As I mentioned in my preliminary take on the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, the Court overruled Chevron deference but seemed to preserve some sort of Skidmore “weight” or “respect” while carefully refusing to call it judicial “deference.” As I noted in that post, “[i]t will be fascinating to see how lower courts, federal agencies, and litigants interpret the Court’s guidance as to the new standard for judicial review of agency statutory interpretations.”

Well, we didn’t have to wait long. In Lopez v. Garland, a Ninth Circuit panel established the precedent going forward on how Skidmore operates in a world without Chevron deference, deferring to the Board of Immigration Appeals’ interpretation of a statutory provision. This precedent will govern hundreds of cases in the Ninth Circuit going forward in immigration and other regulatory contexts.

Because we do not think the panel’s decision applies Skidmore in a manner consistent with Loper Bright, today Mike Kagan and I filed a law professor amicus brief urging the Ninth Circuit to rehear the case en banc. The brief is available here. And here is our introduction and summary of argument:

The Panel decision sets a troubling precedent that will have far-reaching effects on this Circuit’s administrative law jurisprudence. Loper Bright rejected the Chevron doctrine, under which courts would defer to agencies’ statutory interpretations. The fundamental holding in Loper Bright was clear: Courts must independently interpret statutes and should no longer defer to agencies’ interpretations of them.

The Panel decision here—one of the first to apply Loper Bright in this Circuit—revives Chevron under a different name. In the guise of giving Skidmore “respect” to a precedential statutory-interpretation decision of the Board of Immigration Appeals (“BIA”), the Panel effectively deferred to the BIA’s views. The question at issue was whether a particular local crime constitutes a “crime[] involving moral turpitude” under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(ii). Deferring to an agency’s view on such a question—or giving the agency’s view near-dispositive “respect”—is precisely what the Supreme Court said courts should not do. See Loper Bright, 144 S. Ct. at 2273 (explaining that courts are experts in “legal interpretation” and have been “for at least 221 years,” since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Rather, after Loper Bright, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” Loper Bright, 144 S. Ct. at 2273, giving only “due respect for the views of the Executive Branch” as one part of the independent analysis, id. at 2267.

The Panel’s precedential holding effectively turns Loper Bright “respect” into a kind of deference that seems indistinguishable from Chevron. That will set this Circuit on a course that the Supreme Court emphatically rejected. The implications of the Panel’s misapplication of Loper Bright will be far-reaching and go well beyond immigration law. Just in 2023, the Ninth Circuit received 2,076 appeals of agency decisions. See U.S. Courts for the Ninth Circuit, 2023 Annual Report, at 59 (2023). Accordingly, it is exceptionally important that the Court rehear this case en banc to correct the Panel’s approach to Skidmore after Loper Bright. See Fed. R. App. P. 35(a)(2); see also Stein v. Kaiser Foundation Health Plan, Inc., 115 F.4th 1244, 1247 (9th Cir. 2024) (overruling a panel decision en banc to “bring ourselves in line with current Supreme Court doctrine”). Indeed, because the Court reviews so many agency statutory interpretations in immigration and many other regulatory contexts, the en banc Court must announce a clear and correct approach to Skidmore and Loper Bright to “secure or maintain uniformity of the court’s decisions” going forward. Fed. R. App. P. 35(a)(1).

I hope the Ninth Circuit grants rehearing en banc and takes this opportunity to correct the panel’s approach to Skidmore after Loper Bright. Many thanks to our terrific counsel at Wilmer Hale — Tim Cook, Scott Greene, and Myles McDonagh.