In its first merits decision this term, the Supreme Court provided a straightforward application of textualism to demonstrate that in cases challenging administrative action under the Administrative Procedure Act (APA), Congress’s delegation of authority to the agency must be clear. Only in this case, Congress got it right. In future challenges to agency action, counsel and affected parties should take into account the ability of Congress to limit those challenges.
A Unanimous SCOTUS Analysis
As we summarized previously, a unanimous U.S. Supreme Court (per Jackson, J.) held in Bouarfa v. Mayorkas that the revocation of an approved visa petition under 8 U.S.C. §1155 by the Secretary of Homeland Security (the “Secretary”) is the kind of discretionary decision that falls within the agency’s purview pursuant to authority that is delegated by Congress. In this case, the Secretary revoked a visa based on a sham-marriage determination, relying on the language of Section 1155 that grants broad authority to the Secretary to revoke an approved visa petition at any time, for “what he deems to be good and sufficient cause.” The revocation was challenged through the agency and then federal courts. At each turn, the agency’s determination was upheld, with the District Court and the Court of Appeals for the Eleventh Circuit both holding that, in the context of enacted legislation outlining the agency’s powers, courts are precluded from reviewing the Secretary’s decision.
By Eric Conn, Head of the OSHA Practice Group
We recently had an article published by the Washington Legal Foundation entitled "OSHA Continues Trend of Informally Imposing New Rules." The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA's attempts to circumvent Formal Notice and Comment Rulemaking by changing regulatory requirements through interpretation letters, directives, and enforcement memoranda. Here is a link to the original post.
Below is an excerpt from the expanded article, published this week in Washington Legal ...
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