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IMMIGRATION MAY 02, 2025 | The Indian Eye 34

How the Major Questions Doctrine

Can Undo some of Trump’s Policies,

Including On Birthright Citizenship

BY CYRUS D MEHTA AND migration. to revoke birthright citizenship. Trump may be hoisted major questions doctrine was
KAITLYN BOX* Lawsuits have been filed In a previous blog we ex- by his own petard through the developed by the Supreme
challenging Trump’s tariffs amined the role of the major major questions doctrine in Court at a time when Chev-
ntroduced by the Supreme questioning whether there is questions doctrine in the im- a birthright citizenship case. ron required the court to give
Court in West Virginia v. clear authorization as they migration context in Wash- Santa Clara County California, broad discretion to agency de-
IEPA, 142 S. Ct. 2587 (2022), present a matter of vast eco- ington Alliance of Technology in a lawsuit aimed at block- cisions. As our previous blog
the major questions doctrine nomic and political signifi- Workers v. the U.S. Depart- ing the implementation of the discusses, courts may have now
holds that, “in certain extraor- cance. Like his tariffs, Trump’s ment of Homeland Security Trump administration’s execu- have more latitude to strike
dinary cases” where it is unclear efforts to freeze federal fund- (“Washtech v. DHS”) and tive order restricting birthright down agency actions since the
whether an agency action was ing, interfere with the states’ Texas v. DHS. The dissent in citizenship, invoked the major Supreme Court’s decision in
authorized by Congress, “given administration of their elec- Washtech indicated that the questions doctrine. On page 17 Loper Bright Enterprises v.
both separation of powers prin- tions and slash the government issue of whether DHS’ 2016 of its brief, Santa Clara County Raimondo, which overturned
ciples and a practical under- using the Department of Gov- Optional Practical Rule for stu- states: Chevron and instructed courts
standing of legislative intent, ernment Efficiency “DOGE”) dents in F-1 visa status exceeds Even if Section 301(a) to “exercise their independent
the agency must point to ‘clear are all areas of major national its statutory authority was a could be construed to leave any judgment in deciding wheth-
congressional authorization’ significant that Congress has “major question”, and finding ambiguity about the meaning er an agency has acted within
for the authority it claims”. Un- not authorized the president to that the doctrine applied, di- of the phrase “subject to the its statutory authority, as the
til now, the doctrine has largely decide, the lawsuits claim. rected the district court upon jurisdiction thereof,” there is Administrative Procedure Act
been used by the conserva- Even if the immigration remand to examine whether no basis for any argument that requires”.
tive-majority Supreme Court to arena, lawsuit’s invoking the DHS had the authority to is- in 1952 Congress intended that The major questions doc-
thwart Biden-era policies, but a major questions doctrine chal- sue OPT regulations under such an ambiguity serve as a trine can now serve as yet a fur-
recent New York Times op ed lenging Trump’s modification this principle. The major ques- delegation of broad authority ther tool for courts to employ
by Aaron Tang highlights the of birthright citizenship ques- tions doctrine arose again in to the President to define the in resisting the Trump adminis-
doctrine’s potential to be a tool tion whether federal law has Save Jobs USA v. DHS, which parameters of a statute, let tration’s efforts to make sweep-
in challenging Trump’s actions, granted the president authority involved a challenge to the alone a constitutional right. ing and destructive changes to
including those relating to im- regulation providing work It is difficult to imagine any immigration law and policy
authorization to some question of greater “economic through executive power. An-
H-4 spouses. There, the and political significance” than other example is the Trump
D.C. Circuit was not com- the scope of a provision that administration’s broad inter-
pelled by an argument describes what group of peo- pretation of the Alien Enemy
that Washtech should be ple constitutes the American Act beyond an armed conflict,
disregarded because it polity and may participate in its to include migration and drug
did not address the major sovereignty. See, e.g., West Vir- smuggling as an “invasion”,
questions doctrine, hold- ginia v. EPA, 597 U.S. 697, 721 thus triggering sweeping execu-
ing that because Washtech (2022) (statutory ambiguities tive removal power. Would the
had already interpreted should not lightly be construed courts consider whether a mat-
the relevant regulations to delegate decision making ter of such “vast … political sig-
after West Virginia v. EPA, authority on major questions nificance” ought to be decided
it remained good law. The of economic or political impor- by the executive branch absent
court in Texas v. USA cit- tance). Given these stakes, it is clearer instruction from Con-
ed West Virginia v. EPA in untenable to read the INA as gress under the major ques-
holding that DHS had no granting the President the au- tions doctrine?
Congressional authority thority to resolve or disturb the
to implement the DACA statutory meaning. *Kaitlyn Box is a Partner at Cyrus D.
program. As Tang points out, the Mehta & Partners PLLC.
____________________________________________________________________________________________________________________
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Ad-
ministrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee;
m of special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Divi-
CYRUS D. MEHTA & PARTNERS PLLC sion, First Department, New York; member of the ABA Commission on Immigration; board member
of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta
is the former chair of the Board of Trustees of the American Immigration Council and former chair

of the Committee on Immigration and Nationality Law of the New York City Bar Association. He is

  a frequent speaker and writer on various immigration-related issues, including on ethics, and is also
   
­ an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration
€
‚  
and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the
practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding
efforts in providing pro bono representation in the immigration field. He has also received two AILA
Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
2 6th Floor lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked

   
in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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