The argument on Nov. 10 in Department of Labor v Sun Valley Orchards brings the justices a complex constitutional problem sure to get their focused attention: does the Constitution allow Congress to delegate to the executive branch – as opposed to the courts – the authority to adjudicate the obligation of an employer to comply with employment agreements it makes with temporary immigrant workers.
Here, the Department of Labor, employing administrative law judges, for several decades has adjudicated disputes under the H-2A visa program, which allows employers to hire temporary foreign agricultural workers. The Department of Labor argues that Sun Valley Orchards failed in several ways to compensate such workers as it promised the government it would to qualify for the H-2A program. As is typical in such cases, administrative employees of the DOL (in its wage and hour division) charged Sun Valley with failing to live up to its obligations, and the DOL for the most part persuaded an ALJ that it was correct. On appeal, a different group of the DOL’s employees (its administrative review board) accepted the ALJ’s findings. At that point, for the first time, Sun Valley had a chance to take the dispute before Article III judges, but under the applicable statute the federal district court owes great deference to the DOL’s adjudication.
The case comes to the justices because the U.S. Court of Appeals for the 3rd Circuit reasoned that the administrative adjudication of the department’s charges cannot be reconciled with Article III of the Constitution.
At a high level of generality, the doctrinal framework here is quite clear. All agree that Congress constitutionally can authorize adjudication by executive branch officials rather than judges, and all agree that its power to do so is limited to cases that involve “public rights,” a notoriously vague category designed to distinguish traditionally executive actions (like granting a visa) from disputes traditionally resolved in court (like tort and contract litigation). When those adjudications go beyond public rights, though, they infringe on the judiciary’s exclusive authority under Article III. The difficulty is that when you get down to details – defining the boundaries of “public rights” – the rulings have neither been stable nor persuasive. The point was made best by Chief Justice William Rehnquist (channeling Matthew Arnold), who famously characterized the decisions as “landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night.”
For this particular dispute, the government contends that the case plainly involves public rights because it involves immigration or because it involves the assessment of remedies for transgression of privileges granted by the executive. By contrast, the employer characterizes the subject of the adjudication as a contract dispute. Granting the government’s free ability to decide (and adjudicate if it wishes to do so) the entitlement of any particular immigrants or group of immigrants to a visa or other immigration status, the dispute here involves whether the employer has complied with its employment contract. Because that is a prototypically private dispute – the kind of thing that could have been brought before a court at Westminster in Old England in the days of the drafting of Article III – the employer contends that it is not the kind of public right that Congress can have adjudicated by the executive.
It would be naïve to expect the justices will feel themselves constrained by the existing precedents on this topic. The case directly implicates the prerogatives of the judicial branch and the justices will see it that way. Moreover, decisions like Loper Bright Enterprises v. Raimondo and Trump v. Slaughter show a bench with a great appetite for reining in the administrative state even when precedents are settled and directly on point. And there is another problem for the government here – many of the cases they rely on predate the days of FDR and the rise of the administrative state. Furthermore, none of them crisply validates an administrative adjudication that takes money from one private party and gives it to another.
I would expect Justice Neil Gorsuch to be a major figure at the argument, as he has been pressing this particular point for several years, albeit in the context of the securities laws. For him, the government’s contention that the lower court decision would disrupt a large swath of long-accepted administrative arrangements will be a feature, not a bug. Chief Justice John Roberts also can be expected to be an important player, as he has written several of the modern opinions in the area. So this seemingly narrow dispute may herald something larger: yet another blow against the administrative state.
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[ H/T SCOTUSblog ]
