© Farhad Sethna attorney 2024

On June 28, 2024, the United States Supreme Court delivered its decision in Relentless v Department of Commerce, Case No. 22-1219, and Loper Bright v Raimondo, Case No. 22-451.

Briefly, in the Relentless and Loper Bright decisions, the Supreme Court overruled the previous long-standing rule of deference to an agency’s interpretation of the laws, first created in Chevron U.S.A. Inc. v Natural Resources Defense Council Inc., 467 U.S. 837 (1984). Briefly, under the Chevron doctrine, courts gave broad deference to an agency’s interpretation of a statute when the statute was ambiguous on a certain topic.

“No, no, no”, said the Supreme Court. Not so fast! The Chevron decision was overbroad, and took away from courts their statutory power to review and interpret statutes. Under the Administrative Procedure Act, only courts, and not agencies, have the authority to interpret statutes and apply them. Agencies, by interpreting statutes if and when they were ambiguous, created a structure where courts were sidelined. The Supreme Court wasn’t having any of this, and so it overruled Chevron.

 

Is Chevron dead?

Not completely. The courts still left open the question of a factual ambiguity, which might be decided by the agencies. However, with Chevron being overruled, reliance on Chevron by an agency to justify its interpretation of a factual ambiguity is left in question. It will obviously have to be litigated. Unfortunately, the Supreme Court did not set up any framework to determine

• What constitutes a factual or a legal ambiguity, and
• If a factual ambiguity is found to exist, how the agency should deal with such ambiguity.

Thus, the Supreme Court has created even more ambiguity than existed previously!

The Supreme Court was very clear in Relentless, that the cases before the agencies involving any kind of statutory interpretation were best left to the courts. In other words, the agencies had no business getting into statutory interpretation.

 

How does the Chevron overrule affect immigration law?

In my humble opinion, the Relentless decision is a boon to immigrants. Why is that? Because, in most agency interpretations of immigration law, the various agencies involved – the USCIS, the USCBP, the US Department of State, and the Board of Immigration Appeals have generally interpreted ambiguous statutes in a way that is against the immigrant’s interest. That is, most of the time, the interpretation is in favor of the government’s position, and not the immigrant’s.

Therefore, the courts which deferred to agency interpretations under Chevron resulted in decisions which were, in most cases, inimical to the interests of the affected alien.

Hence, requiring a court, not an agency, to decide cases based on the court’s interpretation of the law, not an agency’s, opens the door to better quality and reasoned decisions, rather than some ad hoc unchallengeable agency opinion.

 

Framework for analyzing Agency regulations:

How will the courts begin to apply the Relentless decision, now that Chevron is no longer precedent? The courts are going to have to start looking at cases from the ground up, that is, an affected party will have to bring a lawsuit challenging a particular agency’s interpretation of the factual aspect of a law or, an agency will have to bring a lawsuit challenging the party’s particular application of the law in a certain circumstance. If the agency brings the lawsuit, the agency will have to prove that the defendant – i.e. the acting party’s – interpretation of the law is contrary to what the statute intended. If the party is bringing the lawsuit, the party will have to prove that the agency’s rules are antithetical to what the statute intended.

Hand-in-hand with the Relentless decision goes a decision that the court issued the following Monday, July 1. In that decision, Corner Post, Inc. v Board of Governors of the Federal Reserve System decided July 1, 2024, Case No. 22-1008, the Supreme Court basically said that a party had standing to challenge a regulation even outside the statute of limitations, so long as it could demonstrate that it was aggrieved in some way by the regulation. This is devastating news indeed for all agencies of the US government.

Returning, however, to the Relentless decision, the Supreme Court has unfortunately not crafted the test that a court must apply to determine the meaning of statutory intent. Perhaps the Supreme Court has determined that there are sufficient clues available that provide a framework for statutory interpretation – historical precedent, the notes from the debates surrounding the statute, the drafts of the statute itself, speeches on the house and Senate floors, etc. Nevertheless, such “secondary” sources may still not serve to illustrate the agency’s way, and may, in themselves lead to even great confusion and litigation.

 

How do these two decisions help immigrants now?

As noted above, immigrants have often been on the receiving end of bad decisions thanks to agency determinations against their interests. With the Chevron decision, agencies blindly recited dogma as though it was statute. All that will now change. Given the fact also that regulations may be changed at any time, a burdensome, onerous, or unfair regulation may be similarly challenged in court under the Corner Post decision. Therefore an agency’s ability to interpret law, create regulations that would be binding and provide guidance for parties in years to come, thus preparing a legal floor or framework for all parties to work under has effectively been slashed by the Relentless decision.

 

What does the Relentless decision hold in store for the future of jurisprudence in the United States?

The Relentless decision and its accompanying counterpart, the Corner Post decision, are sad manifestations of the trend for “less government” in the United States. To lay waste to decades of regulation and, oftentimes, sensible regulation with far-reaching consequences, affecting the entire nation, through a stroke of a judicial pen by the Supreme Court, is an awful situation. Most people don’t realize it, because it doesn’t resonate as loudly as the abortion issue, or a voting rights issue. But, by overruling Chevron, the Supreme Court has struck a blow at the very heart of statutory construction and agency authority. It has emasculated the agencies en masse. It has opened the door to having 13 different interpretations of the law, one for every federal circuit, which might eventually conflict, and lead back to the Supreme Court. It has opened the floodgates for litigation, and obviously, only the well-heeled – those are well-funded, backed up by shadow political action committees, or other “dark money” sources, or well-funded industry groups, are going to have a say in how the courts rule on statutory construction. Obviously, Harry Homemaker does not have the same level of resources to defend a regulation which serves Harry and other similarly situated small individual homeowners. However, a behemoth development corporation, with its enormous resources, has enough money in its pockets to put forth expert after expert to justify its position on – let’s say – a land-use or zoning regulation.

Consequently, with this decision, the Supreme Court has struck a blow against the little guy, and especially against the environment. [A note to the birds and the bees and the bears. Watch out, big game is coming after you.] We will see other repercussions come to pass as the years progress and litigation ensues on every conceivable regulatory topic.

 

Is there a silver lining?

As I said above, the only silver lining I see – based on my limited area of practice, mostly immigration law – is that the courts will now be able to rule on whether a particular statute means what the regulation says it does, or what the agency interpretation says it does, rather than simply giving carte blanche support to the agency’s interpretation.

A note to those of us who love clean air and water and our beautiful environment and want to stop global warming – no change is going to happen now, thanks to any regulation being tied up in the courts for decades. In the meantime, the world burns.

In closing, thank you, Supreme Court for undermining the very underpinnings of our regulations, which were designed to benefit the majority of actual American citizens, and not large multimillion dollar corporations which can contribute without limit to dark money political action committees.

In conclusion, a sad day indeed, for most areas of regulation, but perhaps, one with a silver lining for immigrants.

 

 

© Farhad Sethna, Attorney, 2024

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.