Ms. Harris (00:00):
... presumes private rights are at stake and that Article 3 adjudication is required. But as Jarkesy reaffirmed, that presumption is overcome when the federal claim fits within historical categories of public rights. Here, two historical public rights categories overlap, sovereign control of immigration and government granted privileges. The government is exercising its plenary immigration power on the employer's behalf to grant aliens visas and allow them to stay and work for that employer. In exchange, the employer agrees to comply with the government's conditions spelled out in USC 1188 and the implementing regulations. Those ensure that importing particular aliens for particular work won't distort US wages or working conditions for those jobs.
(00:48)
Agencies, not just courts, unquestionably adjudicate violations of those conditions. Even respondent seemingly agrees that the agency could adjudicate every claim at issue if the remedy was just kicking the employer out of the H-2A program. Imposing civil penalties and back wages doesn't change the answer. Indeed, Oceanic Steam and Lloyd Sabaudo upheld near identical remedies a century ago in similar circumstances.
(01:15)
Respondent instead argues that only courts can adjudicate civil penalties, but Oceanic Steam rejected that very theory. Respondent is also wrong that the agency is enforcing contracts between employers and aliens. The agency is adjudicating the employer's violations of its regulatory promises to the government. That classic public rights dispute doesn't convert to private rights just because the government requires employers to embed those federal regulations in their contracts as a further enforcement mechanism.
(01:47)
The government requires the same of Medicare program participants, federal contractors, and federal student loan providers. This court should not upend those programs based on an ahistorical and artificial objection. I welcome the court's questions.
Justice Kavanaugh (02:01):
But wouldn't kicking someone out of the program for violations be a clear way of regulating this program, this immigration program?
Ms. Harris (02:14):
It would be a clear way of doing so, but it would sort of destroy the ability to enforce the privileges that the employer agreed to undertake. If at the point when you've already violated the program, you are kicked out of the program, you've already enjoyed the privilege that the government [inaudible 00:02:29].
Justice Kavanaugh (02:29):
So then you can't really rely on immigration as a basis for this?
Ms. Harris (02:33):
No, we absolutely can rely on immigration as a basis for this. There are plenty of civil penalties in the immigration context, both for the aliens themselves for violating the conditions of admission to the United States, there are civil penalties throughout the INA, and for people like transport carriers in Oceanic Steam or Lloyd Sabaudo who violate the conditions on transporting aliens to United States.
Chief Justice Roberts (02:57):
The Oceanic Steam had to do very much with the entry, a condition of entry and loathsome diseases. This strikes me as significantly different in terms of you're trying to leverage an entry several weeks, months in the past to the particular condition of work that doesn't seem to have much to do with the actual entry itself other than getting the person there.
Ms. Harris (03:25):
So I disagree with that and here's why. Immigration, if you conceive of it in the public rights context, is not just the right to enter the United States. Free and clear, you have a vested right to stay in the United States. Immigration and the visas upon which these aliens are entering have a continuing obligation to abide by the terms of that privilege and the government is putting conditions on the alien and thus reciprocal conditions on the employer who enjoys that privilege to not just let someone in, but to abide by the conditions the government has placed on continuing to stay. The government can revoke that visa at any moment. It's not a sort of vested right in the person.
Chief Justice Roberts (03:59):
Well, but I mean, again, Oceanic Steam involved a classic condition of entry. You can't even come in because of a loathsome disease, as the law said. The H-2A workers here have been in the country for some time, and it seems to me again that you're just trying to leverage what is a significant barrier to entry where you have a lot of deference to the executive branch, including deference that would extend to judicial proceedings later on in which they have broad authority, and it seems to me you're still trying to extend that broad authority beyond the justification for its application.
Ms. Harris (04:33):
I strongly disagree with that and here's why. Even for the aliens themselves, again, there are countless contexts after entry when you do something in the United States after that initial moment of entry that you might be permitted to do and you become inadmissible. That's adjudicated before immigration judges every day of the week. You commit a crime, you violate the terms of your visa, all of that is you're violating the privilege of coming into the United States.
(04:56)
And for the employer, it's the same thing. It is, you're not just getting the initial privilege of having someone to come work for you under a visa that you apply for. It is the government is extending its continued grace and discretion of that privilege by having you continue to get to rely on that visa. It's not revoking the visa, and the employer is agreeing to those conditions at the outset of the program.
(05:15)
I think to superimpose limitations on the scope of the public right of immigration and the privileges and benefits that the employer is getting from it, just based on the fact that Oceanic Steam involved an initial port of entry issue would, I believe, significantly misapprehend the scope of the exception and superimpose limitations that just don't exist and would have serious consequences for all sorts of, I think, executive adjudications for aliens.
Justice Kagan (05:41):
I mean Ms. Harris, maybe I'm not understanding something, but isn't there a condition of entry here? In other words, the condition, they wouldn't be admitted unless the employer had promised certain things relating to these immigrants' wages and working conditions.
Ms. Harris (05:57):
Yes, absolutely. And it's a continuing obligation. So it's not just you promise to do so and you get to import the alien, which is absolutely the case. The employer is not even allowed to be part of the program unless it agrees to the terms and conditions in these regulations and the adjudicatory procedures. But on top of that, the government's continuing to exercise its grace. The privilege doesn't just begin and end with, yes, you can enter and have this alien in your workforce.
Justice Thomas (06:20):
Ms. Harris, can I ask you a question about the structure of your argument? You offer reasons why you think the Third Circuit's breach of contract analogy fails, but then you seem to accept that a presumption in favor of Article 3 applies. Why do you take that step? Why don't you rely on your suggestion that the whole breach of contract analogy is flawed?
(06:50)
And there are reasons why it's a bit of a stretch, are there not? The aliens have no say. This is not a contract action by the aliens. They have no say in the conduct of this litigation. The government is not seeking, has not sought, just compensation for them, but also civil penalties. Are there contract suits between private parties in which some of the relief that is requested is the payment of civil penalties to the government, et cetera. So why do you structure your argument like that?
Ms. Harris (07:28):
We're structuring it simply in recognition of the steps that our understanding of what Jarkesy requires. We start with, I think the case rises and falls on the public rights exception. Because you could also say the contract analogy fails, but I think we accept the contract analogy fails because there are lots of contexts including government contracts, which is a classic public right in which it might look like a contract action in the abstract, but is in fact a public right.
(07:54)
For many of the reasons you said, Justice Alito, that analogy utterly fails in this case. The contractual terms in this case are completely a creature of the federal regulatory scheme. Every jot and tittle of the contract here as a factual matter actually is the federal regulatory scheme itself. And that is this 20 CFR 655.121A4 and 122Q that spelled this out when there's no actual contract from the employer, as in this case, it's extra clear.
(08:23)
Federal law is setting these terms and conditions. There could be other state law conditions that an employer could set. Those wouldn't be adjudicated by the federal agency. But what we have here is Heartland. You violated conditions to the federal government that you had to embed in contracts, that involves public rights the same way that other contractual suits do.
Chief Justice Roberts (08:40):
I think that argument might not help you, but instead hurts you. You're saying how comprehensive the list is. And again, it's based on the fact that, of course, at entry, but once you get past entry, you're still faced with this broad array of requirements and conditions that make it look more like a condition of employment rather than entry.
Ms. Harris (09:03):
So I disagree with that. And the reason is it's all bound up together. As a condition of getting your alien in the entire workforce, the way this program works is you have to agree at the start as the employer, you're going to agree to specific terms and conditions to continue to enjoy that privilege that relates specifically to accounting for the potential distorting effects on the US labor market of importing those particular aliens in your workforce. And so that is the whole gist of the program. It's all bound up with, you are getting a special privilege in the immigration context that depends on the federal government's grace and its exercise of disciplinary power.
Justice Gorsuch (09:37):
Ms. Harris, on that, I'm sorry to interrupt. Go ahead and finish up. Apologies.
Ms. Harris (09:40):
And that's why it can't just be conceived of as a mere condition on entry. Although entry alone, I think as Justice Kagan's question suggests, does a lot of work. I mean, you're agreeing to conditions on that.
Justice Gorsuch (09:50):
So I just want to understand how far this might reach. Let's suppose the Department of Commerce has a comprehensive, I think that's your word, comprehensive regime, in which in order to import goods to this country, you have to agree to minimum wage laws and things like that and maybe product liability regime, all of which can be adjudicated by the Department of Commerce. How would that work out?
Ms. Harris (10:17):
How would that work out? I would encourage you to first start with conceiving of the nature of the privilege, as the court did in oil states.
Justice Gorsuch (10:25):
The privilege is export import which is a public...
Ms. Harris (10:25):
The privilege is importing goods, and so I think you can draw lines between what does that specific privilege look like as the way the court did in oil states patents versus [inaudible 00:10:32].
Justice Gorsuch (10:32):
Well, but let's say Congress says it's really important to have these wage and liability regimes in order to protect the American worker and prevent a flood of cheap imports.
Ms. Harris (10:44):
Right. And so the way I think that works out is for the foreign commerce privilege, I think you could draw a different line, which is the foreign commerce privilege, unlike the immigration rights, does at a certain point vest in the person, like in [inaudible 00:10:58].
Justice Gorsuch (10:57):
So at some point it stops, you think?
Ms. Harris (11:00):
Because of the difference between foreign commerce and interstate commerce. And I think the court's footnote one in Jarkesy draws this distinction pretty well. You have to look at...
Justice Gorsuch (11:08):
So what if it were just the product liability and wages of those who are actually importing from abroad?
Ms. Harris (11:14):
So I think the way you could do it that would be on the permissible side of the line is you are banning importation of goods that are defective in some way or that you think don't meet labor standards, the good itself. And that has a long history. The Buttfield case is a good example of that.
Justice Gorsuch (11:29):
Not abroad, I'm talking about wages and product liability issues here in this country.
Ms. Harris (11:33):
And you could say for those goods, if you thought that those goods at the moment of importation would have a bad effect on whatever it is in the country, you could say I'm banning those goods from the country if you tried to import them civil penalties.
Justice Gorsuch (11:45):
We all agree you could ban these people from participating in the program. I'm talking about setting up, and maybe my question's not clear enough, setting up a whole product liability regime in this country for goods that are imported and minimum wage laws with respect to people who are domestically involved in importing the goods.
Ms. Harris (12:04):
Right. And I think...
Justice Gorsuch (12:05):
It seems to me you either say yes, it's part of the comprehensive regime and the Department of Commerce can adjudicate those things without an Article 3 court involved anywhere. That's one option. Or you say, well, no, it's too far removed, which is your other option. I'm guessing, I'm just wondering which is it?
Ms. Harris (12:21):
I think it's too far removed specific to the tradition of foreign commerce and the way that power works. And here's why. The court has distinguished between the scope of the privilege to control importation of goods for foreign commerce purposes and the point at which you're past the importer that's sort of a private right to the good vest, and you're trying to regulate at the back end, which is what I take for hypothetical taking.
Justice Gorsuch (12:42):
If that's true, would you also agree the immigration power ends at some point too?
Ms. Harris (12:48):
I think immigration power is different and this court's case is actually...
Justice Gorsuch (12:50):
It never ends.
Ms. Harris (12:51):
It is always a conditional privilege.
Justice Gorsuch (12:53):
Always.
Ms. Harris (12:54):
It ends at the point when someone's status changes.
Justice Alito (12:57):
Okay. Well that begs the question of the other side says that the immigration power stops at the border, basically. That stops at the border. But that's not true because we've had plenty of cases from Yue Ting where an alien was here for years and we said you can deport him in administrative process, correct?
Ms. Harris (13:21):
Exactly. And that's why that public right is different from foreign commerce.
Justice Alito (13:25):
Exactly. But now let's put where I think Justice Gorsuch is talking about. You can see, don't you, that there are some things that would not be sufficiently related to immigration following conditions of securities trading, for example. Do you concede that wouldn't be within the immigration power of the United States to put into administrative proceedings?
Ms. Harris (13:55):
Yes, in so far as it's something different from just saying you can't break the law. If it's something more than that. And I think I would also concede there's a lot of other conditions you can't do on employers. You can't say the condition of getting an alien is, you have to submit to all of your torts or all of your employment practices in agency adjudications. You can't attach an extraneous conditions. There's a germaneness requirement.
Justice Alito (14:19):
Germaneness, that's your test. So do you have a way of defining what germaneness means? Is it related to the terms and conditions of employment or what?
Ms. Harris (14:32):
I think it has to relate to the public rights and the privilege itself. The privilege is here a combination of the sovereign power over immigration. So it's relating to the historical traditions of being able to control the terms and conditions under which aliens are allowed to enter and remain in the United States. And the employer's reciprocal obligations relate to that.
(14:55)
It is everything in this program is geared towards preventing there being adverse effects from doing that thing, allowing the alien into the country to work for you, the employer, under specified conditions. And the employer knows all of those conditions at the outset. That's the whole point of the certification process.
Justice Alito (15:12):
You gave up on Atlas Roofing in this case, but I looked at the terms and conditions. We keep talking about them as an employment contract almost, but this is the most unusual employment contract I've ever seen, although you do have terms on wages, terms on pest control, not charging people for certain amounts for things they buy. It's an unusual, it's not the general employment contract that employees sign with their employers.
Ms. Harris (15:47):
That's exactly correct because it's entirely dictated by the labor secretary's findings under the program that these are the conditions necessary to prevent adverse effects on US labor and working conditions.
Justice Alito (16:00):
When we impose tariffs, we impose it for a lot of reasons, correct?
Ms. Harris (16:04):
Yes.
Justice Alito (16:04):
Not just this... So the fact that this might have a limitation on immigration, which we want to respect, we can also want to protect American workers, correct?
Ms. Harris (16:17):
Yes, because it's sort of a one-to-one. By importing foreign labor, you are trying to prevent a situation in which you have a trade-off with people who would otherwise be working.
Justice Alito (16:27):
But I go back to Atlas Roofing. This very much is more like safety and health regulation that really is not in the common law, than it is a contract dispute.
Ms. Harris (16:41):
So here's what I would say about Atlas Roofing. The reason we don't think that it's at issue in this case is because this case, unlike Atlas Roofing, involves historical areas of public rights. And that's sort of what we're resting on. And it doesn't involve traditional contracts in that sense. You can have lots of other areas of public rights that might look like at the surface level, 40,000 foot level, they involve contracts.
(17:06)
That's true of certainly government contracts, like one of the classic areas of public rights. That's true of the Oceanic Steam case, obviously involved negligence or sort of contract actions. Just because you have that threshold resemblance cannot be dispositive. Atlas Roofing was a little different because it did not involve any common law analog at all, but it also didn't involve a historical tradition of public rights.
Justice Barrett (17:29):
Ms. Harris can I...?
Chief Justice Roberts (17:30):
It sounds like a lot different. You said it's a little different, but it sounds like a lot different.
Ms. Harris (17:35):
We have not relied on Atlas Roofing.
Chief Justice Roberts (17:37):
Yeah, I think that's what we said in Jarkesy.
Ms. Harris (17:39):
We did not rely on Atlas Roofing because the court has said it had cast doubt on Atlas Roofing.
Justice Barrett (17:45):
Ms. Harris, can I ask you a question about the imposition of fines on the aliens themselves? You said there are lots of places where that's permissible, and I wonder if you could tell me a little bit more about that, and maybe I can do it through a hypothetical drawn from the facts of this case. Let's just pause it for now. I agree that Sun Valley could be kicked out of the program, out of the H2-A program, and I think we agree that the aliens could be removed pursuant to our immigration tradition without an Article 3 court. But the fines, I'm wondering if they're different.
(18:18)
So what if there were conditions on the aliens here rather than on the employer, like the alien had to work a certain number of hours, that the alien had to enroll children in school, or the alien couldn't leave the country or couldn't leave a certain radius, whatever. Is it the government's position that then fines could be imposed on the alien for breaching those conditions without a jury trial? Let's say it's a $50,000 penalty.
Ms. Harris (18:43):
So a couple of things. I think the basic answer is yes with some caveats with respect to some of your specific hypothetical. The aliens can face civil penalties for various violations of the conditions of coming into the United States and staying here. And that would be permissible, I think, within the language of Oceanic Steam and the way that these have been conceived of. The way, the one classic example in the INA itself is for illegal entry. There are civil penalties provisions for illegal entry. So you do something that you're not allowed to do as a matter of the INA, you may face civil penalties. You violated the conditions. Some of your conditions, we could talk about whether they're germane to how much the federal government can control what you're doing in this country, but yes.
Justice Barrett (19:22):
Right. I mean, I was trying to come up with conditions that might be sort of mirror images of these. But the point being, I mean, Oceanic Steam also says, and I know part of this, like in Wong Wing, if you're talking about a misdemeanor, take criminal law out of it. It also says that if there's going to be a forfeiture of the alien's property, that would be a different thing, that there might need to be an Article 3 court or that there would need to be an Article 3 court. So I'm wondering here why that wouldn't be the case for the alien. If the alien violated some sort of condition on the H2-A visa, why wouldn't the alien be entitled to an Article 3 court before the alien had to pay that kind of a fine?
Ms. Harris (19:58):
Because I think respectfully, that's not the correct reading of Oceanic Steam or the way the court treated Oceanic Steam in Jarkesy. The court there is distinguishing between things that look like criminal punishment or other forms of punishment from that case itself rejecting the proposition that anytime you impose civil penalties, you necessarily have to be in an Article 3 court with a jury.
(20:20)
That was what the respondent was arguing in that case and the court emphatically rejected the proposition that instead in the area of immigration, like in tax, like in other areas where civil penalties have been imposed, the nature of the power is special. Congress has the ability to say that there's going to be executive adjudication and that there will be civil penalties. And I think that has to make sense if you think about just the theoretical framework of public rights in this area and the way other public rights work. This is an area of combined...
Justice Gorsuch (20:47):
I'm sorry to interrupt here, but just to follow up on this before we lose track of it, I thought Wong Wing said confiscating property goes to an Article 3 court when you're trying to confiscate property from aliens.
Ms. Harris (20:58):
Wong Wing does talk about also confiscating a property, but I don't think that can be fairly read to mean any civil penalties are out or you would have to, I think, overrule Oceanic Steam and you would also have problems with [inaudible 00:21:09] lessee itself. If the idea is you can never have in a non-Article 3 setting, some sort of consequences for property, then you're not just talking about a large part of the INA and other things, you're talking about [inaudible 00:21:24].
Justice Gorsuch (21:24):
No, I understand penalties associated with entry, but I'm trying to draw on Justice Barrett's hypothetical and it's a little further afield, right? Less immediately about the entry and you're seeking to confiscate the alien's property. I though we decided a long time ago that you got to go to an Article 3 court. Are you resisting that?
Ms. Harris (21:45):
I'm not resisting that. What I'm saying is there's a difference between civil penalties that are being attached to you for violating conditions of coming into the country versus things that I think implicate other rights of, let's say someone has been here for a while, you're confiscating their property as punishment. There are limits we would say on obviously the kinds of...
Justice Gorsuch (22:02):
So there is an outer bound then with respect to the alien on how far you can go with this immigration exception. You agree?
Ms. Harris (22:08):
Yes, we've identified multiple lines on this. I think germaneness is one.
Justice Barrett (22:13):
Germaneness is one. And what are the others?
Ms. Harris (22:15):
The others are a careful look at the nature of the privilege and public right at the outset, which I think you have to say it has to be immigration. It is relating to the entry and continued presence of the alien. And that does tie into germaneness, but I think a careful look at the scope of the privilege and on a right by right basis is quite important in this context to distinguish things like foreign commerce or other areas. And then the third thing I would say is that there are also limits from the due process clause. The courts always recognize that in any form of adjudication, due process is going to be an important limit, and we think that that is quite important.
Justice Barrett (22:50):
That's a limit that doesn't need to be satisfied by an Article 3 court. So the limits I was asking you about are limits on the need for a jury, the need to go to an Article 3 court.
Ms. Harris (22:59):
And then the final limit I would just say is I think it is quite important and goes to Justice Alito's question, that the adjudication itself here involves federal enforcement of the conditions vis-a-vis the employer in the program. And you're not taking the additional step of saying you're adjudicating essentially two private parties' rights in a final binding and conclusive way the way you would be doing in say Grand Financiera or some of the bankruptcy cases that involved actually conclusively adjudicating a state law common [inaudible 00:23:26].
Justice Jackson (23:25):
So is that really a limit or is that sort of how you define public rights cases? I mean zooming way out, our cases require us to distinguish from contexts that are private rights contexts and public rights contexts. And we've subsequently determined that the immigration exception is part of the public rights, but I guess I'm interested in that very first cut. So what is the government's view as of the definition of a public rights case?
Ms. Harris (23:58):
A public rights case involves rights that are vested in the sovereign for the public at large or privileges that are extended by the sovereign as a matter of grace. And that sounds like it might involve any Article 1 plenary powers. So I would just give an additional cut on that, which is the court said in Jarkesy correctly that history and tradition also help you zoom in on the distinctive areas involving governmental prerogatives that historically could have been determined exclusively by the political breaches.
Justice Jackson (24:27):
And this is distinguished from private rights by?
Ms. Harris (24:28):
Yes. Private rights are things that the courts commonly said the stuff of Westminster, the stuff of traditional actions at common law. I think the best definition is Blackstone. It's the rights of the individual qua the individual versus rights for the public at large.
Justice Jackson (24:46):
Now what I find curious is that neither of those definitions really turn on the actual remedy. Mr. Chief Justice?
Chief Justice Roberts (24:55):
Sure. Yes.
Justice Jackson (24:55):
Yeah. So much of what your friend on the other side suggests is that all we have to look at is whether or not monetary penalties are being exacted here or something like that. Do you accept that that's the way we go about identifying what is a public rights case versus a private rights case?
Ms. Harris (25:13):
No, that cannot possibly be right or you would have to overturn Oceanic Steam where the court confronted exactly that question and exactly that argument and said that that would be completely incorrect and rejected that argument as magnifying the judicial to the detriment of all their departments of the government, disregarding many previous adjudications of this court and ignoring practices often manifested in hitherto deemed to be free from any possible constitutional question. So that's pretty emphatic over a century ago saying absolutely not. It's not a bright light rule, civil penalties equals Article 3 courts and otherwise have had it.
Justice Jackson (25:47):
Thank you.
Chief Justice Roberts (25:48):
Thank you council. Justice Thomas, anything further? Justice Alito?
Justice Alito (25:53):
Could you talk a little bit about how disruptive ruling in favor of respondents would be on the statutes and programs run by the government?
Justice Alito (26:00):
On the statutes and programs run by the government. Would it affect the government's ability to find employers who hire illegal aliens?
Ms. Harris (26:09):
Yes. So let me just talk about the different ways of disruption. One, if the court were to say civil penalties always have to be in Article III courts, that's kind of the nuclear option. Civil penalties are imposed by the government in all kinds of contracts. We've been relying on Oceanic Steam and this long tradition of public rights in all sorts of areas that are modern benefits programs like Medicare, and all sorts of historical programs that stem from immigration. Just across the board, there are tons of civil penalty programs that we think are very justifiable even post-Jarkesy.
(26:42)
Now, if the court were to instead say, "There's something wrong with a contractual setup, it too much looks like a contract," that too would be quite disruptive for the government. If that's the breaking point at the point at which these cases have to be adjudicated in Article III court, that imperils the way we do Medicare and Medicaid penalties, the way federal contracts work, because we often require federal contractors to embed, in their contracts with subcontractors, these same regulatory requirements as a method of enforcement. The federal student loan program also does that. So those are big deals to us.
(27:14)
Now, if the option is immigration is something that only ends at the border, I think that would have highly disruptive consequences for immigration law. We would be quite troubled by that result, not just because there are a lot of penalty programs that involve imposing penalties on aliens for staying too long, for not voluntarily departing, for illegal entry or other things. For these H-2A and H-2B programs, they're really important mechanisms of making sure the government, when it's bargaining and giving a condition for employers to do certain things, has to live by them.
Justice Alito (27:49):
What's the best way for you to lose? What's the most narrow way for you to lose, if you were ... And that's not to suggest that you will.
Ms. Harris (27:56):
No, understood.
Justice Alito (27:57):
No, no, no. I don't intend to make that suggestion at all. But if you were to lose, what would be the most narrow way not to affect all of these other things?
Ms. Harris (28:09):
Then I would say take the statutory path, which we haven't talked about. Say that, for this particular statutory scheme, if we could not impose penalties in a non-Article III adjudication because you don't think the statute is clear enough or something, and leave open to us being able to seek penalties in court. I think that would be the narrowest. It would be fairly unsatisfying for the government though, because I think the other thing I'm going to highlight is we don't want to lose, but what we want even less is a lack of clarity on the scope of public versus private rights in this context. We have, as I just told you, a lot of different schemes involving civil penalties and clarity is quite important to us.
Justice Alito (28:53):
We have schemes where agencies determine the penalty or have an administrative process for penalties, but then go to court and the factual issues are decided de novo. Would that satisfy you? But the statute's not created that way.
Ms. Harris (29:15):
The statute's not created that way. You could leave open that that was sort of a severability type reading as one way of doing it. Again, don't love that for this program, but if I had to pick a particular poison, that would definitely be on the menu.
Justice Jackson (29:33):
Justice Kagan?
Justice Kagan (29:35):
I guess, Ms. Harris, one question that this raises is, I mean, you've talked about a lot of programs that you have that are at stake here, a lot of contexts in which the government uses administrative adjudication, but if you step back 10 feet and somebody said to you, "Well, why do we need any of those? Why not just go to court always?" What would the government's response be to that?
Ms. Harris (29:58):
The government's response would be twofold. One is part of Article II prerogatives do involve, when is permissible, to use agency adjudication. We do care deeply about exercising that means of enforcing the law, that has traditionally been a means of exercising executive power that we care about. Two is why do we care about this as a practical matter? Because there are hundreds of enforcement proceedings in a given year for just this program and across the government for these kinds of programs, the numbers keep adding zeros. The idea that the Department of Justice would be having to then pursue every single one of these in federal court would be a choice that would raise massive concerns about under enforcement of the law, just given resource constraints.
Justice Kagan (30:48):
How would that work in the immigration context particularly?
Ms. Harris (30:48):
I mean, how would it work in the immigration context? If the proposition were that the only types of things that could be in executive adjudication are things that happen at the border, I think it would be catastrophic. I mean, just the volume of immigration related cases for the aliens themselves, for things that make you inadmissible after you enter the country, huge, enormous numbers. That's why I think the everything stops at the border theory is utterly untenable, not to mention completely contrary to the way the court has conceived of this power in its cases. So you have a stare decisis problem on top of that.
Justice Kagan (31:22):
Thank you.
Justice Jackson (31:22):
Justice Gorsuch.
Justice Gorsuch (31:24):
I looked at your seven examples in the immigration statutes and they all seemed a lot closer to the core of admission, expulsion or deportation than this one. Thoughts?
Ms. Harris (31:37):
Thoughts, I think this statute is still quite close to that because what we're talking ...
Justice Gorsuch (31:42):
Would you agree the others are closer?
Ms. Harris (31:44):
Would I agree the other statutes are closer?
Justice Gorsuch (31:45):
Certainly wouldn't you take that position going forward?
Ms. Harris (31:48):
I'm sorry.
Justice Gorsuch (31:49):
And certainly wouldn't you take that position if you were to lose in this case?
Ms. Harris (31:53):
Would I try to distinguish those statutes going forward if we were to lose this case? I mean, I think it depends on how. It seems to be the proposition of the immigration power stopping at the border would ...
Justice Gorsuch (32:02):
I didn't say that. I said those were closer to the core immigration powers. Would you agree with that?
Ms. Harris (32:09):
I don't think I would. I mean, I think even respondents agree that things that are closely related would include things like employer verification or other things that relates to the alien's ability to stay in the country and the conditions under which you're allowed to have someone. And that's what this program is.
Justice Gorsuch (32:23):
Employer verification is a lot closer. You have to verify that you can bring somebody in.
Ms. Harris (32:29):
Then you're also then employing them. Here, on top of that, unlike the employer verification sitting, you're an employer who's expressly getting a privilege from the government at the outset. You are agreeing, I promise I will comply with all these regulatory conditions. I get this special sovereign benefit no one else gets to bring an alien in and continue to have them here at the government's grace.
Justice Gorsuch (32:50):
And you just mentioned consent. Why isn't that another way through this problem?
Ms. Harris (32:54):
You could look at it as a way through the problem. We haven't relied on it in the way that respondents are suggesting, because we're not suggesting in this case if this case were to involve ...
Justice Gorsuch (33:03):
You don't have consent here, but what if you sought it?
Ms. Harris (33:04):
We think there is consent here.
Justice Gorsuch (33:06):
Well, you didn't argue that.
Ms. Harris (33:07):
Correct. We're not presenting this as a case about consent.
Justice Gorsuch (33:09):
In the next case involving all of these others, that would be available too, right?
Ms. Harris (33:13):
I think it depends on what the court says because if the proposition is this case involves private rights, then the question would be, can you consent to non-Article III adjudication of these things? I think the issue here is consent, I think, first of all is clear because the employer is agreeing as a condition of the program to do all this stuff.
Justice Gorsuch (33:30):
If it was so clear, why didn't you argue it? Anyway, on the statutory grounds, the statute says that the departments may take such actions, including imposing sanctions and seeking injunctive relief, as may be necessary, to assure employer compliance. The one thing it says is you got to go to court to get an injunction. Everybody knows that. You agree?
Ms. Harris (33:52):
Yes.
Justice Gorsuch (33:53):
It says you can impose penalties. Very similar language we had last year in FCC AT&T case. Why should we read that to actually allow you to set up a whole court system and finally adjudicate penalties here where we didn't there? We just amount it to the right to assign a penalty that could then be subject to enforcement in court. Why isn't that the more natural reading of the statute?
Ms. Harris (34:23):
Because the statute there expressly provided for recovery only in de novo civil suits. The statutory language as the court did say in FCC v. AT&T is context specific. The context here is different from the statutory context there because again, there is an express mention of the de novo civil suits.
Justice Gorsuch (34:41):
Okay. Well, how is it necessary to set up a court system to do it as opposed to go to court when you have to go to court to get the injunction?
Ms. Harris (34:50):
I think it would strain the natural contrast in the two phrases, because it says the secretary is authorized to take such actions, including imposing civil penalties and seeking appropriate injunctive relief. There's a contrast between those two things. Imposing is something the secretary can do, and seeking is something that you have to do through the expedience of a court. If you want to read in at the backend that you have some sort of de novo civil suit, I think it's actually an inference that you would not make. When Congress wants to have that set up, it does so like in the FCC v. AT&T case.
Justice Gorsuch (35:21):
Thank you.
Justice Jackson (35:21):
Justice Kavanaugh?
Justice Kavanaugh (35:23):
On the question of civil penalties and this court's precedent, in Toll, we said at 422, and this is 40 years ago, "A civil penalty was a type of remedy at common law that could only be enforced in courts of law." Of course, the Third Circuit quoted that sentence here, and in Jarkesy, in multiple places we referred to that statement from Toll, including kind of in the wrap up on 134, they provide civil penalties of punitive remedy that we've recognized could only be enforced in courts of law. That's a fairly definitive statement in our precedent. What are we supposed to do with that?
Ms. Harris (36:07):
I think Toll is easily reconcilable with the rest of what Jarkesy did, including quoting the part of Oceanic Steam about civil penalties in the immigration context, because Toll is a case that says you're basically in step one of Jarkesy. Presumptively, if you have civil penalties involved, it's a [inaudible 00:36:24] action. Toll also did not involve any countervailing arguments with respect to the public rights exception. I think Toll fairly squarely stands for the idea, if you have something that involves civil penalties, that you could analogize it to an action in debt. If you don't have something that fits it in the public rights exception, it may well, under Jarkesy and Toll, be game over. But that's not what we have here. Otherwise, you would be throwing overboard not only Oceanic Steam, which of course did involve civil penalties, not only threatening other cases involving civil penalties in the tariff's context.
Justice Kavanaugh (36:54):
Well, Atlas Roofing, it threatens, but you're not even relying on Atlas Roofing.
Ms. Harris (36:58):
I'm not relying on Atlas Roofing, but what I'm saying is there are plenty of cases that involve public rights, historic categories of public rights. Unlike, Atlas Roofing, historic categories of public rights that involve civil penalties that the court endorsed in Jarkesy, Oceanic Steam being obviously one of them, but the tariffs cases also being others. They involve the equivalent of civil penalties, additional tariffs on your items at the border.
(37:21)
I don't know where you stop with that theory either. If you say civil penalties or an action in debt, also actions in debt like the facts of Murray's lessee, action in debt, distress warrant. If the line is you can't have property encroached on, or seized, or something else in a non-Article III forum in executive adjudication, then I think the chopping block doesn't just stop with Oceanic Steam. I think you have to think about what's the basis for Murray's Lessee at all.
Justice Kavanaugh (37:48):
And then in terms of disruption, I mean there's already judicial review of penalties that are imposed in these kinds of actions if the subject of it wants to obtain judicial review. The only question that will be different is what's the standard of review in court now, versus the system that the respondents are seeking. Correct?
Ms. Harris (38:14):
No. That's from the vantage of the court, but that's not from the vantage of the burdens of the scheme at the outset, I think.
Justice Kavanaugh (38:20):
Well, let's talk about the court part. The court part, the difference will be the standard of review, correct?
Ms. Harris (38:27):
That's sort of correct. I think it depends on exactly how much of it has to be in court. If you have to start off with the enforcement in court, if you're not doing ... It depends on which method, right? If the agency is only presumptively allowed to impose penalties, you are essentially guaranteeing that, not only is there a different standard of review for the court, but there is absolutely going to be many more court suits that have to be brought.
Justice Kavanaugh (38:52):
Fact witnesses. Fact witnesses maybe.
Ms. Harris (38:55):
No, no, no. Not just fact witnesses. Just think about the volume for courts and thinking about the effect on enforcing law, that's a huge deal.
Justice Kavanaugh (39:01):
I agree the volume for courts will be significantly higher. I get that. So then talk about the other end of it.
Ms. Harris (39:06):
So the other end of it being the volume for courts? Yeah.
Justice Kavanaugh (39:10):
No. You said before the courts in the executive branch.
Ms. Harris (39:13):
Yes, before the courts and the executive branch. I mean, again, you're essentially shifting what has previously been ... Again, I'm not sure what the premise of the question is as to how broad this would cut, but if you're outsourcing basically and transferring virtually everything that has been in agencies in certain contexts to federal courts, the breaking point is going to be ... First as just very practical matter ... First of all, resource constraints. If we're talking about the Medicare program, for instance, that's a pretty enormous transfer of things that are adjudicated in an agency, even at initial steps versus things that always have to go to court, always have to be pursued by the Department of Justice, always then have to be adjudicated by courts to have any bite with respect to the penalties. And so that is a massive transfer that I think the court should carefully consider.
Justice Kavanaugh (39:57):
Can't all those already go to court? That's what I'm ...
Ms. Harris (39:59):
They can already go to court. I think the question is how many of them go to court and whether the Department of Justice would have to be enforcing all of them in the first instance.
Justice Kavanaugh (40:07):
The question's not whether they can go to court, they already can go to court.
Ms. Harris (40:11):
They can go to court to seek review. The question is, can the penalties be final in any sense beforehand? Again, it's the enforcement effect. Can the federal government have enforcement of federal laws within the agency context or is it entirely at the mercy of sort of the tail end of the court process before the penalties are imposed? Of course there's judicial review at the back end. That's a due process principle.
Justice Kavanaugh (40:34):
Thank you.
Justice Jackson (40:35):
Justice Barrett.
Justice Barrett (40:36):
I think your Oceanic Steam argument depends on understanding the fee or the exaction, as the case calls it, as a freestanding fine, or a penalty, or a civil penalty. I'm wondering if the case has to be read that way, or even if it's the best reading of the case, because one other way to read the case is that the money that the ship had to pay was itself an exchange for a public benefit, the outgoing clearance papers.
(41:03)
In Oceanic Steam, the court says this, "The power to refuse clearance to vessels was lodged for the express purpose of causing both the imposition, and the exaction, and its collection, to be acts of administrative competency not requiring a resort to judicial power for their enforcement." It seems that the court regarded the tie between the clearance papers and the fine as important to permitting this to be part of an administrative rather than an Article III scheme.
(41:33)
What's your reaction to that?
Ms. Harris (41:34):
I disagree with that. That portion of the opinion is about how the statutory scheme worked, that's absent from the Article III discussion later on in Oceanic Steam. And most importantly, the way Oceanic Steam has been understood, including in Jarkesy. The portion of Oceanic Steam that everyone understands is I think the holding is the sort of broad language on page 339, that because of the fact that there's over no conceivable subject is the legislative power of Congress so vast as in the immigration and sort of foreign commerce space. If Congress deems it necessary to impose particular restrictions and sanction them with penalties, that's fine. It's weird if there were this implied limitation on the penalties in Oceanic Steam no one has noticed, including when describing them in Jarkesy.
(42:20)
And then second point on this, it's completely strange to think that there's a last clear chance obligation for these that you would apply trans-substantively across all sorts of contexts. That enforcement regime was, first of all, incredibly coercive, but made a lot of sense with respect to that scheme simply because it was you are violating the conditions before the privilege is given and exercised. If you try to impose it on other programs, like here where the person is violating the conditions on which they have been enjoying the privilege, you'd essentially be rewarding them, giving them a free violation and only after you do your one free violation can you decide, "I didn't like this program after all. I'm not reapplying for it."
Justice Barrett (43:04):
Okay, but that language that you read, which I grant is the best language in the opinion for you, can't be taken for all of its worth because you said to Justice Sotomayor and others that there were limits to that, for example, germaneness, et cetera. Because if that sentence really were just the standard, there would be no limit to what the government could do, just by hinging it to immigration, if it was related to immigration in some way.
Ms. Harris (43:27):
Well, I think they're completely consistent because I'm talking about the scope of that power, the scope of Congress's power and the conditions that can flow relating to the plenary power over immigration. That's what I'm talking about. That's why I think it's perfectly consistent.
(43:40)
I think it would be even stranger though to think that a case that people have ... The whole case was litigated on the proposition that it was about yes or no, can you have civil penalties? It was not litigated as a case about the briefing or anything else was not about is there some sort of special thing about the clearance mechanism? And again, that was the nuclear option of the case. The court recognized, at the outset, that they had the ships at their mercy. They were about to disrupt all the contracts and put them out of business. So it'd be a particularly strange mechanism to say the kind of penalties that are okay are ones that essentially threaten you with going out of business to pay up the civil penalties and escrow before you get access to any adjudication.
Justice Barrett (44:20):
Well, if the civil penalties imposed outside that context were high enough, they could pose the same threat.
(44:25)
One last question. One thing that I find challenging about the analytical framework in this case is it has a mix and match flavor. Yes, this is immigration, but oh, look over here at customs because the fines come from customs, and think about it as a public benefit. Do you have to pick a bucket? When you're talking about public rights, you're talking about these historically recognized exceptions. Yes, I agree it's confusing and having top federal courts, I think it's very confusing. It's always confusing for students. It's not a clear area of the law, but it seems like we've identified discrete areas that qualify for that exception. So why can you kind of mix and match and pull? Sometimes you're talking about it as this is because of the government's plenary power over immigration, and other times you're talking about it like a public benefit, like we might think of welfare type payments.
(45:12)
Why don't you have to pick?
Ms. Harris (45:14):
I don't think you have to ... The reason to blend them is because it shows, I think, why this is an easier case. The fact that they overlap allows you to avoid ... I think if you didn't want to sketch out the outer contours of either of those buckets, I think the fact that they intersect makes it an easier case, in certain ways. But if you wanted to just focus on, even the immigration exception, I think you could get there for the reasons we've talked about. It seems strange to think that when a case implicates two overlapping lines of public rights cases, it would somehow be further away from the public rights doctrine, as opposed to this case helpfully illustrates they can overlap, as they do in a lot of different contexts. I mean, there's obviously a lot of cases, that I think even respondent would concede, that would implicate both government granted privileges, which are their own category with a historic pedigree and happen to involve immigration.
Justice Jackson (46:07):
Justice Jackson?
Justice Jackson (46:08):
I guess I think what troubles me a bit about all of this is that the Third Circuit's analysis and respondent's arguments appear to be asking for a new way of evaluating public rights versus private rights. I mean, the public rights doctrine is centuries old and this idea of just looking at whether or not there were common law claims or common law remedies is not how I think it was done in all these cases. And maybe that implicates your exchange with Justice Kavanaugh, but are they asking for a new thing or does this follow from what we've done? Don't all those other cases come out differently if we apply the Third Circuit's analysis?
Ms. Harris (46:52):
Yes, I think they would, I mean, especially the proposition I talked about with Justice Kavanaugh. If you start saying civil penalties full stop are private rights, absolutely you're upending a lot of public categories.
Justice Jackson (47:03):
We have Oceanic Steam, Lloyd Sabaudo, Helvering, Allman, McGrath, Oregon, all these cases had monetary liability being imposed by the government and we found the public rights exception applied. If that is the metric, I don't understand how we sustain those cases.
Ms. Harris (47:23):
That's right. I think the other lines that the Third Circuit drew were equally problematic. So if you take the line that they're drawing of seems like a contract, thus a problem, similar problems like government contracts being exhibit A, but other cases like Lloyd Sabaudo and Oceanic Transport, you could easily also analogize to common law actions. Jarkesy has two steps, you look at the public rights exception. Murray's Lessee itself, again, it's like you're taking someone's property because they did not give you the tax revenues to the government. That's property classic sort of situation there. I think the lines that respondent's trying to draw are a real problem.
(47:58)
The other thing that they're doing that I think would upend a lot of the court's cases is they're saying if you can't pinpoint an exact mirror image of something that the executive branch actually has adjudicated in the past, it's game over. That is not the test the court has applied in this context or oil states would have come out differently, as the court recognized in oil states. Patent invalidity was something that federal courts have been adjudicating since the founding, but because Congress can choose Article III court or executive branch agencies, you can't say that the lack of a specific example of exactly adjudicating this thing [inaudible 00:48:31]. If you look to the categories of how the founding generation understood public and private rights.
Justice Jackson (48:36):
Thank you.
Justice Jackson (48:37):
Thank you, counsel. Mr. Johnson?
Mr Johnson (48:46):
Mr. Chief Justice, and may it please the court.
(48:49)
This court in Jarkesy made clear that the public rights exception is an atextual exception to Article III that must be applied carefully and with close attention to history. Yet, the government here identifies no history extending the immigration adjudication tradition to the types of claims and remedies at issue here. The government invokes the idea of immigration, but it points to no history extending the immigration adjudication doctrine to the imposition of what amounts to a judgment, imposing penalties and back wages on a breach of contract theory or involving labor issues more generally. Oceanic Steam, the government's key case involves penalties that were imposed based on a finding that aliens were ineligible for admission and that were collected as an exaction upon the defendant recrossing the border. In other words, both the claim and the remedy involved the exercise of the executive's power to control who could or could not cross the border into the country. That is a far cry from a case about labor issues at a farm in New Jersey with a mix of foreign and domestic workers.
(50:09)
The government also invokes history from a range of disparate contexts, including; tax, malicious service, and the jurisdiction of the court of claims, but that blunder bus approach to history is the opposite of the close analysis that Jarkesy requires. Given the broad range of privileges and benefits that are controlled by the executive, it threatens to badly erode Article III.
(50:34)
Indeed, even the government says in its brief that it can adjudicate penalties imposed as a condition of access to the mail. Under such a theory, little would be left of this court's decision in Jarkesy. Separately, the government points to no statutory language authorizing the penalties here, to be sure the statute contemplates penalties, but it says nothing about where those penalties should be adjudicated.
(50:59)
I welcome the court's questions.
Justice Thomas (51:03):
The government points out that it did not bring a breach of contract claim. Rather, its claim is that you violated the regulations that required certain obligations of you. How would you respond to that?
Mr Johnson (51:23):
I think that's inconsistent with the statute, with the regulations, with the characterization of the claim before the agency, by the enforcement staff, by the ALJ, by the ARB. I think it's also inconsistent with the nature of the allegations. So starting with the contract, the contract speaks in terms of contractual obligations, which it equates with the terms and conditions of employment. The regulation 29 CFR 501.0 that creates this entire regulatory scheme says, "This is a scheme for the enforcement of all contractual obligations." That's a quote. If the government didn't view this as enforcing a contract, they would not be able to proceed under this regulation.
Mr Johnson (52:00):
... seen a contract, they would not be able to proceed under this regulation. The ALJ opinion describes this in contractual terms throughout, which I think is consistent with that scheme. And then if you look at the nature of the allegations, what we have here, so in order to participate in the H-2A program, you have to circulate a job order, and it's not circulated internationally, it's circulated domestically, intrastate and then interstate, through the federal job order system that dates back to the 1930s, the Wagner-Peyser system.
(52:34)
And that has been understood to create a contract, a common law. It's circulated to workers. Workers can then accept the contract by showing up for the job. And before the H-2A program was created, it was understood that a job order that was circulated through that employment system gave rise to a contract that could be enforced through a breach of contract action at common law, which is why even today, that you still have cases... There's a case we cite in the brief, there are cases too numerous to count that hold that workers can bring breach of contract actions for these same obligations. So for instance, the three quarters-
Justice Kagan (53:19):
Well, Mr. Johnson, I mean, I take your point that the regulatory requirements are repeated in the job order, which functions as a contract. But if you look at these opinions from the ALJ, from the ARB, that they see the underlying source of liability as the regulations. It's almost a happenstance that those regulations are repeated in the job order. And indeed, if the agency tomorrow took away that regulation that insists upon there being repeated, they wouldn't have to be repeated. It's not a statutory requirement in any way. So what the real source of liability here is, and I think that this is what the ALJ and ARB understood, is the regulations. It's fortuitous that those regulations are mimicked in the job order.
Mr Johnson (54:08):
So I disagree with that. And again, I think if you look at the regulation itself, this is a scheme for the enforcement of contracts that's in the agency's own regulation. I also think if you look at the nature-
Justice Kagan (54:20):
It's a scheme. I mean, the entire reason that this scheme was developed is to try to protect domestic workers from being undercut by immigrant workers. And that's what it's a scheme to do. It's a scheme that sets up this parity requirement, that also sets up minimum requirements all in order to protect domestic workers from being undercut by foreigners. And that's what the scheme is about. It's not a scheme about enforcing contract rights. It happens to be that all the elements of this scheme and all the requirements in this scheme are repeated in the contract by virtue of the department's own regulations. But it's a scheme that has nothing to do with protecting contract rights. It's a scheme that has to do with setting up minimum standards and setting up a parity requirement in order to protect domestic workers.
Mr Johnson (55:19):
So again, I disagree with that. And I think the reason that that's not right is that the job order, which is what is being enforced, the terms of the job order, is circulated... The way that the government determines whether there are enough domestic workers for this position, the main way they determine this is they require that you circulate the job order through this system of employment offices and it is circulated intrastate and then it is circulated interstate. And if domestic workers want to take the job, then they take the job on the terms of the job order. And so what the government is doing here is they're making sure that the terms of the job are actually the terms of the job order because that is how they are determining whether there are or not enough domestic workers.
Justice Alito (56:04):
If the scheme was simply, if you want farm workers, you circulate a job order that says, "I want 100 farm people to work on my farm." Do you think that administratively keep the scheme the way it is or the regulations that say, "If you don't do this, we're going to put fines on you." Meaning if you put them to work in a factory rather than on the farm, we're going to put a fine on you. Would that be okay? Is that a public right that you're protecting?
Mr Johnson (56:49):
So I think in that instance, if I understand the hypothetical correctly, they'd be offering one job and then providing a different job and the terms of the job that were offered would not match the terms of-
Justice Alito (57:01):
No terms. Just the program is you bring people into the United States to work on a farm, but instead, you put them to work in a factory. Could the government administratively impose a fine?
Mr Johnson (57:18):
So I would think no, Your Honor, because I think not administratively.
Justice Alito (57:23):
So how is that any different than the ship coming to port in Oceanic and you saying, "I'm bringing healthy people in."? But instead, you're not. You're saying, "I'm bringing people in to be farm workers, but I'm really not. I'm going to put them in a factory."
Mr Johnson (57:47):
Well, so I take your point. I think the difference is that the conduct that is at issue, for one thing, is occurring after the entry into the country. And the other thing that is that the collection mechanism-
Justice Alito (57:59):
So now we're at the border. Let's say that we don't accept that because we accept in administrative proceedings that people who have violated terms can be deported even though they're here not at the border.
Mr Johnson (58:16):
So I think there's a key difference between deportation, which is a remedy that goes to-
Justice Alito (58:20):
I don't want to go past my example too far. All right? Let's stay on my example, which is if you can see, and you're finding it hard to answer me because it makes no sense, does it?
Mr Johnson (58:32):
No. I-
Justice Alito (58:33):
I agree to bring someone in to work at a factory, to work on a farm, but yet I'm really putting them in a factory. And you're seriously suggesting that that could not be administratively adjudicated.
Mr Johnson (58:50):
So maybe I think it might be helpful to distinguish between what I would view as sort of my broad position here, which would be that any significant deviation from the tradition in Oceanic Steam would take it outside the immigration adjudication tradition, which I think under that view-
Justice Alito (59:07):
So you're back at the border.
Mr Johnson (59:09):
Yeah. But I also think there are narrower ways through this case that the court certainly does not need to go as far as I might go. I think my view would be that Oceanic Steam-
Justice Alito (59:19):
If I don't accept at the border, assume that, and just for the sake of assumption that this public right can't be limited just to the border, if I assume that, and I assume that the terms, a breach of the terms of entry, like I'm going to put them on a farm as opposed to a factory, could be administratively adjudicated, how are these terms and conditions any different? You're making a promise to treat people in a certain way, to have them do a certain job in a certain way, and instead, you're just doing something else.
Mr Johnson (01:00:03):
So I think there's a few differences. One is I think on your hypothetical, that it sounds like you could adjudicate that at the border in the sense that they are, or at least you can adjudicate it.
Justice Alito (01:00:18):
Most of the time, you bring them in, the person's going to sneak them off to a factory. I'm not going to tell you at the border, "I'm sneaking them to a factory."
Mr Johnson (01:00:25):
I guess what I mean is that I think that what you're suggesting is a hypothetical where the statements would be false at the time they were made and the person was brought into the country under false pretenses. I don't think that's what the government is-
Justice Kagan (01:00:37):
Well, why isn't it, Mr. Johnson? I mean, essentially, this is a kind of visa fraud or immigration fraud. The employer says, "I'm certifying a set of things in order to get a set of foreign workers, and in exchange for that, I'm going to treat them a certain way, treat them the way that will not undercut domestic workers." And then allegedly, the employer does the exact opposite, treats them in ways that do undercut domestic workers. So that's a kind of immigration fraud at the outset.
Mr Johnson (01:01:17):
So I think that it might help to look at the nature of the allegations to see why that's not the case. So for instance, almost half the liability, a large chunk of the liability is the three quarters guarantee issue. And what that consists of is essentially the workers were promised a certain period of employment and the government's allegation is they were fired before that period of employment was over because there were disputes between the workers and the farm. The employment didn't work out and they were let go. And the government says that they were let go without sufficient cause. And there's a factual dispute about that. It's not-
Justice Kagan (01:01:54):
Yeah, well, that's a very narrow way to understand what we're talking about here. I mean, what the government is essentially saying is we have the power to adjudicate in our own administrative procedures whether in fact an employer has violated the conditions that the employer agreed to in bringing a set of employees in. And essentially, the government is saying we allowed these people to be brought in on a certain set of conditions that have now been violated, therefore, where our administrative processes should come into play. Border, not border. It's a condition of admission and the condition of admission has been violated regardless whether you do so right there at the port or whether you do so 100 miles away at the farm.
Mr Johnson (01:02:51):
Well, so my point though is that I think there is a meaningful distinction. The court could find a distinction between bringing someone into the country under false pretenses and something like the three-quarters guarantee where what happened was, I don't think there's any allegation that they didn't intend to employ the workers for the full employment period.
Justice Jackson (01:03:09):
Right. But the question is why does that matter? Yes, the court could find a distinction about a lot of things, but I think your job is to explain why those two different scenarios come out differently with respect to the immigration exception.
Mr Johnson (01:03:25):
Right. And so my view would be the best view of the immigration exception would focus on what are the nature of the claims and the remedies. And the question would be, do the claims involve a question of whether to admit, exclude, or deny as an Oceanic, they did. And in Oceanic, the remedy was an exaction-type remedy.
Justice Jackson (01:03:46):
No, you're just repeating what you think the rule should be. What I'm asking you is why?
Mr Johnson (01:03:51):
So I think that should be the rule because-
Justice Jackson (01:03:55):
Because? Because what happened here is not suitable for the immigration exception. Why?
Mr Johnson (01:04:02):
So it does not involve, the claims do not involve the question of whether to allow someone across the border, but instead involve things that happen.
Justice Jackson (01:04:08):
But they do involve other immigration-related claims as Justice Kagan has been exploring with you. Why shouldn't those as well be a part of what we understand the immigration exception to cover?
Mr Johnson (01:04:19):
So I understand immigration is in the backdrop here in the sense that this arises in the context of an immigration program and some, although to be clear, only over a third of the employees are domestic workers. So not all the workers are for workers.
Justice Jackson (01:04:36):
Yes, but if they answer the job description, but the job description was put out there in order to ensure that there wasn't this undercutting of farm workers. I mean, it seems like you're just sort of fighting the reality of the nature of this program, what its purposes were, what Congress was trying to do and what the administration is trying to do in ensuring that we don't have farm workers coming in and undercutting domestic workers. Do you dispute that that's really at the core of this? You don't think that's not central for your argument?
Mr Johnson (01:05:10):
Well, so Your Honor, the government also does not take the position that this turns on the purpose of what's going on here. But I think if the question, to your question, to answer it directly, it's hard to know what the purpose is here, but I think that a large purpose here is worker protection. I think it's hard not to look at this and see that part of what is going on here, sure, is immigration, but part of what is going on here is worker protection.
Justice Jackson (01:05:36):
All right, what about the privileges?
Justice Thomas (01:05:38):
Could you just say succinctly how far you think the immigration exception extends in a situation where an alien is eligible for admission to the country on certain conditions? Is it your position that it stops at the point where the alien is either refused admission or granted admission based on the satisfaction at that time of the relevant conditions? Does it stop there or can it extend further to subsequent violations of the conditions? And at what point later does it end?
Mr Johnson (01:06:21):
So it can extend further if the remedy at issue is the revocation of permission to be in the country. And I think the reason for that is essentially this court, if you look at what is the difference between public and private rights, I think for the most part, the difference between public and private rights is that public rights involves the grant or denial of a benefit, which would include permission to be in the country. Private rights involve things that deal with life, liberty, and property. At the margins, the court has recognized that there are areas where public rights can involve taking money like tax liability, tariffs, things like that, that I think complicate the line. But what the court has said is that in those areas at the margins, that's where we look to history. And so-
Justice Thomas (01:07:10):
Can I ask you this? Suppose I disagree with you that there is an analogy here to a contract. Can you win the case?
Mr Johnson (01:07:24):
Yes.
Justice Thomas (01:07:25):
And explain how that is.
Mr Johnson (01:07:27):
So I think we can still win the case on that ground because it's still penalties. And so the court in Tull, as Justice Kavanaugh was suggesting, said that penalties were always a traditional remedy at common law. And I think back wages also are a traditional common law, or even if not, I think there's a dispute between the parties. Are they legal or equitable? We think they are legal, but even if they're-
Justice Kagan (01:07:51):
Just to make sure I understand, Mr. Johnson, you're saying that as a backup to your contract argument, assuming your contract argument is off the table as rejected, you're saying your backup argument is just these involve penalties, therefore, there cannot be administrative adjudication. Is that correct?
Mr Johnson (01:08:09):
That's correct. Again, I don't-
Justice Kagan (01:08:10):
But that's not what Jarkesy said. Jarkesy could have said that, but it didn't say that. It said, "We understand that there are various kinds of historic exceptions. One of them is immigration, another one might be customs, another might be taxation. The one we're talking about here is immigration." But Jarkesy was very clear. It could have gone further. It did not go further. It said that there are these historic places where there's a different kind of analysis.
Mr Johnson (01:08:38):
Yeah. And so I don't dispute that there are historical areas where liability can be imposed outside the Article III courts, but I think that with those areas that there has to be a careful attention to history and to what was going on in those cases. And I think if you look at Oceanic Steam, Justice Barrett mentioned the quote from Oceanic Steam that I think I had picked out as well, in my mind, is the most important line in that opinion. The other line that I think is critical in that opinion is the final line of the opinion, which says that the court is not deciding questions that would decide if that would arise, excuse me, if the government were to endow administrative officers with the power to enforce a lawful exaction by methods which were not within the competency of administrative duties because they required the exercise of judicial power. And I think that is exactly the distinction that the court was drawing there, that the factual determination that was made in that case was a factual determination about whether to allow the aliens into the border or not, which was within the core of the executive's immigration power. And then the collection of the penalty was a exaction upon permission to recross the border. So also involved an exercise of-
Justice Kagan (01:09:55):
I mean, I don't... No, please.
Justice Barrett (01:09:58):
So is it your position that in the historic exception buckets that Justice Kagan identified, you simply can't have civil penalties? So for example here, you agree it's not really that you're drawing a line at the border for immigration because you agree that someone could be removed from the country in an executive proceeding, right?
Mr Johnson (01:10:14):
That's correct.
Justice Barrett (01:10:15):
Okay. So it's really about what the government is seeking to do here, and that's the imposition of a civil penalty. So your position is that in the immigration context, even though that is a public rights exception for some purposes, civil penalties are not okay within that context. Is that right?
Mr Johnson (01:10:31):
That is, although again, I don't think the court needs to go that far [inaudible 01:10:34].
Justice Barrett (01:10:33):
Is that true in every one of the historical... I mean, how broad is your argument? Is that true for all of the public rights exceptions?
Mr Johnson (01:10:39):
I'm not making an argument about other exceptions that aren't at issue here because my reading of Jarkesy is that each of those exceptions has to be taken on its own terms. So for instance, the tax exception rests on a very different ground where taxes could be collected by the tax inspector in the first instance. So I think you might have an instance where a tax penalty would be viewed differently. I don't know. I think the way I read Jarkesy is there are no kind of... The overarching principle here is Article III and that the exceptions are exceptions that have to be-
Justice Barrett (01:11:10):
But if it's okay in some of these categories, and this was... I asked Ms. Harris whether there was a mix and match, whether it was okay to mix and match a little bit. Say like, "Well, this is an immigration bucket, but it also bears a resemblance to public benefits. And so we can look that this kind of thing would be okay there, so it's okay here too." Why, once we're in a public rights exception like immigration, can't we say like, "Okay, it's all on the table for administrative adjudication?"
Mr Johnson (01:11:35):
Because I think that's the kind of reasoning that if you take, "Well, this was okay over here in the tax context and this was okay over here in the tariff context," and then you kind of put them all together, that's how I think the court arrived-
Justice Barrett (01:11:48):
So it's isolated, they're islands. You have to look at each one and decide in which bucket would you put this in? Would you put this in government benefits or would you put this in immigration?
Mr Johnson (01:11:54):
So I would put this in neither, but I think that the relevant... I don't think there is a public benefits... Well, there's a public benefits exception in the sense of awarding benefits or not, but I don't know that there's sort of a government privileges exception like the government suggests there is. I don't know that that exception even exists. So I think the exception that we would be construing here would be the immigration exception.
Justice Kavanaugh (01:12:19):
So you're not arguing, just so I'm clear, that as Justice Kagan points out, Jarkesy didn't go this far. You're not arguing that in this case, we should say all civil penalties must be in Article III?
Mr Johnson (01:12:34):
No, I don't think-
Justice Kavanaugh (01:12:35):
Okay, so you recognize the exceptions and assume immigration's the relevant exception. And then you're saying we have to... What's the rule for civil penalties in the immigration context?
Mr Johnson (01:12:46):
So I think the court should look-
Justice Kavanaugh (01:12:48):
Because I think you said, "Well, in that context, all civil penalties must be Article III." Did you say that?
Mr Johnson (01:12:54):
So here, I think is where I would again-
Justice Kavanaugh (01:12:57):
Can I just get an answer to that?
Mr Johnson (01:12:58):
Yeah. Can I just distinguish between the rule that I would advocate and then how I think-
Justice Barrett (01:13:03):
Can you say yes or no to him? Because I thought I heard you say that too.
Justice Kavanaugh (01:13:05):
Yeah, that was... Can you just answer that yes or no? In the immigration context, are you arguing that all civil penalties must be Article III?
Mr Johnson (01:13:14):
Yes, but I don't think the court should go that far in this case. So what I'm saying is that my view-
Justice Kavanaugh (01:13:21):
Now you can explain that.
Mr Johnson (01:13:22):
Okay. So my view is that the court indicated that the exceptions have to be applied with careful attention to history. So I think if you look at the history here, so I take the Alien Friends Act, which I think is the key precedent for understanding the scope of the immigration adjudication doctrine. And the Alien Friends Act from 1798 drew a very clear distinction where the president could deport, but section four said that offenses against the act would be prosecuted in the Article III courts. And section five said that nothing the president did when deporting an alien would have any impact on the alien's property rights in the United States. And so I think the Alien Friends Act 1798 draws a fairly clear distinction between the Executive's power to deport and then actions that affect property.
Justice Kavanaugh (01:14:18):
One problem or concern, I guess, is a better way to say it about what you just said, and Ms. Harris alluded to this, is if we're looking for clarity, what you're proposing there is really at war with clarity. There's going to be a lot of guesswork about where exactly within, let's say the immigration exception or within the other exceptions, the line's drawn. And I think that's not great systemically going forward. So can you answer that concern?
Mr Johnson (01:14:48):
So I see, really, two key distinctions. I take Oceanic Steam to be the high watermark of the immigration adjudication doctrine when it comes to penalties, and I see two key distinctions between this case and Oceanic. This court could emphasize both in its opinion or it could emphasize either with different implications for other penalties, other immigration penalties. So the court could emphasize the fact that the nature of the claims was focused on crossing the border or not crossing the border, or it could emphasize that the nature of the remedy was an exaction at the border, or it could emphasize both. I think the best reading is to emphasize both because I think that both were salient features of Oceanic. However, I think if the court were, for instance, to emphasize the nature of the claims, then that would have different downstream effects than if the court was to emphasize the nature of the remedies.
Justice Thomas (01:15:46):
[inaudible 01:15:46] outlining is kind of a hodgepodge opinion and maybe sometimes courts write that sort of thing, but to follow the...
Justice Alito (01:15:54):
Not. Never us.
Justice Thomas (01:15:59):
To follow the train of your recent colloquy. So you say that it is not true, or at least it is not necessary for us to true that civil penalties always require adjudication in an Article III court. And then you say, "And in fact, it's not true or it's not necessary for us to say that this is always necessary in the immigration context." But in the immigration context, there's a limit beyond which that cannot be exceeded and that is set by the Alien Friends Act. So it has to be just like the Alien Friends Act. No?
Mr Johnson (01:16:39):
No.
Justice Thomas (01:16:39):
By the relevant history?
Mr Johnson (01:16:41):
Yeah. So I guess what I'm saying is that I think that if you chart the history from the Alien Friends Act up to Oceanic, I take Oceanic to be the high watermark.
Justice Thomas (01:16:51):
Why is it the high watermark? I know you don't want us to go any further, but why is it the high watermark? What is it about the rationale of Oceanic Steam that makes it the high watermark?
Mr Johnson (01:17:02):
Well, so I take the test to be history, and I think Oceanic, to my mind, is already pretty late in the historical game, but this court in Jarkesy identified it as relevant history in this context. So I think the tradition in Oceanic is something the court has accepted, but I don't think the doctrine of immigration adjudication, if there are salient differences between what was going on there in terms of the claims and the remedies, but like I said, I think the court could write an opinion that is much more narrow than that.
Justice Alito (01:17:32):
The problem is, I don't know what the relevant history is for you. Oceanic was at a time when immigration was totally different. If you finally put your foot on US soil, you were here and deportation was a very different process, if at all. I mean, because we didn't have all the problems we've had, but it almost as soon as immigration began to be a problem, in this case, these regulations have been around since...
Justice Alito (01:18:00):
In this case, these regulations have been around since 1986, I think. It's a long time. There have been administrative processes that have imposed fines for employers who have lied about bringing people in.
Mr Johnson (01:18:18):
So actually, I don't think that's the history. The first immigration-related penalties that we're aware of where there were prohibitions on bringing certain types of people into the country was the Foran Act in 1875 and it provided for judicial-
Justice Alito (01:18:36):
Yes, because that's what was going on.
Justice Jackson (01:18:38):
Can I just ask you another species of a question? Because I guess I'm not sure how you are employing history. What is the work of it? Mr. Chief Justice?
Chief Justice Roberts (01:18:49):
Briefly.
Justice Jackson (01:18:50):
In the context of your analysis. On the one hand, from your opening, it suggested, and maybe even here, it suggested that you're looking for a historical analog to what is actually going on here and the government can't enforce in ways that we don't find historically. That's one way. But then there's another way, I guess, which is we're looking at history for the criteria that one should apply when determining whether or not this is a public or private benefit. So which are you doing?
Mr Johnson (01:19:24):
So I think you have to look at each exception on its own terms. And then I think you're looking at the exception to see essentially what is the rationale. And I do think it can't just be-
Justice Jackson (01:19:34):
So it's the rationale. It's not that you're saying that Oceanic Steam, that we have to have an enforcement scheme that looks exactly like Oceanic Steam in order to fit into this exception.
Mr Johnson (01:19:47):
I'm not saying that Oceanic Steam involves steamships. What I'm saying is that it involved both the claim and the remedy involved the exercise of the executive's power to control who could come over the border or not.
Chief Justice Roberts (01:20:00):
Thank you, counsel. Your friend, Ms. Harris, put a lot of chips on the table when she finished saying, "This would be quite destructive for the government," if she lost. One, I want to make sure you've said everything you can with response to Justice Kavanaugh about why, from your perspective, you don't think that would be such a big deal, but then also to get your thoughts on how destructive it would be for the individual rights involved if you did not prevail.
Mr Johnson (01:20:29):
Okay. So in terms of the impact of this, maybe first I could focus on immigration. So I think there are, for the most part, immigration adjudication involves the question of whether to admit, exclude, or deport. And that includes deporting somebody based on things that happened after they enter the country. I don't think any of that is problematic because none of it involves ... It all involves classic public rights, whether to allow someone into or out of the country. When it comes to immigration penalties, I think that the effect, the sweep of the court's decision depends on whether the court focuses on the, as I suggest, the nature of the claims and the remedies in Oceanic, or if you just focus on the nature of the claims. If the court were to just focus on the nature of the claims, then I think that would leave, for instance, the 1324a, b and c penalties for employing unlawful immigrants would be undisturbed, for instance, because the nature of the claim there turns on whether the person is in the country lawfully or not.
(01:21:38)
So I think those don't necessarily rise or fall with what the court would do in this case. I think similarly, penalties for a false statement in an immigration application could be meaningfully distinct. So I don't think all of that has to rise and fall with this case. I think beyond that, a lot of the penalties the government points to are reasonably distinct for a lot of different reasons. Many of them are withholding money. So the government may has a contract with somebody and they withhold money that they owe under the contract as a penalty. I think that's just a completely distinct sort of situation.
(01:22:15)
The government talks about tax. I think tax is just a completely distinct area of the law that rests on a different historical foundation. So I don't think that the decision here is going to decide all of that. In terms of the impact of the government's theory, I think especially when it comes to the sort of government's broader theory that anytime there's a condition or a benefit, we can just attach conditions to that and then leverage the fact of the condition to require non-Article III adjudication. That's going to just have all kinds of consequences. I think the fact that the government in their brief says that, "Access to the mail is a privilege," really puts a point on it. If you think of all the criminal laws that penalize using the mail to do various things and how broad that criminal jurisdiction sweeps, the government seems to be suggesting they could do the same thing with penalties outside of Article III, that if you send something through the mail, there's all these conditions on it and then we can penalize that through outside the Article III courts.
Chief Justice Roberts (01:23:20):
Thank you, counsel. Justice Thomas.
Justice Thomas (01:23:23):
Putting aside penalties, if the government simply decertified you, would you have the same arguments?
Mr Johnson (01:23:28):
No.
Chief Justice Roberts (01:23:31):
Justice Alito? [inaudible 01:23:33].
Justice Alito (01:23:34):
If you signed the contract saying the government could impose penalties, would you have the same argument?
Mr Johnson (01:23:40):
So I think that's a great question and I think that it would turn on the unconstitutional conditions doctrine and I think it would be-
Justice Alito (01:23:48):
So you're an employer who wants to treat these workers as badly as he or she can. So just sign the contract 'cause you'll have to rely on the Justice Department having enough lawyers to get to everybody who does that.
Mr Johnson (01:24:06):
Well, so I just think whether the government could require this as a condition-
Justice Alito (01:24:10):
Can I ask one final question?
Mr Johnson (01:24:12):
Yes.
Justice Alito (01:24:14):
You seem to be suggesting that we have to write this to let some of the penalties in the statute survive, but not this one. Is that correct? You said there are some of the penalties in the statute that would be okay under your theory, but others would not.
Mr Johnson (01:24:31):
I was referring to the ... They're not at issue in this case. I was referring to, there's a series of penalties that are adjudicated administratively under 8 U.S.C. 1324 a, b, c, that I think are-
Justice Alito (01:24:44):
Okay. So Justice Kavanaugh was right. We're going to have to write very carefully to let you win.
Chief Justice Roberts (01:24:53):
Justice Kagan.
Justice Kagan (01:24:54):
I have to tell you, Mr. Johnson, I'm still struggling with the argument a little bit. You said the difference between this case and Oceanic is the nature of the claims and the nature of the remedies. The nature of the claims you said, "Well, Oceanic was an admissions case. Of course the government has complete authority to use administrative adjudications with respect to admissions." Well, this is an admissions case. An employer has gone to the government and said, "We're going to make various certifications so that you allow us to bring in a boatload of foreign workers." And what the government is now saying is, "Those admissions requirements that we put on the admission of these workers has been violated. And just the same way that the admissions requirement in Oceanic has been violated, so too here, and so the same penalties can apply." You said it's the remedies question, the remedy there was civil fines. The remedy here is civil fines.
(01:25:57)
So we have the factual difference that this is occurring not at the border itself, but this is essentially the government saying, "You have violated admissions pledges that you've made to us without which we would not have allowed these people in because we would think that these people would undercut the economic status of domestic workers. You violated that admissions criterion, so you pay the price."
Mr Johnson (01:26:28):
So I think that that's wrong for a few reasons. And maybe one way to see that I think that illustrates that it's wrong is that not all these workers are even immigrant workers, that over a third of them are domestic workers. Another way I think that illustrates that that's not the right way to think about it is that here, if you have the inspection, finds these violations, it doesn't result in deporting the workers. The workers can stay, they can continue to work. It's just that there's a found a violation of the working conditions. It's not like-
Justice Kagan (01:27:04):
Because we think that once you pay the penalty, you will no longer violate the admissions criteria.
Mr Johnson (01:27:16):
Well, whether that's true or not, my point is that this is not a deportable offense. And even if the government was to say, "Oh, this is so bad that we're going to terminate the contract," the H-2A laws allow a worker to transfer from one employer to another employer. So these workers could still stay in the country working for a different employer.
Justice Kagan (01:27:36):
I mean, I feel that at the base of your argument, Mr. Johnson, you're trying to get us to think that the H-2A program is not an immigration program, but it is an immigration program. It's all about when do we allow the admission of foreign workers, given the fact that we're concerned that foreign workers will undercut the economic status of domestic workers. That's the program. It's about the admission of foreign workers.
Mr Johnson (01:28:02):
So I don't disagree that immigration is part of what's going on here, but I think under that theory or under that sort of description that the claims at issue in Stern would've been bankruptcy claims. I don't think that it's a sort of subject matter test. I think that you need to look closely at what's the nature of the claim, what's the nature of the remedy, what's actually going on in this case. And what's going on in this case is not about the executive's exercise of the power over the immigration of the country.
Justice Kagan (01:28:33):
Thank you.
Chief Justice Roberts (01:28:33):
Justice Gorsuch.
Justice Gorsuch (01:28:35):
See if I got it. Government wants to expel or prevent admission of somebody, no problem?
Mr Johnson (01:28:46):
Correct.
Justice Gorsuch (01:28:47):
If they want to put in a penalty because you violated a term of entry or whatnot like an Oceanic is an alternative for that, that's fine too?
Mr Johnson (01:29:02):
So again, this is where it goes to whether I think you focus on the nature of the claim or the collection remedy.
Justice Gorsuch (01:29:07):
Yeah, I understand, but it could be okay?
Mr Johnson (01:29:09):
Yes.
Justice Gorsuch (01:29:10):
Okay. And the problem here is we're adjudicating a contract or something that looks an awful lot like a contract between an employer and an employee.
Mr Johnson (01:29:18):
Correct.
Justice Gorsuch (01:29:19):
And some of those employees are American citizens.
Mr Johnson (01:29:22):
Correct.
Justice Gorsuch (01:29:23):
And it doesn't wind up, whatever happens as a result of adjudication, nobody will be admitted or deported.
Mr Johnson (01:29:32):
Correct.
Justice Gorsuch (01:29:32):
Thank you.
Chief Justice Roberts (01:29:32):
Justice Kavanaugh?
Justice Kavanaugh (01:29:34):
In terms of the difference between you and the government on how this would operate, I just want to make sure I have this clear. You agree that even under the government's approach, you can get judicial review. Differences are who initiates, I suppose, the court proceedings and then whether the standard of review will be de novo or deferential once you get to court, correct?
Mr Johnson (01:29:57):
Yeah. So I think under this court's decision in FCC, there's no question that an agency can have proceedings to decide whether to initiate enforcement action in court. And I don't think we contest that. The problem here is that you don't then get a de novo proceeding.
Justice Kavanaugh (01:30:12):
Right. So you get judicial review, the question that standard of review is really what is going to be the key difference in practical operation depending on which side wins here, correct?
Mr Johnson (01:30:22):
Correct.
Justice Kavanaugh (01:30:24):
Okay. And then just want to make sure I have this straight. You said that we can rule for you and at the same time hold or suggest or indicate that penalties on employers under 1324 for employing people unlawfully in the country or not verifying their status could still be done by administrative adjudication without an Article III court, correct?
Mr Johnson (01:30:55):
Yeah. So again, in my view, that is not the correct way to decide the case, but I think it is an available way to decide the case.
Justice Kavanaugh (01:31:02):
And then the principle, if we did say that would be?
Mr Johnson (01:31:07):
Would be that you look at the nature of the claim and ask whether the nature of the claim is about immigration status to whether someone is lawfully in the country or not, or can lawfully be in the country. And so that was the nature of the claim in Oceanic. I think in a case about, you know, if the allegation is that the worker was unlawfully employed, fundamentally the allegation is this worker was not lawfully in the country.
Justice Kavanaugh (01:31:33):
Thank you.
Chief Justice Roberts (01:31:34):
Justice Barrett.
Justice Barrett (01:31:35):
Based on your answers just now to Justice Kavanaugh and earlier to Justice Gorsuch, now I'm starting to think there's really not that much difference between the Solicitor General or the government's position about germaneness and your argument 'cause what I kind of hear you saying along the way is you're distinguishing with Justice Kagan and you're talking to Justice Kavanaugh is, "Well, this just seems pretty far removed from the heartland of telling someone they either can't get in or they have to be removed from the country." So is there much of a difference in your position now between this germaneness line the government would draw?
Mr Johnson (01:32:10):
So to be clear, I think my position of what the best reading here is that I would focus both on the nature of the claim and the remedy because I do think when you're only looking at the claim, there is a certain risk that it gets a little bit indeterminate. So I think if you look at the nature of the remedy, the fact that Oceanic was [inaudible 01:32:32]-
Justice Barrett (01:32:31):
So wait, wait. Let me just clarify. Let's make sure I understand what you're saying. You're saying if you look at the remedy, like, your first line of position would be, listen, civil penalties, even in the context of immigration are just always out. They always have to go to Article III. If you lose that, however, your position seems awfully like the government's germaneness test.
Mr Johnson (01:32:49):
So I do think it's different. I think that my view would be the question is the claim about whether somebody is lawfully in the country or not, or is it otherwise about sort of the process of determining whether someone is lawfully in the country or not? I think that's different from germaneness, which I take to be kind of more of like a what is the degree of separation, which I don't think is an administrable standard 'cause I don't know. Is that a rational basis test? Is it some sort of more tight test? I don't know what germaneness really means.
Justice Barrett (01:33:26):
Thanks.
Chief Justice Roberts (01:33:27):
Justice Jackson?
Justice Jackson (01:33:28):
So are foreign workers who are brought into the country pursuant to a set of conditions that are subsequently violated lawfully in the country?
Mr Johnson (01:33:39):
So they would be, yes. So an H-2A-
Justice Jackson (01:33:42):
They would be?
Mr Johnson (01:33:43):
So an H-2A worker, if they come into the country under-
Justice Jackson (01:33:47):
Pursuant to a set of conditions that allows for their entry that are subsequently violated-
Mr Johnson (01:33:53):
So-
Justice Jackson (01:33:54):
... they are lawfully in the country?
Mr Johnson (01:33:55):
Well, so I guess, maybe I'm not understanding the question right. If your question is-
Justice Jackson (01:33:59):
No, I think you understand the question. I think it just really highlights why, "Lawfully in the country," can't be the right line for determining-
Mr Johnson (01:34:06):
So-
Justice Jackson (01:34:07):
... whether or not this is an immigration case.
Mr Johnson (01:34:09):
If an H-2A worker is working at a farm that has violated these terms and conditions, the H-2A worker is not in the country unlawfully. The H-2A worker could ... The government has a choice to debar someone from the program-
Justice Jackson (01:34:24):
I thought the government would expel them. If you agree that the government could expel them, it would be because the conditions are violated and therefore they are not in the country lawfully, right?
Mr Johnson (01:34:34):
So under the statute to expel someone for these types of violations, the government has to prove that they're substantial.
Justice Jackson (01:34:39):
Okay.
Mr Johnson (01:34:39):
And so if the government can't prove that the violations are substantial, the employment contract would not end.
Justice Jackson (01:34:45):
Let me ask you another question. I hear you setting up a test for identifying public rights that turns on the nature of the claim or the remedies. You've said it many times. That's like how we should tell courts to go about doing this. What I don't understand is where those particular criteria come from, because in the historical cases, those were not the metric. You just seem to be looking at the historical cases and picking out certain facts and telling us that today we should have a new test that relates to those facts.
(01:35:26)
But we have many, many cases in which public rights were applied and found by this court even though the government imposed monetary liability. So it was not tied to the remedy as to whether or not you would find a public right. We have many cases that resembled common-law claims and the court still found that there were public rights involved. So help me to understand whether you are asking us to just fashion a new test based on some facts that you see in the historical cases. Surely this is not what we were doing traditionally because those cases would've come out differently.
Mr Johnson (01:36:10):
So I think that most of the cases that you're referencing arise in distinct historical tradition buckets, you might say.
Justice Jackson (01:36:21):
Right, but they don't turn on the factors that you're now saying we should apply. I'm trying to help the courts that Justice Kavanaugh says are going to be confused. So I want to have a rule, like, what do you look for to determine whether or not this is a public rights case or a private rights case? And you have offered us one. You say, "Look at the nature of the claim and the type of remedy." And I say, huh, that rule's not going to work consistent with all the public rights cases that we have traditionally had because those cases wouldn't be public rights if your test is the right test. So I guess I'm just trying to understand what you're asking us to do and isn't it novel?
Mr Johnson (01:37:03):
So I don't think it's novel. I think if you actually look at those historical cases, they do turn on distinct considerations. So for instance, just to pick one, the government cites McElrath, which is a case about the dispute between the government and a government employee and whether the Court of Claims could adjudicate counterclaims. And the case is about the importance of the government's sovereign immunity, the particular considerations involving government employees-
Justice Jackson (01:37:30):
Right. But you're asking us to look at those considerations. I'm just trying to figure out where you're getting your test from, but I think I have the answer. Thank you.
Chief Justice Roberts (01:37:36):
Thank you, counsel. Rebuttal, Ms. Harris.
Ms. Harris (01:37:41):
Thank you, Mr. Chief Justice. Three points. One is a 40,000-foot point. It would be a big deal for the government to lose, but an even bigger deal would be to have a mess, to have no clarity as to what the scope of public rights looks like, no sense of what's left of Atlas Roofing, how it fits in on things, no sense of what part of history, what the historical test looks like to even define otherwise accepted categories of public rights. The government cannot live with like that. We have too many schemes involving civil penalties, involving things that historically have analogized to public rights to live under uncertainty because we have an accumulating number of cases that could be subject years from now to complete wipeout if we don't have additional certainty. So it is quite important to us, please give additional certainty on the high-level score along the lines Justice Jackson was just talking about.
(01:38:33)
Second, how should you rule in this case? I think there's a pretty clear contrast at this point. We have attempted to articulate a fairly clear rule. You look at the historical categories of public rights. There are two that everyone agrees are implicated here. One is immigration. Everyone agrees that includes admission and exclusion of aliens. I don't think there is any way to conceive of that right that would not also include the fact that once someone is admitted, they can also be removed or be ineligible to remain based on conditions that the government prescribes. That's a very clear, a very well-established body of cases. It's the zenith of Article I and II powers together. The second line is public privileges and benefits. I think the two working together makes this an easier case rather than a harder one.
(01:39:19)
When you are piggybacking on a quintessential public right, when you are using the government's power over immigration to allow someone not just into the country, but to remain on a visa only so long as they are doing the work at your farm during the growing season that you have promised to comply with various conditions, the court has accepted that you have to take the bitter with the sweet. Once you get that privilege, you've agreed to adjudicate violations of that and you are subject to the conditions and executive adjudication. That's Oceanic Steam, but a whole body of cases that Oceanic Steam is built from that established that. I think that's all you need to say to resolve the case. The other side of this is a true hodgepodge. I'm not quite sure what the lines would look like. I think respondent has now given up on no civil penalties at all in executive adjudications. That would be overturning all sorts of precedents where they've been allowed.
(01:40:09)
I'm not sure where respondent has landed on when civil penalties are fine, if they're fine in the immigration context, if so, when, if there's a test for looking exactly like Oceanic Steam, if there's certain criteria in Oceanic Steam beyond not looking like a steamship that would be material. I'm not sure why that would be. That's certainly not the way the court has ever interpreted Oceanic Steam ever since then, but that gets us to the situation of a mess. If the government every time it wants to adjudicate civil penalties or invoke things that are historically part of the public rights doctrine, has to look through cases and try to guess which factual distinction is going to become the basis for, "This is a bridge too far," we have no predictability for what we're supposed to do.
(01:40:51)
We need to be able to structure our operations on this stuff because it affects so many cases, so many resources, the power of the executive branch and our relationship with the courts and how courts' resources are impacted. So please, clear lines. That's what I'm asking for here. Finally, a word on remedies. I don't like the prospect of losing. I think that's very obvious. I hope we don't lose this case because of the consequences, but if you were looking to which poison is the least bad, I agree that the poison that's the least bad is at least saying that we can impose penalties initially in adjudications and then have de novo review in Article III courts. I will just tell you though, that could work in certain contexts, but it's not a real fix across the board. There are very hard questions for a lot of other statutory regimes that could also be on the cutting room floor for executive adjudication where we would have to go to Congress. And please tell us now if we need to get legislative affairs on it right now because this will snowball. Please reverse.
Chief Justice Roberts (01:41:53):
Thank you, counsel. The case is submitted.
