In our contribution to the 2021 Duke Law Journal administrative law symposium on Chevron deference, Shoba Sivaprasad Wadhia and I make the case against Chevron deference in immigration adjudication, and we argue that the federal regulators should shift the default from adjudication to rulemaking to make major immigration policy at the agency level. Among other things, shifting the policymaking default to rulemaking is more consistent with Chevron’s theoretical foundations—to leverage agency expertise, to engage in a deliberative process, and to increase political accountability.
To date, most of the calls to narrow Chevron‘s domain have focused on courts. We think it is a mistake to just focus on courts, as the political branches can also act. Most obviously, our proposal could and should be part of any comprehensive immigration reform legislation that’s likely to be proposed after the election. This legislative proposal should garner at least some bipartisan support—from Republicans who have long called for the elimination of Chevron generally and from Democrats and Republicans who appreciate the normative case against Chevron deference in immigration adjudication in particular.
Second and perhaps less obvious, the Executive Branch could embrace this reform internally by not seeking Chevron deference for agency statutory interpretations embraced via immigration adjudication and by shifting the default from adjudication to rulemaking when engaged in significant immigration policymaking. (In this post, I’ll bracket the fascinating questions about Chevron waiver, which are further explored in Part III.C of our draft article.) The agency can commit to this new process without a congressional or judicial command, via its discretion to create internal administrative law.
Yesterday, the Justice Department demonstrated that our proposal for Executive Branch reform of immigration adjudication and deference is not merely hypothetical. In an interim final rule (to be codified at 28 C.F.R. 50.27) aimed at implementing Executive Order No. 13,891, Promoting the Rule of Law Through Improved Agency Guidance Documents, the Justice Department adopts via internal law certain substantive requirements for all Justice Department agency guidance documents and certain heightened procedural requirements for significant guidance documents. The interim final rule also binds the agency in litigation by stating that “[t]he Department shall not seek deference to any guidance document issued by the Department or any component after the effective date of this rule that does not substantially comply with the[se] requirements.”
This interim final rule, of course, doesn’t deal with Chevron deference or immigration adjudication. Instead, it deals with the procedures and substance of agency guidance and the waiver of Auer deference for agency regulatory interpretations. But it provides a nice roadmap for how the Attorney General could use internal law to similarly narrow Chevron‘s domain in immigration adjudication.
As we note in our article, the President and Congress need not just stand by, waiting for this internal administrative law to develop organically. The President should insist this internal reform of anyone he nominates to serve as Attorney General, and members of the Senate Judiciary Committee can and should extract this commitment from the Attorney General nominee as part of the confirmation process. An early commitment by the Attorney General to shift major immigration policy to informal rulemaking should encourage a shift internally.