Jared Culver's Picture


  by  Jared Culver

The Supreme Court of the United States (SCOTUS) granted certiorari in the case of Loper Bright Enterprises v. Raimondo. In particular, they granted review to examine whether or not Chevron deference should be overruled. This is the most important SCOTUS case on the docket as it has the potential to restore the Separation of Powers and thereby the idea of rule by, for, and of the people.

First off, the case of Loper has nothing to do directly with immigration. Rather, it is a challenge to the National Marine Fisheries Service (NMFS) requiring companies to pay for Federal monitors of their industry out of their own pockets. The NMFS rule was upheld by the D.C. Circuit because Congress was silent about the issue. From the D.C. Circuit:

“The court’s review thus is limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency’s interpretation is reasonable. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984). Although the Act may not unambiguously resolve whether the Service can require industry-funded monitoring, the Service’s interpretation of the Act as allowing it to do so is reasonable.”

Here you behold the magic of Chevron deference, first articulated in the 1984 case cited in the quote above. From this precedent, Congress was largely shut out of policy making and that power was shifted to the growing, unelected administrative state. The idea behind Chevron deference is plausible. Congress had spent years expanding the reach of their legislation over every corner of the United States. However, Congress often drafted sloppy and vague legislation because, while they wanted to regulate everything, they were actually experts on very little. The idea was that Congress would pass things that sounded good on the campaign trail, but would need a lot of blanks filled in by regulatory agencies. When agencies began filling in those blanks as they saw fit, legal challenges emerged questioning how agencies had so much power to essentially do the job of Congress.

When these legal challenges reached courts, it was difficult to discern what Congress actually authorized the agencies to do. Vague statutes presumably provided unlimited authority to agencies to legislate, but that certainly does not seem proper in a system of Separation of Powers. So the Justices decided that where Congress was not clear, the agencies were free to make reasonable interpretations of the statutes (aka the job of judges). In other words, where Congress was vague or ambiguous, agencies were free to make reasonable interpretations and courts would defer to those interpretations.

Thus, you can think of Chevron as the Judiciary telling Congress to be clear in legislation. Sadly, Congress has been more than happy to continue drafting vague and ambiguous legislation without even going back and clarifying old statutes. Perhaps more importantly, it has encouraged agency attorneys to locate ambiguity in every corner of the Code. In this climate, the administrative state sits as the real Congress (and court) with regards to policy, and courts defer to their interpretations. Of course, this gets the entire structure of the Constitution wrong. It is not the job of Congress to block unlawful executive action. Instead, the Executive Branch cannot act without authorization from Congress.

Perhaps no other policy area has been as dramatically affected by the Judiciary’s unilateral disarmament than immigration. A prime example also comes from the D.C. Circuit when they essentially deferred to the Executive Branch in the creation of Optional Practical Training (OPT). OPT is purely an executive creation that turns a student visa into one of the largest work visas in the country. The basis for the power to do that? Silence from Congress. From the D.C. Circuit:

“Washington Alliance of Technology Workers (Washtech) argues that the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework. But that argument wrongly assumes that, beyond setting terms of entry, the visa definition itself precisely demarcates the time and conditions of the students’ stay once they have entered. Congress gave that control to the Executive. [emphasis added] The F-1 definition tethers the Executive’s exercise of that control, but by its plain terms does not exhaustively delimit it. [emphasis added] We hold that the statutory authority to set the time and conditions of F-1 nonimmigrants’ stay amply supports the Rule’s OPT program.”

So, Congress wrote extensive statutes creating categories of visas with specific requirements concerning each category’s eligibility. However, Congress did not “exhaustively delimit” the power to create terms and conditions for visas, therefore the visas can become whatever the agencies say. In this case, a student visa that does not allow employment becomes one of the largest work visas in the country.

Presidents have also read a single immigration parole provision that requires case-by-case determinations to grant temporary parole to create tons of categorical parole programs that grant status to aliens otherwise barred by Congress to remain in the country indefinitely. They have read a single provision regarding employment authorization as giving unlimited authority to provide hundreds of thousands of employment authorization documents (EAD). You can see the enabling power of Chevron deference permeating all these decisions. Even if you legally challenge, the courts are bound by Chevron to defer to these claims of power.

As I have written before, much of President Biden’s immigration policy agenda rests on the idea of Chevron deference. Their solution for the border crisis rests on creating categorical parole programs that require courts to defer to their expansive interpretation of the narrow parole statute. Their broad EAD distributions similarly require deference from the courts to survive. You can see in the OPT case that reading power in legislative silence is the cornerstone for providing immigration benefits contrary to the law.

No matter what one thinks of Chevron in the abstract, it is clear the result has been total transfer of power from Congress to the unelected bureaucracy. If judges were trying to inspire more clarity in legislation from Congress, they have failed. Instead, the precedent leads to clear violations of the Separation of Powers. Any defender of democracy must be troubled by legislating by unelected bodies. It is also not the only option before courts when facing vague statutes. Rather than allowing the Executive to make things up, courts could just as easily simply require the administrative state to refrain from acting where there is no explicit authorization from Congress. In other words, rather than allowing the administrative state to interpret the statutes where there is ambiguity (which is the judge’s job), courts could find that agency action is not allowed where Congress was vague or ambiguous. It would have the same effect of telling Congress to do their job. It simply would not allow unelected actors to legislate in their stead.

There is some reason to be optimistic. We have seen the Court undercutting and bypassing Chevron for a while. Justice Gorsuch wrote last year in Buffington v. McDonough of “grave problems” with Chevron. In West Virginia v. EPA Chief Justice Roberts blocked an expansive claim of power by the Environmental Protection Agency (EPA) under an exception to Chevron called the “major questions doctrine.” The major questions doctrine essentially says courts will not defer to agency interpretations in vastly important cases. The idea being that Congress would not delegate authority quietly in cases the judges decide are of massive importance. There is also the story of the eviction moratorium in Alabama Association of Realtors v. Department of Health and Human Services. There was no deference to agency interpretation of their power provided by statutes to prevent the spread of COVID. So the real question is if the SCOTUS is finally ready to end a precedent that they clearly are ambivalent about.

We desperately need the courts to do their job and stop deferring statutory interpretation to the bureaucracy. At this point, the Congress and the Courts have deferred all authority to agencies. This destroys the structure of our Constitution and disenfranchises the American people. By simply overruling Chevron, our Judiciary can tip the first domino in the chain to rein in an out-of-control administrative state. For immigration watchers, this would cripple the Biden Administration’s race off the policy cliff. Stripped of its usurped power, the administration would have little choice but to actually try enforcing the laws on the books. At the very least, overruling Chevron would reduce the Biden Administration’s proffered incentives to illegal entry. The Court would also be essentially handing a victory to American tech workers shut out by the OPT program. We can only hope the SCOTUS will do the right thing.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Wed, May 31st 2023 @ 11:14pm EDT

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