Why the End of Chevron Could Be a Win for Immigrants
On Friday, the Supreme Court overturned Chevron v. Natural Resources Defense Council, a 1984 ruling that gave government agencies broad discretion to interpret “ambiguous” laws. “Critics have long complained that Chevron deference allowed bureaucrats to usurp a judicial function and systematically disadvantaged ‘the little guy’ in disputes with an overweening administrative state,” wrote Reason‘s Jacob Sullum of the Friday decision in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce.
The decision will impact the way agencies regulate fields such as environmental and public health policy. Broadly speaking, it’s been celebrated on the right and criticized on the left. But “immigration is an area of the law where the partisan alignments break down over Chevron,” says Michael Kagan, a law professor at the University of Nevada, Las Vegas, and director of the university’s Immigration Clinic.
“We normally think of immigrant rights as part of the progressive coalition politically, and that coalition feared Chevron’s demise,” Kagan continues. “But Chevron was consistently bad for immigrants.”
This was on Justice Neil Gorsuch’s mind as he wrote his concurrence. Gorsuch described a case he heard as a court of appeals judge in which the Board of Immigration Appeals (BIA), the administrative body that applies and interprets immigration laws, “invoked Chevron to overrule a judicial precedent on which many immigrants had relied.” The agency then tried “to apply its new interpretation retroactively to punish those immigrants,” Gorsuch explained. “Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated” one of those immigrants’ “due process rights.”
“But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different ‘reasonable’ one,” he continued, “and in that way deny relief to countless future immigrants.”
Immigration lawyers and analysts who spoke with Reason about the end of Chevron stressed that it might take years to see the full effects of Friday’s decision and cautioned against viewing it as a massive win for immigrants. That said, it represents a significant shift in several areas of immigration policy.
“On balance, I think getting rid of Chevron will be a modest net plus for immigration liberalization,” says Ilya Somin, a law professor at George Mason University and a contributor to The Volokh Conspiracy. “I think overruling Chevron could potentially constrain some executive attempts at immigration restriction, especially really sweeping ones, like some of the ones contemplated by [former President Donald] Trump, should he return to power.”
But Somin notes there are “strictur
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