Model Exam Answer for Part I of Exam

Administrative & Regulatory State L01.1001.001.SP09

I thought that it would be useful for you to see a model answer for Part I of the exam
indicating the issues that the exam raised and the point allocation that these issues would
typically earn. (I have not yet written a model answer for Part II). I have put the point
allocations in the margins: Keep in mind that these are idealized allocations and that actual exam
answers might receive a smaller allocation -- that is, a half-point rather than a full point -- based
on degree of completeness, intelligibility, etc.
One of the purposes of the model answer is to give you a sense of the relative importance
of issue "spotting" versus application. As I noted during the review session, the largest share of
points come not from simply identifying the general issues but from delving into the facts to see
how the issues are likely to be affected by the peculiar context of the problem. As you can see,
this observation was true of this terms exam. Of course, no answer discussed all of the issues
raised in this model answer. But the exams collectively touched on most of them: There simply
were far more issues raised by the question than anyone (including myself) could address in the
allotted period of time.
Every year, I plant some issues that everyone misses, and this year was no exception. In
Part III(B), the exam raised the question of whether the President's Procurement Power ought to
be limited by limits in the Immigration Reform & Control Act. Despite my exam instructions
not to assume that the Immigration & Control Act should be construed the same way as the
National Labor Relations Act, virtually all of the answers proceeded to apply Reich and Allbaugh
as if these NLRA cases addressing the peculiar doctrine of Machinist preemption were binding
and correct precedents applicable to IRCA). In Part III(C), the question asked whether the
President could preempt state laws when the existing statutes and regulations did not, of their
own force, preempt such laws. I was hoping that answers would spot the Brand X issue: If the
statutes and regulations did not preempt state law simply because of some ambiguity-resolving
canon like Santa Fe Elevator v Rice, then it might be that executive agencies and the President
could resolve that ambiguity in a different way under Brand X. But these were extremely
complex issues, and I am not surprised that they were passed over when students had only three
hours to produce an answer.
I have not finished grading all of the exams. However, I am so far impressed by the high
quality of the answers, especially given your time constraints and the difficulty of the questions.
The problem was drawn from real life: With a few small exceptions, every word of the
committee reports, ALJ opinion, regulations, statutes, etc, come from actual documents. (There
is, alas, no congressperson named "Saul E. Darrity"). This sort of real-life problem tends to
require much denser and more unfamiliar material than the fictitious exam questions. Plunging
you into such a difficult problem is, of course, not fair, but neither is the practice of law. For the
most part, the answers handled the difficulty well and managed to outline the forest emerging
from all of the exotic and unfamiliar trees.
Congratulations, and enjoy your summer.
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Part I
Question #1: Gomez's lawyer, Ida Muir, comes to you for advice. Ida would like to know
whether Gomez has a decent argument that the ICE's arrest and deportation of Gomez is illegal
under the best interpretation of IRCA and/or the various administrative decisions implementing
IRCA. [27.5 points]
Introduction:
The question of whether Gomezs arrest and deportation are illegal under IRCA depends
on whether IRCA contains an exclusionary rule barring admission of any evidence acquired
during the raid on Pluckys that Gomez is unauthorized to work in the United States. IRCA, of
course, does not explicitly contain any such rule. However, such an exclusionary rule might be
implicitly part of the IRCA read in light of its purpose, the relevant canons of construction, and
the authorized agencies judgment. The ALJ within the EOIR in Reynalda-Montoya adopted
such a reading of IRCA, but DHS just as clearly rejected this interpretation with its 06
regulation creating the IMAGE program. Should the court follow DHSs 06 reading of IRCA?
In order to answer the question, we must know (a) whether the IRCA, construed
according to the appropriate level of judicial deference (Chevron, Skidmore, or Auer) requires the
exclusionary rule that DHS rejected in 06 and (b) whether DHS acted arbitrarily and
capriciously in repealing the MOU between DOJ and DOL that would otherwise have barred
Gomezs arrest and deportation. Answering either of these questions in the affirmative will
allow Gomez to avoid deportation. This memo will address each of these questions below.
I.

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

Whether DHS ought to receive Chevron deference for its 06 regulation rejecting an
exclusionary rule that would bar Gomezs arrest and deportation turns on two further questions.
First, is the DHS entrusted with the duty of construing ambiguities in the IRCA? No agency gets
Chevron deference on their resolution of a question, regardless of how ambiguous a statute is on
that question, unless they are the agency specified by Congress to implement the specific statute.
(Gonzales). Second, did DHS construe IRCA according to the statutorily appropriate procedure
in exercising this interpretative authority? There is little doubt that the second question should
be answered affirmatively given that DHS has interpreted the IRCA through a 06 regulation
promulgated through notice-and-comment rule-making (Mead) that created binding legal duties
and rights for employers (Christenson). Therefore, the only important question concerning
Chevron deference is whether DHS is statutorily entrusted with the duty of construing
ambiguities in the IRCA.
IRCA originally and unambiguously specified that it was to be administered (like all
immigration laws) by the Department of Justice (DOJ), which acted through its two subdivisions
called the Immigration & Naturalization Service (INS) and the Executive Office of Immigration
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Review (EOIR). The INS exercised DOJs administrative function of carrying out the statute,
while the EOIR exercised DOJs adjudicative and interpretative function by adjudicating cases
brought by the INS before the EOIRs ALJs and issuing binding precedents through the EOIRs
Bureau of Immigration Appeals (BIA). Both subparts of the DOJ were subject to the final
review of the Attorney General (AG). Following Martin v OHSRC, one might regard the BIA as
a merely adjudicative body not entitled to issue legal interpretations that bind the rest of the DOJ.
But the AGs regulation clearly specifies that, unlike the OHSRC in Martin, the BIA has
precisely such an interpretative as well as adjudicative function. Therefore, the Martin
presumption that the interpretative function rests with the executive entity in this case, the INS
is overcome. (Of course, the AG, as ultimate agency legislator retains final say over all
matters of interpretation above both the BIA and INS).
Thus, prior to 2002, the BIA was statutorily entrusted with the interpretation of the IRCA.
With the Homeland Security Act of 2002, Congress transferred the functions of the INS to the
DHS, but Congress expressly retained the BIA within the DOJ and specified that determination
and ruling by the Attorney General with respect to all questions of law shall be controlling. 8
USC 1103(a). Since the AG had already delegated its interpretative power to the BIA, the HSA
unambiguously delegates the function of construing the IRCA to the BIA, the DOJs designated
agent, both prior to and after 2002. The BIAs interpretation of the statute, not the DHSs
interpretation, is, therefore, entitled to Chevron deference.
II.

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

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

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

DHS might also argue that its arrest and deportation of Gomez without regard to any
exclusionary rule is a reasonable interpretation of its own administrative regulations entitled to
deference under Auer v. Robbins. These administrative actions are, of course, reasonable
interpretations of the DHSs own IMAGE program. However, the legality of that programs
repeal of the exclusionary rule that had previously governed DHSs actions is precisely what is in
doubt: Even if one assumes that the arrest and deportation are correct interpretations of the
regulation, this assumption will not save these actions if that regulation is itself illegal.
DHS might also argue that its refusal to adhere to an exclusionary rule is a good-faith
interpretation of the DOJs regulations defining employers duty to verify documents and hire
employees in good faith, without continuing to employ persons of whom the employer has
constructive notice that they are unauthorized to work in the United States. (8 CFR 174a.2(b)
(1)). The difficulty with any such claim to Auer deference is that, first, DHS was not the author
of that regulation on constructive notice and, therefore, cannot claim deference based on firsthand knowledge of authorial intent and, second, the elimination of the exclusionary rule has
nothing whatsoever to do with the duties of employers . Even under Auer, therefore, such an
interpretation would probably be regarded as arbitrary and capricious.
In short, the DHSs interpretation of the IRCA in its 06 regulation is not likely entitled to
any sort of deference. The Court, therefore, will have to determine the statutes meaning de novo
without any deference to DHSs views.
IV.

Does the best judicial interpretation of IRCA exclude DHSs arrest and deportation
of Gomez pursuant to its 06 regulation?

The question of whether the IRCA ought to be construed to contain an implicit

exclusionary rule barring use of evidence acquired during retaliatory raids is a close one. There
are at least two arguments in favor of such a rule and two arguments against it. One of the latter,
however, relies on the IRCAs legislative history, which could be regarded as both ambiguous
and also inapplicable given the lack of ambiguity in the other sources of statutory interpretation.
A. The canon against implied repeal of OSHA suggests the exclusionary rule.
Under the DHSs 06 regulation, employers can enroll in the IMAGE program at any
time and submit information about their employees long after those employees are hired. As
illustrated by Pluckys and other employers behavior, this lax attitude towards employer
cooperation gives employers an incentive to retaliate against employees who bring safety
violations to the attention of the OSHA in direct violation of the OSH Acts anti-retaliation
provisions.
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The canon against implied repeal suggests that the IRCA should be read to exclude such
enforcement actions. To be sure, the relevance of this canon is not obvious, because it is
certainly possible for the DOL to enforce the OSH Acts anti-retaliation measures against
retaliating employers while the DHS uses the evidence provided by those employers to arrest and
deport people picked up in raids that such scofflaw employers inspire. However, this
enforcement of the IRCA obviously encourages employers to violate the OSH Act, as the DOL
and the AG observed when they drafted the MOU. Enforcing the IRCA without regard to its
effect on the earlier federal statute would seem to ignore the idea that different statutes ought to
be read together to form a coherent whole: Absent some clear indication that Congress intended
to weaken compliance with OSHA, the IRCA should be read narrowly to avoid such an effect.
This interpretation is re-enforced by the small effect that such an exclusionary rule would
have on legitimate employer cooperation with the DHS: Any employer could still cooperate with
the DHS simply by turning over all I-9 forms for E-Verify service immediately upon hiring an
employee. DHS could enroll cooperative employers in IMAGE when they turned over I-9 forms
of these newly hired employees immediately without triggering any dangers of retaliation against
workers who report OSHA infractions, as newly hired employees are unlikely to be involved in
OSHA complaints or investigations. Given that the limited effect of the exclusionary rule on the
IMAGE program and the large effect that the lack of such a rule would have on the OSH Act, it
would seem that the best reading that would preserve the broadest scope for both laws is to limit
IRCA with an exclusionary rule.
B.

The canon of implied congressional acquiescence suggests that IRCA is

limited by an exclusionary rule

In addition, the doctrine of implied acquiescence suggests that Congress implicitly

ratified the exclusionary rule announced by Reynalda-Montoya. That rule was rooted in an MOU
entered into in 1998 in a highly visible decision by both DOL and DOJ. This decision, published
in the Federal Register, was then construed by an ALJ within the EOIR as creating (in
combination with federal labor and workplace safety laws) an implied limit to IRCA. By
comprehensively overhauling the entire immigration enforcement scheme in the shadow of these
opinions yet leaving these two decisions intact, one could argue that Congress implicitly ratified
them. Flood v Kuhn.
Moreover, even if one assumed that Congress intent was ambiguous, the legislative
history seems to resolve this ambiguity in favor of implied acquiescence, because both of these
decisions were brought to Congress attention by Saul E. Darrity, yet Congress did nothing to
disturb these policies. Congress was given an opportunity to reject the ALJs decision when
Congress rejected Tarians amendment stripping the EOIR of authority to interpret the IRCA.
Congress actually adopted by a majority vote the Reynalda-Montoya doctrine in the form of
Darritys perfecting amendment to Tarians effort to transfer the EOIRs functions. Although the
combined package of amendments was rejected, the rejection suggests that Congress wanted the
Reynalda-Montoya decision to have whatever force small or large that it would have enjoyed
under the AGs regulations before the Homeland Security Act was enacted.
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One must concede that the evidence of implied acquiescence in this case is considerably
less impressive than the evidence in Brown & Williamson. In Brown & Williamson, the Congress
enacted statutes addressing the regulation of tobacco in the shadow of repeated declarations by
the highest officials in the FDA that the FDA lacked authority to regulate tobacco. Congress
was, therefore, visibly and unequivocally put on notice that, if it wanted the FDA to regulate
tobacco, then it would have to overrule these agency interpretations. By contrast, the ALJ who
decided the Reynalda-Montoya case lacked any authority to bind the agency; Therefore,
Congress may have refrained from overruling that decision simply because Congress did not
regard it as being worth the trouble, given that the decision had no precedential value under the
AGs own regulations. More generally, it would be a distortion of congressional purpose to
allow every decision by the dozens of lower-tier bureaucrats to be ratified as part of a statute
whenever Congress overhauled that statute without overruling those decisions: One simply
cannot expect Congress to devote scarce time to reviewing hundreds of small decisions by petty
bureaucrats whenever they amend a statute. Nevertheless, given its visibility to Congress, the
ALJ decision in Reynalda-Montoya might be an exception to the general reluctance of courts to
infer that agency actions are implicitly ratified by congressional failure to overrule them.
The MOU does not suffer from being the action of a lower-tier decision maker lacking
power to bind the agency as a whole. But the MOU might be a poor basis for an inference of
congressional acquiescence for a different reason: One might characterize the MOU as simply a
statement of enforcement policy, not as an official interpretation of the statute. While decrying
inappropriate raids, the MOU did not specify that its limit on raids was an effort to prevent
violations of IRCA rather than simply insure good relations between two federal agencies. The
question is a close one, however, because the DOL and AG did specify that allowing employers
to use the IRCA to violate labor laws actually undermines IRCAs purpose a statement that
comes close to being an interpretation of the statutes meaning and not merely a statement of
convenient enforcement policy. The question is a close one, however, because the DOL and AG
did specify that allowing employers to use the IRCA to violate labor laws actually undermines
IRCAs purpose a statement that comes close to being an interpretation of the statutes
meaning and not merely a statement of convenient enforcement policy.
In sum, there is a respectable though hardly overwhelming case that Congress implicitly
ratified the pre-2002 enforcement policies as part of the IRCA when they enacted the HSA. If
so, then the DHSs 06 regulation would actually be a violation of the implied terms of the
IRCA.
D. Two arguments against the exclusionary rule:
The two arguments offered in favor of the exclusionary rule above, however, must be
balanced against a couple of opposite arguments one based on text and one, legislative history.
In the end, the interpretation of the statute seems deeply ambiguous.
1. Does the expressio unius canon bar the implied exclusionary rule?
Against the arguments set forth above for an exclusionary rule, one might make an
argument based on expressio unius that IRCA should not be construed to contain an implied
6

exclusion of evidence acquired during retaliatory raids. IRCA actually contains an antiretaliation provision of its own barring retaliation for employees enforcement of IRCAs ban on
citizenship-based discrimination. One could argue that this specific statutory exception to
IRCAs scope bars all other implied exceptions especially implied exceptions as closely related
to the enumerated terms as a different anti-retaliation rule barring retaliation for reporting
workplace safety violations. The larger statutory and administrative context of the IRCA, in
short, might be contradicted by the specific terms of the text in 8 USC section 1324b. This
conflict among sources of statutory interpretation, in turn, suggests that the Court could
legitimately rely on legislative history to break the tie in textual sources. Whatever the
textualists objection to use of legislative history, those objections might be muted when the
textual or contextual sources are as conflicting as they are in this case.
2. Does legislative history re-enforce the case against an implied exclusionary rule?
There is some legislative history casting doubt on the argument for an implied
exclusionary rule. Saul E. Darrity attempted to amend the bill that became IRCA with a partial
amendment containing an anti-retaliation provision strikingly similar to the ban on retaliatory
raids contained in Reynalda-Montoya. This amendment was rejected, however, after the bills
sponsor, Representative Tarian, denounced the measure as excessively burdensome to business.
One might construe this rejection as an implied rejection of the idea that workers rights could
trump enforcement of immigration laws a conclusion suggested by Tarians statement that if
you dont have the right to work in the United States, then you dont have the right to the
protections of labor laws intended for legitimate workers.
This use of legislative history, however, might be controversial for two reasons. First,
strong textualists might reject such a source of statutory authority out of hand absent irresolvable
statutory ambiguity: Mere conflict among canons (implied repeal/implied acquiescence versus
expressio unius) might simply be the occasion to resolve the conflict textually, by weighing the
rival sources as Scalia did in MCI with rival dictionaries. One could reasonably argue that Tarian
has no right to speak for the median member of Congress, being herself on the pro-business wing
of the House. Her statements do not necessarily represent the reasons for others such as
Grayshuns votes against the Darrity amendment. It might be that other members actually
thought that OSH Act already formed a sufficient implied rule against retaliation that the ICRA
did not disturb. Moreover, the defeat of Darritys amendment might have simply been the result
of the procedural rule chosen by Grayshun a substitute amendment rather than a perfecting
amendment. The House never got a chance to vote on whether to amend the IRCA with both
Grayshuns ban on alienage-based discrimination and Darritys ban on retaliation against
whistleblowers.
Second, the legislative history is actually deeply ambiguous on the question of an
exclusionary rule. Tarian rejected the Darrity amendment because it was burdensome on
business. But an exclusionary rule imposes no direct burdens on business: It imposes burdens on
the DHS, by preventing them from deporting undocumented workers after raids. The policy
concerns invoked by Tarian, therefore, are beside the point.
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In sum, the legislative history provides very little reason to reject the exclusionary rule
urged by Gomez. Of course, the textual and contextual arguments are in conflict with each other,
making the case difficult to resolve as a matter of statutory interpretation. Therefore, we turn to
another method of resolving the impasse administrative procedure.
IV.

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

Even if DHS has the power to construe the IRCA not to contain any exclusionary rule,
DHSs repeal of that rule surely constitutes a change of policy that was previously followed by
the INS/DOJ and DHS. DHS bears the burden of justifying this departure from the status quo,
State Farm, and such a justification requires that they consider statutorily relevant factors and
avoid clear error of logic or fact.
Did DHS sufficiently justify this departure from the pre-06 regime? DHS offered
several reasons for the switch, including the desire to induce greater cooperation from
employers, the need for employers continually to update the DHS with new information about
their workforce, and undocumented workers lack of rights under federal safety statutes. DHS,
however, said nothing about whether their repeal of the MOU would actually undermine the
IRCAs underlying purposes by encouraging employers to hire undocumented workers. This
consideration would seem to be relevant, as it formed the basis for the MOU and also formed
part of the original understanding of the statute. Even if that original understanding did not
clearly foreclose a different view of IRCA, one might argue that DHS has an obligation under
section 706(2)(A) of the APA to explain why it took a different view of IRCAs purposes than the
AG and DOL.
In particular, DHSs lax attitude towards employer retaliation would seem to make sense
as a way to insure compliance with IRCA only if employers fear of being fined for failing to
inspect their employees I-9s with sufficient care outweighs their desire to encourage a dependent
undocumented workforce that would likely be quiescent and intimidated. DHS said nothing
whatsoever about this balance of considerations, apparently regarding maximum enrollment in
the IMAGE program as inherently beneficial. This failure to consider a relevant factor would
seem to be grounds for reversing the06 regulations repeal of the MOU and remanding for
further factfindings.
In sum, the best argument against Gomezs deportation might be that it is based on a
regulatory repeal of an exclusionary rule that was illegal under 706(A)(2) of the APA. It is a
close question whether the IRCA allows the DHS to repeal the exclusionary rule, because (a)
there is no authoritative agency decision to which the courts can defer (as the AG/BIA has not
ruled on the question and the DHS is not the agency entrusted with the statutes implementation)
and (b) there are non-trivial arguments on either side that make a purely judicial decision
difficult to predict. However, even if DHS has the power to repeal the exclusionary rule under
the IRCA, it has not done so with care sufficient to pass muster under the APA, and, therefore,
the 06 repeal should be vacated. While the agency could re-enact the repealing regulation by
considering the relevant factors, one could reasonably argue that the DHS may not enforce this
new regulation retroactively against Gomez. Instead, Gomez will be governed by the old MOU,
8

and the ALJ hearing his case may infer an exclusionary rule from this pre-existing policy just as
did the earlier ALJ. (That earlier decision in Reynalda-Montoya would not, of course, bind the
current ALJ, as the former was not endorsed by the BIA).
Question #2: Write a memo providing the strongest argument that (a) both laws [the North
Carolina Whistleblowers Act (NCWA) and the OSHA Acts anti-retaliation provision in 29
U.S.C. section 656(c)] can be enforced against Pluckys, (b) the North Carolina law can be
enforced against Pluckys even if the OSHA anti-retaliation provision cannot be so enforced, and
(c) neither law can be enforced against Pluckys (this last being Idas worst-case scenario). [24.5
points]
Introduction:
In order to establish liability under either section 656(c) (the OSH Acts anti-retaliation
provision) or the NCWA, one must ordinarily bear the burden of proving to a jury that Pluckys
enrolled in the IMAGE program to insure that Gomez would be deported. However, DOLs 06
interpretative rule states that this burden can be met for the purposes of section 656(c) simply by
showing that Pluckys voluntarily reported Gomez and his co-workers to the immigration
authorities during an ongoing labor dispute.
Therefore, the strongest argument for liability
under section 656(c) would be that DOLs 06 interpretative rule defined the proper proof under
section 656(c). In addition, Pluckys may argue that IRCA constitutes an implicit limit on
enforcement of section 656(c) on the ground that, especially as construed by the DOLs 06
interpretative rule, section 656(c) undermines the DHSs capacity to enforce IRCA by
discouraging employers from enrolling in the IMAGE program. Therefore, the question raises
two issues so far as section 656(c) is concerned: (1) Is the DOLs 06 interpretative rule a
permissible construction of section 656(c) of the OSH Act and (2) is such enforcement of section
656(c) implicitly barred by IRCA? The Court must answer the first question positively and the
second negatively for DOL to prevail under the easy burden of proof provided by DOLs rule.
In order to establish liability under the NCWA, Gomez would have to prove that Pluckys
enrolled in the IMAGE program for the purpose of retaliating against Gomez because Gomez
sought advice and legal assistance from the DOL. Assuming that Gomez could establish the
necessary motive and causation to the satisfaction of a jury, Pluckys might have two plausible
defenses to this state cause of action: Pluckys might argue that (1) the NCWA is preempted by
the OSH Act or (2) the NCWA is preempted by IRCA. The Court must, of course, answer both
of these questions negatively for Gomez to prevail.
The memo will discuss these four questions below to determine whether either, neither, or
both the NCWA and/or the OSH Acts anti-retaliation provision could be enforced against
Pluckys.
I. Can DOL follow its 06 interpretive rule in enforcing section 656(c) of the OSH Act
against Pluckys?

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

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

There is little doubt that the DOL is the statutorily authorized decision-maker to construe
the OSH Act, as section 655(b) specifically gives the DOL responsibility for promulgating health
and safety standards under the Act. However, there is a question about whether the DOL has
acted according to the specified statutory procedures: the statute specifies that, in promulgating
the health and safety standards, the agency ought to act through notice-and-comment rulemaking under section 553 of the APA. The statute is silent about whether and how the agency
ought to issue interpretive rules. Under Mead, therefore, the DOLs 06 rule might not be
entitled to Chevron deference on the ground that the agency did not act in the statutorily
specified way.
Mead does not bar interpretive rules from ever receiving Chevron deference: the
plurality opinion in Barnhart suggested that thoroughly reasoned and publicly announced
statements could receive Chevron deference even if they were not binding rules of law. This 06
rule was published in the Federal Register and bears the imprimatur of the DOLs highest
decision-maker. On the other hand, no part of the public ever got a chance to weigh in on the
rule through briefs (in an adjudication) or comments (in a rule-making). Giving this rule
Chevron deference might cut private parties like Pluckys out of the loop.
Could the rule receive Skidmore deference? The issue covered by the rule is proof of
what would seem to be a difficult-to-prove fact namely, the employers motive for turning
information over to the DHS. Rather than try to prove this in case-by-case adjudication, the 06
rule allows this to be established by a rebuttable presumption. Proof of a fact so central to the
anti-retaliation provision seems like an issue closely within DOLs expertise.
Moreover, the rule does not necessarily reverse any prior policy: It is possible that DOL
and the courts always regarded the suspicious timing of employer assistance to the immigration
authorities as powerful circumstantial evidence of retaliation. If so, then this rule could simply
be the express crystallization of the DOLs experience with thousands of enforcement actions
precisely the sort of policy to which courts normally afford Skidmore deference.
In sum, there is a weak case for Chevron deference but a weightier case for Skidmore
deference but much depends on facts not given by the question, such as whether the 06 rule
was a summation, rather than reversal, of the DOLs past experience.
B. Does IRCA implicitly limit enforcement of section 656(c) according to the DOLs
06 rule?
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Does the IRCA repeal or limit enforcement of section 656(c) according to the DOLs
rule? Given that the DOL is entitled to Skidmore deference, probably not.
As noted above in the answer to question #1, it is ambiguous whether IRCA ought to be
qualified by OSH Act or not. Both statutes could be enforced according to their plain terms
without nullifying the other, but the OSH Acts anti-retaliation provision will certainly
discourage some employer cooperation with DHS, and employer participation in the IMAGE
program will certainly encourage some employer non-compliance with the OSH Act. The better
argument, as noted in question #1, is that the OSH Act should qualify the IRCA and not vice
versa. But DOLs entitlement to Skidmore deference provides another reason to weigh the
balance in favor of a broad reading of the OSH Act: Unlike the DHSs sudden reversal of past
policy, the DOLs 06 rule might be precisely the sort of crystallization of past experience to
which courts defer.
II. Is the NCWA preempted by the OSH Act?
The OSH Act has a clause addressing the issue of preemption, providing that [n]othing
in this chapter shall prevent any State agency or court from asserting jurisdiction under State law
over any occupational safety or health issue with respect to which no standard is in effect under
section 655 of this title. 29 U.S.C. 666(a) using expressio unius reasoning, this nonpreemption clause might imply that any state courts exercise of jurisdiction over any
occupational safety or health issue is preempted to the extent that there is a federal standard in
effect under section 655 of this title. One might treat this analysis as an instance of express
preemption because it is based on text dealing with preemption, but it is worth observing that the
text in question is actually a non-preemption clause that specifies when state laws are not
preempted. The inference of preemption is entirely implied from the expressio unius canon.
Hence, one might regard the analysis as a species of implied preemption, were one to get hung
up on distinctions that probably have few practical consequences after Altria Group v Good.
Regardless of how one classifies the preemption theory, the OSH Acts (non)-preemption
clause preempts NCWA only if NCWA is over any occupational safety or health issue with
respect to which some standard is in effect under section 655 of this title. The NCWA is
certainly a State law over the issue of retaliation, and there certainly is a OSH Act standard in
effect for retaliation, but the OSH Acts anti-retaliation measure in section 656(c) does not
qualify as a federal standard that preempts any state law, because section 656(c) is obviously not
enacted pursuant to section 655. Gomez, however, is alleging under NCWA that Pluckys
retaliated against Gomez because of his effort to enforce section 655 standards (concerning the
safety and health of poultry plants). Does this relationship between Gomezs NCWA claim and
section 655 standards indicate that the NCWA claim is a State law over any occupational safety
or health issue with respect to a section 655 standard?
A. Arguments against preemption under the OSH Act
It would seem to be reasonable to read the OSH Acts ban on state laws governing some
health or safety issue with respect to which there is a federal 655 standard to mean that states
cannot add new and more stringent health and safety standards for issues already governed by
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federal standards. This reading would not preclude state law from adding additional remedies
(damages, for instance) for enforcement of federal standards. Such a reading insures that
manufacturers operating in several different states can use a single type of equipment without
worrying about complying with fifty different safety standards. But such a reading does not
preclude states from beefing up federal remedies for violations of federal standards, because such
extra remedies does not disrupt the uniformity necessary for efficient production.
Of course, to the extent that the OSH Acts anti-retaliation provision is implicitly repealed
or qualified by IRCA, then the case for rejecting preemption under the OSH Act might be even
stronger. In such a case, there would be no federal remedy whatsoever provided by the OSH Act,
and it would be odd to hold that a preemption clause that rejects states supplementing federal
law would apply where the federal statute did not even operate.
B. Weaknesses in arguments favoring preemption under the OSH Act
On the very broadest reading of the (non-)preemption clause, one could arguably find
preemption, but, under Altria Group v Good, this reading would probably be inappropriate.
To be sure, this additional remedy for non-compliance with section 655 standards in
some sense relates to those standards: Employers, for instance, might be less willing to depart
from section 655 standards knowing that workers have effective protection from retaliation under
state law if those workers report violations. On the broad view of preemption suggested by cases
like Morales or Egelhof, this effect on employer compliance might suffice for preemption, if one
assumed that the federal statute had calibrated the level of enforcement perfectly such that any
extra sanctions would disrupt some federal effort to secure just the right amount of compliance.
But Altria makes clear that those broad preemption precedents rest in part on the specific
statutory language about state laws relating to federal interests, and that language is missing
from the OSH Act.
One might also argue that, because section 666 of the OSH Act provides for state
participation in health and safety standards by allowing the states to submit implementation plans
to DOL, the statute implicitly preempts any other effort by states to participate in the federal
scheme. But section 666 would serve a plausible purpose if unilateral state efforts to supplement
federal health and safety standards, unreviewed and unapproved by federal officials, were
preempted. The NCWA claim provides a remedy damages to help employees insure
compliance with section 655 standards. NCWA is not adding to these federal standards in any
way. To the extent, therefore, that the function of section 666 is to insure that employers
operating throughout the nation can set up their poultry processing plants without worrying about
50 varying health and safety standards that have not been pre-screened by federal authorities,
that purpose is satisfied by a narrow reading of preemption.
Indeed, it seems fanciful that federal policy would want to encourage an optimal
amount of retaliation by employers and preempt state laws that deter such retaliation too much.
Setting a ceiling on the level of safety precautions makes sense: No one expects an infinite level
of safety. But setting a ceiling on compensation remedies for deliberately illegal behavior would
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seem to be a stretch especially if these sanctions were ordinary compensation remedies for
which federal law made no provision or mention rather than a parallel system of state fines.
In the end, the presumption against preemption of Santa Fe Elevator v Rice would
suggest that any ambiguities be resolved against finding preemption of NCWA under the OSH
Act. There simply is no textual evidence (such as a super-broad preposition like relates to,
etc) that Congress intended to displace state laws that would not disrupt the substantive
uniformity of the federal scheme.
III. Is NCWA preempted by IRCA?
IRCA contains no preemption clause, but the statute could still implicitly preempt state
laws that frustrated federal purposes, made it impossible to comply with federal law, or entered
into a comprehensively regulated and peculiarly federal field.
It is not impossible for Pluckys to simultaneously enroll in DHSs IMAGE program
while avoiding any retaliation against complaining workers. Pluckys simply has to enroll
employees information without the purpose of deterring workers from filing complaints. It
might be difficult for Pluckys to prove such an innocent purpose, but nothing in the IRCA
entitles Pluckys to retaliate for workers efforts to enforce the law.
But it is possible that NCWA might frustrate the purposes of IRCA by deterring
employers from cooperating with DHS. Certainly the prospect that employers cooperation with
federal authorities would somehow be the basis for liability under state law sits uneasily with the
idea that federal law is supreme. Especially if the DHS has by regulation expressly sanctioned a
form of employer participation in, say, the IMAGE program, then it would be likely that any
state law making this participation a basis for liability would be preempted. In such a case, the
very purpose of the state law would be to target behavior that federal regulations was seeking to
encourage a frustration of federal purposes that Altria and Riegel acknowledge to be
preempted.
As argued above in response to question #1, however, the DHSs regulation creating the
IMAGE program might have been promulgated arbitrarily and capriciously in violation of the
APA. In such a case, the MOU between DOL and DOJ would still be in force. The purpose of
this MOU was to prevent employers from cooperating with federal authorities in ways that
violated workers rights to enforce health and safety laws. Understood in light of the MOU,
IRCA does not seem to have any purpose that would be frustrated by the NCWA. Therefore, the
invalidation of DHSs repeal of the MOU discussed in question #1 would also suggest that the
NCWA is not preempted.
In sum, given that the DOL will receive some degree of deference from the courts for its
06 interpretative rule, that rule can be used to facilitate proof that Pluckys illegally retaliated
against Gomez under section 656(c) of the OSH Act. It is also unlikely that the IRCA would bar
this action to enforce the anti-retaliation provision of the OSH Act against Pluckys. The NCWA
would likely not be preempted under the (non-)preemption clause of the OSH Act or under some
implicit frustration of purpose theory of preemption implicit in the IRCA. However, the
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possibility of implied preemption increases if DHS is permitted to repeal the MOU and substitute
a policy of encouraging unlimited employer cooperation to report undocumented workers.
Question #3(A): Could the President issue an executive order repealing either or both the
DHSs IMAGE program or DOLs 2006 interpretative rule? [13 points]
The President cannot issue any executive order unless he is authorized to do so by one of
the powers delegated to him by Article II either the general power to execute the laws or one of
the specific powers listed in Article II, sections 2-3 such as the power to require written opinions
from heads of departments. In general, the President has no general power to regulate private
persons or property absent some statutory authority. Youngstown. Neither the OSH Act nor the
HSA expressly delegate any regulatory responsibilities to the President that would authorize him
to repeal these agency rules. However, Article II, section 3 provides that the President shall
take care that the Laws be faithfully Executed, implying that the President has general
supervisory power to make sure that agency decisions are not inconsistent with the statutes that
they purport to implement. This general power to supervise the federal government has been
construed to permit the President, in the face of congressional silence, to safeguard the
personnel, In re Neagle, and property, Midwest Oil, of the federal government. It is not obvious
why such a power would not also include the power to veto agency regulations that, in the
Presidents judgment, exceed those agencies statutory powers.
If federal statutes, however, expressly or implicitly bar presidential supervision of
agencies, then the President can no longer rely on his twilight powers: He can supervise the
agencies only if Article II guarantees such a power to him such as the power to dismiss noninferior officers. Because both the IRCA and the OSH Act specifically provide that they are to
implemented by the DHS and the DOL respectively, one might infer through expressio unius
reasoning that Congress has implicitly required that these statutes by implemented only by these
specified agencies. On this view, the President could order the agencies to issue regulations to
clarify the statutes, but the President could not himself issue or repeal those regulations.
For two reasons, the OSH Act ought to be construed to permit the President to overrule
the DOLs interpretive rule despite the expressio unius argument offered above.
First, the
Secretary of Labor serves at the pleasure of the President both under the relevant federal statute
and arguably as a matter of constitutional requirement. Myers. If the President has the power
to dismiss this official for not carrying out his commands, then it would be odd to argue that he
could not take the lesser step of overruling their decisions that contradict those commands.
Second, the DOLs interpretive rule does not have the binding force of law: It is merely an
advisory rule designed to inform the public about how the agency intends to carry out the statute.
Lacking the force of law, the DOL could and did promulgate the rule without engaging in
notice-and-comment rule-making. Unlike health and safety standards over which the Secretary
of Labor has been specifically delegated authority under 29 U.S.C. section 655(b)(1), nothing in
the OSH Act specifies that the DOL has any special authority to issue such advisory notices. The
President, therefore, does usurp any statutorily delegated power from the Secretary by reviewing
and repealing the advisory rules that the Secretary issues.
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Moreover, the President traditionally has enjoyed the prerogative of allocating the
prosecutorial resources of the United States: If the President believes that the DOLs
interpretative rule over-enforces the OSH Acts anti-retaliation provision by creating an
inappropriate presumption that employers are guilty of retaliation, then he would normally be
entitled to instruct the Department of Justice not to bring cases to enforce this expansive view of
the statute. Repealing the DOLs interpretative rule is a more direct way of accomplishing the
same objective.
The Presidents power to overrule the DHSs IMAGE program, by contrast, raises a
closer question. Like the Secretary of Labor, the Secretary of Homeland Security serves at the
pleasure of the President by both statute and (arguably) constitutional command. However, the
IMAGE program was created by notice-and-comment rule-making under section 553, pursuant
to the Secretarys specifically delegated power over the administration and enforcement of this
chapter and all other laws relating to the immigration and naturalization of aliens. 8 U.S.C.
section 1103(a)(1). There is no doubt that the IMAGE program creates a binding rule with the
force of law precisely because I was the product of these congressionally specified procedures.
Mead. To allow the President to eliminate this section of the Code of Federal Regulations with
the stroke of a pen would seem to side-step the APA safeguards that limit the power of agencies
to repeal their own regulations. Given that companies like Pluckys rely on the IMAGE program
to provide them with a safe harbor from prosecution under IRCA, the Presidents elimination of
that program without providing any opportunity for comment by affected private parties might
seem to evade procedural protections that Congress specified in the APA.
This is not to say that the case against the Presidents repeal of the IMAGE program is
irrefutable. The HSA limits the Secretarys power any administration and enforcement insofar
as this chapter or such laws relate to the powers, functions, and duties conferred upon the
President. The Presidents Article II default power to insure that faithful execution of the
immigration laws could arguably be one of those laws that relate to the powers, functions, and
duties conferred upon the President. On this view, the President could repeal the IMAGE
program if his basis for doing so was his belief that the DHSs regulation was inconsistent with
the best reading of the IRCA (perhaps, as noted above, because it interfered unduly with the OSH
Acts enforcement). Such a reading of the HSA would be re-enforced by the rationale for a
unitary President: When separate agencies implementing two distinct statutory schemes issue
rules that contradict each other, then a single decision-maker is needed to insure that the federal
government as a whole pursues coherent and consistent policy. Absent a clear statement from
Congress that the President is barred from playing this referee role, the grant of power to the
Secretary of Homeland security is best read to preserve this Presidential function.
In sum, the President likely has the power to reverse the DOLs interpretative rule; the
case is more doubtful whether the President can reverse the DHSs binding rule defining the
IMAGE program; but the President may retain the power to repeal (or, at least, refuse to enforce)
DHS rules that he believes to violate the IRCA.
Question #3(B): Assume that DHS IMAGE program could not, consistent with IRCA and its
implementing regulations as currently written, be unconditionally imposed on businesses without
15

their voluntary consent. Could the President nevertheless require enrollment of businesses in
DHS IMAGE program as a condition for obtaining federal contracts?
The answer depends on the reasons for the prohibition on imposing the IMAGE program
on businesses. If IRCA itself was intended to create a sphere of private liberty in which
businesses has some sort of statutory right to withhold I-9 forms and other information about
their employees to the federal government, then the Presidents efforts to pressure businesses to
enroll in the IMAGE program by barring them from receiving federal contracts unless they
enrolled might violate the terms of the statute itself. Presidents have a duty to execute the laws
and cannot even indirectly violate private rights created by those laws. Kendall v. Amos. For
instance, the D.C. Circuit has held that the President cannot bar companies from receiving
federal contracts because they have fired striking workers, reasoning that this requirement would
violate the companies private rights under sections 7 and 8 of the National Labor Relations Act
(NLRA) which, by long-held precedents, give employers entitlements to certain sorts of
weapons of economic self-help. Chamber of Commerce v. Reich. Likewise, if the IRCA gives
employers some sort of federally protected right to withhold employee information from the
feds, then the President might not be able indirectly to demand such information using the
economic pressure of withholding federal contracts.
This argument, however, has two fatal weaknesses. First, it assumes that IRCA should be
read to provide very strong protection for employers private rights to withhold information from
the federal government. Such a reading of IRCA is not self-evidently correct: While the courts
have read the NLRA to provide such strong protection for employers rights in the context of
collective bargaining, the NLRA is a different statute from IRCA with different policies and
concerns. It could very well be the case that IRCA and its implementing regulations have
nothing whatsoever to do with protecting the liberty of employers. The Department of Justices
definition of good-faith verification of employees documents is extremely lax, requiring only
that employees not ignore written notification from the federal government that their employees
I-9 forms are invalid. 8 CFR section 274a1.1(1). Since IRCA provides that DOJs legal
interpretations of IRCA are binding, this regulation would bar any requirement by DHS that
employers participate in IRCA. But the purpose of these lax regulations might simply be to
conserve DOJ resources for more important cases, not to protect the liberty of employers who
turn a blind eye to their undocumented employees.
Just because the DOJ does not want to
waste its prosecutorial resources chasing down delinquent employers hardly means that the
IRCA has the purpose of protecting employers freedom in contexts where DOJ resources are not
at stake, such as when the President disqualifies businesses for not being more proactive in
ridding their workforce of undocumented aliens.
Second, even if IRCA has the purpose of protecting employers freedom to keep their
employees I-9 forms private, there is no reason a priori why this purpose ought to trump
automatically the Presidents power to procure goods and services for the United States. The
Procurement Act, after all, was enacted in 1949: IRCA makes no mention of the Act, and the law
tends to disfavor implied repeals of earlier statutes by later ones. It might be that IRCA can
perform its narrow purpose of protecting purely private businesses from coercion by the DHS
without hamstringing the Presidents ability to set the term on which private contractors will do
business with the federal government. Following Reich, for instance, one might reason that the
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President can require contractors to adopt the IMAGE program to the extent that this requirement
serves a procurement purpose related to timeliness, cheapness, and quality of service for
instance, insuring that work for the federal government is not interrupted by DHS raids. To
make such an argument convincing, however, it would be useful for the E.O. to limit its scope
only to those worksites actually involved in producing goods or services for the federal
government.
In sum, there are two reasons to believe that the President might be able to require
participation of contractors in the IMAGE program even if IRCA forbids the DHS from doing so
for businesses generally: (1) The limits in IRCA and its regulations might not serve the purpose
of protecting businesses autonomy and (2) even if the IRCA does protect businesses autonomy,
this goal might be reconciled with presidential E.O.s that serve a bona fide procurement purpose.
Question #3(C): Assume that the North Carolina Whistleblower Act is not preempted by any
federal statute by the force of that statute or existing implementing regulations alone. Could the
President nevertheless issue an executive order declaring that state laws like the North Carolina
Whistleblowers Act are preempted by some combination of IRCA, OSHA, and other relevant
legal principles?
Again, the critical consideration will be the reason for the limit on federal preemption. If
the federal statutes and regulations, by their plain terms, do not permit the preemption of state
laws like the NCWA, then the President cannot preempt those state laws by executive order: The
President can only execute and not create federal laws, and his Article II power to supervise the
federal governments operations do not include the power to supervise or control state law.
However, it might be that the federal statutes and regulations are ambiguous on the
question of whether state law is preempted. Federal courts resolve such ambiguity with a
judicially created canon of construction disfavoring preemption. Santa Fe Elevator v. Rice. If
federal law is ambiguous, however, then federal agencies entrusted with the enforcement of those
laws the prerogative under Chevron to resolve that ambiguity so long as their resolution is not
arbitrary or capricious.
Moreover, these agency decisions may displace federal judicial
interpretations of statutes the ambiguity of which is construed as a delegation of gap-filling
authority to agencies. Brand X. It is an open question whether the statutory ambiguity sufficient
to trigger the Rice presumption against preemption is sufficient also to trigger Chevron deference
to agencies. However, if Rice ambiguity also triggers Chevron ambiguity, then it follows from
Brand X that judicial opinions invoking Rice can be displaced by executive agencies entrusted
with those statutes enforcement.
Whether the President is also entitled to displace judicial opinions under Chevron
depends on whether the President has been entrusted with the enforcement of the federal statute
in question, either expressly or implicitly. The response to question 3(A) sufficiently covers this
issue: Assuming that the President enjoys authority to implement either the OSH Act or the
IRCA, the President would be entitled to issue an E.O. preempting state laws that frustrated those
statutes purposes or intruded into an exclusive field if (1) the statutes were deemed by the
courts to be ambiguous on the question of preemption and (2) the Presidents inference of
preemption was not arbitrary and capricious.
17