Immigration Article of the Day: Opportunities and Pitfalls in the Loper Bright Landscape for Immigration Cases by Nancy Morawetz

Opportunities and Pitfalls in the Loper Bright Landscape for Immigration Cases by Nancy Morawetz, Michigan State Law Review (forthcoming)

Abstract

The Supreme Court’s decision in Loper Bright is a turning point for immigration cases in the courts of appeals. After decades of deferential court decisions, Loper Bright could signal a new and more rigorous era of judicial scrutiny the legal rulings of the Attorney General and the Executive Office of Immigration Review. In the first year and several months of court decisions in immigration cases post-Loper Bright, however, courts have identified preliminary questions before they consider the legality of the agency’s reading of the Immigration and Nationality Act. These threshold questions include the possibility of specific statutory delegation for provisions of the Immigration and Nationality Act as well as concerns with maintaining past precedent that turned on deference to the agency. This article argues that courts have read these exceptions too broadly. It further argues that at least some courts have refused to grapple with how Skidmore deference is different in kind from Chevron deference. Finally, this article explores substantive canons and their role in immigration litigation post-Loper Bright. The article shows the ongoing power of substantive canons in the Court’s own decisions, and explores five substantive canons that ought to play a significant role in immigration adjudication.