
My Colleagues at the Center for Immigration Studies
Let me note what my colleagues have said in the past regarding Chevron deference. Andrew Arthur has expressed concern about the harm that activist federal judges not constrained by Chevron deference could do to Trump administration immigration initiatives. He has written in evaluating a provision in proposed immigration legislation eliminating Chevron deference regarding the bill’s other provisions that:
It is not clear why the bill would eliminate such deference, given the fact that it would prevent reviewing courts of appeal from substituting their own judgment … for that of the agency experts who would work implementing those provisions, and understand Congress' intent best.
Viewed in the best light to the drafter … this section would prevent future administrations from watering down the enforcement provisions or expanding the relief provisions in the bill. Given the likelihood that most of those determinations, however, would be made under the [Trump] administration, this would appear to … allow[] activist judges to undermine the effectiveness of the bill, and expand the relief available therein.
Jon Feere has been supportive of the Chevron doctrine in the context of insulating immigration enforcement initiatives from judicial interference. He has written:
Immigration authorities should invoke the Chevron doctrine in court and argue that agencies are better equipped to handle immigration regulation than any judicial authority.
The logic is that the agency is staffed with individuals who are experts in the subject matter and more knowledgeable than a judge when it comes to interpreting and applying the statute.
Ultimately, courts invoking Chevron are less likely to substitute an agency’s interpretation and enforcement of immigration statutes for the court’s own. This undoubtedly protects some authority of the political branches over immigration regulation.
On the other hand, John Miano has written that:
Over the past century, the nation’s government has transformed into a bureaucracy where nearly all law comes in the form of regulations promulgated by unelected bureaucrats. Immigration law is no exception.
The professional lobbying class loves the bureaucratic state. Instead of having to influence members of Congress who have to look to the next election, lobbyists have to influence bureaucrats who have to look to their post-administration lobbying and consulting jobs — that they can provide.
In theory, the federal courts are supposed to ensure that agencies act within the authority that Congress grants them. In practice, the courts have allowed agencies to run amok ... .
A[] gift to the agencies is deference, usually referred to as “Chevron deference”... . Deference to an agency is not completely a bad thing. The problem is that the Supreme Court has never spelled out in a rational manner where there should be deference.
In 2007, the tech industry threw a dinner party for DHS Secretary Chertoff where they pitched the idea of allowing, through regulation, aliens to work on student visas for years after graduation as a means to circumvent the statutory quotas on H-1B guestworker visas. After the dinner, DHS worked with lobbyists in secrecy to craft regulations … .
This lawmaking-by-dinner-party has resulted in ... the [growth of the] “post-Completion Optional Practical Training program” (OPT) [into the U.S.’s] largest guestworker program … . That’s right. Student visas are now the [numerically] largest guestworker visa, with aliens able to work for up to 42 months after graduation.
The statute never mentions work. Because the statute is silent … DHS can permit work after graduation.
And he has written that:
[T]he courts frequently extend deference to the agencies that is actually abdication. This is frequently called “Chevron deference”… . The district court’s opinion on OPT illustrates the extent deference can take.
When you combine [federal courts’ frequent finding that litigants lack] standing [to challenge administration immigration policies] with the extent of judicial deference, it is no wonder that federal agencies run amok.
The OPT litigation raises the question of what type of government the United States is going to have. Is America to be governed by an elected Congress or is America to be governed through regulations pitched at dinner parties held by the wealthy? The OPT litigation demonstrates the latter is reality and not hyperbole.
And, in fact, the D.C. Circuit has concluded in regards to OPT that:
The most straightforward reading of the INA is that it authorizes DHS to apply to admitted F-1 students the additional “time” and “conditions” that enable them to remain here while participating in OPT recommended and overseen by their respective academic institutions. But at a minimum, even if it is ambiguous on the point, the statute may reasonably be understood as the Department has read it … . That interpretation thus merits our deference [citing to Chevron].
What Does the Death of Chevron Deference Mean for Immigration? Some Considerations
Since the Trump Administration Generally Faired Poorly before Federal Judges, Won’t the End of Chevron Deference Add to a Possible Second Trump Administration’s Difficulties in Court?
I have noted that according to decades’ worth of studies compiled by Bethany Davis Noll, litigation director at the Institute for Policy Integrity, federal agencies have historically prevailed in about 70 percent of the legal challenges to their regulatory actions. But Noll’s study reviewing 278 Trump-era agency actions (48 involving immigration) found that federal agencies prevailed only 23 percent of the time. As to appeals, Noll reported that “[o]f the appeals that the government took, agencies lost on appeal 38% of the time, … won reversal … in 12%, ... [and] another 48% … were pending.”
Using the “affiliation of the president who nominated the judge as a proxy for the ideology of the reviewing judge”, Noll found that agencies in the Trump era won at a rate of 16 percent before Democratic-appointed judges as compared to 45 percent before Republican-appointed judges. She argued that “the data do not support the charge that the [Trump administration’s] low win rate is due to ‘activist judicial rulings’” and that “judicial ideology does not explain the overall loss rate”. She stated that “past studies have consistently found that judicial partisan affiliation has a significant impact on case outcomes in judicial review over agency decisions” and that “[n]o study has ever found that a[nother] presidential administration los[t] at this high of a rate in front of judges that are partisan-aligned with the president”.
Noll found that the Trump administration’s immigration policy win rate was only 10 percent (five out of 48 cases). I believe that, to a large extent, the data that Noll presented is simply the result of the Trump administration’s “pushing the envelope” — not as to what was statutorily or constitutionally permissible, but as to the boldness of its immigration enforcement initiatives as compared to those of prior recent administrations, Democrat and Republican alike. I would argue that with provocative programs such as the Migrant Protection Protocols, the historic divide between “popular opinion” and “elite opinion” on immigration (which would include the views of most federal judges, Democrat and Republican alike) came into play. I discuss this divide here.
So, wouldn’t things only get worse in a possible second Trump administration in the absence of Chevron deference, as many federal courts take advantage of the doctrine’s demise to abandon even a semblance of deference to DHS and Department of Justice (DOJ) interpretations of ambiguous federal immigration statutes? Well, maybe not.
But Have Federal Courts Really Been Constrained by Chevron Deference?
Have federal courts really been constrained by Chevron deference?
Over the last decade or so, the Supreme Court has upheld agency statutory interpretations at least in part on the basis of Chevron deference on a number of occasions — Holder v. Gutierrez; Holder v. Sawyers (2012) and Scialabba v. de Osorio (2014). In other cases, no such luck — Mellouli v. Lynch (2015) and Esquivel Quintana v. Sessions (2017). Professor Michael Kagan observed that:
On the one hand, the [Supreme] Court has repeatedly said, clearly and strongly, that courts should defer to the Attorney General’s interpretation of immigration laws, as the Chevron doctrine prescribes. On the other hand, the Court appears to honor this prescription in the breach. This kind of inconsistency with the application of Chevron deference is typical for the Supreme Court, and is not unique to immigration, but it has particular consequences for lower courts, which tend to make more consistent efforts to follow deference doctrines in administrative law cases … .
[T]he Supreme Court’s practice with regard to Chevron in immigration cases follows a discernable pattern. The Court does not meaningfully apply Chevron in cases concerning deportation, and also seems reluctant to do so in cases concerning immigration detention. But the Court does apply Chevron deference in other kinds of immigration cases. This pattern suggests important differences exist between certain immigration cases which influence the extent to which Chevron deference applies, if at all. Any statement of a rule that claims that Chevron does (or does not) apply in immigration cases is likely to be overbroad.
What about the lower federal courts? Justice Neil Gorsuch in his concurring opinion on Friday wrote that “[T]he search for ambiguity has devolved into a sort of Snark hunt: Some judges claim to spot it almost everywhere, while other equally fine judges claim never to have seen it.” He went on to say that:
Nor do courts agree ... [as to] whether an executive agency’s interpretation of an ambiguous statute is “reasonable.” [W]hat does that inquiry demand? Some courts engage in a comparatively searching review; others almost reflexively defer to an agency’s views. Here again, courts have pursued “wildly different” approaches and reached wildly different conclusions in similar cases.
And my colleague Andew Arthur has written that “circuit courts are supposed to defer to the BIA’s interpretation of … ambiguous statutes, but often don’t” and that “Chevron is a decision that circuits flaunt at their will, and the Supreme Court is too busy to stop them every time they try.” He pointed out the Ninth Circuit as a poster child for subversion of Chevron deference:
[Ninth Circuit] Judge VanDyke [in dissent]… took off the gloves, stating flatly:
The BIA had proven a resilient foe, apparently missing our not-so subtle insistence that we really, really like our crabbed interpretation of “relating to obstruction of justice” over the BIA’s — Chevron be damned. With the rationales from all our cases in shambles, it was obvious that if we continued to pretend deference to the agency, we would never get our way. So we just stopped pretending. [Emphasis in original.]
Again, Article III courts are supposed to defer to the BIA’s interpretation of ambiguous statutes and, as Judge Van Dyke noted, the Ninth Circuit had “previously determined at least three times that” [the section of the INA at issue] is, in fact, ambiguous.
Now shifting its position, [Van Dyke] explained, the circuit had “discerned that” [the] section … “is in fact ‘unambiguous in requiring an ongoing or pending criminal proceeding, and the BIA’s most recent interpretation is at odds with that unambiguous meaning’”.
After recapping the Ninth Circuit’s various gyrations on the issue, Judge VanDyke exclaimed that his circuit had been “gasli[ghting] the BIA”, “pretend[ing]” the agency had been “changing its mind, when in fact, it was our court that at each step replaced our old rationale with something new — each time more farfetched than the last, and often inconsistent with aspects of our prior rationales.”
However, even the Ninth Circuit (in Diaz-Reynoso v. Barr) upheld Trump administration Attorney General William Sessions’s highly controversial decision in Matter of A-B- in regards to what constitutes a “particular social group” for purposes of an alien being able to establish that they meet the definition of a refugee:
The Attorney General's and the BIA’s constructions of ambiguous statutory terms are entitled to deference under Chevron … . Because we have already concluded that the phrase “particular social group” is ambiguous … we must adhere to an agency interpretation of that term, so long as it is reasonable … . An interpretation fails this step if it is “arbitrary or capricious in substance.”
On appeal, Diaz-Reynoso contends that the Attorney General's decision in Matter of A-B- is not entitled to Chevron deference because it is arbitrary and capricious. Diaz-Reynoso raises two principal arguments … . Neither argument is persuasive.
Additionally, Chevron deference has often allowed the BIA to disregard prior federal court statutory interpretations, with obvious benefits to federal immigration enforcement efforts. Matthew Hoppock has provided a list on X of notable instances where this has happened. As Professor Kagan has written:
It is difficult to find a more striking example of a largely unchecked administrative state imposing itself against the liberty of individuals than immigration enforcement. In a deportation case, [DHS] operates as police, jailer, prosecutor, and deporter, while [DOJ] plays the role of judge through its Immigration Courts. Both departments answer to the same Chief Executive, and can easily work together in pursuit of a more aggressive enforcement policy.
How can the BIA (and the attorney general, by certifying BIA decisions for his review) do this? In its 2005 decision in Brand X, the Supreme Court ruled that:
A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from Chevron itself … . Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute … would allow a court's interpretation to override an agency's. Chevron's premise is that it is for agencies, not courts, to fill statutory gaps … . The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron … standard that applies if the court is reviewing the agency's construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.
Then 10th Circuit Court of Appeals judge Neil Gorsuch complained in his 2015 opinion in De Niz Robles v. Lynch that Brand X “requires this court to defer to the agency's policy choice even when doing so means we must overrule our own preexisting and governing statutory interpretation … . [Thus,] there are indeed some occasions when a federal bureaucracy can effectively overrule a judicial decision.”
Justice Gorsuch’s Concurrence
Speaking of Justice Gorsuch, libertarian-leaning conservative justices are not necessarily friends of immigration control. Of course, former Fifth Circuit judge Richard Posner famously proclaimed that “the adjudication of [immigration cases] at the administrative level has fallen below the minimum standards of legal justice”. In this vein, Professor Kagan has noted that “then-[Appeals Court] Judge [Neil] Gorsuch issued [a] broadside against the Chevron doctrine in an immigration case, to defend the interests of a Mexican citizen who was trying to adjust his status to become a legal resident.” In fact, Justice Gorsuch referred to that case in his concurrence on Friday:
In a[] case … which I heard as a court of appeals judge, De Niz Robles v. Lynch … the [BIA] invoked Chevron to overrule a judicial precedent on which many immigrants had relied … . The agency then sought to apply its new interpretation retroactively to punish those immigrants … who had relied on that judicial precedent as authority to remain in this country [in this case] with his U.S. wife and four children … . Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated Mr. De Niz Robles’s due process rights … . But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different “reasonable” one and in that way deny relief to countless future immigrants.
Th[is is] just [one] stor[y] among so many that federal judges could tell (and have told) about what Chevron deference has meant for ordinary people interacting with the federal government.
De Niz Robles involved the interplay of the INA’s “three and 10 year bars” and its section 245(i). Section 245(i), which Congress pointedly declined to extend following the 9/11 terrorist attacks, generally allows illegal aliens who are the beneficiaries of approved immigrant visa petitions filed on or before April 30, 2001, to adjust status to legal permanent residence upon payment of a $1,000 fee/fine. The bars, enacted into law in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), make aliens inadmissible who have been “unlawfully present in the United States for a period of more than 180 days” — for three years from the date of their departure (if their unlawful presence had been for less than one year) or for 10 years (if it had been for one year or more). Lamar Smith, chairman of the House Judiciary Committee’s immigration subcommittee from 1995 to 2000 and author of H.R. 2202, the House foundation for IIRIRA, explained in 1997 (along with my then subcommittee co-counsel Edward Grant) that “[f]orty percent of illegal immigrants … originally entered the United States with [temporary] legal status” and simply never left. “By strengthening the penalties for violations, th[is] provision[] aim[ed] to provide a much greater incentive in the future for compliance with our immigration laws.”
Professor Kagan noted that Judge Gorsuch’s opinion was “just one recent indication that there is potential for alliance between immigrant rights advocates and conservative critics of Chevron.”
What Will the Demise of Chevron Deference Mean for a Possible Second Biden Administration?
As I have noted, AILA President Kelli Stump has written in reaction to the demise of Chevron that “Valuable immigration benefits created by regulations may be threatened if not clearly based on statutory language.” And John Miano has asked whether “America [is] to be governed by an elected Congress or … through regulations pitched at dinner parties held by the wealthy?”, and has then answered his own question: “The OPT litigation demonstrates the latter is reality and not hyperbole.” Both Stump and Miano essentially say the same thing, Stump in favorable terms (because she likes the extra-statutory immigration “benefits”) and Miano in negative terms (because the “benefits” subvert the constitutional separation of powers and lead to policies that hurt Americans).
In fairness, I should note that the OPT regulations emanated from a dinner party attended by Microsoft lobbyist Jack Krumholz and President Bush’s Secretary of Homeland Security Michael Chertoff. But the creation of extra-statutory immigration “benefits” has been taken to a whole new level by President Biden’s Secretary of Homeland Security Alejandro Mayorkas. A prime example is his abuse of the parole power.
Pursuant to Congress’s grant of the parole power, the Secretary of Homeland Security “may … in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States”. I have long complained about the executive branch’s abuse of the statutory parole power on a bipartisan basis going back to the Eisenhower administration. One of my first pieces for the Center for Immigration Studies was titled “The Pernicious Perversion of Parole”, and I have since penned “Biden’s Perversion of Immigration Parole Has Reached a New Low” and that “Biden’s Perversion of Parole Is a Constitutional Crisis in the Making”. I have written that:
There is a “dark” web, a dark internet, referring to websites that cannot be accessed without special software … . [T]his dark web “may be used ... to conceal criminal or otherwise malicious activities”, with major markets in illicit drugs, pharmaceuticals, fake documents, fraud, hacking, and child sexual abuse/exploitation.
There is also a “dark” immigration codex, one that can be equally as sinister. In contravention of the bedrock constitutional principal of separation of powers, Congress has not passed this shadow Immigration and Nationality Act, rather it has been created out of whole cloth by the executive branch, usually for the express purpose of “circumvent[ing] Congressionally established immigration policy” (as the House Judiciary Committee concluded in 1996).
The abuse continues with President Biden. In fact, his administration has actually driven the megalomaniacal perversion of the executive’s statutory immigration powers to new lows.
The Biden administration has certainly tried to bolster its perverse abuse of the parole statute by recourse to Chevron deference. DHS Secretary Mayorkas’s “Explanation of the Decision to Terminate the Migrant Protection Protocols” argued that:
Congress simply required that parole decisions be made on a case-by-case basis and that they be based on “urgent humanitarian reasons” or “significant public benefit.” As the statute does not define those ambiguous terms, Congress left it to the agency to define them [citing Chevron].
In implementing [the parole power, the Immigration and Naturalization Service and then DHS] has long interpreted the phrase “significant public benefit” to permit it to parole noncitizens “whose continued detention is not in the public interest as determined by” specific agency officials.
The American Civil Liberties Union supported this contention in an amici curiae brief filed with the Supreme Court:
DHS and its predecessor agency have long interpreted the parole authority to grant broad discretion to release, and decades ago promulgated regulations, consistent with that interpretation, to describe situations in which parole would “generally be justified.”… Like the statute, the regulations also provide for broad discretion; for example, one of those categories is “[a]liens whose continued detention is not in the public interest as determined by” designated types of DHS officials … . Neither of the courts below even acknowledged this regulation, much less explained why they failed to defer to the agency’s longstanding interpretation of its parole power under Chevron.
The Fifth Circuit determined that the government had “forfeited the Chevron issue by failing to mention it in its brief”, though the Supreme Court later ruled in favor of the Biden administration on other grounds.
Conclusion
Chevron deference has had an extraordinary 40-year run. We now return, for better or worse, to judicial primacy, as envisioned by the Founding Fathers in the Constitution and by Congress through the APA. The demise of Chevron will obviously be disadvantageous to the administrative agenda of the administration in power, though it is not clear to what extent. The most obviously activist federal courts, such as the Ninth Circuit, seem to have an uncanny ability to determine — regarding disfavored (by the court) agency interpretations of federal statutory provisions — that the provisions are not ambiguous, or, to the extent they are, have been impermissibly interpreted by the agencies.
In terms of immigration policy, the same can be said, though the BIA may turn out to be the biggest loser, as in the context of removal proceedings it has been rather successful in “Brand X-ing” detrimental judicial interpretations of statutes. For a possible second Trump administration, this may be especially detrimental for aggressive enforcement efforts that are upheld by the BIA (or by the attorney general after he has certified BIA decisions for review).
On the other hand, for a possible second Biden administration, the demise of Chevron deference might make it harder for the administration to sustain in court immigration benefits programs created without a clear statutory foundation and based on tenuous and opportunistic statutory interpretations, such as its abusive use of the parole power to circumvent the Immigration and Nationality Act.