Trump Tempts Suits in Shutting Public Out of Immigration Rules

A sweeping Trump administration declaration that immigration regulations can bypass public notice signals a new effort to expand executive authority that will test the limits of the law governing federal regulations.

Secretary of State Marco Rubio stated last week that any action by federal agencies to control the border or immigration qualify as foreign affairs functions under the Administrative Procedure Act, making them exempt from public notice-and-comment requirements.

Those long-standing procedures give businesses, advocacy groups, and members of the public an opportunity to weigh in on major policy changes affecting immigration enforcement or employment-based visa programs.

Attorneys and legal scholars say the position laid out by Rubio in a March 14 Federal Register notice could conceivably cover regulations issued by a number of agencies including the Departments of Homeland Security and Labor. It also will likely be immediately challenged in federal courts, which have narrowly interpreted the APA’s exceptions in the past.

“This administration is certainly seeking to claim more executive authority and power for itself,” said Haiyun Damon-Feng, an assistant professor at the Cardozo School of Law. “In that way, it’s testing the bounds of what courts will tolerate in terms of the scope of executive power.”

Asked about the scope of the statement on foreign affairs exceptions, a State Department spokesperson said “the Secretary’s determination speaks for itself.”

Notice and Comment

When federal agencies craft new regulations, they’re required to first release a draft proposal followed by a public comment period typically between 30 and 60 days. Public notice allows businesses to anticipate major changes to the regulatory landscape. And feedback on a regulatory proposal can help shape the eventual rule by revealing unintended consequences or conflicts with federal statutes.

“The APA is basically the constitution of the administrative state,” said Mark Prada, a partner at Prada Dominguez PLLC. “The whole purpose of notice and comment was to sow public participation to make this undemocratic process more democratic.”

Immigration attorneys warned last year, for example, that a provision of a 2023 proposed H-1B visa rule requiring a direct relationship between a worker’s field of study and a job opening would undermine hiring efforts in emerging tech fields like artificial intelligence. The regulation finalized by the Department of Homeland Security sought to address those concerns by clarifying that “a logical connection” between a degree and job duties was necessary and that a range of degrees was acceptable.

The notice-and-comment process allows federal agencies to actually get policymaking right by hearing input they otherwise wouldn’t get, said Amy Nice, counsel at the Institute for Progress and a fellow with Cornell Law School.

“It puts a burden on the agency that actually requires them to think about and justify what they’re doing in a way that they don’t have to think about if they can just do whatever they want,” she said.

The APA has also been one of the primary vehicles for opponents to challenge regulations by both Republican and Democratic administrations. GOP states won a ruling from a federal district court judge, later affirmed by an appellate court, that the Deferred Action for Childhood Arrivals program was unlawfully established by the Obama administration because it didn’t go through notice-and-comment rulemaking. And immigrant advocacy groups have already brought numerous challenges to Trump regulations this year under the statute.

In the absence of procedural requirements, “you effectively get lawless agency action,” said Emily Chertoff, an associate professor at Georgetown Law School.

There’s “plenty of case law” to support arguments that APA rules should continue to apply to such regulations, said immigration attorney Cyrus Mehta.

Testing Exceptions

Only a handful of federal court cases addressed exemptions to Administrative Procedure Act requirements in the first several decades after the statute’s creation. By the end of 2023, around 40 weighed in on the issue as federal agencies increasingly sought to invoke foreign affairs functions to avoid notice-and-comment requirements, according to an analysis in George Mason Law Review.

Still, courts have tended to narrowly interpret the exception, including in the realm of immigration law. That includes two lawsuits challenging regulations restricting access to asylum during the first Trump administration.

In one case, a federal judge tossed a 2019 interim final rule issued by DHS to bar asylum eligibility for immigrants who entered the US without first applying for asylum in third countries they traveled through because it didn’t follow APA notice requirements. The government claimed the rule would have “downstream effects” in other countries and potentially on negotiations of international agreements. But those indirect effects don’t clear the high bar to skip notice-and-comment rulemaking, the US District Court for the District of Columbia found.

Another rule issued without public notice restricted asylum only to immigrants who arrive at designated ports of entry. The US Court of Appeals for the Ninth Circuit found the rule substantively unlawful in a 2021 opinion, but noted that broadly citing its immigration context wasn’t sufficient to invoke the foreign affairs exception.

The George W. Bush administration convinced an appellate panel in 2008, however, that a now defunct post-9/11 registration system for men from 25 mostly Muslim countries met the bar for the foreign affairs exception because the relevance of the program to international relations was facially plain.

Consular decision-making and foreign policy are at the core of what the APA exemption is meant to cover, Georgetown Law’s Chertoff said. Claiming the exception for any border or immigration efforts reflects an attitude already demonstrated “about how the administration is going to treat judicial review.”

“If I were a litigant, the fact that the secretary of state has issued this proclamation would not make a difference,” she said. “This would just become one more issue to duke out in litigation.”