Immigration Law After Relentless

17 Pages Posted: 6 Apr 2024 Last revised: 17 Jun 2024

See all articles by Nancy Morawetz

Nancy Morawetz

New York University School of Law

Date Written: April 5, 2024

Abstract

With the Supreme Court’s decisions on the future of Chevron deference set to be issued by the end of this Term, the Solicitor General is laying the groundwork for treating the decisions as irrelevant for immigration law. In recent cases, the Solicitor General has argued that 8 U.S.C. § 1103(a)(1) provides a freestanding basis for deference by the judiciary due to a phrase that the Attorney General’s views are “controlling.” This Essay shows that the Solicitor General’s argument is deeply flawed. Building on textual critiques, this Essay shows that for one hundred years Congress has considered how to manage multiple executive departments administering immigration laws. From 1924 until 1952, Congress did not preclude intra-branch disagreements, and in at least one case such disagreements were presented to the Supreme Court. In 1952, Congress acted to have the executive speak with one voice and placed that power with the Attorney General in § 1103(a)(1). Until recently, the Solicitor General recognized that § 1103(a)(1) was nothing more than a method for resolving intra-branch conflicts. The Solicitor General’s new effort to turn § 1103(a)(1) into a separate basis for judicial deference to agency views has no basis in the text or history of the provision. The Solicitor General’s argument should be abandoned before it leads to a new wave of circuit conflicts about deference in immigration cases in the wake of the Supreme Court’s resolution of Chevron’s future this Term.

Suggested Citation

Morawetz, Nancy, Immigration Law After Relentless (April 5, 2024). NYU School of Law, Public Law Research Paper No. 24-26, New York University Law Review Online, Vol. 99, 2024, Available at SSRN: https://ssrn.com/abstract=4785466

Nancy Morawetz (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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