The Implications of the Non-Delegation Doctrine for Immigration Control and Enforcement

Part I: The Immigration Examinations Fee Account

By Dan Cadman on January 15, 2020

Robert VerBruggen has penned an article for National Review Online (NRO) titled "Is 'Most of Government' Unconstitutional?" that focuses on the question of whether or not the U.S. Constitution permits the legislature to delegate some of its responsibilities, or whether the "doctrine of non-delegation", derived by some from a strict reading of Article I of the Constitution, forbids such delegation.

As VerBruggen notes, the matter is of great concern for many conservatives, who consider that inappropriate delegations by Congress have led to today's huge, overweening federal government, and in particular the "administrative state". These conservatives are hopeful that a conservatively reconstituted Supreme Court might be used as lawfare in the fight against big government. Ramesh Ponneru has followed up with an article in NRO of his own, theorizing on the limits and potential middle ground that might be found in a resurgence of the non-delegation argument.

Readers might be wondering what in the world a highly technical legal argument has to do with immigration matters. The answer is: plenty. In this installment, I will give one hypothetical example of how the doctrine might be used to invalidate current fee collection practices for immigration benefits. In the next, I will provide a real-world example of how it has already been used in a case involving immigration enforcement.

Article I of the Constitution. It's worth taking a moment to make an abbreviated examination of the contents of Article I as they relate to this installment.

Section 1 of Article I says this: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Section 7 says, in relevant part: "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills."

And the opening portion of Section 8 says this: "The Congress shall have power to lay and collect taxes, duties, imposts and excises." (Emphasis added.)

The Immigration Examinations Fee Account. Decades ago, Congress was inspired to make various immigration benefit applications pay for themselves so that they didn't burden U.S. taxpayers. Thus the examinations fee account was born. Today, U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security (DHS) responsible for adjudicating most applications, including naturalization, is almost completely self-sustaining. In fact, USCIS carries on its books a hefty fund worth significantly more than $1 billion.

USCIS also regulates its own sliding scale of fees, adjusting them from time to time (always upward; one can think of no instance of a downward adjustment) according to an arcane formula of how much money it costs per adjudication for each type of benefit — although fees have never been levied for some benefits, such as asylum. Individual adjudicators are also free to "waive" fees for various applications when individual aliens cannot afford to pay, which happens with surprising frequency although this seems counterintuitive since it raises obvious "public charge" questions having to do with the alien's capability to maintain him- or herself and family without resort to federally administered or funded public benefits.

While Congress theoretically retains "control" and could through legislation curb how USCIS spends the accumulated fee account money, in fact it hasn't done so. It was this fee account that allowed the Obama administration to kick-start Deferred Action for Childhood Arrivals (DACA), its constitutionally dubious administrative amnesty whose termination is now being litigated at the Supreme Court. Even though it also ultimately required submission of fees, DACA was so extensive that, in its heyday, it effectively inhibited prompt adjudication of the statutorily authorized benefits for which aliens had paid fees because there weren't enough adjudicators to do all of the work.

This fee account has also been used to sustain an out-of-control asylum program whose weaknesses not only also bleed off fees paid for by legitimate benefits applicants, but feed the tidal wave of humans that have overwhelmed border officials in the past several years.

The question, in the context of the non-delegation principle, then, is a simple one: Did Congress violate its own constitutionally mandated appropriations and duty-levying functions when it ceded to USCIS what is, at its worst, an unchecked slush fund with which the agency does what it pleases?

One answer might depend in part on whether such fees fall within the scope of "taxes, duties, imposts and excises" as articulated in Section 8 of Article I. It's hard to know how this would shake out in the federal courts, but by way of example, in a critical test of the constitutionality of the Affordable Care Act ("Obamacare"), Chief Justice Roberts, writing for the Supreme Court majority, surprised all of America (with the possible exception of himself and his colleagues) when he found that a penalty assessed against those who failed to register, or registered late, for Obamacare, constituted a "tax".

Using this frame of reference, while one might not see immigration benefits fees as a tax, they are on the other hand a defining example of a governmental quid pro quo, and as such they might well be considered an impost: "You ask us to spend resources adjudicating your benefit and so, in turn, we are going to levy this impost of X dollars upon you to recompense us for the time and effort expended."

As readers can see, there are two sides to what can happen when the sword of non-delegation is wielded:

  • On one hand, absent a fee account, USCIS would not have been able to play fast and loose in establishing a wide-ranging DACA program involving hundreds of thousands of removable aliens — and this is not the only instance in which the fee account has been implicated in offsetting executive agency priorities not specifically sanctioned by Congress; the Central American Minors (CAM) program was another.
  • On the other hand, there is the value of ensuring that taxpayers don't bear the burden of millions of statutorily authorized alien benefits applications yearly.

As one contemplates the intersection of non-delegation and the examinations fee account, it's worth noting that it is not the fee account itself that invokes questions of congressional abandonment of its constitutional duties. Were such an account to be established, for instance, within the boundaries of the United States treasury, and apportioned on a yearly basis according to need for justified, congressionally approved programs, there would be no question of its legitimacy. The issue arises solely because the fee account is for all intents "owned" and managed by an executive branch agency without reference to Congress.

It might even be argued that visa numbers, especially in regard to unending "chain migration" categories, might have been reined in over the years rather than expending ever-increasing amounts of taxpayer funds, if Congress had exercised direct oversight via the yearly appropriations process. Readers should be aware that each year, the United States grants well over a million aliens the right to live and work permanently in the United States. Cumulatively, this has had a huge impact on our society, not to mention stretching the limits of federal, state, and local governmental benefits and services.

Why, one might ask, does Congress abrogate its legislative responsibilities in the first place? One answer is that the institution has become a model of incapacity and gridlock. Under these circumstances, it's often far easier to toss hot potatoes, and nagging routine oversight matters, over the fence into the chief executive's backyard than to give the public one more concrete example of congressional dysfunction in action.

Sometimes, though, there are more legitimate reasons for limited delegations, which will be discussed in the next installment.

But to revert to the matter at hand: If one were opposed to the function of the examinations fee account as it exists now, and determined to take legal action to see the non-delegation principle placed into practice, how might that happen? Because of the arcane and lopsided rules of standing used by the federal courts (see here and here), it is unlikely that a citizen off the street could successfully convince a judge that he or she had standing to sue. Likewise, taxpayers' unions and government accountability groups would be hard pressed to make the argument that they were injured by a fee account that actually saves them from having to put scarce taxpayer dollars into the immigration benefits adjudication kitty. And individual aliens who felt damaged, for instance, by inordinate waits while their adjudication is pending in favor of programs such as DACA or asylum, would not likely press the suit on constitutional grounds. Instead they would ask the presiding judge to issue a writ of mandamus forcing the government to act on the pending adjudication.

How, then, might one test the constitutionality of the way the current Immigration Examinations Fee Account is structured and run? The truth is that it would be difficult indeed, unless a particular member of Congress, or a group of concerned representatives or senators, chose to act. Yet this too seems unlikely; no member of Congress ever sued the Obama administration for its egregious usurpation of the legislative authority when it initiated DACA; it took a group of states to file that lawsuit instead.

And so it is that, despite the wishes of at least some segment of conservatives who actively wish to roll back "big government" through use of the non-delegation doctrine, in fundamental ways this will prove an elusive, but not completely impossible, task.

In Part II, I will provide a real-world example of how it has already been invoked by the Supreme Court in a way that significantly damages immigration enforcement efforts.