Is Chevron Dead? Thoughts after Oral Arguments in Relentless, Inc. and Loper Bright Enterprises
The U.S. Supreme Court heard oral arguments on January 17, 2024 in two cases that may determine the future of federal agency review in this country. Our November 29, 2023 blog post provided a summary of the issues in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. As we indicated in that blog, the justices are considering whether to limit or overturn Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), which held that U.S. courts should give substantial deference to federal agency decisions.
Based on the oral arguments, it 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. A decision in the two cases is expected by late June.
As background, in Kisor v. Wilkie, 588 U.S. __ 139 S. Ct. 2400 (2019), the Supreme Court addressed how a court should interpret ambiguous regulations. Kisor involved an appeal of the denial of benefits by the U.S. Department of Veterans Affairs, based on the agency’s interpretation of its own regulations. The appeal in Kisor challenged the policy of “Auer deference” set forth in Auer v. Robbins, 519 U.S. 452 (1997). In Auer, the Court did not overrule Chevron but created an exception defining when federal agencies are not owed deference. To be entitled to deference, the agency’s interpretation of a rule must reflect its “fair and considered judgment” and not a “convenient litigating position” or an “unfair surprise.” Kisor, 139 S. Ct. at 2406. A plurality of the justices in Kisor declined to overrule Auer and Chevron.
If the Supreme Court now narrows Chevron, it could hold that agencies can interpret ambiguous statutes only if Congress grants explicit authorization. Each agency would need an explicit grant of discretion in a statute. Alternatively, if the Court overturns Chevron, federal courts would no longer normally defer to a federal agency’s interpretation. Instead, judges would engage in de novo review, requiring the granular review of record details to determine if an agency has misinterpreted or misapplied the law.
One question hanging over the arguments was the fate of cases decided based on Chevron. Would those cases get a fresh review under whatever new standard the Supreme Court sets? Lower courts have relied on Chevron thousands of times to defer to agency interpretations.
Not all immigration practitioners and their clients will feel the impact if Chevron is narrowed or overruled. 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 Board of Immigration Appeals 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.
If the Supreme Court retains but limits Chevron, efforts will be made to argue that Chevron deference should not apply in BIA adjudications. Many case decisions have held that BIA adjudications receive Chevron deference, but there may be room to argue for a reversal of that precedent, depending on how the Court rules in Relentless and Loper.
The U.S. government’s current position 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 charged with the administration and enforcement of this chapter and all other laws relating to the immigration and and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
Thus, the government claims, judicial deference to BIA decision making exists even if Chevron is overruled.
However, there is a strong argument that INA § 103(a)(1) does not constitute an express delegation of interpretative authority to the agency. All federal agencies are granted some level of deference simply by virtue of being charged with administering a statute. The language after “Provided” in INA § 103(a)(1) is intended simply to allocate U.S. immigration law authority between the U.S. Department of Justice and U.S. Department of State.
Roman Martinez, attorney for some of the fishing companies in Relentless, argued that the Chevron doctrine is an abdication of the judiciary’s obligation to say what laws mean, and to be a check on the executive branch when its agencies stray from their congressional authorizations.
Representing the Biden administration, U.S. Solicitor General Elizabeth Prelogar argued that the fishing companies had not shown the “truly extraordinary justification” to reverse 40 years of Supreme Court precedent. The court’s three liberal justices appeared to support keeping Chevron in place, asserting that agencies have scientific and technical expertise that make them better suited than courts to resolve ambiguities in federal statutes.
Solicitor General Prelogar urged the justices to approach the question in the same way that they did in Kisor, where they did not overrule Chevron. Instead, they stated that the less drastic Auer deference standard should apply.
Justice Kavanaugh challenged Solicitor General Prelogar’s prediction of post-Chevron chaos by arguing that the current Chevron doctrine invites system shocks every time the political party in power in the executive branch changes. But this may really be a problem of delegation, rather than Chevron deference. When Congress provides express delegation in a statute, Chevron should not be a factor. So ambiguous grants of authority from Congress seem to be the real problem, not Chevron.
Stay tuned for these important decisions. Immigration law is already complex. But no matter how the Supreme Court decides Relentless and Loper, immigration lawyers will soon also have to become administrative law experts.
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AILA Members – The Benefits Litigation Committee will present “SCOTUS Wild West – How the Outcome of Chevron and Other Administrative Law Cases Could Dramatically Change Your Immigration Practice”, an AILA Roundtable, on Friday, March 8 2024 at 2:00 PM Eastern. More information will be forthcoming.