Model Exam Answer for Part I of ExamAdministrative & Regulatory State L01.1001.001.SP09

I thought that it would be useful for you to see a model answer for Part I of the exam indicating the issues that the exam raised and the point allocation that these issues would typically earn. (I have not yet written a model answer for Part II). I have put the point allocations in the margins: Keep in mind that these are idealized allocations and that actual exam answers might receive a smaller allocation -- that is, a half-point rather than a full point -- based on degree of completeness, intelligibility, etc.

One of the purposes of the model answer is to give you a sense of the relative importance of issue "spotting" versus application. As I noted during the review session, the largest share of points come not from simply identifying the general issues but from delving into the facts to see how the issues are likely to be affected by the peculiar context of the problem. As you can see, this observation was true of this term’s exam. Of course, no answer discussed all of the issues raised in this model answer. But the exams collectively touched on most of them: There simply were far more issues raised by the question than anyone (including myself) could address in the allotted period of time.

Every year, I plant some issues that everyone misses, and this year was no exception. In Part III(B), the exam raised the question of whether the President's Procurement Power ought to be limited by limits in the Immigration Reform & Control Act. Despite my exam instructions not to assume that the Immigration & Control Act should be construed the same way as the National Labor Relations Act, virtually all of the answers proceeded to apply Reich and Allbaugh as if these NLRA cases addressing the peculiar doctrine of Machinist preemption were binding and correct precedents applicable to IRCA). In Part III(C), the question asked whether the President could preempt state laws when the existing statutes and regulations did not, of their own force, preempt such laws. I was hoping that answers would spot the Brand X issue: If the statutes and regulations did not preempt state law simply because of some ambiguity-resolving canon like Santa Fe Elevator v Rice, then it might be that executive agencies and the President could resolve that ambiguity in a different way under Brand X. But these were extremely complex issues, and I am not surprised that they were passed over when students had only three hours to produce an answer.

I have not finished grading all of the exams. However, I am so far impressed by the high quality of the answers, especially given your time constraints and the difficulty of the questions. The problem was drawn from real life: With a few small exceptions, every word of the committee reports, ALJ opinion, regulations, statutes, etc, come from actual documents. (There is, alas, no congressperson named "Saul E. Darrity"). This sort of real-life problem tends to require much denser and more unfamiliar material than the fictitious exam questions. Plunging you into such a difficult problem is, of course, not fair, but neither is the practice of law. For the most part, the answers handled the difficulty well and managed to outline the forest emerging from all of the exotic and unfamiliar trees.

Congratulations, and enjoy your summer.

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Part I

Question #1: “Gomez's lawyer, Ida Muir, comes to you for advice. Ida would like to know whether Gomez has a decent argument that the ICE's arrest and deportation of Gomez is illegal under the best interpretation of IRCA and/or the various administrative decisions implementing IRCA.” [27.5 points]

Introduction:

The question of whether Gomez’s arrest and deportation are illegal under IRCA depends on whether IRCA contains an exclusionary rule barring admission of any evidence acquired during the raid on Plucky’s that Gomez is unauthorized to work in the United States. IRCA, of course, does not explicitly contain any such rule. However, such an exclusionary rule might be implicitly part of the IRCA read in light of its purpose, the relevant canons of construction, and the authorized agencies’ judgment. The ALJ within the EOIR in Reynalda-Montoya adopted such a reading of IRCA, but DHS just as clearly rejected this interpretation with its ‘06 regulation creating the IMAGE program. Should the court follow DHS’s ‘06 reading of IRCA?

In order to answer the question, we must know (a) whether the IRCA, construed according to the appropriate level of judicial deference (Chevron, Skidmore, or Auer) requires the exclusionary rule that DHS rejected in ’06 and (b) whether DHS acted arbitrarily and capriciously in repealing the MOU between DOJ and DOL that would otherwise have barred Gomez’s arrest and deportation. Answering either of these questions in the affirmative will allow Gomez to avoid deportation. This memo will address each of these questions below.

I. Is the DHS statutorily entrusted under Chevron with the duty of construing ambiguities in the IRCA?

Whether DHS ought to receive Chevron deference for its ‘06 regulation rejecting an exclusionary rule that would bar Gomez’s arrest and deportation turns on two further questions. First, is the DHS entrusted with the duty of construing ambiguities in the IRCA? No agency gets Chevron deference on their resolution of a question, regardless of how ambiguous a statute is on that question, unless they are the agency specified by Congress to implement the specific statute. (Gonzales). Second, did DHS construe IRCA according to the statutorily appropriate procedure in exercising this interpretative authority? There is little doubt that the second question should be answered affirmatively given that DHS has interpreted the IRCA through a ‘06 regulation promulgated through notice-and-comment rule-making (Mead) that created binding legal duties and rights for employers (Christenson). Therefore, the only important question concerning Chevron deference is whether DHS is statutorily entrusted with the duty of construing ambiguities in the IRCA.

IRCA originally and unambiguously specified that it was to be administered (like all immigration laws) by the Department of Justice (DOJ), which acted through its two subdivisions called the Immigration & Naturalization Service (INS) and the Executive Office of Immigration

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Review (EOIR). The INS exercised DOJ’s administrative function of carrying out the statute, while the EOIR exercised DOJ’s adjudicative and interpretative function by adjudicating cases brought by the INS before the EOIR’s ALJs and issuing binding precedents through the EOIR’s Bureau of Immigration Appeals (BIA). Both subparts of the DOJ were subject to the final review of the Attorney General (AG). Following Martin v OHSRC, one might regard the BIA as a merely adjudicative body not entitled to issue legal interpretations that bind the rest of the DOJ. But the AG’s regulation clearly specifies that, unlike the OHSRC in Martin, the BIA has precisely such an interpretative as well as adjudicative function. Therefore, the Martin presumption that the interpretative function rests with the executive entity – in this case, the INS – is overcome. (Of course, the AG, as ultimate agency “legislator” retains final say over all matters of interpretation above both the BIA and INS).

Thus, prior to 2002, the BIA was statutorily entrusted with the interpretation of the IRCA. With the Homeland Security Act of 2002, Congress transferred the functions of the INS to the DHS, but Congress expressly retained the BIA within the DOJ and specified that “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 USC §1103(a). Since the AG had already delegated its interpretative power to the BIA, the HSA unambiguously delegates the function of construing the IRCA to the BIA, the DOJ’s designated agent, both prior to and after 2002. The BIA’s interpretation of the statute, not the DHS’s interpretation, is, therefore, entitled to Chevron deference.

II. Is the DHS entitled to Skidmore deference for its interpretation of IRCA on account of DHS’s expertise, the thoroughness and consistency of its reasoning, or the interstitial nature of the legal question?

This is not to say that the DHS is entitled to no deference whatsoever. 8 USC §1103(a)(5) gives the DHS the responsibility for administering the immigration system, indicating that DHS has expertise in addressing the appropriate implementation of the immigration laws. Therefore, DHS’s regulation is a plausible candidate for Skidmore deference, assuming that this regulation does not contradict anything in the AG’s or BIA’s more authoritative rulings on the IRCA’s meaning. DHS has exercised this administrative responsibility by promulgating the IMAGE regulation in ‘06 through notice-and-comment rule-making under §553 of the APA, responding to comments in a way that suggests thorough reasoning. But DHS exercised this authority to repeal the old MOU and reject the AG’s and DOL’s view that information about immigrants should be excluded if it was acquired during raids sparked by retaliatory employer action. This repeal obviously is not consistent with the DHS’s past interpretation of the IRCA between ‘02 and ‘06, when the old MOU was in force. Moreover, the issue addressed by the MOU and its repeal is hardly an interstitial question that DHS (or its predecessor agency, the INS/DOJ) repeatedly addressed by applying the statute to many sets of varying and specific facts. Instead, the issue is a major question of policy to be settled up front by announcing a clear rule. Finally, one could argue that, in repealing the MOU, the DHS took a position inconsistent with the legal interpretations of the AG – the authoritative decision-maker under Chevron. There is room to doubt this last argument: One might regard the MOU as simply setting force administrative policy and not any legally binding interpretation: the MOU is ambiguous on this point, stating that it is eliminating “inappropriate raids” but also making observations about the purposes of IRCA. However, even assuming that the DHS’s position does not run afoul of the

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AG’s own legal interpretations, the DHS’s switch in a major issue of policy is not the sort of consistently held, incremental decision that normally receives Skidmore deference. Therefore, it is unlikely that DHS is entitled to Skidmore deference as an expert decision-maker.

III. Is the DHS entitled to Auer deference because its arrest and deportation of Gomez constitutes a reasonable interpretation of any applicable agency regulations?

DHS might also argue that its arrest and deportation of Gomez without regard to any exclusionary rule is a reasonable interpretation of its own administrative regulations entitled to deference under Auer v. Robbins. These administrative actions are, of course, reasonable interpretations of the DHS’s own IMAGE program. However, the legality of that program’s repeal of the exclusionary rule that had previously governed DHS’s actions is precisely what is in doubt: Even if one assumes that the arrest and deportation are correct interpretations of the regulation, this assumption will not save these actions if that regulation is itself illegal.

DHS might also argue that its refusal to adhere to an exclusionary rule is a good-faith interpretation of the DOJ’s regulations defining employers’ duty to verify documents and hire employees in good faith, without continuing to employ persons of whom the employer has constructive notice that they are unauthorized to work in the United States. (8 CFR §174a.2(b)(1)). The difficulty with any such claim to Auer deference is that, first, DHS was not the author of that regulation on constructive notice and, therefore, cannot claim deference based on first-hand knowledge of authorial intent and, second, the elimination of the exclusionary rule has nothing whatsoever to do with the duties of employers. Even under Auer, therefore, such an “interpretation” would probably be regarded as arbitrary and capricious.

In short, the DHS’s interpretation of the IRCA in its ‘06 regulation is not likely entitled to any sort of deference. The Court, therefore, will have to determine the statute’s meaning de novo without any deference to DHS’s views.

IV. Does the best judicial interpretation of IRCA exclude DHS’s arrest and deportation of Gomez pursuant to its ‘06 regulation?

The question of whether the IRCA ought to be construed to contain an implicit exclusionary rule barring use of evidence acquired during retaliatory raids is a close one. There are at least two arguments in favor of such a rule and two arguments against it. One of the latter, however, relies on the IRCA’s legislative history, which could be regarded as both ambiguous and also inapplicable given the lack of ambiguity in the other sources of statutory interpretation.

A. The canon against implied repeal of OSHA suggests the exclusionary rule.

Under the DHS’s ‘06 regulation, employers can enroll in the IMAGE program at any time and submit information about their employees long after those employees are hired. As illustrated by Plucky’s and other employers’ behavior, this lax attitude towards employer cooperation gives employers an incentive to retaliate against employees who bring safety violations to the attention of the OSHA in direct violation of the OSH Act’s anti-retaliation provisions.

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The canon against implied repeal suggests that the IRCA should be read to exclude such enforcement actions. To be sure, the relevance of this canon is not obvious, because it is certainly possible for the DOL to enforce the OSH Act’s anti-retaliation measures against retaliating employers while the DHS uses the evidence provided by those employers to arrest and deport people picked up in raids that such scofflaw employers inspire. However, this enforcement of the IRCA obviously encourages employers to violate the OSH Act, as the DOL and the AG observed when they drafted the MOU. Enforcing the IRCA without regard to its effect on the earlier federal statute would seem to ignore the idea that different statutes ought to be read together to form a coherent whole: Absent some clear indication that Congress intended to weaken compliance with OSHA, the IRCA should be read narrowly to avoid such an effect.

This interpretation is re-enforced by the small effect that such an exclusionary rule would have on legitimate employer cooperation with the DHS: Any employer could still cooperate with the DHS simply by turning over all I-9 forms for E-Verify service immediately upon hiring an employee. DHS could enroll cooperative employers in IMAGE when they turned over I-9 forms of these newly hired employees immediately without triggering any dangers of retaliation against workers who report OSHA infractions, as newly hired employees are unlikely to be involved in OSHA complaints or investigations. Given that the limited effect of the exclusionary rule on the IMAGE program and the large effect that the lack of such a rule would have on the OSH Act, it would seem that the best reading that would preserve the broadest scope for both laws is to limit IRCA with an exclusionary rule.

B. The canon of implied congressional acquiescence suggests that IRCA is limited by an exclusionary rule

In addition, the doctrine of implied acquiescence suggests that Congress implicitly ratified the exclusionary rule announced by Reynalda-Montoya. That rule was rooted in an MOU entered into in 1998 in a highly visible decision by both DOL and DOJ. This decision, published in the Federal Register, was then construed by an ALJ within the EOIR as creating (in combination with federal labor and workplace safety laws) an implied limit to IRCA. By comprehensively overhauling the entire immigration enforcement scheme in the shadow of these opinions yet leaving these two decisions intact, one could argue that Congress implicitly ratified them. Flood v Kuhn.

Moreover, even if one assumed that Congress’ intent was ambiguous, the legislative history seems to resolve this ambiguity in favor of implied acquiescence, because both of these decisions were brought to Congress’ attention by Saul E. Darrity, yet Congress did nothing to disturb these policies. Congress was given an opportunity to reject the ALJ’s decision when Congress rejected Tarian’s amendment stripping the EOIR of authority to interpret the IRCA. Congress actually adopted by a majority vote the Reynalda-Montoya doctrine in the form of Darrity’s perfecting amendment to Tarian’s effort to transfer the EOIR’s functions. Although the combined package of amendments was rejected, the rejection suggests that Congress wanted the Reynalda-Montoya decision to have whatever force – small or large – that it would have enjoyed under the AG’s regulations before the Homeland Security Act was enacted.

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One must concede that the evidence of implied acquiescence in this case is considerably less impressive than the evidence in Brown & Williamson. In Brown & Williamson, the Congress enacted statutes addressing the regulation of tobacco in the shadow of repeated declarations by the highest officials in the FDA that the FDA lacked authority to regulate tobacco. Congress was, therefore, visibly and unequivocally put on notice that, if it wanted the FDA to regulate tobacco, then it would have to overrule these agency interpretations. By contrast, the ALJ who decided the Reynalda-Montoya case lacked any authority to bind the agency; Therefore, Congress may have refrained from overruling that decision simply because Congress did not regard it as being worth the trouble, given that the decision had no precedential value under the AG’s own regulations. More generally, it would be a distortion of congressional purpose to allow every decision by the dozens of lower-tier bureaucrats to be ratified as part of a statute whenever Congress overhauled that statute without overruling those decisions: One simply cannot expect Congress to devote scarce time to reviewing hundreds of small decisions by petty bureaucrats whenever they amend a statute. Nevertheless, given its visibility to Congress, the ALJ decision in Reynalda-Montoya might be an exception to the general reluctance of courts to infer that agency actions are implicitly ratified by congressional failure to overrule them.

The MOU does not suffer from being the action of a lower-tier decision maker lacking power to bind the agency as a whole. But the MOU might be a poor basis for an inference of congressional acquiescence for a different reason: One might characterize the MOU as simply a statement of enforcement policy, not as an official interpretation of the statute. While decrying “inappropriate” raids, the MOU did not specify that its limit on raids was an effort to prevent violations of IRCA rather than simply insure good relations between two federal agencies. The question is a close one, however, because the DOL and AG did specify that “allowing employers to use the IRCA to violate labor laws actually undermines IRCA’s purpose” – a statement that comes close to being an interpretation of the statute’s meaning and not merely a statement of convenient enforcement policy. The question is a close one, however, because the DOL and AG did specify that “allowing employers to use the IRCA to violate labor laws actually undermines IRCA’s purpose” – a statement that comes close to being an interpretation of the statute’s meaning and not merely a statement of convenient enforcement policy.

In sum, there is a respectable though hardly overwhelming case that Congress implicitly ratified the pre-2002 enforcement policies as part of the IRCA when they enacted the HSA. If so, then the DHS’s ‘06 regulation would actually be a violation of the implied terms of the IRCA.

D. Two arguments against the exclusionary rule:

The two arguments offered in favor of the exclusionary rule above, however, must be balanced against a couple of opposite arguments – one based on text and one, legislative history. In the end, the interpretation of the statute seems deeply ambiguous.

1. Does the expressio unius canon bar the implied exclusionary rule?

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Against the arguments set forth above for an exclusionary rule, one might make an argument based on expressio unius that IRCA should not be construed to contain an implied exclusion of evidence acquired during retaliatory raids. IRCA actually contains an anti-retaliation provision of its own barring retaliation for employees’ enforcement of IRCA’s ban on citizenship-based discrimination. One could argue that this specific statutory exception to IRCA’s scope bars all other implied exceptions – especially implied exceptions as closely related to the enumerated terms as a different anti-retaliation rule barring retaliation for reporting workplace safety violations. The larger statutory and administrative context of the IRCA, in short, might be contradicted by the specific terms of the text in 8 USC section 1324b. This conflict among sources of statutory interpretation, in turn, suggests that the Court could legitimately rely on legislative history to break the tie in textual sources. Whatever the textualists’ objection to use of legislative history, those objections might be muted when the textual or contextual sources are as conflicting as they are in this case.

2. Does legislative history re-enforce the case against an implied exclusionary rule?

There is some legislative history casting doubt on the argument for an implied exclusionary rule. Saul E. Darrity attempted to amend the bill that became IRCA with a partial amendment containing an anti-retaliation provision strikingly similar to the ban on retaliatory raids contained in Reynalda-Montoya. This amendment was rejected, however, after the bill’s sponsor, Representative Tarian, denounced the measure as excessively burdensome to business. One might construe this rejection as an implied rejection of the idea that workers’ rights could trump enforcement of immigration laws – a conclusion suggested by Tarian’s statement that “if you don’t have the right to work in the United States, then you don’t have the right to the protections of labor laws intended for legitimate workers.”

This use of legislative history, however, might be controversial for two reasons. First, strong textualists might reject such a source of statutory authority out of hand absent irresolvable statutory ambiguity: Mere conflict among canons (implied repeal/implied acquiescence versus expressio unius) might simply be the occasion to resolve the conflict textually, by weighing the rival sources as Scalia did in MCI with rival dictionaries. One could reasonably argue that Tarian has no right to speak for the median member of Congress, being herself on the pro-business wing of the House. Her statements do not necessarily represent the reasons for others’ – such as Grayshun’s – votes against the Darrity amendment. It might be that other members actually thought that OSH Act already formed a sufficient implied rule against retaliation that the ICRA did not disturb. Moreover, the defeat of Darrity’s amendment might have simply been the result of the procedural rule chosen by Grayshun – a substitute amendment rather than a perfecting amendment. The House never got a chance to vote on whether to amend the IRCA with both Grayshun’s ban on alienage-based discrimination and Darrity’s ban on retaliation against whistleblowers.

Second, the legislative history is actually deeply ambiguous on the question of an exclusionary rule. Tarian rejected the Darrity amendment because it was burdensome on business. But an exclusionary rule imposes no direct burdens on business: It imposes burdens on the DHS, by preventing them from deporting undocumented workers after raids. The policy concerns invoked by Tarian, therefore, are beside the point.

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In sum, the legislative history provides very little reason to reject the exclusionary rule urged by Gomez. Of course, the textual and contextual arguments are in conflict with each other, making the case difficult to resolve as a matter of statutory interpretation. Therefore, we turn to another method of resolving the impasse – administrative procedure.

IV. Did DHS act arbitrarily and capriciously in rejecting an exclusionary rule called for by the ‘98 MOU and Reynalda-Montoya?

Even if DHS has the power to construe the IRCA not to contain any exclusionary rule, DHS’s repeal of that rule surely constitutes a change of policy that was previously followed by the INS/DOJ and DHS. DHS bears the burden of justifying this departure from the status quo, State Farm, and such a justification requires that they consider statutorily relevant factors and avoid clear error of logic or fact.

Did DHS sufficiently justify this departure from the pre-‘06 regime? DHS offered several reasons for the switch, including the desire to induce greater cooperation from employers, the need for employers continually to update the DHS with new information about their workforce, and undocumented workers’ lack of rights under federal safety statutes. DHS, however, said nothing about whether their repeal of the MOU would actually undermine the IRCA’s underlying purposes by encouraging employers to hire undocumented workers. This consideration would seem to be relevant, as it formed the basis for the MOU and also formed part of the original understanding of the statute. Even if that original understanding did not clearly foreclose a different view of IRCA, one might argue that DHS has an obligation under section 706(2)(A) of the APA to explain why it took a different view of IRCA’s purposes than the AG and DOL.

In particular, DHS’s lax attitude towards employer retaliation would seem to make sense as a way to insure compliance with IRCA only if employers’ fear of being fined for failing to inspect their employees’ I-9s with sufficient care outweighs their desire to encourage a dependent undocumented workforce that would likely be quiescent and intimidated. DHS said nothing whatsoever about this balance of considerations, apparently regarding maximum enrollment in the IMAGE program as inherently beneficial. This failure to consider a relevant factor would seem to be grounds for reversing the’06 regulation’s repeal of the MOU and remanding for further factfindings.

In sum, the best argument against Gomez’s deportation might be that it is based on a regulatory repeal of an exclusionary rule that was illegal under §706(A)(2) of the APA. It is a close question whether the IRCA allows the DHS to repeal the exclusionary rule, because (a) there is no authoritative agency decision to which the courts can defer (as the AG/BIA has not ruled on the question and the DHS is not the agency entrusted with the statute’s implementation) and (b) there are non-trivial arguments on either side that make a purely judicial decision difficult to predict. However, even if DHS has the power to repeal the exclusionary rule under the IRCA, it has not done so with care sufficient to pass muster under the APA, and, therefore, the ‘06 repeal should be vacated. While the agency could re-enact the repealing regulation by considering the relevant factors, one could reasonably argue that the DHS may not enforce this

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new regulation retroactively against Gomez. Instead, Gomez will be governed by the old MOU, and the ALJ hearing his case may infer an exclusionary rule from this pre-existing policy just as did the earlier ALJ. (That earlier decision in Reynalda-Montoya would not, of course, bind the current ALJ, as the former was not endorsed by the BIA).

Question #2: Write a memo providing the strongest argument that (a) both laws [the North Carolina Whistleblowers Act (“NCWA”) and the OSHA Act’s anti-retaliation provision in 29 U.S.C. section 656(c)] can be enforced against Plucky’s, (b) the North Carolina law can be enforced against Plucky’s even if the OSHA anti-retaliation provision cannot be so enforced, and (c) neither law can be enforced against Plucky’s (this last being Ida’s worst-case scenario). [24.5 points]

Introduction:

In order to establish liability under either section 656(c) (the OSH Act’s anti-retaliation provision) or the NCWA, one must ordinarily bear the burden of proving to a jury that Plucky’s enrolled in the IMAGE program to insure that Gomez would be deported. However, DOL’s ’06 interpretative rule states that this burden can be met for the purposes of section 656(c) simply by showing that Plucky’s “voluntarily” reported Gomez and his co-workers to the immigration authorities during an ongoing labor dispute. Therefore, the strongest argument for liability under section 656(c) would be that DOL’s ’06 interpretative rule defined the proper proof under section 656(c). In addition, Plucky’s may argue that IRCA constitutes an implicit limit on enforcement of section 656(c) on the ground that, especially as construed by the DOL’s ’06 interpretative rule, section 656(c) undermines the DHS’s capacity to enforce IRCA by discouraging employers from enrolling in the IMAGE program. Therefore, the question raises two issues so far as section 656(c) is concerned: (1) Is the DOL’s ’06 interpretative rule a permissible construction of section 656(c) of the OSH Act and (2) is such enforcement of section 656(c) implicitly barred by IRCA? The Court must answer the first question positively and the second negatively for DOL to prevail under the easy burden of proof provided by DOL’s rule.

In order to establish liability under the NCWA, Gomez would have to prove that Plucky’s enrolled in the IMAGE program for the purpose of retaliating against Gomez because Gomez sought advice and legal assistance from the DOL. Assuming that Gomez could establish the necessary motive and causation to the satisfaction of a jury, Plucky’s might have two plausible defenses to this state cause of action: Plucky’s might argue that (1) the NCWA is preempted by the OSH Act or (2) the NCWA is preempted by IRCA. The Court must, of course, answer both of these questions negatively for Gomez to prevail.

The memo will discuss these four questions below to determine whether either, neither, or both the NCWA and/or the OSH Act’s anti-retaliation provision could be enforced against Plucky’s.

I. Can DOL follow its ’06 interpretive rule in enforcing section 656(c) of the OSH Act against Plucky’s?

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DOL may enforce its ’06 interpretive rule if, under the appropriate standard of deference, that rule is a correct interpretation of section 656(c). Therefore, this memo must first determine whether and to what degree the courts ought to defer to DOL’s judgment concerning the ’06 rule and (b) whether, under the appropriate standard of deference, the rule is a correct interpretation of the statute.

A. Is DOL entitled to Chevron or Skidmore deference for its interpretive rule?

There is little doubt that the DOL is the statutorily authorized decision-maker to construe the OSH Act, as section 655(b) specifically gives the DOL responsibility for promulgating health and safety standards under the Act. However, there is a question about whether the DOL has acted according to the specified statutory procedures: the statute specifies that, in promulgating the health and safety standards, the agency ought to act through notice-and-comment rule-making under section 553 of the APA. The statute is silent about whether and how the agency ought to issue “interpretive rules.” Under Mead, therefore, the DOL’s ’06 rule might not be entitled to Chevron deference on the ground that the agency did not act in the statutorily specified way.

Mead does not bar interpretive rules from ever receiving Chevron deference: the plurality opinion in Barnhart suggested that thoroughly reasoned and publicly announced statements could receive Chevron deference even if they were not binding rules of law. This ’06 rule was published in the Federal Register and bears the imprimatur of the DOL’s highest decision-maker. On the other hand, no part of the public ever got a chance to weigh in on the rule through briefs (in an adjudication) or comments (in a rule-making). Giving this rule Chevron deference might cut private parties like Plucky’s out of the loop.

Could the rule receive Skidmore deference? The issue covered by the rule is proof of what would seem to be a difficult-to-prove fact – namely, the employer’s motive for turning information over to the DHS. Rather than try to prove this in case-by-case adjudication, the ’06 rule allows this to be established by a rebuttable presumption. Proof of a fact so central to the anti-retaliation provision seems like an issue closely within DOL’s expertise.

Moreover, the rule does not necessarily reverse any prior policy: It is possible that DOL and the courts always regarded the suspicious timing of employer assistance to the immigration authorities as powerful circumstantial evidence of retaliation. If so, then this rule could simply be the express crystallization of the DOL’s experience with thousands of enforcement actions – precisely the sort of policy to which courts normally afford Skidmore deference.

In sum, there is a weak case for Chevron deference but a weightier case for Skidmore deference – but much depends on facts not given by the question, such as whether the ’06 rule was a summation, rather than reversal, of the DOL’s past experience.

B. Does IRCA implicitly limit enforcement of section 656(c) according to the DOL’s ’06 rule?

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Does the IRCA repeal or limit enforcement of section 656(c) according to the DOL’s rule? Given that the DOL is entitled to Skidmore deference, probably not.

As noted above in the answer to question #1, it is ambiguous whether IRCA ought to be qualified by OSH Act or not. Both statutes could be enforced according to their plain terms without nullifying the other, but the OSH Act’s anti-retaliation provision will certainly discourage some employer cooperation with DHS, and employer participation in the IMAGE program will certainly encourage some employer non-compliance with the OSH Act. The better argument, as noted in question #1, is that the OSH Act should qualify the IRCA and not vice versa. But DOL’s entitlement to Skidmore deference provides another reason to weigh the balance in favor of a broad reading of the OSH Act: Unlike the DHS’s sudden reversal of past policy, the DOL’s ’06 rule might be precisely the sort of crystallization of past experience to which courts defer.

II. Is the NCWA preempted by the OSH Act?

The OSH Act has a clause addressing the issue of preemption, providing that “[n]othing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.” 29 U.S.C. §666(a) using expressio unius reasoning, this “non-preemption” clause might imply that any state court’s exercise of “jurisdiction … over any occupational safety or health issue” is preempted to the extent that there is a federal standard in effect “under section 655 of this title.” One might treat this analysis as an instance of ‘express preemption’ because it is based on text dealing with preemption, but it is worth observing that the text in question is actually a non-preemption clause that specifies when state laws are not preempted. The inference of preemption is entirely implied from the expressio unius canon. Hence, one might regard the analysis as a species of implied preemption, were one to get hung up on distinctions that probably have few practical consequences after Altria Group v Good.

Regardless of how one classifies the preemption theory, the OSH Act’s (non)-preemption clause preempts NCWA only if NCWA is “over any occupational safety or health issue with respect to which” some standard “is in effect under section 655 of this title.” The NCWA is certainly a “State law over” the issue of retaliation, and there certainly is a OSH Act standard in effect for retaliation, but the OSH Act’s anti-retaliation measure in section 656(c) does not qualify as a federal standard that preempts any state law, because section 656(c) is obviously not enacted pursuant to section 655. Gomez, however, is alleging under NCWA that Plucky’s retaliated against Gomez because of his effort to enforce section 655 “standards” (concerning the safety and health of poultry plants). Does this relationship between Gomez’s NCWA claim and section 655 standards indicate that the NCWA claim is a “State law over any occupational safety or health issue with respect to” a section 655 standard?

A. Arguments against preemption under the OSH Act

It would seem to be reasonable to read the OSH Act’s ban on state laws’ governing some “health or safety issue with respect to which” there is a federal 655 standard to mean that states cannot add new and more stringent health and safety standards for “issues” already governed by

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federal standards. This reading would not preclude state law from adding additional remedies (damages, for instance) for enforcement of federal standards. Such a reading insures that manufacturers operating in several different states can use a single type of equipment without worrying about complying with fifty different safety standards. But such a reading does not preclude states from beefing up federal remedies for violations of federal standards, because such extra remedies does not disrupt the uniformity necessary for efficient production.

Of course, to the extent that the OSH Act’s anti-retaliation provision is implicitly repealed or qualified by IRCA, then the case for rejecting preemption under the OSH Act might be even stronger. In such a case, there would be no federal remedy whatsoever provided by the OSH Act, and it would be odd to hold that a preemption clause that rejects states’ supplementing federal law would apply where the federal statute did not even operate.

B. Weaknesses in arguments favoring preemption under the OSH Act

On the very broadest reading of the (non-)preemption clause, one could arguably find preemption, but, under Altria Group v Good, this reading would probably be inappropriate.

To be sure, this additional remedy for non-compliance with section 655 standards in some sense relates to those standards: Employers, for instance, might be less willing to depart from section 655 standards knowing that workers have effective protection from retaliation under state law if those workers report violations. On the broad view of preemption suggested by cases like Morales or Egelhof, this effect on employer compliance might suffice for preemption, if one assumed that the federal statute had calibrated the level of enforcement perfectly such that any extra sanctions would disrupt some federal effort to secure just the right amount of compliance. But Altria makes clear that those broad preemption precedents rest in part on the specific statutory language about state laws “relating to” federal interests, and that language is missing from the OSH Act.

One might also argue that, because section 666 of the OSH Act provides for state participation in health and safety standards by allowing the states to submit implementation plans to DOL, the statute implicitly preempts any other effort by states to participate in the federal scheme. But section 666 would serve a plausible purpose if unilateral state efforts to supplement federal health and safety standards, unreviewed and unapproved by federal officials, were preempted. The NCWA claim provides a remedy – damages – to help employees insure compliance with section 655 standards. NCWA is not adding to these federal standards in any way. To the extent, therefore, that the function of section 666 is to insure that employers operating throughout the nation can set up their poultry processing plants without worrying about 50 varying health and safety standards that have not been pre-screened by federal authorities, that purpose is satisfied by a narrow reading of preemption.

Indeed, it seems fanciful that federal policy would want to encourage an “optimal” amount of retaliation by employers and preempt state laws that deter such retaliation “too much.” Setting a ceiling on the level of safety precautions makes sense: No one expects an infinite level of safety. But setting a ceiling on compensation remedies for deliberately illegal behavior would

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seem to be a stretch – especially if these sanctions were ordinary compensation remedies for which federal law made no provision or mention rather than a parallel system of state fines.

In the end, the presumption against preemption of Santa Fe Elevator v Rice would suggest that any ambiguities be resolved against finding preemption of NCWA under the OSH Act. There simply is no textual evidence (such as a super-broad preposition like “relates to,” etc) that Congress intended to displace state laws that would not disrupt the substantive uniformity of the federal scheme.

III. Is NCWA preempted by IRCA?

IRCA contains no preemption clause, but the statute could still implicitly preempt state laws that frustrated federal purposes, made it impossible to comply with federal law, or entered into a comprehensively regulated and peculiarly federal “field.”

It is not impossible for Plucky’s to simultaneously enroll in DHS’s IMAGE program while avoiding any retaliation against complaining workers. Plucky’s simply has to enroll employees’ information without the purpose of deterring workers from filing complaints. It might be difficult for Plucky’s to prove such an innocent purpose, but nothing in the IRCA entitles Plucky’s to retaliate for workers’ efforts to enforce the law.

But it is possible that NCWA might frustrate the purposes of IRCA by deterring employers from cooperating with DHS. Certainly the prospect that employers’ cooperation with federal authorities would somehow be the basis for liability under state law sits uneasily with the idea that federal law is supreme. Especially if the DHS has by regulation expressly sanctioned a form of employer participation in, say, the IMAGE program, then it would be likely that any state law making this participation a basis for liability would be preempted. In such a case, the very purpose of the state law would be to target behavior that federal regulations was seeking to encourage – a frustration of federal purposes that Altria and Riegel acknowledge to be preempted.

As argued above in response to question #1, however, the DHS’s regulation creating the IMAGE program might have been promulgated arbitrarily and capriciously in violation of the APA. In such a case, the MOU between DOL and DOJ would still be in force. The purpose of this MOU was to prevent employers from cooperating with federal authorities in ways that violated workers’ rights to enforce health and safety laws. Understood in light of the MOU, IRCA does not seem to have any purpose that would be frustrated by the NCWA. Therefore, the invalidation of DHS’s repeal of the MOU discussed in question #1 would also suggest that the NCWA is not preempted.

In sum, given that the DOL will receive some degree of deference from the courts for its ’06 interpretative rule, that rule can be used to facilitate proof that Plucky’s illegally retaliated against Gomez under section 656(c) of the OSH Act. It is also unlikely that the IRCA would bar this action to enforce the anti-retaliation provision of the OSH Act against Plucky’s. The NCWA would likely not be preempted under the (non-)preemption clause of the OSH Act or under some implicit “frustration of purpose” theory of preemption implicit in the IRCA. However, the

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possibility of implied preemption increases if DHS is permitted to repeal the MOU and substitute a policy of encouraging unlimited employer cooperation to report undocumented workers.

Question #3(A): “Could the President issue an executive order repealing either or both the DHS’s IMAGE program or DOL’s 2006 interpretative rule?” [13 points]

The President cannot issue any executive order unless he is authorized to do so by one of the powers delegated to him by Article II – either the general power to execute the laws or one of the specific powers listed in Article II, sections 2-3 such as the power to require written opinions from heads of departments. In general, the President has no general power to regulate private persons or property absent some statutory authority. Youngstown. Neither the OSH Act nor the HSA expressly delegate any regulatory responsibilities to the President that would authorize him to repeal these agency rules. However, Article II, section 3 provides that the President “shall take care that the Laws be faithfully Executed,” implying that the President has general supervisory power to make sure that agency decisions are not inconsistent with the statutes that they purport to implement. This general power to supervise the federal government has been construed to permit the President, in the face of congressional silence, to safeguard the personnel, In re Neagle, and property, Midwest Oil, of the federal government. It is not obvious why such a power would not also include the power to “veto” agency regulations that, in the President’s judgment, exceed those agencies’ statutory powers.

If federal statutes, however, expressly or implicitly bar presidential supervision of agencies, then the President can no longer rely on his “twilight” powers: He can supervise the agencies only if Article II guarantees such a power to him such as the power to dismiss non-inferior officers. Because both the IRCA and the OSH Act specifically provide that they are to implemented by the DHS and the DOL respectively, one might infer through expressio unius reasoning that Congress has implicitly required that these statutes by implemented only by these specified agencies. On this view, the President could order the agencies to issue regulations to clarify the statutes, but the President could not himself issue or repeal those regulations.

For two reasons, the OSH Act ought to be construed to permit the President to overrule the DOL’s interpretive rule despite the expressio unius argument offered above. First, the Secretary of Labor serves at the pleasure of the President both under the relevant federal statute and arguably as a matter of constitutional requirement. Myers. If the President has the power to dismiss this official for not carrying out his commands, then it would be odd to argue that he could not take the lesser step of overruling their decisions that contradict those commands. Second, the DOL’s interpretive rule does not have the binding force of law: It is merely an advisory rule designed to inform the public about how the agency intends to carry out the statute. Lacking the force of law, the DOL could – and did – promulgate the rule without engaging in notice-and-comment rule-making. Unlike health and safety standards over which the Secretary of Labor has been specifically delegated authority under 29 U.S.C. section 655(b)(1), nothing in the OSH Act specifies that the DOL has any special authority to issue such advisory notices. The President, therefore, does usurp any statutorily delegated power from the Secretary by reviewing and repealing the advisory rules that the Secretary issues.

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Moreover, the President traditionally has enjoyed the prerogative of allocating the prosecutorial resources of the United States: If the President believes that the DOL’s interpretative rule over-enforces the OSH Act’s anti-retaliation provision by creating an inappropriate presumption that employers are guilty of retaliation, then he would normally be entitled to instruct the Department of Justice not to bring cases to enforce this expansive view of the statute. Repealing the DOL’s interpretative rule is a more direct way of accomplishing the same objective.

The President’s power to overrule the DHS’s IMAGE program, by contrast, raises a closer question. Like the Secretary of Labor, the Secretary of Homeland Security serves at the pleasure of the President by both statute and (arguably) constitutional command. However, the IMAGE program was created by notice-and-comment rule-making under section 553, pursuant to the Secretary’s specifically delegated power over “the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. section 1103(a)(1). There is no doubt that the IMAGE program creates a binding rule with the force of law precisely because I was the product of these congressionally specified procedures. Mead. To allow the President to eliminate this section of the Code of Federal Regulations with the stroke of a pen would seem to side-step the APA safeguards that limit the power of agencies to repeal their own regulations. Given that companies like Plucky’s rely on the IMAGE program to provide them with a safe harbor from prosecution under IRCA, the President’s elimination of that program without providing any opportunity for comment by affected private parties might seem to evade procedural protections that Congress specified in the APA.

This is not to say that the case against the President’s repeal of the IMAGE program is irrefutable. The HSA limits the Secretary’s power any administration and enforcement “insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President….” The President’s Article II default power to insure that faithful execution of the immigration laws could arguably be one of those “laws” that “relate to the powers, functions, and duties conferred upon the President.” On this view, the President could repeal the IMAGE program if his basis for doing so was his belief that the DHS’s regulation was inconsistent with the best reading of the IRCA (perhaps, as noted above, because it interfered unduly with the OSH Act’s enforcement). Such a reading of the HSA would be re-enforced by the rationale for a unitary President: When separate agencies implementing two distinct statutory schemes issue rules that contradict each other, then a single decision-maker is needed to insure that the federal government as a whole pursues coherent and consistent policy. Absent a clear statement from Congress that the President is barred from playing this “referee” role, the grant of power to the Secretary of Homeland security is best read to preserve this Presidential function.

In sum, the President likely has the power to reverse the DOL’s interpretative rule; the case is more doubtful whether the President can reverse the DHS’s binding rule defining the IMAGE program; but the President may retain the power to repeal (or, at least, refuse to enforce) DHS rules that he believes to violate the IRCA.

Question #3(B): “Assume that DHS’ IMAGE program could not, consistent with IRCA and its implementing regulations as currently written, be unconditionally imposed on businesses without

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their voluntary consent. Could the President nevertheless require enrollment of businesses in DHS’ IMAGE program as a condition for obtaining federal contracts?”

The answer depends on the reasons for the prohibition on imposing the IMAGE program on businesses. If IRCA itself was intended to create a sphere of private liberty in which businesses has some sort of statutory right to withhold I-9 forms and other information about their employees to the federal government, then the President’s efforts to pressure businesses to enroll in the IMAGE program by barring them from receiving federal contracts unless they enrolled might violate the terms of the statute itself. Presidents have a duty to execute the laws and cannot even indirectly violate private rights created by those laws. Kendall v. Amos. For instance, the D.C. Circuit has held that the President cannot bar companies from receiving federal contracts because they have fired striking workers, reasoning that this requirement would violate the companies’ private rights under sections 7 and 8 of the National Labor Relations Act (NLRA) which, by long-held precedents, give employers entitlements to certain sorts of “weapons of economic self-help.” Chamber of Commerce v. Reich. Likewise, if the IRCA gives employers some sort of federally protected right to withhold employee information from the feds, then the President might not be able indirectly to demand such information using the economic pressure of withholding federal contracts.

This argument, however, has two fatal weaknesses. First, it assumes that IRCA should be read to provide very strong protection for employers’ private rights to withhold information from the federal government. Such a reading of IRCA is not self-evidently correct: While the courts have read the NLRA to provide such strong protection for employers’ rights in the context of collective bargaining, the NLRA is a different statute from IRCA with different policies and concerns. It could very well be the case that IRCA and its implementing regulations have nothing whatsoever to do with protecting the liberty of employers. The Department of Justice’s definition of “good-faith” verification of employees’ documents is extremely lax, requiring only that employees not ignore written notification from the federal government that their employees’ I-9 forms are invalid. 8 CFR section 274a1.1(1). Since IRCA provides that DOJ’s legal interpretations of IRCA are binding, this regulation would bar any requirement by DHS that employers participate in IRCA. But the purpose of these lax regulations might simply be to conserve DOJ resources for more important cases, not to protect the liberty of employers who turn a blind eye to their undocumented employees. Just because the DOJ does not want to waste its prosecutorial resources chasing down delinquent employers hardly means that the IRCA has the purpose of protecting employers’ freedom in contexts where DOJ resources are not at stake, such as when the President disqualifies businesses for not being more proactive in ridding their workforce of undocumented aliens.

Second, even if IRCA has the purpose of protecting employers’ freedom to keep their employees’ I-9 forms private, there is no reason a priori why this purpose ought to trump automatically the President’s power to procure goods and services for the United States. The Procurement Act, after all, was enacted in 1949: IRCA makes no mention of the Act, and the law tends to disfavor implied repeals of earlier statutes by later ones. It might be that IRCA can perform its narrow purpose of protecting purely private businesses from coercion by the DHS without hamstringing the President’s ability to set the term on which private contractors will do business with the federal government. Following Reich, for instance, one might reason that the

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President can require contractors to adopt the IMAGE program to the extent that this requirement serves a “procurement purpose” related to timeliness, cheapness, and quality of service – for instance, insuring that work for the federal government is not interrupted by DHS raids. To make such an argument convincing, however, it would be useful for the E.O. to limit its scope only to those worksites actually involved in producing goods or services for the federal government.

In sum, there are two reasons to believe that the President might be able to require participation of contractors in the IMAGE program even if IRCA forbids the DHS from doing so for businesses generally: (1) The limits in IRCA and its regulations might not serve the purpose of protecting businesses’ autonomy and (2) even if the IRCA does protect businesses’ autonomy, this goal might be reconciled with presidential E.O.s that serve a bona fide procurement purpose.

Question #3(C): “Assume that the North Carolina Whistleblower Act is not preempted by any federal statute by the force of that statute or existing implementing regulations alone. Could the President nevertheless issue an executive order declaring that state laws like the North Carolina Whistleblowers’ Act are preempted by some combination of IRCA, OSHA, and other relevant legal principles?”

Again, the critical consideration will be the reason for the limit on federal preemption. If the federal statutes and regulations, by their plain terms, do not permit the preemption of state laws like the NCWA, then the President cannot preempt those state laws by executive order: The President can only execute and not create federal laws, and his Article II power to supervise the federal governments’ operations do not include the power to supervise or control state law.

However, it might be that the federal statutes and regulations are ambiguous on the question of whether state law is preempted. Federal courts resolve such ambiguity with a judicially created canon of construction disfavoring preemption. Santa Fe Elevator v. Rice. If federal law is ambiguous, however, then federal agencies entrusted with the enforcement of those laws the prerogative under Chevron to resolve that ambiguity so long as their resolution is not arbitrary or capricious. Moreover, these agency decisions may displace federal judicial interpretations of statutes the ambiguity of which is construed as a delegation of gap-filling authority to agencies. Brand X. It is an open question whether the statutory ambiguity sufficient to trigger the Rice presumption against preemption is sufficient also to trigger Chevron deference to agencies. However, if Rice ambiguity also triggers Chevron ambiguity, then it follows from Brand X that judicial opinions invoking Rice can be displaced by executive agencies entrusted with those statutes’ enforcement.

Whether the President is also entitled to displace judicial opinions under Chevron depends on whether the President has been entrusted with the enforcement of the federal statute in question, either expressly or implicitly. The response to question 3(A) sufficiently covers this issue: Assuming that the President enjoys authority to implement either the OSH Act or the IRCA, the President would be entitled to issue an E.O. preempting state laws that frustrated those statutes’ purposes or intruded into an exclusive field if (1) the statutes were deemed by the

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courts to be ambiguous on the question of preemption and (2) the President’s inference of preemption was not arbitrary and capricious.

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