As the U.S. government has grown and gotten more complicated, many executive branch administrative agencies create, decide, and enforce their own rules.  Attacks on the so-called “administrative state” are growing, and are reflected in three important cases pending at the U.S. Supreme Court. Depending on how the Court rules, the legitimacy of the current U.S. immigration court system could be undermined, and the long-standing precedent decision Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and its standard for deference to federal administrative agency decisions could be overruled.  AILA members should be aware of these potentially game-changing developments.

Securities and Exchange Commission v. Jarkesy

On November 29, 2023, the U.S. Supreme Court will hear oral argument in Securities and Exchange Commission v. Jarkesy, which involves two questions: (1) whether the SEC’s choice of enforcement proceedings violates the nondelegation doctrine; and (2) whether the for-cause removal of administrative law judges (ALJs) violates the U.S. Constitution.  Both issues are important for immigration lawyers.

The nondelegation doctrine stands for the principle that Congress cannot delegate its legislative powers or lawmaking ability to other entities.  Some proponents of the doctrine believe that it can be read to imply that Congress cannot delegate discretion to the executive branch that amounts to policymaking authority.

Some believe that a Supreme Court ruling in favor of Mr. Jarkesy may significantly strengthen the nondelegation doctrine and limit agency policy discretion.  If so, Jarkesy is closely related to the two other cases pending before the Supreme Court discussed below.

The second issue in Jarkesy calls into question the legitimacy of the current U.S. immigration courts.  When Congress passed the Administrative Procedure Act in 1946, it permitted ALJs to adjudicate administrative hearings.  ALJs may only be removed if the U.S. government’s Merit Systems Protection Board finds “good cause” to do so.

In Jarkesy, a divided Fifth Circuit panel held that the SEC’s choice of in-house adjudications instead of federal court proceedings before Article III judges violated the Seventh Amendment and the nondelegation doctrine, and that the ALJ for-cause removal process violated the U.S. Constitution’s Take Care Clause.  Currently over 1,930 ALJs from more than thirty federal agencies collectively adjudicate millions of cases annually.

A ruling in favor of Mr. Jaresky could lead to a finding that immigration judges do not have power to adjudicate the cases assigned to them. Immigration judges are not ALJs (they are non-ALJ adjudicators), meaning the arguments presented in Jaresky are even stronger against the ability of immigration judges to hear cases. Article III of the U.S. Constitution states that “[t]he judicial power of the United States shall be vested” in the courts.  The question of how ALJs squared with this Article III requirement was long thought to be an academic exercise, but now could have a major impact on immigrants, immigration judges, and immigration lawyers.

Two lower courts have reached opposite findings while Jarkesy has been pending at the Supreme Court.  In Frank’s Nursery, LLC v. Walsh, the Southern District of Texas refused to extend the Fifth Circuit’s reasoning in Jarkesy and rejected a challenge to the legitimacy of the U.S. Department of Labor (DOL)’s authority to adjudicate the enforcement of its H-2A visa program.  In contrast, in Burgess v. FDIC, the U.S. District Court for the Northern District of Texas held that an FDIC enforcement proceeding that assessed civil monetary penalties violated the Seventh Amendment.

While some members of the Supreme Court could limit the scope of a decision invalidating ALJ authority to cases involving agency adjudications stemming from enforcement proceedings (and leading to civil penalties), Justice Clarence Thomas has offered an expansive definition of private rights that encompasses “life, liberty, and property.”  Under the broadest definition, removal from the United States and protections against torture surely are included.

Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo

More expansive challenges to administrative law will be heard on January 17, 2024, when the Supreme Court hears oral argument in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. These cases began as challenges to a federal rule that requires the U.S. fishing industry to pay for the cost of inspectors that monitor compliance with fishery rules.  As part of the oral arguments, the Justices will consider whether to limit or overrule the Court’s 1984 precedent in Chevron v. Natural Resources Defense Council.  In Chevron, the Court held that when a federal statute is ambiguous, federal courts should defer to an administrative agency’s interpretation of that law as long as the interpretation is “reasonable.”  Overturning Chevron would revolutionize APA litigation.

In the immigration law context, overruling Chevron would have an impact on U.S. district court challenges to agency decisions from U.S. Citizenship and Immigration Services, the DOL, ICE, and even U.S. Customs and Border Protection (CBP).  Agency denials of I-130 petitions, I-129 petitions, and I-140 petitions would be open to de novo review by U.S. district court judges.  Findings of inadmissibility made by CBP officers at U.S. ports of entry could also be open to review by federal judges.  At the same time, this may lead to U.S. district courts refusing to give deference to long-established agency policies that immigration practitioners have come to rely upon.  The net effect may be less predictability in the U.S. immigration sphere and more opportunity for court review for those who can afford to litigate the denial of agency cases.

The Potential Impact of These Three Cases

The law of unintended consequences may express itself from the decisions in the three Supreme Court cases outlined above.  If immigration judges lack the power to issue removal orders, immigration courts would be effectively frozen. The impact could fuel interest in legislation to transform immigration judges from non-ALJ adjudicators into Article III judges.  The impact on USCIS adjudications could be that circuit court precedents affect how USCIS adjudicators handle their day-to-day decision-making.