Following oral arguments, it appears some U.S. Supreme Court justices may be open to limiting lower courts’ opportunities to defer to federal agencies’ interpretations when disputes arise over rulemaking. Under the Chevron doctrine, federal judges must defer to a federal agency’s interpretations of law if (1) the law is determined to be ambiguous and (2) the agency’s interpretation is reasonable.

Completely overturning the Chevron doctrine does not appear to be under consideration, due at least in part to concerns over how the Supreme Court would provide new guidelines. Justices Sotomayor and Jackson appear to support maintaining the doctrine. Justices Barrett and Roberts seem to be open to limiting, rather than overturning, the policy. Justice Kagan appears to be somewhere in the middle.

Under the existing doctrine, Judges must defer to a federal agency’s interpretation of the law if a two-part test is met. First, the judge must determine if the agency’s enabling statute or act is ambiguous. In administrative law, an enabling statute or enabling act refers to legislation passed by Congress delegating authority to a federal agency. Enabling statutes create agencies and specify their powers. Federal agencies, in turn, regulate through formal rulemaking to carry out the intent of Congress. If Congress’ intent is unambiguous, the inquiry ends after the first step, as agencies must carry out the clearly expressed intent of Congress.  If Congress’ intent is not clear and statute is found to be ambiguous, a reviewing judge must then move on to the second step. Under Chevron, the second step is to determine whether the federal agency’s interpretation is reasonable. If the statute is ambiguous and the agency’s interpretation is reasonable, the judge must defer to the agency’s interpretation.

The Supreme Court could change how Chevron is used by lower courts in one of the four ways:

  • Require judges to review more thoroughly before finding ambiguity,
  • Clarify requirements for determining reasonableness during the second step,
  • Instruct judges to ensure the agency is acting with the force of law; and
  • Require judges to search out other indications in the statute that Chevron may not apply.

The Chevron doctrine has been in effect for 40 years and impacts all areas of law, including immigration.

ILBSG continues to monitor ongoing policy that affects U.S. immigration. As always, if you have questions about any U.S. immigration related issue, contact us.

Chevron Doctrine