Foreign affairs functions are excepted from the requirements of the Administrative Procedure Act’s “Rule Making” and “Adjudication” sections. See 5 U.S. Code § 553 - Rule making and 5 U.S. Code §...
1 Serving as America’s 72nd Secretary of State is the highest honor of my professional life. [Executive Order 14150] has given me a clear direction to place our core national interests as the guiding mission of American foreign policy, and always put America and American citizens first.
…
5 For these reasons, I hereby determine that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act, 5 U.S.C. 553, 554.
The Administrative Procedure Act (APA) is a federal act that governs the procedures of administrative law . The APA is codified in 5 U.S.C. §§ 551–559 .
The core pieces of the act establish how federal administrative agencies make rules and how they adjudicate administrative litigation. 5 U.S.C. § 551(5)–(7) clarifies that rulemaking is the “agency process for formulating, amending, or repealing a rule,” and adjudication is the final disposition of an agency matter other than rulemaking. That is, rulemaking goes beyond resolution of specific controversies between parties and includes management and administrative functions.
Most laws today are not statutes passed by Congress, but rather regulations issued by agencies, which have the same force and effect of statutory law. Consequently, the Administrative Procedure Act (“APA”), which sets forth specific requirements to issue such regulations—including undergoing public notice-and-comment rulemaking—is as important as ever. Indeed, an agency’s failure to follow the APA’s requirements means that an agency’s issued rules could later be judicially invalidated. If, however, one of the APA’s few exceptions to its rulemaking requirements applies, rules that would otherwise be reversed for not properly conducting public notice and comment can remain in force.
…
In [Curtis-Wright,] a 7–1 decision, the Supreme Court firmly reinforced the Executive’s prerogative and held that the same nondelegation doctrine concerns that applied to “domestic affairs” did not apply to “foreign affairs.
…
Apart from the crucial distinctions made between domestic and foreign affairs, and associated considerations, another illuminating part of Curtiss-Wright was the very terminology it used. The term “foreign affairs” was used five times in the Court’s opinion, while “foreign relations” was used three times in similar contexts. Each time either term was used, it was to differentiate actions that focused on achieving an external effect from actions that primarily had an internal effect. Thus, the Court likely used the term foreign affairs because it could be easily contrasted with internal or domestic affairs; whereas contrasting foreign relations with internal or domestic relations would not work linguistically.
…
But before Curtiss-Wright, “foreign affairs” was not at all a common term, at least not in judicial opinions. A search of all federal cases from 1929 to 1936 found that, apart from the Curtiss-Wright district court case and Supreme Court cases, only twice was the term “foreign affairs” ever used in a federal judicial opinion other than as part of a formal office or committee title. One case simply said that the question of the authority of a foreign minister was a “political action in foreign affairs,” determined “exclusively by the political branch of the government.” The other referred to the term generically when discussing national sovereignty.
…
Congress was similarly silent is using the term descriptively during that same time period, only using it to reference the magazine or a congressional committee. Truly then, the 1936 Curtiss-Wright case was the only major case in that era to use the term “foreign affairs” in any analogous manner to how it would appear in administrative law reform bills and in the APA.
…
Significantly, it was that June 1937 draft bill that, for the first time, contained exceptions, including ones for the
conduct of foreign affairs by the Department of State; or any case involving military or naval operations in time of war.
Thus, by virtue of timing, the December 1936 Curtiss-Wright opinion—and its unique use of the term “foreign affairs”—undoubtably had an enormous impact on the inclusion and scope of the exception.
If, however, one of the APA’s few exceptions to its rulemaking requirements applies, rules that would otherwise be reversed for not properly conducting public notice and comment can remain in force.
Yeah, it sounds like this is an effort to sidestep having to make any take-backsies due to lack of public consultation from their rush to change a number of rules, probably largely around...
Yeah, it sounds like this is an effort to sidestep having to make any take-backsies due to lack of public consultation from their rush to change a number of rules, probably largely around deportations and maybe the trade war as well? But I'm no expert, so it's entirely possible there's more to be found here.
The important part is the bolded portion of the first block quote. Hypothetical implications are numerous and their impacts are themselves hypothetical. In addition to its potential implications...
The important part is the bolded portion of the first block quote. Hypothetical implications are numerous and their impacts are themselves hypothetical.
In addition to its potential implications related to the applicability of APA requirements, there’s also potential implications for judicial deference post-Chevron. And possibly Congressional Review Act, but that’s one I haven’t fully thought about yet.
One of the most difficult issues in foreign affairs law is the proper relationship between the judicial and executive branches. On the one hand, as Chief Justice John Marhall famously stated, it is "the province and duty of the judicial department to say what the law is." It is not self-apparent from constitutional text or structure that this "province and duty" should be limited to domestic cases. On the other hand, the executive branch has special expertise and authority in foreign affairs, and excessive judicial intervention in this area might impede the nation's ability to act effectively in the international community. To the dismay of many academic commentators, courts generally have resolved this tension by giving substantial and sometimes absolute deference to the executive branch in foreign affairs cases.
In foreign affairs cases, courts have deployed multiple kinds of deference to the executive. Such deference may pose a greater hurdle than limitations on jurisdiction and justiciability for parties hoping that the judiciary will provide robust oversight of national security creep issues and ensure that executive actions in the name of national security are well founded.
The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.
In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons.
First, classic national security related conflicts—wars of territorial conquest, terrorism, or nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD.
Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.
The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between “foreign” and “domestic,” with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges—particularly lower court judges—will be put in the position of second-guessing executive branch decision-making on precisely those questions—economic foreign policy questions of deep economic and political significance—on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system.
This does not help those of us who do not understand the implications. The rest of your first comment didn't really explain them either (at least not at a layman level). We don't understand why...
The important part is the bolded portion of the first block quote. Hypothetical implications are numerous and their impacts are themselves hypothetical.
This does not help those of us who do not understand the implications. The rest of your first comment didn't really explain them either (at least not at a layman level).
We don't understand why foreign vs. domestic affairs matters.
Not really because I still don't understand what labeling something as foreign/domestic actually does. I get that foreign affairs don't require public comment, but I don't even know what that is...
Not really because I still don't understand what labeling something as foreign/domestic actually does. I get that foreign affairs don't require public comment, but I don't even know what that is in this context. This is a technical and obscure legal area where most of us have zero knowledge whatsoever, so we need a very simplified explanation of the practical effects.
That's not to say that you are obligated to be the one to provide the explanation, just that we don't understand the starting point of the explanation.
It would be like if I told you the below. You'd likely still have no clue what I was talking about:
To get a grasp on quantum chromodynamics, just know that QCD is like quantum electrodynamics but different because where QED says electric charge is conserved and mediated by photons, QCD says color charge is conserved and mediated by gluons, which themselves carry charge and interact with each other.
So this is interesting and potentially important for a few reasons. And I’ll do my best to walk through most of it in a very general way and try to introduce relevant concepts in an orderly way....
So this is interesting and potentially important for a few reasons. And I’ll do my best to walk through most of it in a very general way and try to introduce relevant concepts in an orderly way.
Most generally, statutory interpretation (and interpretation of contract provisions, etc.) There are “canons of construction” that can be applied to try to justify why you think a word means something, or whether or not a list is inclusive or exclusive or just illustrative, or… “Canons of constructions” aren’t rules so much as they are “this seemed like a reasonable way to do it and we’ve just kind of kept doing it so if we do it again this is what it would mean.”
Here’s an example based on my recollection of an example in the book “Getting to Maybe” about law school exams:
No vehicles permitted in the park after dark.
Is a bicycle a vehicle? A dog sled? A wheel barrow? Would an ambulance responding to an emergency be permitted? What about a model boat?
Is after dark after civil, nautical, or astronomical twilight?
So what seems like a fairly simple rule (statute) isn’t so simple at all. The APA exempts “foreign affairs” but what does that really mean? Well, it means not domestic affairs, obviously. But what about a domestic action intended to have a foreign effect? Is that “foreign affairs” and excepted from the APA?
All of the above is interesting before the determination linked in the OP. Now we have Secretary of State making a broad determination that all actions by any agency that relate in any way to any person or any thing (tangible or intangible) crossing the border constitutes “foreign affairs.”
Here is one example to illustrate how broad the impact could be. The internet is global. Servers are located all over the world. “Data” moves across the border. So it seems likely the argument will be that any agency action regulating that data should be considered “foreign affairs” and exempt from the APA.
Now, the Secretary of State doesn’t get to decide all by himself what a statute means. Deciding that - deciding what the law is - is a job for the courts.
The courts - under Chevron - would basically say: “if authority was delegated to this agency, and the agency’s interpretation is reasonable and well supported, that sounds cool to us. We don’t know shit about gluons.” The concept of judicial deference.
So Chevron is gone. And now courts “decide what the law is” again, more often supposedly.
But the frameworks for doing that and the notion of judicial deference run into problems in two contexts: national security and foreign affairs.
Part of the issue is how authority is delegated to the various branches of government in the constitution and part of the issue is how do you decide what is actually related to “national security” or “foreign affairs.”
So depending on how things shake out, there may be a Supreme Court case deciding what “foreign affairs” means. Which would be a hot mess. Or there may be lots of things that happen that don’t have a “judicial remedy” because they’re “political questions” and have a “political remedy.”
Much that is said about the political question doctrine is wrong. The doctrine as the Supreme Court has developed it is not a limit on the subject matter jurisdiction of the federal courts. It is, however, a limit on judicial power in its relations with political power. The doctrine has two branches. In one, courts treat certain legal decisions by political actors as conclusive. The leading example is recognition of states and governments, as to which the courts are bound by non-judicial decisions. In the other branch, the mandatory remedies that courts may give are limited in the extent to which they may direct political actors with respect to highly sensitive discretionary decisions, mainly those involving military and security matters.
Despite its controversy, Curtiss-Wright is among the Supreme Court's most influential decisions. Most cases involving conflicts between the executive and legislative branches involve political questions that the courts refuse to adjudicate. Therefore, the sweeping language of Curtiss-Wright is regularly cited to support the executive branch's claims of power to act without congressional authorization in foreign affairs, especially if there is no judicial intervention to interpret the text's meaning.
The news caught up to Tildes: Rubio Declares Immigration Regulations Exempt From Public Notice
The news caught up to Tildes:
Regulations governing visa policies and other immigration matters fall under a “foreign affairs” exception to the Administrative Procedure Act, Secretary of State Marco Rubio announced Thursday, potentially allowing for them to bypass a public and notice comment process for new rulemaking.
Most federal regulations are subject to a public notice period that can delay their effective date, but agencies have increasingly claimed the foreign affairs exception.
Rubio determined “that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function under the Administrative Procedure Act, 5 U.S.C. 553, 554,” according to a notice scheduled for publication in the Federal Register Friday.
The State Department has typically claimed its own rulemaking is exempt from APA requirements. It cited that foreign affairs function when it issued an update of the Exchange Visitor Skills List last year without a public comment period. That update dropped a two-year home residency requirement for students and researchers from several countries after completing an exchange program in the US.
A Department of Homeland Security regulatory overhaul of the H-1B visa program, meanwhile, was finalized the same month more than a year after the release of draft regulations. DHS received more than 1,200 comments on the rule.
Public notice and comment gives interested parties a chance to weigh in on draft regulations, typically for a period of 30-60 days. For rules subject to that process, federal agencies are required to consider comments and respond to issues they raise in final regulations. Failing to adhere to those requirements can lead to a regulation later being tossed by a court.
The State Department notice comes after the Department of Health and Human Services last month announced it would no longer follow notice-and-comment procedure for “matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” That decision brings HHS in alignment with the APA, the agency said. But the decision drew outrage from open government advocates who said it would block public participation in HHS decision making.
I think this confirms that the part I initially highlighted was the important part from a layman's perspective. Basically, they can make shitty rules, not ask anyone if they're shitty, and then...
Public notice and comment gives interested parties a chance to weigh in on draft regulations, typically for a period of 30-60 days. For rules subject to that process, federal agencies are required to consider comments and respond to issues they raise in final regulations. Failing to adhere to those requirements can lead to a regulation later being tossed by a court.
I think this confirms that the part I initially highlighted was the important part from a layman's perspective. Basically, they can make shitty rules, not ask anyone if they're shitty, and then the rules can't be invalidated for being shitty.
That's certainly the most immediately impactful part: make and unmake rules more quickly and in more contexts without notifying people beforehand that the rules are changing or being made. The...
That's certainly the most immediately impactful part: make and unmake rules more quickly and in more contexts without notifying people beforehand that the rules are changing or being made.
The less immediate, much messier, and equally or more impactful part: shift the "issue" from whether or not the agency followed the required process to whether or not the agency needed to follow that process at all because "foreign affairs."
This is very technical and, I believe, potentially quite important. Background and context provided to hopefully facilitate engagement with the broader subject of administrative law by a less...
This is very technical and, I believe, potentially quite important. Background and context provided to hopefully facilitate engagement with the broader subject of administrative law by a less technical, general audience.
Since I mentioned the Congressional Review Act in a previous comment and I happened to see an article about it today, here's more administrative law content related to the CRA: Senate Joint...
Since I mentioned the Congressional Review Act in a previous comment and I happened to see an article about it today, here's more administrative law content related to the CRA:
PLF has posited another interpretation of the CRA, with potentially even more dramatic outcomes. As amended by the CRA, the APA prevents a rule from going into effect before it is submitted to Congress. Based on the ACUS report’s counts, thousands of rules thought to be in effect technically never were. PLF argues “the administration could, in many cases, simply publish notice that a rule not in effect is being abandoned, reevaluated, or potentially modified.” It acknowledges that this would be more susceptible to challenge, but suggests most discretionary rulemaking, especially those guidance documents that did not go through notice and comment, could be withdrawn using “CRA 3.0.”
CRA 4.0
This raises yet a fourth possible application of the CRA: private litigation. Attorneys whose clients are facing enforcement actions, permit denials, or other government proceedings could argue in court that the applicable regulation is not effective, since it never went through CRA review. Of course, this could work both ways. If a company relied on an agency rule or guidance document that is deemed ineffective, it could be found in violation of law. For example, imagine an EPA rule that replaced paper reports with electronic reporting. If that electronic reporting rule is deemed ineffective, those who complied with it will be in violation of the previous paper rule.
Foreign affairs functions are excepted from the requirements of the Administrative Procedure Act’s “Rule Making” and “Adjudication” sections. See 5 U.S. Code § 553 - Rule making and 5 U.S. Code § 554 - Adjudications.
Administrative Procedure Act
Edit:
The Lost History of the APA’s Foreign Affairs Exception (2023)
Is this the important part?
Yeah, it sounds like this is an effort to sidestep having to make any take-backsies due to lack of public consultation from their rush to change a number of rules, probably largely around deportations and maybe the trade war as well? But I'm no expert, so it's entirely possible there's more to be found here.
The important part is the bolded portion of the first block quote. Hypothetical implications are numerous and their impacts are themselves hypothetical.
In addition to its potential implications related to the applicability of APA requirements, there’s also potential implications for judicial deference post-Chevron. And possibly Congressional Review Act, but that’s one I haven’t fully thought about yet.
Chevron deference is no more, but this law review article discussing Chevron deference and foreign affairs provides historical context:
This law review article discusses national security creep in corporate transactions:
This law review article discusses the national security consequences of the major questions doctrine. With Chevron deference gone, Skidmore and MQD are what's left.
This does not help those of us who do not understand the implications. The rest of your first comment didn't really explain them either (at least not at a layman level).
We don't understand why foreign vs. domestic affairs matters.
Does the last block quote in the quoted comment help at all (bolded portion to the end of the block quote)?
Not really because I still don't understand what labeling something as foreign/domestic actually does. I get that foreign affairs don't require public comment, but I don't even know what that is in this context. This is a technical and obscure legal area where most of us have zero knowledge whatsoever, so we need a very simplified explanation of the practical effects.
That's not to say that you are obligated to be the one to provide the explanation, just that we don't understand the starting point of the explanation.
It would be like if I told you the below. You'd likely still have no clue what I was talking about:
So this is interesting and potentially important for a few reasons. And I’ll do my best to walk through most of it in a very general way and try to introduce relevant concepts in an orderly way.
Most generally, statutory interpretation (and interpretation of contract provisions, etc.) There are “canons of construction” that can be applied to try to justify why you think a word means something, or whether or not a list is inclusive or exclusive or just illustrative, or… “Canons of constructions” aren’t rules so much as they are “this seemed like a reasonable way to do it and we’ve just kind of kept doing it so if we do it again this is what it would mean.”
Here’s an example based on my recollection of an example in the book “Getting to Maybe” about law school exams:
Is a bicycle a vehicle? A dog sled? A wheel barrow? Would an ambulance responding to an emergency be permitted? What about a model boat?
Is after dark after civil, nautical, or astronomical twilight?
So what seems like a fairly simple rule (statute) isn’t so simple at all. The APA exempts “foreign affairs” but what does that really mean? Well, it means not domestic affairs, obviously. But what about a domestic action intended to have a foreign effect? Is that “foreign affairs” and excepted from the APA?
All of the above is interesting before the determination linked in the OP. Now we have Secretary of State making a broad determination that all actions by any agency that relate in any way to any person or any thing (tangible or intangible) crossing the border constitutes “foreign affairs.”
Here is one example to illustrate how broad the impact could be. The internet is global. Servers are located all over the world. “Data” moves across the border. So it seems likely the argument will be that any agency action regulating that data should be considered “foreign affairs” and exempt from the APA.
Now, the Secretary of State doesn’t get to decide all by himself what a statute means. Deciding that - deciding what the law is - is a job for the courts.
The courts - under Chevron - would basically say: “if authority was delegated to this agency, and the agency’s interpretation is reasonable and well supported, that sounds cool to us. We don’t know shit about gluons.” The concept of judicial deference.
So Chevron is gone. And now courts “decide what the law is” again, more often supposedly.
But the frameworks for doing that and the notion of judicial deference run into problems in two contexts: national security and foreign affairs.
Part of the issue is how authority is delegated to the various branches of government in the constitution and part of the issue is how do you decide what is actually related to “national security” or “foreign affairs.”
So depending on how things shake out, there may be a Supreme Court case deciding what “foreign affairs” means. Which would be a hot mess. Or there may be lots of things that happen that don’t have a “judicial remedy” because they’re “political questions” and have a “political remedy.”
The Political Questions Doctrine
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
Edit: Added links.
Extra: Two New Procedural Wrinkles That May Disincentivize Challenges to New Federal Policies are also relevant here. There may be a "new" hurdle to clear to try to challenge things and there is a "new" hurdle to clear to recover fees to pay for the attorneys used to challenge things.
The news caught up to Tildes:
Rubio Declares Immigration Regulations Exempt From Public Notice
I think this confirms that the part I initially highlighted was the important part from a layman's perspective. Basically, they can make shitty rules, not ask anyone if they're shitty, and then the rules can't be invalidated for being shitty.
That's certainly the most immediately impactful part: make and unmake rules more quickly and in more contexts without notifying people beforehand that the rules are changing or being made.
The less immediate, much messier, and equally or more impactful part: shift the "issue" from whether or not the agency followed the required process to whether or not the agency needed to follow that process at all because "foreign affairs."
This is very technical and, I believe, potentially quite important. Background and context provided to hopefully facilitate engagement with the broader subject of administrative law by a less technical, general audience.
Since I mentioned the Congressional Review Act in a previous comment and I happened to see an article about it today, here's more administrative law content related to the CRA:
CRAzy After All These Years: Extending The Reach Of The Congressional Review Act (Forbes, 2017)