Day 164: Deference, Schmeference

The Supreme Court will hear arguments in Loper Bright Enterprises v. Raimondo on Wednesday, January 17, 2024. In that case, the Court will decide whether to overrule Chevron v. Natural Resources Defense Council, the 1984 case that requires federal courts to defer to an agency’s interpretation of a statute it administers if (1) the statute is ambiguous, and (2) the agency’s interpretation is reasonable.

Since 1984, the Chevron doctrine has tipped the balance of powers away from the judicial branch and toward the executive branch of government. The Supreme Court has recently engaged in some re-balancing, but most of those decision enchanced the power of the president to control the actions of executive agencies, arguably tilting power away from Congress (which set up those agency structures) and toward the chief executive.

Even with the Chevron doctrine, courts can and will overturn agency decisions when they think the agency plainly got the law wrong. Today, I was heartened to see this decision the Fifth Circuit reversing the Board of Immigration Appeals (an agency within the Department of Justice).

I felt a ghost walk across someone’s grave while reading this decision, because the case had a few similar facts to the one in which WVU Immigration Law Clinic students prevailed on a remand to the Baltimore Immigration Court last week.

In vacating and remanding their case last week, the Fifth Circuit court of appeals wrote:

Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.