BAL’s Post

I was quoted in this excellent article, https://lnkd.in/ghbATkQG (paywalled) by Law360’s Britain Eakin, along with several of my brilliant colleagues, William Stock, Cyrus Mehta, and Greg Siskind, expressing cautious optimism for the prospects of immigration advocates under Loper Bright, which placed a tombstone on so-called Chevron deference. ⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀ There are lots of unknowns: Is the shift from “deference” to “respect” (under Skidmore) which still allows for consideration of an agency’s expertise and experience little more than new wine in an old bottle? ⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀ What new interpretive formulations will emerge from the 5th and 9th Circuits to deal with cases previously decided at Step 2 of Chevron (having been found ambiguous), since according to the Chief Justice, those cases are still good law? ⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀ Does it always and inevitably come down to the thrust of the policy (pro- or anti-immigration) and whether the adjudicator is a Republican or Democratic appointee? We’re already witnessing the onslaught of 28(j) letters in pending cases. ⠀⠀⠀ ⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀⠀⠀ ⠀⠀ What role is left for the major questions doctrine, which acted as a sort of exception to Chevron where the issue was one of deep economic and political significance? Loper Bright recognized the legitimacy of broad delegations of discretionary policymaking, so have the litigational skirmishes now moved to fighting over ambiguity there (which will likely prove to be in the eye of the beholder)? And things will get even more interesting with the upcoming election. Stay tuned!