Model Exam Answer for Part I of Exam
Administrative & 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.
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 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 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.
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.