Last September, President Trump issued a proclamation instituting a $100,000 fee for employers submitting petitions for new H-1B visas. Twenty states sued. In an opinion yesterday in California v. Mullin, federal district judge Leo Sorokin (District of Massachusetts) ruled that the Trump administration’s implementation of the proclamation violates constitutional separation-of-powers principles and the Administrative Procedures Act.
On a first read, I find Sorokin’s opinion very puzzling. The core merits question, I would have thought, would be whether the statutory provisions that the proclamation invokes—8 U.S.C. 1182(f) and 1185(a)—confer the authority to impose the $100,000 fee. But Sorokin instead leaps to the strange question whether the fee is a tax or a penalty for purposes of Congress’s taxing power and, after determining that it is a tax, says that the statutory provisions are too ambiguous to delegate taxing power. But if the statutory provisions are instead understood as an exercise of Congress’s authority over immigration, why does the question of Congress’s taxing power even come into play? This same confusion infects Sorokin’s discussion of the APA issue.
I will note further that Sorokin’s ruling conflicts with the ruling that federal district judge Beryl Howell reached last December. Howell, who was appointed by Barack Obama to the district court in D.C., ruled that the “lawfulness of the Proclamation and its implementation rests on a straightforward reading of congressional statutes giving the President broad authority to regulate entry into the United States for immigrants and nonimmigrants alike.”