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I’m going to call this one as likely to be overturned on appeal. The Immigration and Naturalization Act provides: “Whenever the President finds that the entry
by rayiner 5mo ago
I’m going to call this one as likely to be overturned on appeal. The Immigration and Naturalization Act provides:
“Whenever the President finds that the entry of any aliens or of any class of aliens
into the United States would be detrimental to the interests of the United States, he
may by proclamation, and for such period as he shall deem necessary, suspend the
entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose
on the entry of aliens any restrictions he may deem to be appropriate.” (INA Section 212(f).)
Congress specifically gave the President the power to make findings and impose conditions, and the APA doesn’t apply to the President. The district court side-steps this by saying that the fee is a tax and 212(f) doesn’t delegate taxing power to the President. But that’s a separation of powers problem, not an APA problem. That is, if the fee was actually a tax, it wouldn’t be permissible even if the President had explained it properly as required by the APA. The executive can’t levy a tax by going through the procedural niceties of the APA. The APA angle is a red herring.
So the real issue is whether the fee is a “tax” that only Congress can levy. I think it’s a fee, not a tax. The Supreme Court has distinguished between user fees and taxes as follows: “We there described ‘fees’ as ‘bestow[ing]’ a reciprocal ‘benefit on the [payor], not shared by other members of society.’ NCTA, 415 U. S., at 341. By contrast, ‘taxes’ are expected to ‘inure[] to the benefit’ of the wider public. Id., at 343.’” (FCC v. Consumers’ Research: https://supreme.justia.com/cases/federal/us/606/24-354/ https://supreme.justia.com/cases/federal/us/606/24-354/)
The H1b fee falls squarely within what the Supreme Court has called “fees.” The benefit of being able to bring over a particular foreign worker inures directly to the employer filing the visa petition, not the public at large.
- fc417fc802 5mo agoI'm in agreement with your position but I'm confused by the SCOTUS criteria for distinguishing taxes and fees. I follow the reasoning that you receive a tangible benefit as an individual for payment of a fee. That much makes sense to me. However what puzzles me is "By contrast, ‘taxes’ are expected to ‘inure[] to the benefit’ of the wider public." Do not fees also benefit the wider public to the extent that they fund the government? I'm failing to see any difference in that regard.
- redslazer 5mo agoWhether it is a fee or tax is less about whether it funds the government and more about whether when you pay the amount you get some benefit that you wouldn’t if you didn’t pay (above and beyond compliance with tax law). For example a fishing licence is a fee while a flood levy is a tax.
- fc417fc802 5mo agoYes, I understood that (and stated as much). The first part made sense to me. It is the second that I find perplexing. > By contrast, ‘taxes’ are expected to ‘inure[] to the benefit’ of the wider public. That seems to apply to both taxes and fees as far as I can tell. It seems to me that a tax can primarily be distinguished by virtue of not qualifying as a fee. Put another way, are not fees paid to a government a subset of taxes much as squares are a subset of rectangles?
- Kab1r 5mo agoBut then sales taxes are fees, no?
- fc417fc802 5mo agoIt does all seem a bit arbitrary doesn't it? If you frame it as purchasing the privilege of purchasing a certain quantity of arbitrary goods denominated in dollars then it sure looks like a fee. But obviously that isn't what is meant. At the end of the day shall-issue permits, hyper specialized taxes, and fees all seem to amount to the same thing. However I think you can probably construct a reasonable criteria based on whether or not the other side of the transaction is fulfilled by the government and whether or not it is legal to do the thing by default. By that logic sales taxes and car tabs would indeed be taxes while fishing and camping permits would both be fees.
- dlcarrier 5mo agoNo, because the government collecting sales tax isn't a party to the transaction. The fee itself needs to be in exchange for a good, but the government is giving you anything marginal in exchange for sales tax, instead it's going into accounts spent for public good.
- QGQBGdeZREunxLe 5mo agoI disagree. Fees have to be justified and USCIS is not spending $100,000 to process a H1B applicant. They are raising revenue. Which is taxation. Calling something a fee doesn't make it a fee if, in substance, it operates like a tax.
- dpark 5mo ago> Fees have to be justified Do they? Honest question. Is there a law that says fees must be in some sense justified? > Calling something a fee doesn't make it a fee if, in substance, it operates like a tax. This seems like a nonsense response to GP. They gave a definition of fee vs tax that is based on a meaningful distinction and not what it happens to be called.
- QGQBGdeZREunxLe 5mo ago[dead]
- TimorousBestie 5mo ago> Do they? Honest question. Is there a law that says fees must be in some sense justified? Read the opinion, it isn’t very long. This facet in particular is discussed in detail there. > They gave a definition of fee vs tax that is based on a meaningful distinction and not what it happens to be called. GP sounds likes he’s trying out for the inevitable appeal, the tax/fee distinctions argued in the case came from different case law.
- dpark 5mo agoFrom what I can tell with a quick reading, it is not. The opinion states that the fee is a tax and not a penalty and based on that ruling then further rules that the tax oversteps Congress’s delegated authority. The whole penalty thing seems weird because obviously it’s not a penalty, so I don’t know if the president’s lawyers argued a dumb point and lost or if I’m missing some legal nuance here. Regardless, the opinion is based on the ruling that the fee amounts to a tax, not that fees must be justified.