As Aaron Nielson has previously noted on the blog, the 2021 edition of the Duke Law Journal‘s annual administrative law symposium will focus on the future of Chevron deference, with the lead article by Kristin Hickman and Aaron Nielson entitled Narrowing Chevron‘s Domain. Hickman and Nielson argue that the Supreme Court should consider eliminating Chevron deference in agency adjudication.
Shoba Sivaprasad Wadhia and I are contributing an essay to this symposium that focuses on immigration adjudication. Earlier this week we posted to SSRN an early working draft of this essay, entitled The Case Against Chevron Deference in Immigration Adjudication. Here’s 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.
I plan on blogging more about this essay, especially our calls for legislative reform and reform within the Executive Branch, in the coming days. But for now, I just wanted to flag that we have an early public draft of the paper here, and we’d of course love any comments folks may have.