Immigration Article of the Day: Immigration Law After Relentless by Nancy Morawetz

by Kevin Johnson


Immigration Law After Relentless by Nancy Morawetz, New York University Law Review Online, Vol. 99, 2024

Abstract

With the Supreme Court’s decisions on the future of Chevron deference set to be issued by the end of this Term, the Solicitor General (SG) is laying the groundwork for treating the decisions as irrelevant for immigration law. In recent cases, the SG has argued that section 1103(a)(1) of the Immigration and Nationality Act provides a free-standing basis for deference by the judiciary due to a phrase that the Attorney General’s views are “controlling.” This Essay shows that the SG’s argument is deeply flawed. Building on textual critiques, this Essay shows that for one hundred years, Congress has considered how to manage multiple executive departments administering immigration laws. From 1924 until 1952, Congress did not preclude intra-branch disagreements, and in at least one case such disagreements were presented to the Supreme Court. In 1952, Congress acted to have the executive speak with one voice and placed that power with the Attorney General in section 1103(a)(1). Until recently, the SG recognized that section 1103(a)(1) was nothing more than a method for resolving intra-branch conflicts. The SG’s new effort to turn section 1103(a)(1) into a separate basis for judicial deference to agency views has no basis in the text or history of the provision. The SG’s view is so meritless that it should be abandoned before it leads to a new wave of circuit conflicts about deference in immigration cases in the wake of the Supreme Court’s resolution of Chevron’s future this Term.

This post originally appeared on Immigration Prof Blog Reprinted with permission.


About The Author


Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.