What to do about Brand X?
It has been only three years since the U.S. Supreme Court decided National Cable & Telecommunications Ass’n v. Brand X Internet Services but the shorthand reference to the case already has come into common usage, suggesting the significance of the Court’s ruling. In the immediate aftermath of Brand X, agencies, litigators, and judges have begun carving out its province and recognizing the implications of the decision for immigration law. These initial efforts have only begun to bring into focus the many unresolved legal and circumstantial issues that can be expected to arise from the application of the Brand X decision to individual cases.
This article examines the Brand X decision, including its underpinnings in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,2 as it applies to immigration law. The article discusses the many immigration-related judicial and agency decisions in which Brand X has been cited and applied, and offers practitioners commen- tary and guidance concerning potential Brand X issues and applications yet to arise.