It “will affect them one way or another”
A pair of U.S. Supreme Court cases about whether commercial fishermen can be forced to pay the cost of federal monitors could have far-reaching implications for regulations affecting international students, including those that govern Optional Practical Training, the popular work program for foreign graduates of American colleges.
“Colleges and universities may think cases involving fisheries regulation have nothing to do with them,” said Stephen Yale-Loehr, a professor of law at Cornell University who specializes in immigration law, “but what the court decides will affect them one way or another.”
That’s because the cases, which were argued last week, are challenging a 40-year-old legal precedent that says judges must defer to federal agencies’ reasonable interpretations of ambiguous laws. The logic is that agencies have the subject-matter expertise that judges may lack.
The legal principle — known as “Chevron deference,” after the 1984 decision, Chevron v. National Resources Defense Council, that originated it — is the foundation for the current federal regulatory system, in which executive-branch agencies issue rules to interpret statues passed by the U.S. Congress.
At the center of the dispute is a 2020 Department of Commerce regulation interpreting an earlier law requiring herring boats to carry federal monitors to prevent overfishing. The plaintiffs argue that the newer rule, which requires fishermen to pay for the costs of the oversight, overstepped the authority Congress granted the agency.
If the Supreme Court justices limit or roll back Chevron deference — and many experts expect them to — it could threaten regulations on health care, consumer safety, government-benefit programs, and the environment. “It’s one of those cases that’s the nerdiest of the nerdiest,” said Heather Stewart, counsel and director of immigration policy for NAFSA: Association of International Educators. “But its impact could be seismic.”
Stewart and Yale-Loehr said the role of rulemaking is particularly prominent in the areas of immigration and visas. The reasons are two-fold: First, the legislative language tends to be broad. Immigration law sets out that international students wishing to study in the United States can get visas, but beyond that basic definition it doesn’t detail the parameters or policies.
And Congress has not passed meaningful legislation on the hot-button issue in decades, meaning that changes to immigration law to meet evolving needs have come through regulation. For example, the enactment and expansion of Optional Practical Training, or OPT, and its sister program, Curricular Practical Training, which allows students to work or intern as part of coursework, were done through regulation — based on the rationale that hands-on experience is critical to student learning.
When a federal appeals court in 2022 rejected a challenge to OPT, it, in part, cited Chevron deference in its ruling.
Critics have singled out OPT as an example of bureaucratic overreach. “Judges all too often defer to executive officials’ rewrite of law even when those laws aren’t ambiguous,” The Wall Street Journal editorial board wrote, arguing that the international-student case “is crying out for Supreme Court review.”
The court decided not to hear the OPT challenge. Yet the program could be affected by the outcome of the fisheries cases. “Chevron is either dead or will survive in a kind of zombie-fied, hollowed-out version where it doesn’t do much work or it does work in a narrow band of cases,” Adam Liptak, The New York Times’s Supreme Court reporter, told The Daily podcast. “This is probably the case this term that overrules a major precedent like affirmative action in the last term, like abortion in the previous term.”
Yale-Loehr said that, based on the justices’ questions and statements during arguments, the Supreme Court could “at least narrow” Chevron deference, if not override it altogether.
The court’s decision could have an impact on international-student policy in several ways. It could put any current legal challenges on hold until the fisheries cases are decided, Yale-Loehr said. It could change the federal government’s approach to rulemaking that is currently in progress, such as updates to the skilled-worker-visa program that affect both international students and foreign workers hired by colleges.
Then there’s the question of whether a new standard could be applied retroactively, allowing past policy disputes, like that around OPT, to be revisited in the courts.
Still, Yale-Loehr said that overturning or weakening Chevron deference could “cut both ways” for policies affecting international and immigrant students. Higher-education groups were among those that argued that the Trump administration went too far in its interpretation of federal rules to make it harder for immigrants who receive government benefits from gaining permanent residency. The policy, they said, could have a chilling effect on immigrant students receiving benefits for which they’re eligible and could deter students from overseas from coming to study here.
Likewise, many in international education would like to see the federal government give international students greater flexibility to take online courses, given the rise of virtual and hybrid instruction since Covid. The prohibition on foreign students taking more than one online class a semester is in regulatory guidance.
Stewart said the biggest impact of a ruling curbing or undoing Chevron would be the uncertainty it injects into student-visa policy and federal rulemaking. “It would be, for international students and for international-student advisers, opening a can of worms.”
