By Mona Shah, Esq. and Rebecca S. Singh, Esq.
So, dear reader: Do you think U.S. Citizenship and Immigration Services (“USCIS”) has too much leeway, with the bureau overstepping its bounds in all matters—including evaluations of unclear language in bills such as the EB-5 Reform & Integrity Act (“RIA”)?
If you have entertained these thoughts, you may be heartened, at least slightly, by a glimmer of hope that has become visible through the legislative gloom. Because if a cadre of fisheries has its way, the U.S. Supreme Court may establish a seminal legal precedent that will rock USCIS’s and other government offices’ collective boats—by sinking a 40-year-old court decision giving federal agencies the benefit of the doubt when the law is vague.
The fisheries’ case, Loper Bright Enterprises v. Raimondo (“Loper”), is under Supreme Court scrutiny to reassess the 1984 decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. (“Chevron”) mandating deference to agencies’ interpretations of laws in situations where they are ambiguous. Although the legal journey here has been relatively smooth sailing for these federal offices, owing to courts’ penchant for ruling in their favor on matters pertaining to the reasonableness of their statutory assessments, there have been indications of late that their status is in jeopardy … and Loper could seal that up.
Will the Supreme Court overturn Chevron?
A bit of background: The case surrounds efforts by a group of fishing companies to contest a regulatory interpretation from the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NOAA Fisheries”) requiring them, in the absence of compensated federal inspectors, to pay for government monitors stationed onsite to check for rule noncompliance. After the U.S. Court of Appeals for the District of Columbia Circuit ruled against them while finding that NOAA Fisheries’ interpretation was reasonable—with reasonability being the Chevron-mandated measurement unit used to gauge agencies’ assessments—the fishing companies have taken their appeal to the Supreme Court in an attempt to overturn Chevron or, failing that, to shed light on the legislation’s vaguenesses.
Sen. Ted Cruz and Rep. Mike Johnson’s argument for Chevron’s overturning reportedly collected signatures from 34 other members of Congress.
The plaintiffs do have allies. A friend of the court brief filed by Sen. Ted Cruz (R-TX) and Rep. Mike Johnson (R-LA) on July 24 that argues for Chevron’s overturning reportedly collected signatures from 34 other members of Congress. Others who have filed briefs backing a repeal of Chevron include 27 attorneys general from states including Alabama, Florida, Iowa, Montana, New Hampshire, Ohio, South Carolina, and Texas. Various organizations, such as the Atlantic Legal Foundation, the Cato Institute, and the Center for Constitutional Jurisprudence, have filed briefs as well, with many supporting a Chevron defeat. Respondents’ briefs may be filed through September 15, 2023, as per a July 7 motion to further extend the time to file them.
“People believe that if Chevron is not there, it’s going to help immigration and EB-5.”
—John Pratt, partner at Kurzban Kurzban Tetzeli & Pratt, P.A.
The plethora of Chevron-criticizing responses to the case suggests the decision is on shaky ground. Yet not everyone assumes overturning it would be a benefit. “People believe that if Chevron is not there, it’s going to help immigration and EB-5,” said John Pratt, partner at Kurzban Kurzban Tetzeli & Pratt, P.A., a Florida-based boutique law firm specializing in immigration, personal injury, and other areas. “We don’t know what the world without Chevron will look for immigration. I don’t subscribe to the idea that without Chevron, everything will be positive.”
Pratt, who suspects the Supreme Court (packed with Republican justices) will strike down the law, pointed to the political gap that informs the Chevron debate. “The conservatives think that the court should have the final say on what the law says—not the agency,” he said. “The liberals believe allowing the courts to have the final say is less democratic because the judge is not elected and is … appointed for life.”
With Republicans in the majority on the Supremes’ bench, the pendulum may sway in their favor. Given USCIS’s history of poor judgment, which has led to myriad costly lawsuits over semantics, overturning Chevron would not be just one small step for the EB-5 sector. It would, however, be one giant leap backwards for executive-branch government power.
There is the uncertainty surrounding the judges’ views on immigration and EB-5, which makes predicting what could happen “like Russian roulette.”
Undoubtedly this would elicit big questions about policy. If the legislation were overturned, Pratt added, “a lot of variables” could come into play. For one, different presidential administrations could affect interpretations of Chevron as judges, as well as court trends, change over the years. Then there is the uncertainty surrounding the judges’ views on immigration and EB-5, which makes predicting what could happen “like Russian roulette.”
That is a troubling prospect in a potential post-Chevron landscape, though Pratt made clear that such a scenario is not set in stone. “We don’t know how the court’s going to rule,” he said. “We have to monitor what the Supreme Court is going to do.”
As such, all industry eyes should be watching the developments. At the heart of Chevron was an Environmental Protection Agency (“EPA”) regulation concerning states lacking national air-quality standards that allowed for the use of “bubbles” to cluster pollution-creating entitles within the same families. This means that components of pollution-producing “stationary sources” (e.g., factories) could be installed/modified without the permits required by the Clean Air Act—as long as the changes do not increase said sources’ emissions.
Ultimately, the Supreme Court found that the EPA’s interpretation of the Clean Air Act was sound; four decades later, in an environment suffused with supporters and detractors of the decision on both sides of the political aisle, the decision has become even more of a hot-button issue. This time, however, it looks like America’s highest judicial authority will have something quite different to say.
So far, signs have started to point in the plaintiffs’ favor. Case decisions relating to Chevron have gradually eaten away its tenets, placing them under the microscope for examination. An analogy may be found in the erosion of the Hays Code in 1960s Hollywood, when industry-implemented barriers relating to the depiction of previously taboo content (e.g., profanity and violence) onscreen began to crumble as films such as Who’s Afraid of Virginia Woolf? and Bonnie and Clyde challenged the censors.
It is possible that Chevron may officially fall and be replaced—like the Hays Code did in the late 1960s with the creation of the then-Motion Picture Association of America ratings system. Still, the process likely will take a long time before it elicits any results; a decision is predicted to arrive in 2024, with arguments expected to commence in autumn.
The EB-5 industry must prepare accordingly for any eventuality surrounding the prospect of a Chevron reversal.
Before that, the EB-5 industry must prepare accordingly for any eventuality. Although Pratt believes the focus following any Chevron overturning will be on environmental disputes rather than immigration, there is much that is up in the air. Questions surrounding the prospect of a Chevron reversal must include inquiries about the potential for litigation arising from any judgment, for example. Another priority would be clarification on whether application of the decision would have any retroactive effects.
Not surprisingly, the stakes here are high, and EB-5 practitioners must be ready for momentous change. Many think it could be a boon for the sector, though some experts are not so sure. Either way, a Supreme Court reevaluation of Chevron could provide much-needed clarification on the reach of government power, and that is something that will impact not only members of this industry, but also professionals in other disciplines. The guiding light, as always, is caution.
After 40 years, this “wait-and-see” approach could be worth the wait.
Simon Butler contributed to this article.