The Case Against Chevron Deference in Immigration Adjudication
Duke Law Journal, Vol. 70, pp. 1197-1243, 2021
Ohio State Legal Studies Research Paper No. 558
Penn State Law Research Paper No. 15-2020
C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 20-15
47 Pages Posted: 21 Aug 2020 Last revised: 28 Jan 2021
Date Written: July 29, 2020
The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation and judicial deference—including agency expertise, deliberative process, and even political accountability—collapses in the immigration adjudication context.
As for potential reform, Professors Hickman and Nielson understandably focus on the Supreme Court. This Article also explores that judicial option but argues that it is a mistake to focus just on courts when it comes to immigration law and policy. The political branches can and should act to narrow Chevron’s domain. First, this proposal should be part of any comprehensive immigration reform legislation. Second, the Executive Branch can and should embrace this reform internally—by not seeking Chevron deference in immigration adjudication and by turning to rulemaking instead of adjudication to make major immigration policy. Shifting the immigration policymaking default from adjudication to rulemaking is more consistent with Chevron’s theoretical foundations—to leverage agency expertise, to engage in a deliberative process, and to increase political accountability.
Keywords: chevron deference, immigration, administrative adjudication, rulemaking, administrative law
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