Is Chevron dead? Reflections After Oral Arguments in Relentless, Inc. and Loper Bright Enterprises


The United States Supreme Court heard oral arguments on January 17, 2024, in two cases that could determine the future of oversight of federal agencies in this country. Our November 29, 2023 blog post provided a summary of the issues raised Relentless, Inc. v. Commerce Department And Loper Bright Enterprises v. Raimondo. As we have reported in this blog, judges are considering whether to limit or overturn Chevron USA, Inc. v. Natural Resources Defense Council467 US 837 (1984), which held that American courts should show great deference to the decisions of federal agencies.

Based on the pleadings, it appears the Court may decide to limit or overturn Chevron. It is unclear whether such a move will help or harm immigrants when they challenge ambiguous agency decisions or interpretations. A decision in both cases is expected by the end of June.

In the background, in Kisor v. Wilkie, 588 U.S. __ 139 S.Ct. 2400 (2019), the Supreme Court considered how a court should interpret ambiguous regulations. Kisor This was an appeal of the U.S. Department of Veterans Affairs’ denial of benefits based on the agency’s interpretation of its own regulations. The call in Kisor challenged the policy of “Auer deference” set out in Auer v. Robbins, 519 U.S. 452 (1997). In Auerthe Court did not annul Chevron but created an exception defining cases in which federal agencies must not show deference. To be entitled to deference, the agency’s interpretation of a rule must reflect its “fair and considered judgment” and not a “convenient contentious position” or an “unfair surprise.” Kisor, 139 S.Ct. at 2406. A plurality of judges of Kisor refused to cancel Auer And Chevron.

If the Supreme Court now restricts Chevron, he might argue that agencies can only interpret ambiguous laws if Congress grants explicit authorization. Each agency would need explicit discretion in a law. Alternatively, if the Court annuls Chevron, federal courts would no longer normally defer to the interpretation of a federal agency. Instead, judges would engage in new review, requiring a granular examination of the details of the record to determine whether an agency misinterpreted or misapplied the law.

A question that weighed on the debates was that of the fate of cases judged on the basis of Chevron. Would these cases be re-examined under the new standard set by the Supreme Court? Lower courts relied on Chevron thousands of times to rely on agency interpretations.

Not all immigration practitioners and their clients will feel the consequences if Chevron is restricted or canceled. There will be winners and losers, and some unintended consequences may arise from limiting the deference previously given to federal agency decision-making. For example, in referral cases, Chevron deference harms those who seek to review the decisions of the immigration judge or Board of Immigration Appeals. It may also harm employers seeking a favorable interpretation of a law granting an H-1B or L visa to a non-citizen worker. However, Chevron deference can be helpful when the immigration agency seeks to grant work authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.

If the Supreme Court retains but limits Chevronefforts will be made to argue that Chevron deference should not apply in BIA decisions. Numerous case decisions have held that BIA decisions receive Chevron deference, but it may be possible to argue for a reversal of this precedent, depending on how the Court rules Tirelessly And Loper.

The current position of the U.S. government appears to be that Section 103 of the Immigration and Nationality Act (INA) incorporates an express delegation of interpretive authority. INA § 103(a)(1) states:

The Secretary of Homeland Security shall be responsible for the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except to the extent that this chapter or laws relate to powers, functions and duties conferred on the President, Attorney General, the secretary of State, agents of the Department of State, or diplomatic or consular officials: Provided, however, that the determination and decision of the Attorney General in respect of all questions of law it will be decisive.

Thus, asserts the government, judicial deference with regard to decisions taken under the BIA exists even if Chevron is rejected.

However, there is a strong argument that INA § 103(a)(1) does not not constitute an express delegation of interpretative power to the agency. All federal agencies are afforded some level of deference simply because they are charged with administering a law. The language after “Provided” in INA § 103(a)(1) is simply intended to divide U.S. authority over immigration law between the U.S. Department of Justice and the U.S. Department of State.

Roman Martinez, lawyer for certain fishing companies in Tirelesslyargued that the Chevron This doctrine is an abdication of the judicial branch’s obligation to say what the laws mean and to check the executive branch when its agencies deviate from their congressional authorizations.

Representing the Biden administration, U.S. Solicitor General Elizabeth Prelogar argued that fishing companies had not demonstrated the “truly extraordinary justification” to overturn 40 years of Supreme Court precedent. The court’s three liberal justices appear to support maintaining Chevron in place, asserting that the agencies possess scientific and technical expertise that makes them better positioned than the courts to resolve ambiguities in federal laws.

Solicitor General Prelogar urged the justices to approach the issue the same way they did in Kisorwhere they didn’t cancel Chevron. Instead, they said the least drastic measures Auer the standard of deference should apply.

Justice Kavanaugh took issue with Solicitor General Prelogar’s prediction about the post-Chevron chaos by arguing that the current Chevron The doctrine invites systemic shocks whenever the ruling political party in the executive branch changes. But perhaps this is actually a problem of delegation, rather than Chevron respect. When Congress provides for an express delegation in a statute, Chevron should not be a factor. Congress’s ambiguous grants of authority therefore appear to be the real problem, not Chevron.

Stay tuned for these important decisions. Immigration law is already complex. But regardless of the Supreme Court’s decision Tirelessly And Loperimmigration lawyers will soon also have to become experts in administrative law.


AILA Members – The Employee Benefits Litigation Committee will present “SCOTUS Wild West – How the Chevron Outcome and Other Administrative Law Cases Could Dramatically Change Your Immigration Practice,” an AILA Roundtable , on Friday, March 8, 2024 at 2:00 p.m. (Eastern Time). More information is coming.

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