The Volokh Conspiracy
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US Chamber of Commerce Files Lawsuit Challenging Trump's $100,000 H-1B Visa Fee
This is the second lawsuit challenging the policy, which is both illegal and likely to cause great harm if allowed to stand.
Yesterday, the US Chamber of Commerce filed a lawsuit challenging Donald Trump's imposition of a $100,000 fee on applications for H-1B visas, which are used by tech firms, research institutions, and others to hire immigrant workers with various highly specialized skills. This is the second lawsuit against the H-1B visa fees. The earlier case , Global Nurse Force v. Trump, was filed a coalition of mostly left-leaning litigants, including education groups (e.g. - the American Association of University Professors), religious organizations, and labor unions. It's not every day that major labor unions find themselves on the same side as America's leading organization representing businesses! But this issue has brought them together.
In a previous post, I outlined reasons why Trump's imposition of the H-1B visa fee goes beyond the statutory authority granted by Congress, and also explained how the administration's interpretation of the law would violate the nondelegation doctrine (which limits delegations of legislative power to the executive). I also summarized why the fee would inflict grave harm on the US economy, as H-1B visa holders disproportionately contribute to innovation and economic growth.
The lawsuit filed by the Chamber makes many of the same types of arguments as the Global Nurse Force plaintiffs. They too, emphasize that Trump lacks statutory authority to impose the fees, and that interpreting the relevant statutes to allow it would go against the "major questions" doctrine, and violate constitutional limits on delegation, especially given that this delegation involves the power to raise revenue. And revenue-raising is, as the Chamber notes, "a core power reserved for Congress (see, e.g., U.S. Const. art. I § 7, cl. 1; id. § 8, cl. 1), "Congress must indicate clearly its intention to delegate to the Executive the discretionary authority to" impose "'fees' or 'taxes…'"
I think the Chamber should develop the nondelegation argument further, including making the point that Trump's position implies virtually unlimited presidential authority to restrict migration and impose conditions on entry. That violates nondelegation even aside from the revenue angle.
I hope the combination of the Chamber lawsuit and the earlier case will lead to the demise of the $100,000 fee, preferably sooner rather than later. There may be other cases challenging the fee, as well. I will likely have more to say as this litigation continues.
