The Case Against Chevron Deference in Immigration Adjudication

40 Pages Posted: 21 Aug 2020 Last revised: 3 Sep 2020

See all articles by Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

The Pennsylvania State University (University Park) – Penn State Law

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: July 29, 2020

Abstract

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, 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 Essay presents an in-depth case study of immigration adjudication and argues that the case against Chevron has perhaps its greatest force in this immigration context. 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, Hickman and Nielson understandably focus on the Supreme Court. We too explore that judicial option, but we argue 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, our proposal should be part of any comprehensive immigration reform legislation, which may well become a key legislative initiative after the presidential election. Second, the Executive Branch can and should embrace this reform internally—by not seeking Chevron deference for immigration adjudication and by turning to rulemaking instead of adjudication to make major immigration policy. Shifting the default from adjudication to rulemaking for immigration policymaking 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

Suggested Citation

Wadhia, Shoba Sivaprasad and Walker, Christopher J., The Case Against Chevron Deference in Immigration Adjudication (July 29, 2020). Duke Law Journal, Vol. 70, 2021 Forthcoming, 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, Available at SSRN: https://ssrn.com/abstract=3662827

Shoba Sivaprasad Wadhia

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Christopher J. Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

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