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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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