[00:00:00] Speaker 06:
Case number 25-5473.

[00:00:02] Speaker 06:
Chamber of Commerce of the United States of America and Association of American University Appellants versus United States Department of Homeland Security head out.

[00:00:15] Speaker 06:
Mr. Unicovsky for the Appellants, Mr. Davis for the Appellates.

[00:00:20] Speaker 03:
Good morning.

[00:00:21] Speaker 03:
Good morning, Your Honors.

[00:00:22] Speaker 03:
May I proceed?

[00:00:23] Speaker 03:
Yes.

[00:00:24] Speaker 03:
Thank you, Your Honors.

[00:00:25] Speaker 03:
My name is Adam Unikowski, and I'm here on behalf of the Plaintiffs' Appellants.

[00:00:29] Speaker 03:
The Supreme Court's decision in learning resources confirms that the proclamation is contrary to law.

[00:00:36] Speaker 03:
What was a close and difficult case when Judge Howell decided it is a straightforward case today.

[00:00:41] Speaker 03:
Learning resources reinforces both that the authority to restrict the entry of aliens into the United States does not encompass the authority to impose a tax,

[00:00:52] Speaker 03:
and that the proclamation is incompatible with other provisions of the INA that fix the cost of filing an H-1B petition at a far lower amount.

[00:01:03] Speaker 03:
So the IE EPA and Section 212F are strikingly similar statutes.

[00:01:07] Speaker 03:
The IEPA confers the president with very broad discretion to prevent or regulate the entry of property into the United States.

[00:01:16] Speaker 03:
So in that sense, it's quite similar to Section 212F, which confers the president with broad discretion to restrict or suspend the entry of foreign nationals into the United States.

[00:01:26] Speaker 03:
And the IEPA is extremely broad.

[00:01:29] Speaker 03:
First, it applies only in cases of unusual and extraordinary threats, which is a discretionary standard that the executive has said is so broad as to be not justiciable.

[00:01:38] Speaker 03:
The president can choose the means by which he exercises authority.

[00:01:42] Speaker 03:
It says the president may act, quote, by means of instructions, licenses, or otherwise.

[00:01:46] Speaker 03:
So that's a very broad grant of discretion.

[00:01:49] Speaker 03:
And it includes nine separate powers that really cover the waterfront of all the different ways the president might want to regulate or prevent property from entering the United States.

[00:01:57] Speaker 05:
But if we're comparing 1182F to IEPA on the one hand, which of course you want to do to make this case as close to learning resources as possible,

[00:02:15] Speaker 05:
But we could also compare it to the statute at issue in Algonquin.

[00:02:22] Speaker 05:
And that which Learning Resources distinguished said the Algonquin statute is a broad discretionary conferring provision on the president.

[00:02:37] Speaker 05:
That statute

[00:02:43] Speaker 05:
That statute allowed the president to take such other action as he deems necessary.

[00:02:51] Speaker 05:
And 212F to me reads more like that statute than like AEPA.

[00:02:58] Speaker 03:
A couple of things about that statute, if I may, Your Honor.

[00:03:00] Speaker 03:
First of all, that statute does give the president broad discretion as well, but it's discretion to adjust.

[00:03:07] Speaker 03:
importation.

[00:03:08] Speaker 03:
And the core of the court's reasoning in Algonquin is that adjustment implies a kind of fine and granular change to the amount of importation that could be effectuated via what was characterized as license fees in that case.

[00:03:21] Speaker 03:
I'd also point out that crucial to the learning resources decision was that

[00:03:25] Speaker 03:
Section 232A, which was the preceding part of the Trade Expansion Act, specifically referred to duties.

[00:03:32] Speaker 03:
And so the court drew a structural inference that the ability to adjust imports also encompassed these license fees.

[00:03:38] Speaker 03:
And if I can just put one over the point on the table about this, the Supreme Court's decision learning resources had language saying that we expressly declined to extend the reasoning of Algonquin any further.

[00:03:48] Speaker 03:
I kind of read that as almost living into its facts.

[00:03:52] Speaker 05:
Fair enough.

[00:03:54] Speaker 05:
IEPA is broad, but I mean, IEPA has a bunch of verbs like regulate, prohibit, compel, and the reasoning and learning resources focusing mainly on regulators.

[00:04:12] Speaker 05:
The power to regulate is not the power to tax.

[00:04:15] Speaker 03:
Your Honor, I'd say the same thing about the power to restrict not being the power to tax, especially given the... I'm sorry, did you have a question?

[00:04:22] Speaker 05:
Yeah, but the power to impose any restrictions he may deem appropriate.

[00:04:29] Speaker 05:
as construed in Trump versus Hawaii exuding deference to the president in every part of that clause.

[00:04:37] Speaker 03:
Well, I don't think that Trump versus Hawaii considered this unique taxation issue.

[00:04:41] Speaker 03:
And, you know, AIIPA exudes deference to the president either, I mean, by means of instructions, licenses, or otherwise.

[00:04:46] Speaker 03:
I actually also think that the argument, just focusing on the language of IEPA, was stronger for tariffs in IEPA than the argument the government advances today.

[00:04:55] Speaker 03:
Because first of all, in IEPA, the second E in IEPA stands for economic.

[00:05:00] Speaker 03:
It's the International Emergency Economic Powers Act, which is at least redolent of the authority to issue economic tools such as tariffs.

[00:05:07] Speaker 03:
Also, the AIPA refers to instructions, licenses, or otherwise.

[00:05:12] Speaker 03:
So, you know, the word license at least seems to arguably convey the authority to impose license fees, which is exactly what was at issue in Algonquin.

[00:05:20] Speaker 03:
In this case, there's really nothing at all suggesting any authority to impose tax, just the word restrict.

[00:05:26] Speaker 03:
Plus, you know, I think that the molten core of the reasoning in learning resources was that there has to be express and clear language about taxation.

[00:05:34] Speaker 03:
The court uses the adverb expressly twice and uses clearly once.

[00:05:39] Speaker 04:
So if the president had proclaimed that this class of visa applicants would have to pay an additional $500 fee over and above the standard fee, does that violate the Constitution?

[00:06:01] Speaker 04:
Are you saying

[00:06:04] Speaker 04:
I'll stop there.

[00:06:07] Speaker 03:
I'm not sure I'd be making a constitutional argument.

[00:06:09] Speaker 03:
I probably would say that it's a type of tax that the president is an authorized issue under Section 1182.

[00:06:14] Speaker 03:
There are other authorities.

[00:06:16] Speaker 03:
There's the 1356M authority that allows the secretary to charge a fee corresponding to the cost of the service.

[00:06:23] Speaker 03:
And there are some fees that are in that order that have been imposed pursuant to that express statutory authority.

[00:06:29] Speaker 03:
But I wouldn't say that Section 1182F would authorize the $500.

[00:06:33] Speaker 03:
So that would be my answer to your question, Your Honor.

[00:06:36] Speaker 04:
Well, I'm trying to understand, like, the argument you seem to be making is a statutory construction argument, so why does it matter how much the fee is?

[00:06:52] Speaker 04:
You're saying that restrictions can never be fees, or they can be fees if they're only, you know, so much, and then how do we know

[00:07:07] Speaker 04:
How much is too much and why does the construction of the word, the breath of the word restrictions, why does that even depend on how much the fee is?

[00:07:21] Speaker 03:
It doesn't, Your Honor.

[00:07:22] Speaker 03:
I think our argument based on learning resources is that restriction doesn't cover the ability to impose a tax.

[00:07:28] Speaker 03:
I don't think learning resources would have come out differently if the tariffs were lower.

[00:07:32] Speaker 03:
Under the Federal Circuit's reasoning in that case, it might have come out differently because the Federal Circuit focused on the size of the tariffs.

[00:07:38] Speaker 03:
But that was not how the Supreme Court understood the issue.

[00:07:40] Speaker 03:
The Supreme Court just seemed to say, there's got to be clear and expressed language if you want to have a tax.

[00:07:45] Speaker 03:
And there just isn't.

[00:07:46] Speaker 03:
And therefore, the president's authorities under AIIPA don't extend taxes.

[00:07:50] Speaker 04:
I thought your answer to my question, if it was a $500 fee, was that it wouldn't be a tax.

[00:07:56] Speaker 04:
You're saying it would be a tax?

[00:07:57] Speaker 03:
So it might be permissible under Section 1356M if the secretary pursuant to notice and comment rulemaking imposed such a fee for the cost of service.

[00:08:07] Speaker 03:
That's just a separate font of authority.

[00:08:09] Speaker 03:
I mean, I want to clarify my answer.

[00:08:11] Speaker 03:
Under Section 1182F, I don't think the president could impose that.

[00:08:16] Speaker 05:
Let's talk about two other powers.

[00:08:22] Speaker 05:
in this case, besides tax, right?

[00:08:26] Speaker 05:
If this is just a tax, that's helpful to you.

[00:08:29] Speaker 05:
But Congress has non-tax authorities under Article 1, Section 8, that would easily justify the action here, the immigration power, right?

[00:08:47] Speaker 05:
So what does it matter if this

[00:08:51] Speaker 05:
This might or might not be a proper exercise, if done by Congress, of the Article 1, Section 8, Clause 1, powered attacks, if it's just independently justified under the immigration power.

[00:09:11] Speaker 05:
And in cases that

[00:09:15] Speaker 05:
are close to the intersection of things that might look like taxes, but are restrictions on entry.

[00:09:22] Speaker 05:
In the best case on that is the head money case.

[00:09:24] Speaker 05:
And that case says that the per head takes action in that case was an exercise of immigration power, not the tax power.

[00:09:34] Speaker 03:
I think a similar argument could have been made in learning resources itself because the tariffs could arguably have been conceptualized as an exercise of the authority to regulate foreign commerce as opposed to the authority to impose a tax.

[00:09:46] Speaker 03:
But nonetheless, the court conceptualized requiring people to pay to import goods in its own category as fundamentally, or at least sufficiently different from the authority to regulate foreign commerce that at least some clear language is needed.

[00:10:00] Speaker 05:
I mean, why would that be if it's

[00:10:03] Speaker 05:
independently justified under another power, the argument that there are special constraints governing the tax power just loses its force.

[00:10:15] Speaker 03:
I'm not sure it does because the ability to impose tax grants entire new vistas of authority to the executive branch.

[00:10:21] Speaker 03:
And I understand learning resources to say that if Congress wanted to delegate that authority, then it had to say so with more clarity than just general authority to regulate.

[00:10:30] Speaker 03:
Like, I think that if

[00:10:31] Speaker 05:
So what about, I mean, what about head money?

[00:10:33] Speaker 05:
We have a case at the intersection of taxing power and the immigration power, and the court, I mean, it seemed to maybe say that that exact action couldn't even be justified as a tax, but it clearly says it can be justified as an exercise of the immigration power.

[00:10:53] Speaker 03:
I would view that as different from the statutory interpretation question in this case.

[00:10:58] Speaker 03:
I think learning resources is more on point.

[00:10:59] Speaker 03:
I mean, we can have a debate over constitutional authority to issue a rule, but in this case, we're making a statutory interpretation argument.

[00:11:06] Speaker 05:
Our argument is definitely informed by- I get that, but the interpretive principle that you're pressing on us just seems to flow from

[00:11:18] Speaker 05:
The special uniquely dangerous nature of the taxing power.

[00:11:25] Speaker 05:
I think learning resources says the taxing power has that character.

[00:11:30] Speaker 05:
Well, it doesn't address the immigration power.

[00:11:33] Speaker 03:
Well, let me put some other arguments on the table, because other ways in which I think our case is stronger than learning resources is not just the fact that this is a tax and the word restrict doesn't cover tax.

[00:11:42] Speaker 03:
There's other inferences from the statute in history.

[00:11:45] Speaker 03:
I'd just like to spend a couple of minutes, if I may.

[00:11:47] Speaker 05:
Can I put one more on the table, just so you know how I'm thinking about it, which is, for me, the immigration power cuts against you and also the president's inherent

[00:12:02] Speaker 05:
The article one immigration power cuts against you also the president's inherent article to power to control entry.

[00:12:11] Speaker 05:
We know that he has that from off again Shaughnessy and there are lots of cases that say that when Congress is delegating to the president.

[00:12:24] Speaker 05:
Authority that he already has under article to that informs

[00:12:30] Speaker 05:
We should take that into account in construing the scope of the delegation.

[00:12:35] Speaker 03:
Okay, so let me just those points in reverse order.

[00:12:37] Speaker 03:
If I could start with the article to issue enough.

[00:12:39] Speaker 03:
I'm not sure the president has the inherent article to authority to impose fees based on the entry, even if the president has the inherent authority to exclude, which was discussed enough.

[00:12:50] Speaker 03:
And I actually think there's a close analogy to IEPA here.

[00:12:52] Speaker 03:
So I think that in core applications of IEPA, there really is a concurrent power between Congress and the executive branch.

[00:12:58] Speaker 03:
The core application of IEPA is that the president perceives an unusual and extraordinary threat based on property entering the United States and closes the borders to make sure that property doesn't enter.

[00:13:09] Speaker 03:
So it seems to me that there's just the core executive power that doesn't require an active.

[00:13:12] Speaker 05:
I agree with you, but learning resources was decided on the assumption that there was no inherent article to power at issue.

[00:13:23] Speaker 03:
No, I think that the core.

[00:13:25] Speaker 03:
There's core applications of IEPA that would implicate the power.

[00:13:28] Speaker 03:
I think the premise of learning resources is that the specific power claimed by the president in that case, which is the power to impose tariffs, was not within the president's inherent article to power, even if other applications of IEPA might be.

[00:13:42] Speaker 03:
And I think that's exactly what's happening here.

[00:13:43] Speaker 03:
I agree that there's language in Shaughnessy, or NOS, excuse me, that suggests

[00:13:48] Speaker 03:
that some applications of the president's power to exclude dangerous individuals might arise from the president's article to authority.

[00:13:55] Speaker 03:
But in this case, the president is claiming the power to essentially tax importation.

[00:14:00] Speaker 03:
I use that term intentionally because section 1184C, which addresses the petitions at issue in this case, refers to the petition of an importing employee, refers to the importation of an alien.

[00:14:11] Speaker 03:
So just using the very word that Congress has chosen, import,

[00:14:14] Speaker 03:
Essentially, the president is taxing importation.

[00:14:17] Speaker 03:
And I think that's the very power that in learning resources, the court suggested not fall within the president's inherent authority, even if other applications of IEPA would have.

[00:14:27] Speaker 02:
Yes, Your Honor.

[00:14:28] Speaker 02:
The government had indicated in the tear case that it had the inherent authority to impose the tariffs, but that didn't

[00:14:37] Speaker 02:
Call the day, but that's right.

[00:14:39] Speaker 02:
Okay.

[00:14:39] Speaker 02:
So the other thing I wanted to get us going down the road of you're saying that this is a tax and not a user fee essentially.

[00:14:47] Speaker 02:
But doctrinally, if we're looking at a limiting principle, how are we defining it?

[00:14:52] Speaker 02:
Is it because it's revenue raising?

[00:14:54] Speaker 02:
Is it because.

[00:14:56] Speaker 02:
Where the money is put and maybe whether it's tethered to costs in terms of administrative fees.

[00:15:03] Speaker 02:
How do we define this so that other cases coming along this line about just putting on some amount of money attaching it to whatever issue that we just kind of have a limiting principle.

[00:15:15] Speaker 03:
So I think there's two pertinent lines that have been debated in this case.

[00:15:19] Speaker 03:
There's the tax versus fee line and there's the tax versus penalty line.

[00:15:22] Speaker 03:
So if I can address both of those in order.

[00:15:24] Speaker 03:
First on tax versus fee, the line that the courts have drawn is that a fee is paid in exchange for a direct benefit.

[00:15:32] Speaker 03:
So if you want the government to do something for you and you pay a fee, that's the cost of the government doing that thing.

[00:15:37] Speaker 03:
That's not a tax.

[00:15:39] Speaker 03:
Okay, a tax is, you know, the money goes to the public good as opposed to just compensating the government for the cost of the service that's being provided.

[00:15:47] Speaker 03:
And I don't think that the government is arguing that this is a fee under that understanding, even though under something like 1356M, that might be a fee.

[00:15:54] Speaker 03:
But, you know, this hundred thousand dollar cost does not fall into that bucket.

[00:15:57] Speaker 03:
And there's a separate distinction between penalties and taxes.

[00:16:01] Speaker 03:
And I understand penalties to be punishing someone for wrongful conduct.

[00:16:06] Speaker 03:
I don't think that's even arguably at issue here.

[00:16:07] Speaker 03:
I mean, the proclamation says that the goal of the that the goal of the fee is to ensure that the best of the best come to the United States.

[00:16:15] Speaker 03:
We could debate whether it'll do that, but that doesn't sound like wrongful conduct.

[00:16:18] Speaker 03:
that's worthy of punishment.

[00:16:20] Speaker 03:
I am mindful of the argument by the government in this case that the $100,000 fee will deter people from filing petitions.

[00:16:27] Speaker 03:
That is true.

[00:16:28] Speaker 03:
Some people will be deterred.

[00:16:29] Speaker 03:
That doesn't change the fact that it's a tax.

[00:16:31] Speaker 03:
And in fact, the same argument was made in learning resources.

[00:16:34] Speaker 02:
The government still has the congressional mandate of allowing the 65,000 visas into the country.

[00:16:42] Speaker 03:
Right, so we think that there is an incompatibility there with the program, as well as the fact that Congress has set the fees at a particular amount.

[00:16:49] Speaker 03:
It just seems that this is supplanting rather than supplementing the scheme when Congress decides it's going to be $1,500 and then $500 and then $4,000 for people who use a lot of this program frequently.

[00:17:00] Speaker 03:
And the president is essentially replacing that judgment with the judgment that it should instead be $100,000.

[00:17:07] Speaker 03:
If I could just make one other

[00:17:08] Speaker 05:
Just on that, the President is supplementing fees in the way that any conventional exercise of 1182f would be supplementing entry restrictions.

[00:17:28] Speaker 05:
Yes.

[00:17:28] Speaker 05:
Trump versus Hawaii says that's fine.

[00:17:30] Speaker 05:
You can't make arguments about the sound in field preemption or negative implication or things like that.

[00:17:40] Speaker 05:
Why would that principle be any different where the restrictions are the list of authorized fees?

[00:17:47] Speaker 03:
Well, I think that this case is quite distinguishable in its facts from Trump versus Hawaii.

[00:17:51] Speaker 03:
The line that's drawn in Trump versus Hawaii is supplementing versus supplanting.

[00:17:55] Speaker 03:
So Trump versus Hawaii was a very clear case, as I see it, of supplementing.

[00:17:59] Speaker 03:
The statute that the challengers were relying on in that case was this visa waiver program that said that for 20% of the countries in the world, which were our nation's closest allies that met the gold standard in vetting and counterterrorism, nationals of those countries didn't need to obtain visas as long as there were reciprocal privileges.

[00:18:18] Speaker 03:
And the court held that that didn't say anything about whether extra vetting was needed for people who come from places like Iran and North Korea.

[00:18:25] Speaker 03:
And here, I think the conflict is a little clearer.

[00:18:27] Speaker 03:
The president is just replacing a number with a different number.

[00:18:30] Speaker 03:
Congress said it's 1,500, and then 4,000 if people use the program a lot, and there's a few other fees.

[00:18:36] Speaker 03:
And just the president has decided that the number should be higher.

[00:18:39] Speaker 03:
And it's also relevant to the learning resources related argument.

[00:18:42] Speaker 03:
In learning resources, the court emphasized that there are other tariff statutes that show that Congress knew how to impose tariffs.

[00:18:49] Speaker 03:
And that supported the inference that regulation didn't encompass tariffs.

[00:18:53] Speaker 03:
And you can draw the exact same inference here.

[00:18:55] Speaker 03:
It's even stronger because Congress enacted a fee for the filing of this specific document.

[00:19:01] Speaker 03:
So it clearly knew how to do that.

[00:19:02] Speaker 03:
And then you have Section 212F that doesn't include anything about fees at all.

[00:19:06] Speaker 02:
Does it matter that this money is going to the general fund essentially instead of the immigration examination, the account?

[00:19:14] Speaker 03:
Yes, that's completely consistent with it being a tax that it goes to the Treasury.

[00:19:17] Speaker 03:
I point out that the same thing happened in learning resources.

[00:19:20] Speaker 03:
The funds were collected by CBP and ultimately deposited into the Treasury.

[00:19:24] Speaker 04:
How should we best view your claim?

[00:19:30] Speaker 04:
Is it an APA claim?

[00:19:32] Speaker 04:
Is it an ultra-virus claim?

[00:19:34] Speaker 04:
Is it an equitable constitutional claim?

[00:19:36] Speaker 04:
Is it something else?

[00:19:38] Speaker 03:
So we've brought both an ultra virus claim against the president and the agencies, and we've also brought an APA claim.

[00:19:45] Speaker 03:
So I'm happy to go through both of those.

[00:19:47] Speaker 04:
How do you think that the Supreme Court viewed the claim in learning resources?

[00:19:53] Speaker 03:
So that claim was just brought under customs laws in the court of international trade.

[00:19:57] Speaker 03:
That's a separate statutory scheme to challenge the imposition of tariffs that is not directly applicable here.

[00:20:03] Speaker 03:
Of course, we file our suit in federal district court.

[00:20:05] Speaker 04:
So the court didn't have to deal with the end of Dalton and other issues there because of the special means of review at issue there.

[00:20:16] Speaker 03:
That's right.

[00:20:17] Speaker 03:
The court actually held that the Court of International Trade and the Federal Circuit had exclusive jurisdiction over that dispute.

[00:20:23] Speaker 03:
But we're relying on, for our ultra-virus claim, circuit precedent holds in cases like Chamber of Commerce versus Reich and the American Forest Resources Council case that plaintiffs are entitled to challenge, bring in ultra-virus claim, challenging presidential action when it's being implemented by agencies.

[00:20:41] Speaker 02:
We're not seeking injunction against specific prohibition against a particular statute.

[00:20:46] Speaker 03:
That's right.

[00:20:46] Speaker 03:
We're saying that the president has exceeded his authority under Section 212F.

[00:20:50] Speaker 03:
And we're not seeking an injunction against the president, which we understand is not permitted.

[00:20:54] Speaker 03:
We're saying that the agencies should be enjoined from implementing an action that exceeds presidential authority.

[00:21:01] Speaker 03:
And that's the exact theory that this court endorsed in the Chamber of Commerce case and in the American Forest Resources Council.

[00:21:07] Speaker 05:
You might recall we had some in banks recently.

[00:21:12] Speaker 05:
I have a vague recollection of that, Your Honor.

[00:21:15] Speaker 05:
One of the lines, one of the proposed distinctions on reviewability for an ultra virus claim was maybe if the president's action exceeded statutory authority, no review.

[00:21:32] Speaker 05:
But if there were just no complete absence of authority, then ultra virus review.

[00:21:39] Speaker 05:
If that's the relevant line,

[00:21:42] Speaker 05:
This case seems to clearly fall on the exceeds authority side of the line, because 1182F gives a lot of authority.

[00:21:51] Speaker 03:
So first of all, I don't think that's the relevant line.

[00:21:54] Speaker 03:
And I don't think that's the line that was drawn in cases such as American Forest Resources Council.

[00:21:58] Speaker 03:
I'm mindful of the in-bank case.

[00:22:00] Speaker 03:
But under current circuit precedent, I think we're allowed to argue that the president has exceeded authority.

[00:22:05] Speaker 03:
I do think that even under the more difficult standard, we would, I'm sorry.

[00:22:10] Speaker 05:
I'll spot you that the fact that you are ultimately challenging presidential action doesn't create a Franklin bar.

[00:22:24] Speaker 05:
I think our cases say that.

[00:22:26] Speaker 05:
But then you still have the separate question of

[00:22:30] Speaker 05:
You know, assume the president were just the cabinet secretary.

[00:22:34] Speaker 05:
Can you get ultra virus review where it looks like an exceeding authority case rather than an absence of authority case?

[00:22:44] Speaker 03:
So I read those cases, Chamber of Commerce and American Forest Resources Council to answer that question.

[00:22:48] Speaker 03:
Yes, that we can argue that the president has exceeded statutory authority.

[00:22:52] Speaker 03:
If there's a higher bar, I still think we meet it.

[00:22:54] Speaker 03:
I think there's an absence of authority under 212-F to tax.

[00:22:58] Speaker 03:
I think that if restriction doesn't mean tax, then there's just an exceeding of authority.

[00:23:02] Speaker 03:
But I don't think that's the right standard.

[00:23:04] Speaker 03:
I read the circuit precedent to say that as long as we've argued that there is an excess of statutory authority, we can challenge Altavira's action via seeking an injunction against the cabinet secretaries.

[00:23:16] Speaker 03:
We've also brought this alternative APA claim.

[00:23:18] Speaker 02:
So if the court doesn't- Do you think we have the full ruling just under the APA?

[00:23:21] Speaker 03:
Yes.

[00:23:21] Speaker 03:
So, you know, I think that what happened here was final agency actions.

[00:23:25] Speaker 03:
I mean, you know, CBP and USCIS as well as the State Department issued this guidance that hold employees of those agencies or of those branches of the agencies that they are to implement this directive.

[00:23:37] Speaker 03:
And that's final agency action.

[00:23:39] Speaker 03:
It's definitely final.

[00:23:40] Speaker 03:
It's an action by the agencies.

[00:23:42] Speaker 03:
I mean,

[00:23:42] Speaker 03:
It's the culmination of the decision-making process.

[00:23:45] Speaker 03:
In no sense are the agencies still thinking about this.

[00:23:47] Speaker 03:
Legal consequences definitely flow from those actions.

[00:23:50] Speaker 03:
So I think the court can say that even though the agencies were implementing a presidential directive, it is still final agency action that we can challenge.

[00:23:58] Speaker 03:
Because if it wasn't the case, that would be the end of the AP.

[00:24:02] Speaker 03:
I don't mean to be dramatic, but the government's position here is that if the president directs an agency to do something, you can't bring an ultra-various claim against the president because he's the president.

[00:24:11] Speaker 03:
And you can't sue the agency either because there's no final agency action because they're just implementing what the president says.

[00:24:18] Speaker 03:
So you just can't challenge the action at all.

[00:24:20] Speaker 03:
And that would just allow the president to tell agencies to violate statutes every day and there'd be no judicial review.

[00:24:26] Speaker 05:
So I take it on that theory.

[00:24:27] Speaker 05:
It doesn't matter whether the agency action does something in addition to just carbon copying what the president ordered.

[00:24:39] Speaker 03:
I don't think it matters.

[00:24:40] Speaker 03:
As your honor knows, we have explained in the brief why we think that it does in this case, that there are

[00:24:44] Speaker 03:
applications and interpretations of the executive order that the agencies accomplish.

[00:24:49] Speaker 03:
But I think that just the correct legal way to resolve the case is that it doesn't, I mean, the requirement of final agency action just require that it be final and be by the agency.

[00:24:57] Speaker 03:
There's no requirement of like independent exercises of discretion.

[00:25:00] Speaker 04:
But it's your position, well, is it your position then that

[00:25:07] Speaker 04:
If we do find that it's final agency action, and we resolve it under the APA.

[00:25:15] Speaker 04:
By definition, then there's no ultra virus action because you've got an adequate alternative grounds for relief, or are you saying that you have both?

[00:25:25] Speaker 03:
Well, the government has indicated that it would construe or potentially construe an action, a decision setting aside the agency action as irrelevant that the agencies would just follow the president directly.

[00:25:36] Speaker 03:
And if, in fact, the agencies construe a decision that way, then the APA claim wouldn't be adequate.

[00:25:41] Speaker 03:
I do think what the court, you know,

[00:25:43] Speaker 03:
A simple way to avoid the ultra-virus claim will be to say that under the APA, there's final agency action and the court should issue an injunction that just prevents the agency officials from implementing this illegal action and just clarify that they can't just sort of directly ignore the guidance from the agencies and sort of do what the president said anyway, because that would imply, if they could do that, then we would need to have the ultra-virus action.

[00:26:08] Speaker 03:
But I think that the court has the authority

[00:26:10] Speaker 03:
or the district court has the authority to issue an injunction under the APA that prevents the agencies from doing that.

[00:26:16] Speaker 03:
And if the court so clarifies, then we wouldn't need the ultra-various claim.

[00:26:22] Speaker ?:
Right.

[00:26:22] Speaker 03:
If there are no further questions, I am 15 minutes over my time.

[00:26:25] Speaker 04:
Well, I guess I'm just trying to understand the under the APA

[00:26:40] Speaker 04:
Your theory would be that this is contrary to law and not arbitrary and capricious.

[00:26:44] Speaker 04:
That's correct.

[00:26:46] Speaker 04:
And it's contrary to law because it is contrary to a statute or contrary to the Constitution.

[00:26:56] Speaker 03:
Contrary to a statute.

[00:26:57] Speaker 03:
We would say that Section 212F's authority to restrict entry, which is being implemented by the relevant secretaries, does not encompass the power to demand $100,000.

[00:27:08] Speaker 04:
So, if it's articulated that way, where you're not saying it's contrary to... articulated that way, it sounds very much like just purely exceeding statutory authority, as opposed to there is another statute out here that we have identified

[00:27:36] Speaker 04:
That prohibits this action and what the president has done falls within the meets and bounds of that statute.

[00:27:44] Speaker 04:
And so there's kind of an affirmative statute that prohibits what president fan agencies.

[00:27:54] Speaker 03:
You can call it the absence of authority, I guess.

[00:27:57] Speaker 03:
I understand that there's no statute that says, thou shall not tax, but agencies need authority to do everything that they do.

[00:28:05] Speaker 03:
And if there's just an absence of authority to act, that's just as contrary to law as it would be if a statute said, thou shall not.

[00:28:11] Speaker 03:
issue this tax, plus the fact that there are other statutes that specifically impose fees at a much lower rate.

[00:28:18] Speaker 03:
And I think that the implication of those statutes is that that's the rate, that's the number, that's the cost of an H-1B petition.

[00:28:24] Speaker 03:
And so I think it's affirmatively inconsistent with those laws to say that number will be replaced by a different number.

[00:28:30] Speaker 04:
I guess what I'm trying to

[00:28:32] Speaker 04:
to drill down on is doctrinally how to understand what we would be doing if we rule in your favor.

[00:28:41] Speaker 04:
Because on the one hand, you say, well, this isn't an arbitrary and capricious case.

[00:28:47] Speaker 04:
This isn't a case where we are kind of reviewing the president's exercise of discretion.

[00:28:53] Speaker 04:
It's a case where the president is acting in excess of his authority

[00:29:02] Speaker 04:
But the statute that you are referring to is one that says that the president may impose on the entry of aliens any restrictions he may deem to be appropriate.

[00:29:17] Speaker 04:
And so, deem to be appropriate, that's like language that explicitly confers discretion.

[00:29:33] Speaker 04:
And so your argument seems to be that he shouldn't be able to deem this sort of a restriction to be appropriate.

[00:29:46] Speaker 03:
I don't think that's our argument.

[00:29:48] Speaker 03:
I think our argument is that this isn't a restriction.

[00:29:51] Speaker 03:
And maybe an analogy would be helpful.

[00:29:53] Speaker 03:
There's a case in which the court denied a stay, and it's currently pending for a merits panel, this RAICES case, about Section 212F as well, in which the state panel concluded that at least as to removals

[00:30:07] Speaker 03:
Section 212 off didn't give the president discretion to remove certain individuals.

[00:30:13] Speaker 03:
Because entry and removal.

[00:30:15] Speaker 03:
Exactly.

[00:30:15] Speaker 03:
So it's just exceeding the president's authority, right?

[00:30:18] Speaker 03:
Like, you know, the president has lots of authority, but he doesn't have the authority to remove because it only applies to entry.

[00:30:23] Speaker 03:
So it's an excessive authority.

[00:30:25] Speaker 03:
It's not abusing discretion.

[00:30:27] Speaker 03:
It's just exercising power the statute doesn't give.

[00:30:30] Speaker 03:
And that's in the nature of the claim we're bringing today.

[00:30:32] Speaker 03:
It's true that there's broad discretion as shall deem necessary, exactly the same way that IEPA had virtually unlimited discretion.

[00:30:39] Speaker 03:
It's the licenses, instructions, or otherwise.

[00:30:42] Speaker 03:
So essentially, the president can act by any means necessary, but act to do what?

[00:30:47] Speaker 03:
And so the court held that

[00:30:48] Speaker 03:
regulate, which could be done by any means necessary, just didn't encompass the power to tax.

[00:30:53] Speaker 03:
And all we're asking the court to do is say the same thing here.

[00:30:56] Speaker 03:
A tax is not a restriction in the same way that a removal is not entry.

[00:31:02] Speaker 03:
And so it's really an excessive authority claim.

[00:31:04] Speaker 03:
It's not merely a claim of an abuse of discretion or arbitrary and capricious reasoning.

[00:31:09] Speaker 02:
And Congress has not granted the power to tax under the statute.

[00:31:13] Speaker 03:
That's right.

[00:31:13] Speaker 03:
We agree that Congress could confer this authority expressly if it wanted to.

[00:31:16] Speaker 03:
It just hasn't done that.

[00:31:20] Speaker 03:
All right.

[00:31:20] Speaker 03:
Thank you.

[00:31:20] Speaker 03:
We'll give you a quick question.

[00:31:23] Speaker 03:
Yes, I'm sorry.

[00:31:23] Speaker 02:
Just back to Judge Wilkins earlier discussion with you about does it matter the amount, you know, with respect to the number?

[00:31:32] Speaker 02:
Because I'm concerned about whether or not is there any number that as long as it exceeds cost recovery, is that sufficient?

[00:31:40] Speaker 02:
Or does it matter about it just being a tax regardless of that amount?

[00:31:45] Speaker 03:
I think our core argument is that it's a tax.

[00:31:48] Speaker 03:
It would be very hard to draw lines in the statute saying, you know, 10,000 is okay and 50,000 is not.

[00:31:52] Speaker 03:
I think the relevant legal line is tax versus non-tax.

[00:31:55] Speaker 04:
Okay.

[00:31:56] Speaker 04:
So if the proclamation said that it's a dollar, your position would be the same.

[00:32:02] Speaker 04:
You can't do it.

[00:32:03] Speaker 03:
I'll take the hard line position, Your Honor, that it would be the same.

[00:32:05] Speaker 03:
I mean, our case is easier that it's $100,000.

[00:32:08] Speaker 03:
But I'm going to say that the statute doesn't authorize a tax, and we're not trying to draw that line.

[00:32:16] Speaker 05:
The higher the prohibition, the higher the exaction, the more this approximates a prohibition than an exaction on a lawful transaction.

[00:32:31] Speaker 03:
Yes, it's true that as the cost gets higher, fewer people will do it.

[00:32:35] Speaker 05:
And if I be functional analysis of tax or no tax, the size of it cuts against you.

[00:32:42] Speaker 03:
In the tariffs case, the stated purpose of the tariffs was to remedy trade deficits, so to deter people from engaging in the action at all.

[00:32:49] Speaker 03:
I was struck by the Solicitor General's statement at the Learning Resources Oral Argument, in which he said that the tariffs would be by far the most effective if nobody ever pays them.

[00:32:59] Speaker 03:
In other words, the asserted goal of the tariffs, according to the executive, was not to raise revenue, but to deter trade.

[00:33:04] Speaker 03:
Of course, it did raise some revenue, and the court said, therefore, it's tax.

[00:33:08] Speaker 03:
In this case, it's hard to predict how many people are going to pay the $100,000.

[00:33:11] Speaker 03:
Some will, some won't.

[00:33:13] Speaker 03:
But it deters conduct and raises revenue.

[00:33:15] Speaker 03:
And that's very typical among taxes.

[00:33:17] Speaker 03:
We see that with excise taxes for alcohol and tobacco.

[00:33:20] Speaker 03:
Some people don't use it at all and then some people pay and it's a tax.

[00:33:23] Speaker 03:
And I think that this can be understood the same way.

[00:33:26] Speaker 05:
Even though it's...

[00:33:30] Speaker 05:
doesn't appear on your tax forms, not collected through the IRS, all the functional considerations.

[00:33:36] Speaker 03:
That's exactly what the government said in learning resources, which the tariffs there did not appear on tax forms.

[00:33:42] Speaker 03:
It was collected by CBP.

[00:33:44] Speaker 03:
Lots of taxes collected by the government are not collected by the Internal Revenue Service.

[00:33:49] Speaker 03:
Alcohol and cigarette taxes are collected by ATF.

[00:33:52] Speaker 03:
There's just no rule that says that something has to be collected by the IRS to be a tax.

[00:33:57] Speaker 03:
Congress called this the importation

[00:33:59] Speaker 05:
You know, but there's still NFIB and the child labor tax case, which say that at some point functional considerations will

[00:34:13] Speaker 03:
You know, the child labor case, and I realize I'm way over time, but that had many features that were absent here.

[00:34:18] Speaker 03:
For example, that case had a mens rea requirement that was absent here, which the court in NFIB interpreted to be, you know, redolent of wrongful conduct because, you know, mens rea requirements generally appear in criminal laws.

[00:34:30] Speaker 03:
No employer unknowingly brings an H1B alien into the

[00:34:34] Speaker 03:
I know, but the point is there's this explicit Siente requirement that they had to know the person was under 18, which implies that people were acting more wrongly if they didn't know, which implies that the conduct was wrongful.

[00:34:48] Speaker 03:
And it's not just that.

[00:34:49] Speaker 03:
In this case, the proclamation says that the goal is to ensure the best of the best come in.

[00:34:54] Speaker 03:
In other words, the idea was if someone is really worth $100,000, then that's a great person we want in this country.

[00:34:59] Speaker 03:
Again, you can debate that policy goal, but that just doesn't sound like a penalty at all.

[00:35:03] Speaker 03:
That's almost like a reward for bringing in people that, you know, the executive things should be here.

[00:35:07] Speaker 05:
I mean, maybe we're maybe we've covered this.

[00:35:09] Speaker 05:
It sounds to me like an exercise of the immigration authority.

[00:35:13] Speaker 05:
Well, as I said, as president has, but I take your point.

[00:35:17] Speaker 05:
Thank you.

[00:35:17] Speaker 04:
All right.

[00:35:20] Speaker 04:
Thank you.

[00:35:28] Speaker 04:
Mr. Davis.

[00:35:29] Speaker 01:
May it please the court, Tiberius Davis on behalf of the United States.

[00:35:34] Speaker 01:
The court should affirm the lower court's well-reasoned decision from Judge Howell for numerous reasons.

[00:35:39] Speaker 01:
Much of what the court discussed with opposing counsel today was whether this payment requirement under the proclamation is a tax and if so, whether it's delegated properly under 1182F after learning resources.

[00:35:51] Speaker 02:
But Judge Howell did not have the learning resources case available to her.

[00:35:56] Speaker 01:
That's correct, Your Honor.

[00:35:57] Speaker 01:
But I think for a couple of reasons, learning resources actually cuts in our favor.

[00:36:01] Speaker 01:
And I think part of that goes to what Judge Katz was saying.

[00:36:04] Speaker 01:
So the only majority opinion there was for the textual analysis of IEPA.

[00:36:09] Speaker 01:
And the Supreme Court made very clear that they were not touching any other statutes or interpreting any other statutes in response to Justice Kavanaugh's dissent.

[00:36:17] Speaker 01:
And the language there was regulation of importations.

[00:36:21] Speaker 01:
And they said it was separated by 16 other wards.

[00:36:23] Speaker 01:
As Judge Katz just pointed out, the Supreme Court said those other wards, those other verbs, are actually a limiting on what it could do.

[00:36:30] Speaker 01:
These are the types of things you can do and nothing else.

[00:36:32] Speaker 01:
Here in 1182F, there is no list of verbs or limits on what the president can do.

[00:36:37] Speaker 01:
He can suspend the entry of any aliens or he can impose on the entry of aliens any restrictions he may deem appropriate.

[00:36:45] Speaker 02:
But you still have to have the power to tax.

[00:36:48] Speaker 01:
And I think a couple of responses, Your Honor, which we can get to in more depth.

[00:36:52] Speaker 01:
First, I don't think it's a tax for the rebellious reasons that Judge Catches was going over.

[00:36:57] Speaker 01:
And because I think this can be seen as a power under the immigration authority.

[00:37:01] Speaker 02:
But even if it is a tax... Is it an argument that you all articulated?

[00:37:04] Speaker 01:
Yes, we certainly said that it is under Sebelius not a tax first because Sebelius was a functional test.

[00:37:12] Speaker 01:
Nothing is dispositive.

[00:37:13] Speaker 01:
Obviously there they said a label was not this positive.

[00:37:16] Speaker 01:
But in both there and learning resources, one of the core features of the tax was to raise revenue.

[00:37:21] Speaker 01:
The individual mandate did raise revenue.

[00:37:23] Speaker 01:
the tariffs did raise revenue.

[00:37:25] Speaker 01:
Here, this is not in the record below, but it's in the record in the other cases because we found this out later.

[00:37:30] Speaker 01:
So far, the proclamation has reduced revenue because its purpose is to restrict entry, not to raise revenue.

[00:37:36] Speaker 01:
Also in NFIB versus Sebelius, they talked about the fact that the IRS was collecting it versus the child tax and Drexel was taken by labor.

[00:37:45] Speaker 01:
Here, it's USCIS.

[00:37:46] Speaker 01:
There, they said the individual mandate

[00:37:48] Speaker 02:
You can't really say the purpose was to reduce revenue, though, because if there are people who wish to pay it, then you're raising revenue.

[00:37:55] Speaker 01:
The purpose wasn't to reduce revenue, but it wasn't to raise revenue.

[00:37:58] Speaker 01:
And in effect, it also is not raising revenue.

[00:38:00] Speaker 01:
The purpose was to restrict entry for a class of aliens that were harming the national interests and the American workers.

[00:38:06] Speaker 01:
And I think that that is, again, if you look at who's collecting it, the purpose, the effect.

[00:38:11] Speaker 02:
So what are you calling it?

[00:38:13] Speaker 01:
I think, as Judge Katz has pointed out, there were a set of payments for headcounts on immigrants.

[00:38:19] Speaker 01:
And I think this is similar to a headcount payment.

[00:38:21] Speaker 02:
And I actually think by opposing counsel's cases... I'm not going to have in a statute a headcount payment.

[00:38:26] Speaker 02:
So what are you calling this?

[00:38:27] Speaker 02:
Is it a fee?

[00:38:29] Speaker 02:
Is it a tax?

[00:38:30] Speaker 02:
Is it a penalty?

[00:38:32] Speaker 01:
I think it is a headcount.

[00:38:33] Speaker 01:
I think it's a restriction.

[00:38:34] Speaker 01:
I think it's a payment restriction.

[00:38:36] Speaker 01:
And you could call a fee, I suppose.

[00:38:38] Speaker 01:
But I don't really know that just like in Sebelius, the label really matters.

[00:38:41] Speaker 01:
It's where this power comes from.

[00:38:43] Speaker 02:
And I think opposing counsels- The label still doesn't matter if it's really a tax, too.

[00:38:49] Speaker 01:
You know, that's true.

[00:38:50] Speaker 01:
But that's why I think it's a functional test under Sebelius.

[00:38:52] Speaker 01:
And if you look at those, all those factors cut against this being a tax.

[00:38:56] Speaker 01:
I mean, plaintiffs' entire argument is that this is so prohibitory that it's ruinous to some of them.

[00:39:02] Speaker 01:
Again, if you look at Sebelius, that counts in favor of it not being a tax.

[00:39:06] Speaker 01:
Because in Sebelius, the individual mandate could not be more than the insurance that it was requiring you to get.

[00:39:12] Speaker 02:
The government's collecting money.

[00:39:13] Speaker 02:
It's going to the general fund.

[00:39:15] Speaker 02:
Why isn't that raising revenue?

[00:39:17] Speaker 01:
Because it's reducing the amount of people petitioning and paying the other fees, and so it's reducing the amount of revenue for H1B petitions.

[00:39:25] Speaker 02:
If one employer pays it, you've raised revenue.

[00:39:28] Speaker 01:
I think that that would mean that there's everything's a tax that's a payment requirement, and we know that's not the case.

[00:39:33] Speaker 02:
Not necessarily.

[00:39:34] Speaker 02:
If I go and try to get a passport, I'm paying a fee to get the passport.

[00:39:38] Speaker 02:
That's not a tax.

[00:39:39] Speaker 01:
But it raises revenue in a sense by the same logic.

[00:39:42] Speaker 01:
So that's why I'm saying I don't think the fact that it raises revenue individually matters.

[00:39:46] Speaker 01:
And especially here the entire proclamation is not raising revenue in effect.

[00:39:51] Speaker 01:
And I think that the second point for why it's not a tax goes to what Judge Katz was saying, is this really a power under some other authority?

[00:39:58] Speaker 01:
I think this is under the immigration authority.

[00:40:01] Speaker 01:
I think NAF makes clear that that is an inherent part of the executive.

[00:40:05] Speaker 01:
Obviously, we're not saying Congress has no role, but Congress expressly delegated what the Supreme Court and Justice Ruth Bader Ginsburg, when she was on this court, has called sweeping.

[00:40:13] Speaker 01:
And I think plaintiffs' own cases, Smith and some of the other cases, actually proved this point.

[00:40:18] Speaker 01:
Because there, they said a state could not put a headcount tax, what they called a headcount payment, on immigrants coming in.

[00:40:25] Speaker 01:
And they said that was because it violated the commerce clause.

[00:40:28] Speaker 01:
They'd cite to one justice who said it was also a taxing problem, but it was not at all clear that any other of the justices joined that.

[00:40:34] Speaker 01:
In fact, they couldn't agree whether to call it a tax or not.

[00:40:37] Speaker 02:
But just like in learning resources, was there any specific statute that you could identify that says the power to regulate includes the power to tax?

[00:40:47] Speaker 01:
So I think that the delegation here, based on learning resources, is sweeping enough that any restrictions he may deem appropriate can encompass a tax, even if you think it's a tax.

[00:40:56] Speaker 01:
And I think learning resources makes that clear, because again, that was looking at a specific statute, IEPA, that said regulate importations, separated by 16 wards.

[00:41:05] Speaker 01:
The Supreme Court distinguished that case explicitly from Algonquin, as Judge Katz has pointed out.

[00:41:10] Speaker 01:
And the statute there didn't use the words tariffs.

[00:41:13] Speaker 01:
It didn't expressly use the words duties or impose.

[00:41:15] Speaker 01:
Instead, it said he may use means that he deems necessary to adjust imports.

[00:41:23] Speaker 01:
And they said that in learning resources, they said that language, that delegation was sweeping.

[00:41:28] Speaker 01:
They used the exact same word to describe 1182F in Hawaii.

[00:41:32] Speaker 01:
They said it's a sweeping delegation.

[00:41:34] Speaker 01:
It's facially broad.

[00:41:35] Speaker 01:
It's a comprehensive delegation.

[00:41:37] Speaker 01:
So I think that any restrictions, and again, as Judge Howell correctly found, based on a long line of cases, any is a broadener.

[00:41:43] Speaker 01:
So any restrictions can include a payment restriction on the entry of aliens here.

[00:41:49] Speaker 02:
And again, I think- And where does the $100,000 number even come from?

[00:41:54] Speaker 01:
I think, well, the president has wide discretion to set what restrictions he deems appropriate.

[00:41:59] Speaker 01:
The Supreme Court has made that clear in Hawaii.

[00:42:01] Speaker 01:
And the idea behind it is, if the companies really want this person, this person's really important, they'll pay to have them come in, but— They'll pay them to come in at a number that they not necessarily would even get paid in salary or wages.

[00:42:16] Speaker 01:
Right, because part of the idea, and this, I think it's at JA410, has been shown to work because the idea is, well, if they're not actually worth that much, then you will hire an American worker and train them up.

[00:42:27] Speaker 01:
And one of the Chamber's own members, I believe, again, this is at JA410, they said, well, we can't find an American to do this, we really need somebody from abroad to do it.

[00:42:35] Speaker 01:
And in the pendency of litigation, they hired and trained up an American engineer for that important job.

[00:42:40] Speaker 01:
So that's the point of the proclamation.

[00:42:42] Speaker 01:
That's why the number is set there.

[00:42:44] Speaker 01:
Obviously, the number could be higher or lower, but the president at some point has to draw a line, and he has broad discretion to draw it there.

[00:42:51] Speaker 05:
Oh, go ahead.

[00:42:52] Speaker 05:
Are you done?

[00:42:53] Speaker 05:
Yes.

[00:42:53] Speaker 05:
Suppose I think that this is both a tax and that the exaction could be constitutionally justified.

[00:43:05] Speaker 05:
as an Article 1, Section 8, Clause 1 tax or a Clause 4 immigration restriction?

[00:43:13] Speaker 05:
It's both.

[00:43:15] Speaker 05:
Then what, for purposes of the downstream questions about clear statement rule and precedence authority and such?

[00:43:25] Speaker 01:
So I think if you buy some of plaintiff's arguments that there's this special clear statement rule for taxes, it makes it easier if you put it into the immigration bucket or a commerce bucket because it sort of gets rid of that.

[00:43:37] Speaker 05:
Why does it have to be one or the other?

[00:43:38] Speaker 05:
The powers are overlapping.

[00:43:41] Speaker 05:
I don't necessarily think it does.

[00:43:42] Speaker 05:
I think it can be both.

[00:43:43] Speaker 05:
You have an argument that it's not a tax at all based on NFIB, but who knows?

[00:43:50] Speaker 05:
NFIB took something that was formerly a penalty and re-characterized it as a tax based on functional considerations, which just says the taxing power is broad.

[00:44:06] Speaker 05:
I don't know if you win the NFIB issue or not.

[00:44:09] Speaker 01:
I think the functional test obviously cuts in our favor here, looking at the same things.

[00:44:14] Speaker 01:
I think this could be, even if it is a tax, it's within the delegation.

[00:44:18] Speaker 01:
And I think if you accept plaintiff's arguments that there has to be some special clear statement rule for taxing, then the fact that it's also under the immigration power that also, as Pasito from the Ninth Circuit just said,

[00:44:30] Speaker 01:
as your own court's opinion and racy's also acknowledge, the president has some inherent authority here, especially it's at its maximum when the Congress delegated clearly here an authority to impose any restrictions.

[00:44:42] Speaker 01:
Now, I don't think there is some special clear statement rule here.

[00:44:45] Speaker 01:
Both Skinner and FCC versus congressional research make clear that there's not a special delegation role for tax.

[00:44:51] Speaker 01:
Tax doesn't suddenly get, it's a special rule for it.

[00:44:54] Speaker 05:
There's not a heightened standard

[00:44:58] Speaker 05:
for purposes of the non-delegation doctrine.

[00:45:03] Speaker 05:
But that's a slightly different question from how clearly Congress has to speak in order to make the delegation.

[00:45:13] Speaker 05:
And Learning Resources says if it's a tariff, which is a certain kind of tax, Congress has to speak clearly.

[00:45:23] Speaker 05:
So I guess a couple- And Skinner says Congress has to speak clearly if it's a tax or a fee.

[00:45:32] Speaker 01:
So- Maybe.

[00:45:33] Speaker 01:
Yeah, I don't quite agree with that in this sense, Your Honor, because I think the logic of why there's not a special delegation principle for intelligible principles is the exact same reason why there wouldn't require a clearer statement for- I agree with that as a matter of first principles, but it seems squarely settled

[00:45:53] Speaker 05:
No special rule for non-delegation, but you've got the language in Skinner and the language in Learning Resources suggesting there is a special rule for at least some kind of taxes.

[00:46:06] Speaker 01:
I don't read either case to say that there's a special clear statement rule.

[00:46:09] Speaker 01:
I think it's just that any delegation has to be clear.

[00:46:12] Speaker 05:
Learning Resources says it for taxes that are tariffs.

[00:46:16] Speaker 05:
I mean, that's a hard one to fight.

[00:46:18] Speaker 01:
I'm not sure that I agree with that characterization, but again, tariffs are sort of core historical taxes.

[00:46:23] Speaker 01:
At the founding, as the Supreme Court pointed out, what started the Boston Tea Party and was sort of the core way that they were raising funds.

[00:46:30] Speaker 01:
Obviously not the case here, where you have the intersection, as your honor pointed out, with immigration, with foreign affairs.

[00:46:36] Speaker 01:
But I would also point to, in Skinner, they also point to Algonquin, and they say Algonquin is clear.

[00:46:42] Speaker 01:
And again, if we look at Algonquin, that's about...

[00:46:45] Speaker 05:
you to whether Congress met a clear statement requirement, not whether there is a clear statement requirement.

[00:46:53] Speaker 01:
So I think that that shows that in Algonquin, the statement there, which again didn't expressly say duties, taxes, imposed or tariffs, was sufficiently clear to give the tariff authority.

[00:47:04] Speaker 01:
And if you look at the language in that statute, it's nearly identical to the language here.

[00:47:09] Speaker 01:
Right there they said,

[00:47:11] Speaker 01:
he can adjust importations as he deems necessary.

[00:47:13] Speaker 01:
Here it's any restrictions as he deems appropriate.

[00:47:16] Speaker 01:
Again, in learning resources, they describe that language and distinguishing it as a sweeping delegation.

[00:47:21] Speaker 01:
Hawaii and Ruth Bader Ginsburg, when she was on this court in a Borsia, said this is a sweeping delegation.

[00:47:27] Speaker 01:
So I think it's well encompassed within that authority.

[00:47:30] Speaker 01:
I also think

[00:47:32] Speaker 01:
The other part that the court looked at in learning resources was what authority is being asserted here under IEPA.

[00:47:38] Speaker 01:
And they said, and we disagree with their characterization, but they said, well, this is a sweeping authority because it's to raise as many tariffs on as many countries for as long as you want, as high as you want.

[00:47:49] Speaker 01:
And they said that the statute, the text couldn't bear that weight.

[00:47:52] Speaker 01:
Here, the proclamation, it's time limited.

[00:47:54] Speaker 01:
It's only for a year.

[00:47:56] Speaker 01:
It's only on H1B petitions.

[00:47:58] Speaker 01:
It's only on the entry of aliens.

[00:48:00] Speaker 01:
And a lot of those limits stem from 1182F itself.

[00:48:03] Speaker 01:
It's not just this proclamation.

[00:48:05] Speaker 01:
It has to be time limited.

[00:48:06] Speaker 01:
As this court pointed out in RACES, again, we don't necessarily disagree, but there is precedent to say it's only an entry restriction on aliens.

[00:48:14] Speaker 04:
What about your friend on the other side's argument that we should look at?

[00:48:20] Speaker 04:
I think it's section 1184 that talks about this in terms of importation of an alien, and so that tells us that a fee like this shouldn't really be seen as a tariff.

[00:48:34] Speaker 01:
I'm not sure that that necessarily follows.

[00:48:37] Speaker 01:
I think, again, restriction is broad enough, especially modified by any, to include different types of fees, taxes, if the court considers it to be such.

[00:48:46] Speaker 01:
And I think even if you look at their definitions, their definitions below included, it's a condition, it's a limit.

[00:48:53] Speaker 01:
I think there are a lot of definitions for restriction that include that.

[00:48:56] Speaker 01:
And then they come around and say, well, this isn't actually completely banning their entry, because if they pay, they can come in, or they can come in in other ways.

[00:49:04] Speaker 01:
But that is basically just a suspension, and it reads out any restrictions language.

[00:49:08] Speaker 01:
I think any restriction or a condition, as they have defined it below, is that it can be satisfied.

[00:49:13] Speaker 01:
And so it is a restriction on entry, but it can be satisfied if that payment's there.

[00:49:17] Speaker 01:
I think that is well within the heartland of 1182F.

[00:49:20] Speaker 01:
And just another moment on the power being asserted here.

[00:49:26] Speaker 01:
Again, 1182F has these restrictions in it, and the proclamation reflects those.

[00:49:30] Speaker 01:
And in learning resources, the Supreme Court contrasted that with Yoshida, which was the predecessor statute to IEPA.

[00:49:37] Speaker 01:
And in Yoshida, Nixon was allowed to impose a tariff.

[00:49:40] Speaker 01:
And they said, well, there, it was limited in time and scope.

[00:49:43] Speaker 01:
Again, this is limited in time and scope.

[00:49:45] Speaker 05:
Sorry, why does that matter?

[00:49:46] Speaker 05:
That might matter as a trigger for the major questions doctrine, but that wasn't the majority's rationale.

[00:49:59] Speaker 05:
The majority's rationale is more just this threshold cleaner question of tax or no tax.

[00:50:09] Speaker 01:
Yes, I agree with that.

[00:50:10] Speaker 01:
Obviously, the opposing counsel has argued the major question doctrine in this court.

[00:50:14] Speaker 01:
The district court said it didn't argue it below and waived, and that's reviewed for abuse of discretion.

[00:50:18] Speaker 01:
But if we're assuming major question doctrine- We can't waive an interpretive principle.

[00:50:22] Speaker 01:
So I'm not sure that I agree with that, Your Honor, in this sense.

[00:50:26] Speaker 01:
If you buy the Justice Gorsuch view, which is this is sort of a constitutional doctrine, I do think you can waive that.

[00:50:31] Speaker 01:
And I think it's also telling that there's been a lot of cases interpreting 11.

[00:50:34] Speaker 05:
It's an avoidance doctrine.

[00:50:36] Speaker 05:
You can't waive an avoidance argument.

[00:50:39] Speaker 01:
Well, I don't know that I agree with that, Your Honor, because there's been a lot of cases interpreting 1182f saying this is way too broad.

[00:50:46] Speaker 01:
Hawaii, if you buy the Supreme Court, there's been a major question doctrine before Hawaii, and they didn't use the major questions doctrine.

[00:50:52] Speaker 01:
If you look at Pasito just from the Ninth Circuit, they didn't use the major questions doctrine despite very, very similar arguments there.

[00:50:58] Speaker 01:
So I do think it can be waived.

[00:50:59] Speaker 01:
But if you buy the- I take your point.

[00:51:02] Speaker 05:
It's a defensive point for you defending against major questions.

[00:51:08] Speaker 05:
But it doesn't really help you on tax versus something else.

[00:51:15] Speaker 01:
Well, so I think there's a couple of layers.

[00:51:17] Speaker 01:
There's whether it's a tax or not.

[00:51:19] Speaker 01:
And I think there's a sibilious point.

[00:51:20] Speaker 01:
I think there's also it can be under other authorities, even if it might be a tax.

[00:51:24] Speaker 01:
There's a point of whether this delegation is sufficient or not.

[00:51:26] Speaker 01:
That's sort of the Algonquin point and how broad Hawaii reads it.

[00:51:29] Speaker 01:
And then I think there's a point of, well, should you maybe read it narrower if you use the major questions doctrine?

[00:51:34] Speaker 01:
And I think you should use it.

[00:51:35] Speaker 01:
But even if you do, the court starts.

[00:51:38] Speaker 01:
And again, there's not a majority opinion for this learning resources.

[00:51:41] Speaker 01:
But the court starts with the text, the context.

[00:51:44] Speaker 01:
And then, as Justice Barrett said in Biden versus Nebraska, is there a mismatch between that text and the power?

[00:51:49] Speaker 01:
So I think that's where the PowerPoint comes in.

[00:51:52] Speaker 02:
Can we make a question stop in here though?

[00:51:54] Speaker 01:
I don't think you do need to get into it, Your Honor.

[00:51:56] Speaker 01:
Again, I think it's waived.

[00:51:57] Speaker 01:
And I think in any event, it doesn't change the analysis for the same reasons.

[00:52:01] Speaker 01:
And in learning resources, the government conceded there was a $15 trillion impact.

[00:52:06] Speaker 01:
There's no evidence of that here.

[00:52:08] Speaker 01:
Now, plaintiffs argue about the history that there hasn't been something like this from previous proclamations.

[00:52:14] Speaker 01:
They made the exact same argument in Trump versus why that there hadn't been a proclamation like this before.

[00:52:18] Speaker 01:
And the Supreme Court said that's not a basis to restrict the broad language in 1182

[00:52:24] Speaker 01:
I just briefly want to point to their arguments about whether this is overriding the H1B provisions or the fee provisions.

[00:52:33] Speaker 01:
This exact same argument came up in Pasito from the Ninth Circuit that just came out.

[00:52:38] Speaker 01:
There the proclamation suspended

[00:52:41] Speaker 01:
According to some, indefinitely, the refugee program, which also has a very reticulated scheme.

[00:52:46] Speaker 01:
It has a cap.

[00:52:46] Speaker 01:
Judge Childs, as you were talking about for H-1B, had a similar cap there.

[00:52:49] Speaker 01:
The plaintiffs there argued, you're overriding the refugee program by suspending all entry.

[00:52:54] Speaker 01:
And you know Congress wants some people to come in because there's a cap.

[00:52:58] Speaker 01:
And the Ninth Circuit said no.

[00:53:00] Speaker 01:
The Supreme Court made clear that 1182F provides ample power to add restrictions in addition to.

[00:53:06] Speaker 01:
And that includes a suspension of the refugee program.

[00:53:10] Speaker 01:
And then they said, it's not really overriding it, because there's exceptions.

[00:53:13] Speaker 01:
And at some point, it will lapse.

[00:53:15] Speaker 01:
Here there are exceptions.

[00:53:16] Speaker 01:
And even more so, as Judge Howell pointed out.

[00:53:19] Speaker 01:
The provisions for H1B are all still in place.

[00:53:22] Speaker 01:
People can still petition.

[00:53:23] Speaker 01:
If they meet the qualifications of a specialized knowledge and skill, they can still come in.

[00:53:28] Speaker 01:
The same exact people can.

[00:53:30] Speaker 01:
There's just a payment restriction in addition.

[00:53:32] Speaker 01:
And all of the fees that they point to still exist.

[00:53:35] Speaker 01:
They're all still being collected, but they serve different purposes and none of them directly conflict with the proclamations payment here nor are exclusive.

[00:53:42] Speaker 01:
In fact,

[00:53:43] Speaker 01:
Some of them, the fraud fee and the premium fee, which is $13.56 U, say that they're in addition to other fees that can be charged.

[00:53:50] Speaker 01:
And so then we just get back to the question of, OK, does 1182F allow for this type of payment?

[00:53:55] Speaker 01:
And if it does, it's certainly not preclusive that there are other fees that can be charged under the statute.

[00:54:00] Speaker 05:
I don't recall the Ninth Circuit case.

[00:54:03] Speaker 05:
It came down after the briefing?

[00:54:05] Speaker 01:
It did.

[00:54:05] Speaker 05:
Have you done a 28-J?

[00:54:07] Speaker 01:
We filed a 28-J yesterday.

[00:54:09] Speaker 01:
The responsive 28-J did not respond at all to this argument that it rejects their position that the proclamation overrides H-1B and overrides the fees.

[00:54:20] Speaker 01:
Their only response was, well, that's just not really relevant because this is really about a tax.

[00:54:24] Speaker 01:
So I think that just comes back to the point that all their arguments boil down to whether this is an impermissible tax or not.

[00:54:30] Speaker 01:
And you can sort of put the other stuff aside.

[00:54:32] Speaker 01:
If the court, I'm well over my time, but if the court wants to talk about sort of the reviewability stuff, I'm happy to talk about that.

[00:54:44] Speaker 04:
Well,

[00:54:47] Speaker 04:
What is your position with respect to whether this is reviewable at all?

[00:54:53] Speaker 01:
So we don't think it is reviewable at all.

[00:54:55] Speaker 01:
And that's not to say that nothing is ever reviewable if the president directs it.

[00:54:59] Speaker 01:
So let's start with consular non-reviewability.

[00:55:02] Speaker 01:
This is about the entry of aliens.

[00:55:04] Speaker 01:
It intersects with separation of powers.

[00:55:06] Speaker 01:
So we think consular non-reviewability applies there.

[00:55:08] Speaker 02:
It's not reviewing a particular decision by a consular.

[00:55:12] Speaker 01:
I agree, but I read Peterson, for example, to be about an agency manual decision there, but this I think is different.

[00:55:20] Speaker 01:
And I think a lot of the things that plaintiffs cite to is different because Congress expressly gave this authority to the president in his discretion.

[00:55:27] Speaker 01:
This isn't just a peer agency action.

[00:55:29] Speaker 01:
This is about the president's power that Congress gave to him.

[00:55:32] Speaker 01:
And so I think in that case, this consular non-reviewability still applies.

[00:55:37] Speaker 01:
And the core consular non-reviewability is separation of powers and the fact that aliens have no right to enter.

[00:55:42] Speaker 01:
That still applies here.

[00:55:43] Speaker 01:
And I think the fact that it sets a general rule doesn't change that.

[00:55:47] Speaker 01:
If you look at Lopez, if you look at even this court's state decision in races, which stayed the injunction against an asylum restriction,

[00:55:56] Speaker 01:
you can make general rules to sort of guide discretion, especially when it's given to the president.

[00:56:01] Speaker 01:
And then I think if you look at Altavirez,

[00:56:04] Speaker 01:
We think that the ultraviolet standard under Dalton versus Specter, this is just as, and Webster versus Doe, this is just as discretionary, there's just as much deference here as there was there.

[00:56:14] Speaker 01:
We also think that there's no specific prohibition, and plaintiffs have never pointed to one, under the Nuclear Regulatory Commission.

[00:56:21] Speaker 01:
They try to say that that's only about implied judicial review bars, but Global Health was about the Empowerment Control Act, used the exact same test, said nothing about implied preclusion of review at all.

[00:56:32] Speaker 01:
But even under the normal ultra-virus test, that's still quite a high bar we don't think they've met.

[00:56:37] Speaker 01:
Again, that's not to say that there couldn't be a situation where 1182F is used and it's so far outside the power that it could meet the ultra-virus bar.

[00:56:45] Speaker 04:
What would that be, though?

[00:56:46] Speaker 04:
I don't understand what the limiting principle is of when anything would be reviewable under your position.

[00:56:55] Speaker 01:
I think one example this court did in this day, which again, we respectfully disagree with, but said that the removal restrictions and racy's was so far outside of the scope because 1182 says entry and that's removal.

[00:57:07] Speaker 01:
So that arguably we didn't argue ultra various wasn't the cause of action there.

[00:57:10] Speaker 01:
For example, I don't think in the, in the court of appeals.

[00:57:12] Speaker 01:
Another example is if they were just targeting domestic, you know, try to do something to domestic employers.

[00:57:18] Speaker 01:
Maybe they impose a vaccine mandate on domestic employers.

[00:57:21] Speaker 01:
Well, that clearly has nothing to do with 1182F.

[00:57:24] Speaker 01:
So I think those things could be reviewable.

[00:57:26] Speaker 01:
And I think under the APA,

[00:57:28] Speaker 01:
Our position is actually much narrower than what plaintiffs say.

[00:57:31] Speaker 01:
If you look at Detroit International Bridge, and I understand these are lower court decisions, but there's a lot of them saying that when the president has the authority and the agencies are just implementing it, you can't review the agency implementations, or else that's just a circumvention of Franklin.

[00:57:45] Speaker 01:
Because, of course, the president has to rely on agencies to carry things out.

[00:57:49] Speaker 01:
Even CELA law says that.

[00:57:52] Speaker 01:
And so here, he's just telling them, this is what the proclamation is.

[00:57:55] Speaker 01:
This is the power Congress gave me, and they're ministerially implementing it.

[00:58:00] Speaker 01:
But if what the executive order or proclamation is doing is telling them to use their own discretionary authority, or they are using their discretionary authority outside of what the proclamation says, that piece would be reviewable as a separate final agency action.

[00:58:13] Speaker 01:
But I actually do think this goes to the APA, because the APA for final agency action requires the culmination of a decision.

[00:58:19] Speaker 01:
But the agencies don't make any decision.

[00:58:21] Speaker 01:
They have to follow the proclamation, and they have to follow it because Congress gave the president that power.

[00:58:26] Speaker 01:
This isn't the same where it's an executive order telling, as here, the Department of Labor to start rulemaking for the prevailing wage.

[00:58:34] Speaker 01:
You can't skirt the prevailing wage rulemaking requirement through an executive order.

[00:58:38] Speaker 01:
The agency still has to do it.

[00:58:39] Speaker 01:
The agency is doing it.

[00:58:40] Speaker 01:
And that can be challenged.

[00:58:42] Speaker 01:
But the mere implementation of the proclamation itself cannot be challenged.

[00:58:46] Speaker 01:
And I think otherwise, you just complete end run around limits of reviewing presidential actions.

[00:58:52] Speaker 01:
So I think there are things that can be reviewed.

[00:58:54] Speaker 01:
But I think this is sort of in a band where there is no review.

[00:58:58] Speaker 01:
And as the DDC courts have said, it's a pretty narrow band.

[00:59:01] Speaker 02:
It allows presidential actions to be reviewed.

[00:59:04] Speaker 01:
What was that, Your Honor?

[00:59:05] Speaker 02:
Global health allows presidential actions to be reviewed.

[00:59:09] Speaker 01:
certain presidential actions.

[00:59:10] Speaker 01:
And again, they rejected Ultra Vera's cause of action there for many of the same reasons we point out.

[00:59:16] Speaker 01:
But I think again, it depends whether the president has the authority himself and if they're just ministerially implementing it.

[00:59:23] Speaker 01:
Now, they suddenly try to say that it's not ministerially implementing it because this only applies after enactment.

[00:59:30] Speaker 01:
It doesn't apply to a change in status of people within the United States.

[00:59:34] Speaker 01:
But that's on the face of the proclamation.

[00:59:36] Speaker 01:
If you look at section two and section three,

[00:59:37] Speaker 01:
It says that it restricts entry or attempted entry of aliens into the nation after the effective date.

[00:59:43] Speaker 01:
So by its nature as an entry restriction, it's not going to apply to people who are already in the United States seeking a change of status and extension.

[00:59:51] Speaker 01:
Those people haven't been charged the fee.

[00:59:53] Speaker 01:
And that also shows it's an entry restriction, because if you're in the United States, you can still apply for an H1B the exact same way you have before.

[01:00:00] Speaker 02:
OK, just back to global health.

[01:00:02] Speaker 02:
It says presidential action may be reviewed through APA challenges to final agency action by subordinates implementing the president's directives where such review is not otherwise precluded.

[01:00:15] Speaker 01:
Again, Your Honor, I read that to be referring to situations where they have some sort of discretion or where the executive order and executive direction is not necessarily the force of law in of itself.

[01:00:25] Speaker 01:
There are plenty of EOs that direct agencies to take out actions or to implement rulemaking.

[01:00:31] Speaker 01:
In fact, again, this proclamation tells the Department of Labor to implement rulemaking.

[01:00:35] Speaker 01:
That sort of stuff could be challenged.

[01:00:37] Speaker 01:
But what's unique about 1182F is that it gives the president himself power to make these decisions when he finds, in his determination,

[01:00:44] Speaker 01:
any restrictions he deems appropriate.

[01:00:47] Speaker 01:
It exudes deference to the president in every clause, as the Supreme Court has said.

[01:00:51] Speaker 01:
And I think in those circumstances, that can't be reviewed if all the agency is doing is implementing.

[01:00:56] Speaker 01:
If they're going beyond it, if they're doing something extra, that could be challenged.

[01:00:59] Speaker 01:
Now, plaintiffs try to say the exceptions

[01:01:01] Speaker 01:
They didn't argue that below, and the district court and the transcript went at them for not making that argument, but they tried to say every use of the proclamation is a decision not to use an exception.

[01:01:12] Speaker 01:
That's not how the exceptions work.

[01:01:13] Speaker 01:
You have to ask for the exception, but even so, those would then be separate final agency actions, and you could challenge those decisions individually, but that's not a back door to take down the entire proclamation.

[01:01:26] Speaker 05:
The only thing the Secretary of the Interior was doing was implementing the President's order to seize the steel wells.

[01:01:37] Speaker 05:
You think that's unreviewable post-Franklin?

[01:01:40] Speaker 01:
I don't think so, because again, there the president just had no authority.

[01:01:44] Speaker 01:
But here, Congress did delegate expressly the authority at 1182.

[01:01:48] Speaker 01:
So that just gets back to our first question of this case.

[01:01:51] Speaker 05:
And I think in that case, when the president has the power and the discretion, you're putting a lot of weight on the fact that the action here is presidential.

[01:02:01] Speaker 01:
I'm putting a lot of weight on the fact that the president's action has the force of law because Congress gave him that power.

[01:02:06] Speaker 01:
I think just because the president tells the agency to do something and it has no basis in law, or the thing he's telling them to do is actually delegated to that agency or to that department, then that can be reviewable.

[01:02:20] Speaker 01:
But here, where it's the president's authority itself, I think that's where it can't be reviewable just because they implement it.

[01:02:26] Speaker 01:
As Tulare pointed out,

[01:02:27] Speaker 05:
I mean, maybe, but it sounds like you're blurring the line a little bit between whether the action is reviewable at all or whether it's reviewable but not ultra virus because the president has some authority and Congress gave him other authority.

[01:02:48] Speaker 05:
I don't think that sounds like you're sort of doing some form of ultra virus review and it fails.

[01:02:53] Speaker 05:
The claim, the challenge fails.

[01:02:56] Speaker 01:
So I think there are circumstances where there can be, well, so I think you've got the Dalton Spector issue here of the amount of discretion that is given to the president, which I think this is just like Webster versus Doe.

[01:03:08] Speaker 01:
This is about as discretionary as you can get.

[01:03:10] Speaker 01:
But again, I think there can be ultra-virus claims, even for 1182F, if it's just so outside the bounds.

[01:03:15] Speaker 01:
And I think that this, obviously, as we've been debating, I think it's pretty clear it's well within the delegation, but it's at least a close call, and that's not within ultra-virus.

[01:03:23] Speaker 01:
That's sort of a point there.

[01:03:26] Speaker 01:
I'm well over my time, so if there's any further questions.

[01:03:29] Speaker 01:
Thank you.

[01:03:34] Speaker 04:
All right, Mr. Unikowski will give you three minutes.

[01:03:40] Speaker 03:
Thank you, Your Honor.

[01:03:42] Speaker 03:
I would just like to address the colloquy between Judge Katzis and counsel of what happens if the power at issue implicates two different grants of authority to the Congress.

[01:03:51] Speaker 03:
So in other words, suppose Congress had hypothetically enacted this $100,000 tax.

[01:03:55] Speaker 03:
Suppose we would stipulate

[01:03:57] Speaker 03:
I would debate that, but suppose we'd stipulate that that falls both within Congress's power to tax and authority over immigration.

[01:04:03] Speaker 03:
How should we think about that in this case?

[01:04:06] Speaker 03:
So I think that doctrinally, I think learning resources and Skinner just answer this question.

[01:04:11] Speaker 03:
So in learning resources, I just think it is the case

[01:04:15] Speaker 03:
that the tariffs, had they been enacted by the Congress, would have been a permissible exercise of its authority over foreign commerce, not just the tax and authority.

[01:04:23] Speaker 03:
It's classic foreign commerce.

[01:04:25] Speaker 03:
It's imposing a fee on bringing goods from foreign countries into this country.

[01:04:30] Speaker 03:
So it's a classic exercise of the foreign commerce power.

[01:04:33] Speaker 03:
But yes, Your Honor.

[01:04:34] Speaker 05:
Which tends to show that the Solicitor General's concession might have been ill-advised.

[01:04:42] Speaker 05:
but he made the conception and the court decided the case on the assumption that there was no other power at issue.

[01:04:50] Speaker 03:
I'm not sure I would, I don't think the court decided that case under that assumption.

[01:04:54] Speaker 03:
Okay.

[01:04:54] Speaker 03:
I think the court concluded that it was an exercise of the power to tax, but I don't think the court was really saying that this could not hypothetically have been enacted under another source of law.

[01:05:06] Speaker 03:
I don't think it could have reached that conclusion.

[01:05:10] Speaker 05:
I'll take it.

[01:05:11] Speaker 05:
It goes silent on whether there was another Article 1, Section 8 power that's expressed in taking Article 2 powers off the board.

[01:05:22] Speaker 03:
That's right.

[01:05:22] Speaker 03:
That's exactly what we're saying in this case, right?

[01:05:24] Speaker 03:
I mean, we're talking about two different Article 1 powers here, the Article 1 power over immigration and the Article 1 power over taxes.

[01:05:30] Speaker 05:
And just layer in the Article 2 power to control entry, just to help me.

[01:05:35] Speaker 05:
I mean, I suppose I think it's all three.

[01:05:38] Speaker 03:
OK.

[01:05:39] Speaker 03:
I don't think that the ability to impose a tax is an inherent exercise of the president's Article 2 power.

[01:05:46] Speaker 03:
In the same way, as in learning resources itself, there is inherent authority to prevent dangerous items in cases of emergency from entering the United States.

[01:05:54] Speaker 03:
But that doesn't imply a power to tax the entry of those items.

[01:05:57] Speaker 03:
So that's the Article 2 line I'd suggest.

[01:05:59] Speaker 03:
I'd also just, even under Article 2, it's the steel seizure type of case.

[01:06:03] Speaker 03:
I mean, here, Section 212F

[01:06:06] Speaker 03:
you know, is a ridiculated grant of power.

[01:06:07] Speaker 03:
It's very broad, but it's broad within its domain and it applies to restrictions.

[01:06:11] Speaker 03:
And Congress has enacted lots of other statutes specifically addressing fees, which was the same overall structure that we saw in the learning resources case.

[01:06:19] Speaker 03:
The court was struck by the fact that even if in the abstract, you might think.

[01:06:23] Speaker 03:
that the ability to impose tariffs was an exercise of some form of inherent presidential authority in cases of national emergencies.

[01:06:30] Speaker 03:
Congress had spoken clearly enacting these carefully reticulated tariff statutes elsewhere.

[01:06:35] Speaker 03:
And there's also this historical issue that we haven't really explored much today that, you know, the power had never been exercised under the AIIPA.

[01:06:41] Speaker 03:
And so based on all those inferences, the court concluded that AIIPA didn't confer the tariff authority.

[01:06:46] Speaker 03:
And the arguments map on quite effectively here.

[01:06:49] Speaker 03:
I see my time.

[01:06:50] Speaker 03:
Yes, sorry.

[01:06:52] Speaker 05:
Focus more on the constitutional powers and assume we're in the middle, the area of overlap of the Venn diagram.

[01:07:03] Speaker 05:
Because to me, your argument based on no authority because this is a tax to me is stronger than your argument

[01:07:16] Speaker 05:
scheme in the statute.

[01:07:17] Speaker 03:
I accept that, your honor.

[01:07:18] Speaker 03:
So let's first talk about the overlapping Article I authorities.

[01:07:22] Speaker 03:
Right.

[01:07:22] Speaker 03:
OK.

[01:07:22] Speaker 03:
So in addition to the fact of learning resources case, which I think clearly involved overlapping Article I authorities, that was also the case, I think, in Skinner.

[01:07:31] Speaker 03:
There's this very clear language in Skinner that says that any tax or fee other than a pure fee for a direct benefit is subject to this clear statement rule.

[01:07:40] Speaker 03:
And I don't think you can read that as saying that that's only taxes that fall within the Article 1 authority, because it seems to say that even things that aren't taxes would be subject to the same fees.

[01:07:50] Speaker 03:
And I think that makes sense not only just looking at the specific facts of those cases, but also for good practical reasons.

[01:07:56] Speaker 03:
Because even if we accept that the power to charge for entry is in some abstract sense an exercise of Article 1 authority over immigration,

[01:08:06] Speaker 03:
If Congress had decided to enact such a statute, it's still of a very different character than a mere restriction on entry.

[01:08:12] Speaker 03:
It impolates two Article I powers rather than one, even under the assumption that it falls within the immigration authority.

[01:08:18] Speaker 03:
And so the question is whether Congress would have silently delegated two congressional powers by a statute that seems to only refer to one of them, which is the authority to restrict entry.

[01:08:27] Speaker 03:
And so, you know, I think there are good practical reasons to say that if Congress wants to also delegate the tax and authority, there's got to be some clear language there, especially since historically the president hasn't understood it this way.

[01:08:37] Speaker 03:
I mean, you know, Section 212 that was enacted in 1952, 74 years ago.

[01:08:42] Speaker 03:
And, you know, there have been many opportunities to use it as a revenue raising statute, but it's never been exercised that way.

[01:08:48] Speaker 03:
And again,

[01:08:48] Speaker 03:
I think the historical argument is actually stronger than in learning resources, where there was this argument about the Yoshida case.

[01:08:54] Speaker 03:
So I think that if you just take all of the successful arguments in learning resources, they apply more strongly to this fact pattern.

[01:09:01] Speaker 04:
Thank you.

[01:09:03] Speaker 04:
Thank you.

[01:09:03] Speaker 04:
Case is submitted.