Prof. Nancy Morawetz on Loper Bright

Prof. Nancy Morawetz said this on today's ImmigrationProf Blog:

"In the aftermath of the Supreme Court’ decision in Loper Bright, you might think that everyone would agree that courts of appeals should apply traditional statutory interpretation to legal issues arising in petitions to review removal orders. But the government has already been laying the groundwork to argue that Loper Bright does not matter for these cases. In briefs before both the Supreme Court and the circuit courts, the government has argued that 8 U.S.C. § 1103(a)(1), which contains a phrase that the Attorney General’s views are “controlling,” provides express authority to the Attorney General to interpret grounds of removability.  In an upcoming essay, available here, I argue that 8 U.S.C. § 1103(a)(1) has nothing to do with deference by the courts, but instead is about who has the controlling voice within the executive branch. The essay shows that immigration law has long divided authority within the executive branch between different departments, raising the question of which department speaks for the executive. From 1924 until 1952, the departments were free to disagree about such matters as how to interpret grounds of inadmissibility. That changed in 1952, when the INA placed the power to speak for the executive branch with the Attorney General. That change, however, had nothing to do with the power of the judicial branch to assess whether the Attorney General had properly interpreted the statute. 

Judge Newsom, in the Eleventh Circuit, has written extensively about 1103(a)(1). His concurrence in Ruiz v. Garland, shows the illogic of the government’s effort to transform a provision about intra-branch disagreements into one justifying judicial deference.

We can expect that government lawyers will continue to push their strained reading of section 1103(a)(1). No question, they would like to continue a situation where courts give deference to the agency. But the arguments for such deference in removal cases are simply not persuasive.

Once Chevron deference is set aside, courts should apply the full range of traditional tools of statutory construction when they face legal issues, such as the scope of deportability grounds and the eligibility requirements for relief from removal."