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) have posted The Case Against Chevron Deference in Immigration Adjudication (Duke Law Journal, Vol. 70, 2021 Forthcoming) on SSRN. Here is the 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.
