This piece considers whether the Supreme Court’s ruling in Learning Resources Inc., v. Trump that Congress did not delegate to the president the power to impose tariffs will lead to the invalidation of the $100,000 fee on the entry of H-1B foreign workers that President Trump has imposed (as one federal district court has already concluded).
Summary
- The H-1B temporary visa program for foreign workers has had a devastating impact on American workers. Last September, President Trump issued a proclamation that 1) recognized that the program “ha[d] been “deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor”, and 2) concluded it “necessary to impose higher costs on companies seeking to use the H-1B program in order to address the abuse”. The proclamation provided that “the entry into the United States of [H-1B] aliens … is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000”.
- Last December, U.S. District Court Judge Beryl Howell upheld President Trump’s H-1B visa entry fee. Then, this February, the Supreme Court ruled in Learning Resources, Inc., v. Trump that the International Emergency Economic Powers Act “does not authorize … President [Trump] to impose [the] tariffs” he had instituted under its claimed authority. Has Learning Resources taken a bite out of the statutory basis for the H-1B entry bar? U.S. District Court Judge Leo Sorokin certainly thinks so. On June 8, he ruled that § 212(f) of the Immigration and Nationality Act does not provide President Trump the authority to impose the H-1B fee, largely on the basis of Learning Resources’ reasoning.
- Section 212(f), in addition to allowing the president to “suspend the entry of all aliens or any class of aliens” whenever he finds that their entry “would be detrimental to the interests of the United States”, allows the president to “impose on the entry of aliens any restrictions he may deem to be appropriate”. In its 2018 decision in Trump v. Hawaii, the Supreme Court concluded that § 212(f) “exudes deference to the President in every clause”. Judge Howell concluded that § 212(f)’s “any restrictions” language “is sufficiently broad to encompass a regulation requiring an additional payment obligation for entry of a nonimmigrant H-1B visa worker”.
- In Learning Resources, the Supreme Court concluded that the Constitution gave Congress sole power over tariffs (under Congress’s taxing power), and that while Congress could delegate this power to the president, it had not clearly done so in the International Emergency Economic Powers Act. Judge Sorokin concluded that the $100,000 H-1B fee was likewise a tax, and that Congress had not delegated to the president the power to impose a tax through § 212(f).
- Judge Sorokin’s reasoning is flawed for a number of reasons, among them that 1) by using the phrase “any restrictions he may deem to be appropriate” in § 212(f), Congress has clearly given the president the power to impose the H-1B fee, and 2) the H-1B fee is not even a tax governed by Congress’s power over taxation, but a fee governed by Congress’s powers over immigration and commerce, akin to the fees placed on aliens disembarking at U.S. ports in the 19th century (found by the Supreme Court to be so governed).
- I predict that Judge Sorokin’s opinion will ultimately be stayed and then overturned. But unless and until that happens, it and Learning Resources are going to give the Department of Homeland Security a major case of indigestion.
Introduction
On December 23, U.S. District Court Judge Beryl Howell, former general counsel to the U.S. Senate Judiciary Committee under Chairman Patrick Leahy (D-Vt.) and nominated for the federal judiciary by President Obama, issued an admirable decision in Chamber of Commerce v. DHS upholding President Trump’s $100,000 H-1B visa entry fee.
Then, on February 20, the Supreme Court ruled in Learning Resources, Inc., v. Trump that the International Emergency Economic Powers Act (IEEPA) “does not authorize … President [Trump] to impose [the] tariffs” he had instituted under IEEPA’s claimed authority. Has Learning Resources taken a bite out of the statutory basis for the H-1B entry bar? U.S. District Court Judge Leo Sorokin certainly thinks so. On June 8, he ruled in Mullin that § 212(f) of the Immigration and Nationality Act (INA) does not provide President Trump the authority to impose the $100,000 H-1B fee that he had instituted under § 212(f)’s claimed authority, largely on the basis of Learning Resources’ reasoning.
President Trump’s H-1B Proclamation
As I have written, advocates for American workers have long complained that the H-1B temporary visa program for foreign workers in “specialty occupations” has had a devastating impact on American workers. Last September, President Trump issued “Restriction on Entry of Certain Nonimmigrant Workers”, a proclamation that 1) recognized that the H-1B program “ha[d] been “deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor”, and 2) concluded it “necessary to impose higher costs on companies seeking to use the H-1B program in order to address the abuse of that program while still permitting companies to hire the best of the best temporary foreign workers”. Consequently, the proclamation provided that “Pursuant to section[] 212(f) … the entry into the United States of [H-1B] aliens … is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000.”
Section 212(f) provides in part that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens … or impose on the entry of aliens any restrictions he may deem to be appropriate.”
As I have written, in 2018 the Supreme Court ruled in Trump v. Hawaii that President Trump’s § 212(f) proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (pejoratively pegged as a “Muslim ban”) “lawfully exercised [his] discretion based on his findings ... that entry of the covered aliens would be detrimental to the national interest” and that “the language of §[ 212](f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority”.
The Supreme Court in Trump v. Hawaii noted the extraordinary level of discretion that § 212(f) provides to a president:
By its plain language, §[ 212](f) grants the President broad discretion to suspend the entry of aliens into the United States.
[Section 212(f)] exudes deference to the President in every clause. ... It is therefore unsurprising that we have previously observed that §[ 212](f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. [Citing the Court’s 1993 decision in Sale v. Haitian Centers Council.]
Based on the Supreme Court’s decision, on September 20, 2025, I concluded that President Trump’s $100,000 fee had a very strong chance of prevailing in federal court, especially if it reached the Supreme Court. Two months later, on December 23, Judge Howell rejected the U.S. Chamber of Commerce’s request for summary judgement against the $100,000 fee, ruling that “The Proclamation and its implementation are lawful and therefore withstand plaintiffs’ challenges.”
Judge Howell wrote that “Congress has granted the President broad statutory authority, which he has used to issue the [H-1B] Proclamation addressing, in the manner he sees fit, a problem he perceives to be a matter of economic and national security.” Congress was crystal clear in its intent that § 212(f) be available to protect America’s economic security. On April 25, 1952, during House floor consideration of H.R. 5678, to be enacted as the (McCarran-Walter) Immigration Act of 1952, the bill’s author, Francis Walter, stated regarding the proposed § 212(f) power that “[S]uppose we have a period of great unemployment? In the judgment of the committee, it is advisable at such times to permit the President to say that for a certain time we are not going to aggravate that situation.”
Judge Howell concluded that:
A simple comparison of the [H-1B] Proclamation’s textual findings and scope limitations with the requirements of § [212](f) makes clear this presidential action meets the statutory requirements for the authority exercised.
[T]he Proclamation provides ample support for the clear findings articulated as the basis for the action taken to suspend or impose restrictions on new H-1B visa holders, and this meets the prerequisite for invocation of § [212](f) authority.
As to the H-1B proclamation’s novel use of § 212(f)’s “any restriction” language to impose a $100,000 fee, Judge Howell concluded that “This language … is sufficiently broad to encompass a regulation requiring an additional payment obligation [on the petitioning employer] for entry of a nonimmigrant H-1B visa worker when the additional prerequisites in § [212](f) are met.” She acknowledged that “To be sure … § [212](f) has not been previously invoked to restrict entry into the United States using monetary mechanisms,” but explained that:
Nonetheless, the Supreme Court has held that “§ [212](f) vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA”. [quoting Trump v. Hawaii]… The President … has merely “supplement[ed] the other grounds of inadmissibility in the INA” by requiring a payment before an H-1B petition is processed.
Additionally, Judge Howell wrote that “[t]he Supreme Court recently explained” that it had declined the “‘request to create a special nondelegation rule for revenue-raising legislation’” [quoting the Court’s 2025 decision in FCC v. Consumer’s Research] and that “[l]ikewise, here, the [U.S. Constitution’s] Taxing Clause [“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” (art. I, § 8, cl. 1)] does not impose on Congress a heightened requirement to make a valid delegation to the president, and Congress was clear in its delegation.”
The Supreme Court in Consumers’ Research explained that:
To distinguish between the permissible and the impermissible in th[e] sphere [of congressional delegation], we have long asked whether Congress has set out an “intelligible principle” to guide what it has given the agency to do. [quoting the Court’s 1928 decision in J.W. Hampton, Jr., & Co. v. United States]… [I]n examining a statute for the requisite intelligible principle, we have generally assessed whether Congress has made clear both “the general policy” that the agency must pursue and “the boundaries of [its] delegated authority.” [Quoting the Court’s 1946 decision in American Power & Light Co. v. SEC.]
Learning Resources, Inc. v. Trump
In Learning Resources, Chief Justice John Roberts Jr., writing for the majority, explained that:
IEEPA gives the President economic tools to address significant foreign threats. … [T]he President must identify an “unusual and extraordinary threat” to American national security, foreign policy, or the economy, originating primarily “outside the United States.”... [a]nd he must “declare[] a national emergency” under the National Emergencies Act. … He may then, “by means of instructions, licenses, or otherwise,” take the following actions to “deal with” the threat: “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest.” [Emphasis added.]
Roberts noted that “President Trump declared a national emergency as to both … drug trafficking and … trade deficits, which he deemed ‘unusual and extraordinary’ threats … [and] imposed tariffs to deal with each threat.”
Writing for the majority, Chief Justice Roberts explained that:
Recognizing the taxing power’s unique importance, and having just fought a revolution motivated in large part by “taxation without representation,” the Framers gave Congress “alone ... access to the pockets of the people.” [quoting James Madison in The Federalist No. 48]… They did not vest any part of the taxing power in the Executive Branch. [Quoting the Court’s statement in its 1899 decision in Nicol v. Ames that “the whole power of taxation rests with Congress”.]
Roberts also wrote for the majority that “The power to impose tariffs is ‘very clear[ly] ... a branch of the taxing power[]’” [quoting the Court’s 1824 decision in Gibbons v. Ogden,], that “The Government … concedes, as it must, that the President enjoys no inherent authority to impose tariffs during peacetime,” and that the government, “rel[ying] exclusively on IEEPA”, “Reads the words ‘regulate’ and ‘importation’ to effect a sweeping delegation of Congress’s power to set tariff policy — authorizing the President to impose tariffs of unlimited amount and duration, on any product from any country.”
But Roberts wrote (only for himself and Justices Gorsuch and Barrett) that the Supreme Court “ha[s] long expressed ‘reluctan[ce] to read into ambiguous statutory text’ extraordinary delegations of Congress’s powers”. (Quoting the Court’s 2022 decision in West Virginia v. EPA, itself quoting the Court’s 2014 decision in Utility Air Regulatory Group v. EPA.) And that:
[“B]oth separation of powers principles and a practical understanding of legislative intent” suggested Congress would not have delegated ‘highly consequential power’ through ambiguous language. [quoting West Virginia]
These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse.
Roberts wrote (again, only for himself and Justices Gorsuch and Barrett) that “When Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits,” and “Against this backdrop of clear and limited delegations, the Government reads IEEPA to give the President power to unilaterally impose unbounded tariffs.” Further, “[t]he ‘lack of historical precedent’ for the IEEPA tariffs, ‘coupled with the breadth of authority’ that the President now claims, ‘is a “telling indication” that the tariffs extend beyond the President’s “legitimate reach”’.” (Quoting the Court’s 2022 decision in National Federation of Independent Business v. OSHA, in turn quoting the Court’s 2010 decision in Free Enterprise Fund v. Public Company Accounting Oversight Bd.)
He then contended (along with Justices Gorsuch and Barrett) that:
The “‘economic and political significance’” of the authority the President has asserted likewise “provide[s] a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” [quoting West Virginia, in turn quoting the Court’s 2000 decision in FDA v. Brown & Williamson Tobacco Corp.]… [A]s the Government admits — indeed, boasts — the economic and political consequences of the IEEPA tariffs are astonishing. The Government points to projections that the tariffs will reduce the national deficit by $4 trillion, and that international agreements reached in reliance on the tariffs could be worth $15 trillion.
Chief Justice Roberts, now writing for the majority, concluded that while “[b]ased on two words separated by 16 others … — ‘regulate’ and ‘importation’ — the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time”:
Absent from this lengthy list of powers is any mention of tariffs or duties. That omission is notable in light of the significant but specific powers Congress did go to the trouble of naming. It stands to reason that had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly — as it consistently has in other tariff statutes. [Emphasis in original.]
He then emphasized, again writing for the majority, that “[t]he power to ‘regulate ... importation’ does not fill that void”, elaborating that:
“Regulate,” as that term is ordinarily used, means to “fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” [quoting Black’s Law Dictionary (5th ed.)] … [T]he facial breadth of “regulate” places in stark relief what the term is not usually thought to include: taxation. The U. S. Code is replete with statutes granting the Executive the authority to “regulate” someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax. … We are therefore skeptical that in IEEPA — and IEEPA alone — Congress hid a delegation of its birth-right power to tax within the quotidian power to “regulate.”
The “neighboring words” with which “regulate” “is associated” also suggest that Congress did not intend for “regulate” to include the revenue-raising power. [quoting the Court’s 2008 decision in United States v. Williams] “Regulate” is one of nine verbs listed. … Each authorizes a distinct action a President might take in sanctioning foreign actors or controlling domestic actors engaged in foreign commerce — blocking imports, for example, or prohibiting transactions. … None of IEEPA’s authorities includes the distinct and extraordinary power to raise revenue.
Chief Justice Roberts, writing for the majority, concluded that “Those [two] words cannot bear such weight,” that “[w]hen Congress grants the power to impose tariffs, it does so clearly and with careful constraints”, doing “neither here”, and ruled that “as to “whether the power to ‘regulate ... importation,’ as granted to the President in IEEPA, embraces the power to impose tariffs”, “It does not.”
State of California v. Markwayne Mullin
In State of California v. Markwayne Mullin, Judge Sorokin vacated the policy materials implementing the $100,000 H-1B entry fee.
Sorokin explained that “the relevant inquiry here is whether … [§ 212(f)] reflect[s] a delegation of Congress’s taxing power”. The plaintiffs contended that § 212(f) “do[es] not confer the power to impose taxes”, relying on Learning Resources. Judge Sorokin agreed, finding that § 212(f) “do[es] not delegate taxing power to the President”. It only “allow[s] the President to impose ‘restrictions[]’”, and “[l]ike the powers delineated in the IEEPA” this term by its “ordinary meaning” does not include the power to tax. (Quoting Black’s Law Dictionary (12th ed.) as defining “restriction” as “[c]onfinement within bounds or limits; a limitation or qualification”.)
Of course, Judge Howell had reached the exact opposite conclusion, that “Congress was clear in its delegation”, that § 212(f)’s “language … is sufficiently broad to encompass a regulation requiring an additional payment obligation for entry … when the additional prerequisites in § [212](f) are met.”
It Depends on What the Meaning of the Word “Any” Is
Judge Sorokin emphasized that “Defendants point to no other provision in the INA or elsewhere making it clear that Congress intended to delegate the taxing power through § 212(f)”, concluding that:
The most Defendants can do is point to language in § 212(f) that appears to provide broad discretion to the President to restrict the entry of noncitizens. However, ambiguous language is not sufficient for establishing the delegation of the taxing power. … These considerations preclude reading INA §[] 212(f) … as delegating Congress’s exclusive power to tax.
But the word “any” is hardly ambiguous. The government argued that § 212(f)’s language allowing the president to impose “any restrictions he may deem to be appropriate” (emphasis added) “provide[d] a more sweeping delegation of power than the IEEPA”. Judge Sorokin conceded that “§ 212(f) arguably contains sweeping, discretion-conferring language (i.e., ‘any restrictions he may deem to be appropriate’)” (emphasis added).
Arguably?! As Chief Justice Roberts wrote in Trump v. Hawaii, “By its terms, §[ 212](f) exudes deference to the President in every clause. It entrusts to the President the decision[] … on what conditions (‘any restrictions he may deem to be appropriate’)” to place on entry (emphasis added).
There are few words that exude more deference than “any”. In its 2007 decision in Massachusetts v. EPA, the Supreme Court concluded that:
The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air[.]”… On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” [Emphasis in original.]
Chief Justice Roberts in Trump v. Hawaii quoted the Court’s conclusion in its 2002 decision in Department of Housing and Urban Development v. Rucker that “‘any’ ... has an expansive meaning, that is, one or some indiscriminately of whatever kind”.
Two years later, in 2020, the Supreme Court stated in Babb v. Wilkie that: “We have repeatedly explained that ‘the word “any” has an expansive meaning.’’’(With some internal quotation marks omitted, quoting the Court’s 2008 decision in Ali v. Federal Bureau of Prisons, itself quoting the Court’s 1997 decision in United States v. Gonzales.)
The Court in Gonzales concluded that:
The question we face is whether the phrase “any other term of imprisonment” “means what it says, or whether it should be limited to some subset” of prison sentences … namely, only federal sentences. Read naturally, the word “any” has an expansive meaning, that is, “one or some indiscriminately of whatever kind.” [quoting Webster’s Third New International Dictionary] Congress did not add any language limiting the breadth of that word, and so we must read [the statute at hand] as referring to all “term[s] of imprisonment,” including those imposed by state courts. … There is no basis in the text for limiting [the statute] to federal sentences.
In Ali, the Court concluded that “Congress’ use of ‘any’ to modify ‘other law enforcement officer’ is most naturally read to mean law enforcement officers of whatever kind.” The Court did note that:
Of course, other circumstances may counteract the effect of expansive modifiers. For example, we have construed an “any” phrase narrowly when it included a term of art that compelled that result. … We also have construed such phrases narrowly when another term in the provision made sense only under a narrow reading … and when a broad reading would have implicated sovereignty concerns.
But the Court concluded that “None of the circumstances that motivated our decisions in these cases is present here.” And none are present in § 212(f) either.
Judge Sorokin pointed to the fact that “Notably, Congress did not authorize the President to ‘impose on the entry of aliens any conceivable tax, penalty, or condition.’” But two can play that game. Judge Howell wrote that “Congress could have added text to § [212](f) that the restrictions the President was authorized to impose could not take the form of a monetary payment or, even more specifically, a monetary payment on domestic employers. Such text is simply not there nor even implied.” And the Supreme Court in Ali wrote that “Had Congress intended to limit [its] reach as petitioner contends, it easily could have written ‘any other law enforcement officer acting in a customs or excise capacity.’ Instead, it used the unmodified, all-encompassing phrase ‘any other law enforcement officer.’” (Emphasis in original.) The Court also made the point that “Congress could not have chosen a more all-encompassing phrase than ‘any other law enforcement officer’… . We have no reason to demand that Congress write less economically and more repetitiously.”
What of the cannon of statutory construction ejusdem generis? The Court in Ali explained that:
[Petitioner also] relies … on ejusdem generis, or the principle that “when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.” [quoting the Court’s 1991 decision in Norfolk & Western R. Co. v. Train Dispatchers] In petitioner’s view, “any officer of customs or excise or any other law enforcement officer” should be read as a three-item list, and the final, catchall phrase “any other law enforcement officer” should be limited to officers of the same nature as the preceding specific phrases.
The Court wrote that:
Petitioner likens his case to two recent cases in which we found the canon useful. In [the Court’s 2003 decision in Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler] we considered the clause “execution, levy, attachment, garnishment, or other legal process” … . Applying ejusdem generis, we concluded that “other legal process” was limited to legal processes of the same nature as the specific items listed. … Similarly, in [the Supreme Court’s 2006 decision in] Dolan v. Postal Service … the Court considered whether an exception to the [Federal Tort Claims Act]’s waiver of sovereign immunity for claims arising out of the “‘loss, miscarriage, or negligent transmission of letters or postal matter’” barred a claim that mail negligently left on the petitioner’s porch caused her to slip and fall. … [T]he Court … rejected the Government’s argument that the exception applied to “all torts committed in the course of mail delivery[].”
The Court in Ali explained that “Petitioner asserts that [the statute at hand], like the clauses at issue in Keffeler and Dolan, ‘presents a textbook ejusdem generis scenario’” (some internal quotation marks omitted), but the Court “disagree[d]”, elaborating that:
The structure of the phrase “any officer of customs or excise or any other law enforcement officer” does not lend itself to application of the canon. The phrase is disjunctive, with one specific and one general category, not — like the clauses at issue in Keffeler and Dolan — a list of specific items separated by commas and followed by a general or collective term. The absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase.
Of course, as the government argued in its Defendants’ Motion to Stay Order Pending Appeal Memorandum and Authorities (Defendants’ Motion) in State of California v. Markwayne Mullin et al., § 212(f) “contains no list of ways the President may ‘suspend’ or ‘restrict’ entry that would narrow the power conferred”. In fact, § 212(f) does not even include “one specific and one general category” — it simply allows the president to impose “any restrictions he may deem to be appropriate”. This alone makes the Supreme Court’s reasoning in Learning Resources inapplicable to the H-1B entry fee.
Finally, Judge Sorokin expressed concern that the government’s “interpretation regarding the scope of the President’s power under … § 212(f) offers no perceivable limits”, and “allow[ing] the President to impose any tax so long as it connects to a ‘restriction’ on the ‘entry of aliens’ deviates from [§ 212(f)’s] text”. He elaborated that:
[I]n [the government’s] view, the President could: demand a business seeking an H-1B visa to forfeit to the United States ten percent of the equity in the business; or require a United States citizen seeking to sponsor entry of her foreign spouse to give over half her assets to the United States. In the government’s view, even incarceration of the sponsoring citizen may well be within the scope of the statute.
And so? Aliens have no constitutional right to enter the United States. As the Supreme Court explained in its 2020 decision in DHS v. Thuraissigiam, “the Constitution gives ‘the political department of the government’ plenary authority to decide which aliens to admit” (quoting the Court’s 1892 decision in Nishimura Ekiu v. United States) and “as to ‘[aliens] who have never … acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,’ ‘the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law’” (again quoting Nishimura). And, as Judge Sorokin admitted, “the government’s counsel recognized … that such a condition [regarding incarceration] would run afoul of other constitutional provisions.”
It Depends on What the Meaning of the Word “Tax” Is
The government argued in its Defendants’ Motion that “ultimately the [H-1B fee] is like a head count payment, not a tax, in purpose and function”, and is “justified under [Congress’s constitutional] immigration [presumably “The Congress shall have the Power … To establish an uniform Rule of Naturalization” (art. I, § 8, c. 4)] and commerce [“The Congress shall have the Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (art. I, § 8, c. 3)] powers.” Thus, the Massachusetts court had “vacated the implementation of the Proclamation based on an erroneous ruling that the payment was a tax without a proper congressional delegation”.
The government’s contention that the H-1B fee “is like a head count payment” was based on “the Supreme Court [having] invalidated several state ‘head count’ payments imposed on aliens because the laws intruded on Congress’ power over foreign commerce, not taxing” (emphasis in original) and the Court having upheld “a federal ‘head count’ payment” on the same basis.
The government claimed that the H-1B fee “is nearly identical to those head count payments (though narrower in scope) and thus can be justified as part of the foreign commerce or immigration powers”, citing the Supreme Court’s 1849 decision in Smith v. Turner, its 1875 decision in Henderson v. Mayor of New York, and its 1884 decision in Edye v. Robertson (the Head Money Cases).
Edye involved a suit brought by plaintiffs who “carry on the business of transporting passengers and freight upon the high seas between Holland and the United States” in order to “recover … money [paid to the] collector of the port of New York … on account of their landing in that port passengers from foreign ports, not citizens of the United States, at the rate of fifty cents for each … under the act of Congress of August 3, 1882”. The Supreme Court explained that “counsel for plaintiffs, assuming that Congress, in the enactment of this law, is exercising the taxing power conferred by … the Constitution … argues that all the restraints and qualifications found there in regard to any form of taxation are limitations upon the exercise of the power” in regards to the passenger fee, which the plaintiffs argued violated the strictures of the taxing power in “not [being] levied to provide for the common defence and general welfare of the United States, and … not [being] uniform throughout the United States”.
In concordance with the government’s assertion, the Court in Edye indeed concluded that “the power exercised in this instance is not the taxing power.” Rather, “That these statutes are regulations of commerce — of commerce with foreign nations — is conceded in the argument in this case, and that they constitute a regulation of that class which belongs exclusively to Congress is held in all the cases in this court.”
First, I should note the Court explained that the purpose of the passenger fee was “to defray the expense of regulating immigration … and for the care of immigrants arriving in the United States, [and] for the relief of such as are in distress” and that the Court wrote with disdain that:
We are now asked to decide … that the framers of the Constitution have so worded that remarkable instrument that the ships of all nations, including our own, can, without restraint or regulation, deposit here, if they find it to their interest to do so, the entire European population of criminals, paupers, and diseased persons without making any provision to preserve them from starvation and its concomitant sufferings even for the first few days after they have left the vessel.
As to the fee’s basis in Congress’s immigration and commerce powers, the Court wrote that:
The burden imposed on the ship owner by this statute is the mere incident of the regulation of commerce — of that branch of foreign commerce which is involved in immigration. … Its provisions, from beginning to end, relate to the subject of immigration, and they are aptly designed to mitigate the evils inherent in the business of bringing foreigners to this country, as those evils affect both the immigrant and the people among whom he is suddenly brought and left to his own resources.
[I]n the exercise of its power to regulate immigration, and in the very act of exercising that power, it was competent for Congress to impose this contribution on the ship owner engaged in that business.
It is enough to say that, Congress having the power to pass a law regulating immigration as a part of commerce of this country with foreign nations, we see nothing in the statute by which it has here exercised that power forbidden by any other part of the Constitution.
The Court explained why the passenger fee was not based on Congress’s power over taxation:
The sum demanded of [the ship owner] is not … strictly speaking, a tax or duty within the meaning of the Constitution. The money thus raised, though paid into the Treasury, is appropriated in advance to the uses of the statute, and does not go to the general support of the government. It constitutes a fund raised from those who are engaged in the transportation of these passengers, and who make profit out of it, for the temporary care of the passengers whom they bring among us and for the protection of the citizens among whom they are landed.
If this is an expedient regulation of commerce by Congress, and the end to be attained is one falling within that power, the act is not void, because, within a loose and more extended sense than was used in the Constitution, it is called a tax.
The Court cited its 1869 decision Veazie Bank v. Fenno for the proposition that if a payment is not a tax for purposes of the Constitution, “It was not subject … to the rules which would invalidate an ordinary, tax pure and simple.”
Nine years prior, the Court wrote in Henderson that:
[T]he transportation of passengers from European ports to those of the United States has attained a magnitude and importance far beyond its proportion at that time to other branches of commerce. It has become a part of our commerce with foreign nations of vast interest to this country as well as to the immigrants who come among us to find a welcome and a home within our borders. In addition to the wealth which some of them bring, they bring still more largely the labor which we need to till our soil, build our railroads, and develop the latent resources of the country in its minerals, its manufactures, and its agriculture. Is the regulation of this great system a regulation of commerce?
The Henderson Court asked rhetorically “Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?” And in its 1883 decision in People v. Compagnie Generale Transatlantique, the Court wrote that:
It has been so repeatedly decided by this Court that … a [State-levied passenger fee] as this is a regulation of commerce with foreign nations … that unless we are prepared to reverse our decisions and the principles on which they are based … there is little to say beyond affirming the judgment of the circuit court, which was based on those decisions.
The Court in Henderson, in invalidating what was in essence a State-levied passenger fee, explained that “this whole subject has been confided to Congress by the Constitution”. And in Compagnie Generale Transatlantique, the Court echoed this statement, concluding that passenger fees had been “confided by the Constitution to the exclusive control of Congress”.
The government contended in its Defendants’ Motion that “the power that authorized the [H-1B fee] is either the commerce or immigration power”, that the fee “is a head count or regulatory payment that does not implicate the taxing power”, and that the fee is “virtually identical” to the passenger fees addressed by the Supreme Court. The government elaborated that:
[The H-1B fee] applies to certain aliens seeking to enter … in a particular way, can (but need not) be paid by an American company, and is designed to mitigate the external costs of bringing such aliens into the country. Thus the Proclamation’s payment requirement stems from the foreign commerce power or immigration power. At a minimum, Section[] [212](f) … include[s] a “sweeping” and “comprehensive delegation” of the foreign commerce power and immigration power to exclude aliens. [Quoting Trump v. Hawaii.]
The government is clearly correct in its contention that the H-1B fee does not find its basis in Congress’s constitutional power over taxation, but in its powers over commerce and immigration. But to what effect? The government’s motivation was to ensure that its ability to impose the fee would not be subject to any “special” or “heightened” clear statement rule regarding Congress’s delegation of power pursuant to § 212(f). But, as Judge Howell had concluded, the Supreme Court does not appear to have created any such special rule.
Conclusion
Learning Resources has only nibbled away at the statutory basis for President Trump’s H-1B fee. I predict that Judge Sorokin’s opinion will ultimately be stayed and then overturned. But unless and until that happens, it and Learning Resources are going to give the Department of Homeland Security a major case of indigestion.