What ‘Chevron’s’ Death at SCOTUS Could Mean for Immigration Law

Below is an analysis of the potential immigration law consequences of the Supreme Court’s landmark decision issued June 28th overruling Chevron v. Natural Resources Defense Council:

Decided unanimously in 1984, Chevron held that where a statute is ambiguous, courts generally defer to the interpretation of the Executive branch agency tasked with administering that law, so long as its interpretation is a “permissible” way to resolve the ambiguity. “Chevron deference” was premised on two related ideas: agencies often have superior subject matter expertise, particularly on technical matters; and when Congress leaves an ambiguity, it generally intends administrative agencies to work out the details.

In overturning the 40-year old doctrine, Chief Justice Roberts writing for the 6 conservative Justices held that Chevron deference conflicted with the Administrative Procedure Act (enacted in 1946) and, more generally, assailed the doctrine as “fundamentally misguided.” According to the Chief, all statutes “have a single, best meaning” that is “fixed at the time of enactment”: “[i]n the business of statutory interpretation, if it is not the best, it is not permissible”—and the courts decide what’s “best.”

Overturning Chevron is certain to spur more litigation across all subject matters, as it puts up for grabs many judicial decisions and agency actions that were based at least in part on Chevron. Chief Justice Roberts tried to downplay this destabilizing effect, asserting that a prior case’s “mere reliance” on Chevron isn’t enough by itself to justify overturning that case, but as Justice Kagan notes in dissent, that isn’t much of a limit. Overturning Chevron interacts with a decision issued on June 31st, in which the same 6-3 majority effectively eliminated the six-year statute of limitations for broad challenges to agency regulations, many of which were previously upheld under Chevron. Together, the two decisions basically guarantee a forthcoming avalanche of litigation challenging all manner of agency action, further contributing to the headwinds agencies face when they seek to act.

In the immigration context, agencies act in at least a couple of ways to confer benefits on some noncitizens while acting to deport others and Chevron’s death will likely make both more difficult, at least at the edges of statutory authority. For example, the Board of Immigration Appeals routinely gets deference when (expansively) interpreting the grounds upon which someone can be deported—but not anymore, which should lead to its reversal on many issues. On the other hand, Chevron’s end could result in DHS having less latitude to interpret statutes in ways that benefit immigrants; other legal doctrines (like the requirement of standing) often make those types of agency actions difficult to challenge, but expect more litigation if there is a party with clear standing, like in the labor/employment immigration context, where employers routinely chafe at worker-protective agency rules.  

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