Legislative History of the Apa as a Tool to Minimize Government Use of the Foreign Affairs Function Exception

Legislative History of the APA as a Tool to Minimize Government Use of the Foreign Affairs Function Exception

[Page 105]

Jean Binkovitz and Eric Eisner ^*

Abstract: Confusion pervades judicial interpretation of the foreign affairs function exception of the Administrative Procedure Act. The D.C. District Court, eschewing legislative history, applies a textualist approach, construing the exception narrowly. Courts in other circuits, using legislative history and other interpretive approaches, have created a tangled mesh of tests for when the exception applies. This article provides advice for immigration lawyers to minimize the scope of the foreign affairs function exception. In the D.C. Circuit, this advice is simple: cite the existing caselaw. In other circuits, we demonstrate how legislative history can be used as a tool to minimize government use of the foreign affairs function exception.

Introduction

The judicial branch's interpretation of the foreign affairs function exception of the Administrative Procedure Act (APA) has fractured. This exception, appearing in both the adjudication ¹ and rulemaking ² provisions of the APA, exempts agencies from following the APA's requirements. Although adjudication was central to early understandings of the APA, the statute's rulemaking requirements now dominate APA litigation. ³ The D.C. Circuit has heeded the Supreme Court's call for textualist statutory interpretation. ⁴ The D.C. District Court therefore rejects using the legislative history of the APA to interpret the statute. ⁵ Other circuits have continued to rely on legislative history. ⁶ Scholars have advocated for various ways of applying the APA, from "APA textualism" ⁷ to "APA originalism" ⁸ to "administrative common law." ⁹ These debates mirror broader dissension in the scholarship surrounding statutory interpretation. We do not take a side in these debates. Rather, we offer advice to immigration lawyers on how to use legislative history as a tool to minimize government use of the foreign affairs function exception.

Just as courts have been divided in their interpretation of the APA, courts have split as to whether to use legislative history in interpreting the APA's exceptions. The result is a fragmentary mishmash of conflicting tests, threatening the uniformity and coherence of immigration law. Confusion pervades judicial interpretation of the APA's foreign affairs function exception. The Supreme Court has cautioned against relying on legislative history, ¹⁰ and in

[Page 106]

cases construing the foreign affairs function exception in the immigration context, the D.C. District Court has minimized the exception to a considerable extent. ¹¹ This line of cases is broadly favorable to immigration lawyers, ¹² and they can cite it to significant effect. Several other circuits, however, continue to use the legislative history of the APA, and these courts often unduly expand the foreign affairs function exception. ¹³ As Stephen Migala has recently shown, the legislative history of the APA does not justify letting the exception swallow the rule. ¹⁴ The courts have provided limited guidance, as judicial determinations of the scope of the foreign affairs function exceptions are relatively sparse. ¹⁵ Immigration lawyers in these jurisdictions can use the APA's legislative history to shrink the foreign affairs function exception to a more reasonable size.

Allowing the foreign affairs function exception to grow excessively large risks letting all immigration-related rulemaking fall outside the scope of the APA. But immigration is not a lawless island bereft of the rules that otherwise govern the administrative state. Courts have warned of "the 'dangers of an expansive reading of the foreign affairs exception' in the immigration context." ¹⁶ The Second Circuit has cautioned that "it would be problematic if incidental foreign affairs effects eliminated public participation in this entire area of administrative law." ¹⁷ Letting the foreign affairs function exception grow inordinately "distended" risks frustrating the core purposes of the APA. ¹⁸

This article proceeds in three sections. The first section surveys the current state of the foreign affairs function exception in each circuit, revealing the current state of fragmentation. The second section looks to the legislative history of the APA. This account serves two purposes. First, it justifies the textualist approach taken by the D.C. Circuit. Critics of textualism sometimes fear that a strictly textualist approach can undermine the clear intention of a statute. The legislative history of the APA shows that the overarching purpose of the statute was to ensure fair administrative process and the rule of law. Exceptions that are fixed and narrow, rather than free-floating and expansive, further this central purpose. Second, the legislative history of the APA is vital for lawyers practicing in jurisdictions where courts look to the legislative history of the APA to construe the scope of the foreign affairs function exception. Courts should not let APA exceptions grow so large that they undermine the core purpose of the APA to promote fair administrative process. The third section examines how the legislative history of the APA can be applied to minimize the foreign affairs function exception in the immigration context. In particular, while Migala ¹⁹ and the Attorney General's Manual ²⁰ read the legislative history broadly to include rulemaking related to visas and passports in the foreign affairs function exception, we argue that these assertions are mistaken. A closer examination of cases surrounding visa and passport rules demonstrates that their domestic consequences often predominate, and the foreign affairs function exception frequently should not apply. In conclusion, immigration lawyers can use the textualist approach of the D.C. Circuit to minimize the foreign affairs function exception. In circuits that have not

[Page 107]

adopted this textualist reading of the exception, immigration lawyers can use the APA's legislative history as a tool to reach a substantially similar result.

The Confused State of Current Caselaw on the Foreign Affairs Function Exception

This section surveys the caselaw on the foreign affairs function exception. The first subsection describes the holdings of several landmark cases applying the APA to immigration law. The next subsection highlights the fractured state of current case law, as circuits have split on the scope of the foreign affairs function exception.

Key Cases in Interpreting the APA in the Immigration Context

Wong Yang Sung v. McGrath, ²¹ an early judicial interpretation of the APA, emphasized the importance of the APA's core goal of ensuring a fair administrative process. The Supreme Court decided Wong Yang Sung in the early days of the APA, the heyday of judicial use of legislative history. ²² Wong Yang Sung was a "habeas corpus proceeding [that] involve[d] a single ultimate question—whether administrative hearings in deportation cases must conform to requirements of the Administrative Procedure Act . . . ." ²³ Noting the APA's emphasis on separation of functions, Justice Robert Jackson explained:

[T]he safeguards [that the APA] set up were intended to ameliorate the evils from commingling of functions . . . . And this commingling, if objectionable anywhere, would seem particularly so in the deportation proceeding, where we frequently meet with a voteless class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved. ²⁴

Jackson rejected the idea that "we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to federal agencies." ²⁵ Congress overturned the specific outcome of Wong Yang Sung—that deportation proceedings must conform to the requirements of the APA—by statute. ²⁶ But the Court's analysis about the purpose of the APA and its implications for immigration law has never been directly overruled. ²⁷ Today, Wong Yang Sung's statement of the importance of the APA in protecting vulnerable populations merits amplification.

In Hou Ching Chow v. Attorney General, ²⁸ decided in 1973, the District Court for the District of Columbia, drawing on legislative history and building on the theory of Wong Yang Sung, cabined the application of the foreign affairs function exception in the immigration context. The court used legislative

[Page 108]

history to interpret the exception, quoting from the Senate Report that the foreign affairs function exception "is not to be loosely interpreted to mean any function extending beyond the borders of the United States, but only those 'affairs' which so affect relations with other Governments, that, for example, public rule-making provisions would clearly provoke definitely undesirable international consequences." ²⁹ The court reasoned, citing Wong Yang Sung, that "[i]f deportation proceedings do not come within the foreign affairs exemption, most certainly mere adjustment of alien status and labor certification requirements are not so exempt." ³⁰

The origin of the current circuit split can be traced back to Yassini v. Crosland, decided by the Ninth Circuit in 1980, ³¹ and Mast Industries v. Regan, decided by the U.S. Court of International Trade in 1984. ³² Yassini is the origin of the "definitely undesirable international consequences test." ³³ Hou Ching Chow had quoted the Senate Report's assertion that "public rule-making provisions [that] would clearly provoke definitely undesirable international consequences" furnished an "example" of "those 'affairs' which so affect relations with other Governments" that the foreign affairs function exception applies. ³⁴ Citing the same quotation from the Senate Report as Hou Ching Chow, the Yassini court transformed this example into the rule that the exception applies when "the public rulemaking provisions...