Judge Leo T. Sorokin today ruled President Trump’s $100,000 fee for H-1B visas unlawful. The ruling vacates the fee in its entirety so that it’s null and void, absent a stay pending appeal.
The ruling is a significant judicial rebuke of a central part of President Trump’s crack-down on immigration.
The case, State of California v. Mullin, arose out of President Trump’s unilateral imposition of a $100,000 fee on new H-1B visas. Under the Immigration and Nationality Act, H-1B visas are temporary visas for non-immigrant foreign workers in specialty jobs. The INA authorizes the government to impose certain modest fees on H-1B visas, but these fees usually come to about $960 and $7500. The President’s new fee is obviously (and by design) a significant increase.
The President pointed to authority for the fee under 8 U.S.C. Sec. 1182(f), the same provision that he used (and that the Supreme Court validated) to impose the travel ban in his first term. Trump v. Hawaii (2018). Section 1182(f) authorizes the President, upon certain findings, to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
President Trump also pointed to an INA provision that makes it “unlawful . . . for any alien to . . . enter or attempt to . . . enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” 8 U.S.C. Sec. 1185(a)(1).
Plaintiffs sued, arguing that President Trump’s proclamation establishing the fee violated the Administrative Procedure Act’s procedural requirements, that the fee exceeded the President’s statutory authority in violation of the APA, that the fee was arbitrary and capricious in violation of the APA, and that the fee was an unconstitutional ultra vires act in violation of the separation of powers.
The court agreed with the plaintiffs on all counts. It ruled first that the fee amounted to a tax without authorization from Congress, and that it therefore impermissibly encroached on Congress’s power to tax. Drawing on the Supreme Court’s recent ruling in Learning Resources v. Trump (holding that President Trump’s tariffs were not supported by authority in the International Emergency Economic Powers Act), it held that the INA statutory provisions above do not delegate taxing power to the President. (The court held that it had authority to review the fee, because the plaintiffs challenged the executive agencies charged with enforcing the fee, not the President himself, and because the plaintiffs’ separation-of-powers claim was, indeed, constitutional, and not statutory. In a recent spate of rulings that give new life to Dalton v. Specter (1994), the D.C. Circuit has denied reviewability of certain claims against President Trump, concluding that they are based on statutes (that the President exceeded his statutory authority) and not on constitutional separation of powers. The court here distinguished Dalton.)
The court next held that the government violated the APA. It ruled that the government violated the APA’s procedures by “issu[ing] a legislative rule without engaging in notice-and-comment rulemaking.” Next, it held that the government acted outside its statutory authority in violation of the APA. And finally it held that the fee was arbitrary and capricious in violation of the APA.
Because the court ruled that the fee violated the APA, and because the APA authorizes courts to “set aside” unlawful agency actions, the court vacated the fee in its entirety. (The Supreme Court in Trump v. CASA, the first round of the birthright citizenship case, held that district courts lack authority to issue universal, or nationwide, injunctions. But at the same time, it recognized that the APA authorized district courts to “set aside” unlawful agency actions, and that a district court therefore had authority to vacate an agency rule in its entirety if in violated the APA, as here.)
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