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By Suchita Mathur | Immigration Impact
The Supreme Court handed a momentous victory to supporters of deregulation on June 28 in Loper Bright Enterprises v. Raimondo, discarding the long-standing doctrine known as Chevron deference. The decision will almost certainly lead to a sea-change in how federal agencies are able to do their work, with huge and likely devastating impacts on the environment, food and drug safety, and consumer protections, among other areas.
But for immigration advocates, Loper Bright presents a mixed bag – including some grounds for optimism.
Under the unanimous 1984 decision in Chevron v. NRDC, courts were supposed to defer to an agency’s “reasonable” interpretation of ambiguous statutes that it administers. But in a 6-3 decision sharply split along ideological lines, the conservative majority in Loper Bright held that such deference violates both the historic understanding of the judiciary’s proper role and the Administrative Procedure Act (APA).
Chief Justice John Roberts wrote for the majority that requiring deference to executive agencies on matters of statutory interpretation was contrary to the Framers’ conception of an independent judiciary. He harkened back to the Court’s foundational ruling in Marbury v. Madison that it is the courts’ role “to say what the law is.” Congress reiterated the importance of that role, the majority posited, in a provision of the APA – a statute passed 40 years before the Court’s unanimous decision in Chevron – that requires reviewing courts to “decide all relevant questions of law.”
Waving aside arguments by the government and dissenting justices about the judiciary’s lack of expertise in technical and scientific fields, inconsistency in the meaning of federal law, courts engaging in policymaking, and the importance of judicial humility and stare decisis, the majority concluded that Chevron deference created a much bigger problem: it prevented “judges . . . from judging.” In an opinion thin on legislative history, Roberts held that “Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.”
Many observers of the federal judiciary–and particularly of the Supreme Court–may find it difficult to swallow the majority’s characterization of those institutions as independent and free from political influences. The Loper Bright decision, which represents a massive power grab by the federal judiciary from specialized executive agencies, only increases the influence individual judges can have on issues of national policy.
How are courts going to decide cases now?
The majority emphasized that all statutes have a “single, best meaning” that is “fixed at the time of enactment.” Courts must determine this meaning, even for unclear statutes, by simply using the traditional tools of statutory construction.
Technically, the Loper Bright decision levels the playing field, putting agencies and those challenging agency decisions on more equal footing as to their interpretations of a statute. But the majority also emphasized that the Executive’s views will continue to play an important role in courts’ construction of statutes involving agency action. In line with historical practice, courts may seek guidance about statutory meaning from agency interpretations – particularly those that are issued contemporaneously with the relevant statute and remain consistent over time. These principles, first laid out in Skidmore v. Swift & Co. in 1994, grant an agency determination more weight based on its actual persuasiveness.
The majority also acknowledged that some statutes do affirmatively grant agencies discretion in carrying out their duties. In some instances, Congress expressly delegates authority to define specific statutory terms or create rules to fill in details of a statutory scheme; in others, it grants agencies flexibility in their regulatory work. In such cases, courts must determine what authority has been permissibly delegated and then decide whether an agency engaged in “reasoned decisionmaking” under the APA.
What does this mean for immigrants?
How Loper Bright will impact immigrants depends on whether they are facing removal proceedings, seeking benefits from USCIS, or are the beneficiaries of programs created by the Executive branch.
Even before the decision in Loper Bright, DHS had begun arguing in courts around the country that the Immigration and Nationality Act (INA) expressly delegates authority to decide questions about immigration law to the Attorney General.
As academics and advocates have ably demonstrated, this is a highly implausible reading of INA § 103(a)(1), which merely resolves any disagreements within the Executive branch about the meaning of immigration laws by granting the Attorney General controlling authority.
The statutory text and legislative history do not reasonably support the government’s argument in favor of continued deference to immigration agencies. But that will not necessarily be an obstacle to hostile judges looking to rule against immigrants, either by deferring to harmful agency interpretations or by their own “judging.” Advocates should be prepared to argue in favor of their interpretations of the immigration statutes using all the tools of statutory construction.
Only Justice Neil Gorsuch, in his concurrence, mentioned the impact of the Chevron doctrine on immigration. He specifically called out the Board of Immigration Appeals (BIA) for attempting to overrule circuit case law to the detriment of immigrants’ rights. Many advocates would agree that the BIA frequently construes the INA in ways that harm immigrants – by expanding the grounds of removability and narrowing availability of relief. This has often been the case regardless of the presidential administration.
As a result, ending deference to the BIA may allow circuit courts of appeal to overrule negative agency decisions more often, to the benefit of individuals in removal proceedings.
Similarly, more federal district court judges may be open to overturning decisions by USCIS to deny individual benefits like green cards.
But the decision also has implications for DHS policies that impact larger groups of noncitizens. The end of Chevron could further endanger programs that provide important benefits, like DACA, which has been subject to challenges by anti-immigrant actors arguing that it isn’t authorized by federal law. USCIS has also issued regulations granting employment eligibility to spouses of certain employment-based immigrants and international students in scientific and technical fields, which courts have also upheld at least in part based on Chevron – decisions that may now be more vulnerable to attack.
On the flip side, should Donald Trump be re-elected, Loper Bright could be an additional tool for advocates looking to challenge the anti-immigrant rules and policies that his administration will undoubtedly attempt to enact.
What will happen next?
Litigants challenging immigration policies will still have to contend with the many jurisdictional bars and limits on certain kinds of relief in the INA. Parties not directly impacted by agency action will also continue to face obstacles – like the requirement of standing – to bringing lawsuits.
Yet, as Justice Ketanji Brown Jackson wrote in her dissent in Corner Post v. Board of Governors, another decision from this term that invites regulatory challenges, there is little doubt that Loper Bright will unleash a “tsunami of lawsuits against agencies.” For some immigrants, that may prove to be a good thing.