Immigration Article of the Day: Chevron Without the Courts? The Supreme Court’s Chevron Revision Project Through an Immigration Lens by Shruti Rana

“Chevron Without the Courts? The Supreme Court’s Chevron Revision Project Through an Immigration Lens” Georgetown Immigration Law Review, Forthcoming U of Maryland Legal Studies Research Paper No. 2012-6 SHRUTI RANA, University of Maryland Francis King Carey School of Law.

ABSTRACT: The limits of administrative law are undergoing a seismic shift. Chevron divides interpretive and decisionmaking authority between the federal courts and agencies in each of two steps. The Supreme Court is now transforming this division in largely unrecognized ways. These shifts, playing out most sharply in the immigration arena, are reshaping deference jurisprudence by handing more power to agencies just when they are least able to handle it effectively. An unprecedented surge in immigration cases – now approximately 90% of the federal administrative docket – has arrived just as the Court is whittling the judicial role while expanding agency authority, significantly transforming traditional deference doctrine. The Court has shifted the judicial role away from questions of statutory interpretation and towards a mere evaluation of when the agency’s interpretation should be granted deference. Assessment of the “reasonableness” of the agency’s action has given way to marking the outer boundaries of agency action, merging the court’s traditional oversight analysis into a form of “arbitrary and capriciousness” review.

KJ