Shoba Sivaprasad Wadhia (Pennsylvania State University – Penn State Dickinson Law) has posted Deference in Immigration after Loper Bright on SSRN. Here is the abstract:
In Loper Bright Enterprises v. Raimondo Security of Commerce, ET AL. (Loper Bright), the Supreme Court held that the “Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of law simply because a statute is ambiguous.” The Court also explicitly overruled the “watershed” decision of Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (Chevron), which to state simply, left the interpretation of ambiguous statutes to agencies, not the courts. In overruling Chevron, the Court in Loper Bright concluded that agencies lack any “special competence in resolving statutory ambiguities.” This essay examines the significance of Loper Bright for the immigration space and beyond. Loper Bright scrutinizes the role of deference in immigration more broadly. Further, the author analyzes what Loper Bright means for the future of rulemaking. Finally, this essay concludes with how Loper Bright presents a collection of outcomes for future immigration cases.