OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC.; MARYLAND STATE SHOWMEN‘S ASSOCIATION, INC.; THE SMALL AND SEASONAL BUSINESS LEGAL CENTER; LASTING IMPRESSIONS LANDSCAPE CONTRACTORS, INC.; THREE SEASONS LANDSCAPE CONTRACTING SERVICES, INC; NEW CASTLE LAWN & LANDSCAPE, INC., Plaintiffs - Appellants, v. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DEPARTMENT OF LABOR; EMPLOYMENT & TRAINING ADMINISTRATION; WAGE & HOUR DIVISION, Defendants - Appellees, MARGHARITA KURI; TIMOTHY KING; HENRY WOJDYLO; RONALD NYENHUIS; SHIRLEY HARMON; ANTONIO RIVERA MARTINEZ; ANDREW MITSCHELL; COMITÉ DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA); PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE; NORTHWEST FOREST WORKERS CENTER, Amici Supporting Appellees.
No. 18-2370
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: December 18, 2020
PUBLISHED. Argued: September 10, 2020. United States District Court for the District of Maryland. Ellen L. Hollander, District Judge. (1:16-cv-01015-ELH)
Argued: September 10, 2020
Decided: December 18, 2020
Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.
Affirmed in part and vacated in part by published opinion. Judge Richardson wrote the opinion, in which Judge Keenan and Judge Wynn joined.
ARGUED: Robert Wayne Pierce, PIERCE LAW FIRM, Annapolis, Maryland; Leon R. Sequeira, Arlington, Virginia, for Appellants. Kathryne M. Gray, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Clermont Fraser Ripley, NORTH CAROLINA JUSTICE CENTER, Raleigh, North Carolina, for Amici Curiae. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, Erez Reuveni, Assistant Director, Glenn M. Girdharry, Assistant Director, Joshua S. Press, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Edward Tuddenham, Paris, France; Art Read, JUSTICE AT WORK, Philadelphia, Pennsylvania; Vanessa Coe, LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC., West Palm Beach, Florida; D. Michael Dale, NORTHWEST WORKERS’ JUSTICE PROJECT, Portland, Oregon, for Amici Comité de Apoyo de Los Trabajadores Agricolas (CATA), et al.
H-2B visas provide vital employees for employers who need temporary nonagricultural workers but cannot find help domestically. Each year, H-2B visas allow 66,000 temporary workers to enter the country to meet those demands. A core part of the H-2B visa program is labor certifications—the process of determining whether American workers are available and whether employment of H-2B workers would adversely affect similarly employed American workers.
For at least 50 years, the agency in charge of H-2B visas relied on the Department of Labor to provide labor certifications. In 2008, the Department of Homeland Security (the agency now charged with administering the H-2B program) passed rules requiring that employers receive a favorable labor certification from Labor (as Homeland Security‘s chosen
Plaintiffs, a group of employers and associations whose members rely on H-2B visas, challenge Homeland Security‘s 2008 Rules and the joint 2015 Rules as exceeding the agencies’ statutory authority. We agree with the district court that the challenge to the 2008 Rules is time-barred. We conclude that Plaintiffs lack standing to challenge the 2015 Enforcement Rules and therefore vacate the district court‘s decision on the merits as to those rules. But we agree with the district court that the remaining Rules—the 2015 Program and Wage Rules—were properly promulgated.
I. Background
Plaintiffs are a group of employers and associations whose members rely on H-2B visas to find workers for their temporary nonagricultural jobs (“Employers“). Employers sued to challenge a series of regulations promulgated by Homeland Security and Labor governing the H-2B program. Employers claim that these rules exceeded the Government‘s statutory authority. See
The first set of challenged rules are Homeland Security‘s 2008 Rules. Those Rules require an employer to receive a favorable labor certification from Labor before submitting an H-2B petition to Homeland Security.
The Employers also challenge two sets of rules from 2015: the 2015 Program Rules establishing the standards governing the labor-certification-application process, 80 Fed. Reg. 24,042, and the 2015 Wage Rules setting the standards for determining prevailing wages to be paid to H-2B workers, 80 Fed. Reg. 24,146. Employers contend that these 2015 Program and Wage Rules exceed Homeland Security and Labor‘s statutory authority because Homeland Security cannot pass rules
The district court rejected these challenges and granted summary judgment upholding the regulations.
A. Statutory framework and history
Congress passed the Immigration and Nationality Act (“INA“) in 1952 to collect and reorganize existing immigration law. 66 Stat. 163, 168 (1952), now
One of the Homeland Security Secretary‘s duties is administering the nonimmigrant H-2 Visa Program for temporary unskilled workers.
Congress has bifurcated the H-2 visa program for temporary foreign workers. See
H-2B visas are statutorily available for those aliens (1) “having a residence in a foreign country which [they] ha[ve] no intention of abandoning” and (2) “who [are] coming temporarily to the United States to perform other [nonagricultural] temporary service or labor,” but only (3) “if unemployed persons capable of performing such service or labor cannot be found in this country.”
B. Regulatory framework and history
Historically, the Attorney General had chosen to consult with Labor to determine “if unemployed persons capable of performing such service or labor cannot be found in this country.”
In 2008, Homeland Security promulgated rules, after notice and comment, that formalized the process by requiring a certification from Labor that the employer‘s temporary jobs could not be filled with American workers and that H-2B workers would not adversely affect similarly employed American workers.
Along with Homeland Security‘s labor-certification requirement, Labor promulgated Wage Rules setting the methodology for how to calculate the prevailing wages to be paid to the H-2B workers. These rules were met with a flurry of litigation and several orders about their legality. A district court held that those Wage Rules violated the APA and gave Labor 120 days to issue new rules. Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09–240, 2010 WL 3431761, at *27 (E.D. Pa. Aug. 30, 2010). But Labor continued using these rules until a district court enjoined it in 2013. Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F. Supp. 2d 700, 716 (E.D. Pa. 2013).
Around the same time the courts enjoined the 2008 Wage Rules, Labor issued rules establishing the procedures for issuing labor certifications. These rules were also challenged with mixed results. The Eleventh Circuit enjoined them, finding that Labor lacked authority to issue rules with respect to the H-2B program. Bayou Lawn & Landscape Servs. v. Sec‘y of Labor, 713 F.3d 1080, 1085 (11th Cir. 2013); see also Bayou Lawn & Landscape Servs. v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D. Fla. 2014) (vacating the rules on the same grounds) (mooted by the 2015 Rules). But the Third Circuit rejected a similar challenge, finding Labor did have rulemaking authority based on congressional acquiescence. La. Forestry Ass‘n Inc. v. Sec‘y U.S. Dep‘t of Labor (LFA), 745 F.3d 653, 669 (3d Cir. 2014). To resolve the regulatory gap created by the various injunctions, Labor proposed more rulemaking to determine prevailing wages and continued using the 2008 procedural rules. But the 2008 Rules were again enjoined by another district court. Perez v. Perez, No. 14-cv-682, 2015 U.S. Dist. LEXIS 27606 (N.D. Fla. Mar. 4, 2015). Because of the various court orders, “Labor ceased operating the H-2B program.” 80 Fed. Reg. 24,151.
To restart the H-2B program, Homeland Security and Labor jointly promulgated the 2015 Program and Wage Rules. See 80 Fed. Reg. 24,045 (noting the agencies acted jointly “[t]o ensure that there can be no question about the authority for and validity of the regulations in this area“). First, Homeland Security and Labor issued the 2015 Program Rules establishing “the process by which employers obtain a temporary labor certification” from Labor for use in petitioning Homeland Security. 80 Fed. Reg. 24,042. Second, they issued the 2015 Wage Rules establishing the methodology by which Labor “calculates the prevailing wages to be paid to H-2B workers.” 80 Fed. Reg. 24,152. These 2015 Rules were both promulgated under the “good cause” exception to full notice-and-comment rulemaking. 80 Fed. Reg. 24,047, 24,152. Although not required, the agency still took and reviewed public input. 80 Fed. Reg. 24,050, 24,153. The Rules rested on the same statutes that the regulations promulgated in 1968 had, along with various regulations.
The 2015 Rules have also been challenged. The Government has already prevailed in two cases challenging the new rules. See Comite de Apoyo a los Trabajadores Agricolas v. Perez, 148 F. Supp. 3d 361, 364 (D.N.J. 2015) (finding plaintiffs lacked standing); Bayou Lawn & Landscape Servs. v. Johnson, 173 F. Supp. 3d 1271, 1276 (N.D. Fla. 2016) (rejecting APA procedural challenges). Even so, Employers here challenge the 2008 and 2015 Rules as exceeding the agencies’ authority.
C. Procedural history
Employers sought declaratory and injunctive relief, and both parties cross moved for summary judgment. The district court noted in passing that Employers had standing and then found that their challenges to the 2008 Rules were time-barred. Outdoor Amusement Bus. Ass‘n, Inc. v. Dep‘t of Homeland Sec., 334 F. Supp. 3d 697, 713 (D. Md. 2018). In any event, the court found that Homeland Security could adopt the 2008 Rules under Chevron because Homeland Security could reasonably interpret its “consultation with appropriate agencies” to allow it to require Labor‘s certifications as a condition precedent. Id. at 716. The court found that locating the authority for the 2015 Rules was trickier but ultimately upheld them based on congressional acquiescence to Labor‘s continued role in the program. Id. at 719. The court granted the government‘s motion for summary judgment, thereby upholding the regulations. Employers timely appealed the district court‘s final order. The district court had federal-question jurisdiction under
II. Discussion
We review de novo the district court‘s grant of summary judgment. J.D. ex rel. Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 669 (4th Cir. 2019). And the issues raised on appeal are all legal questions that we review de novo: standing, S. Walk at Broadlands Homeowner‘s Ass‘n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 181 (4th Cir. 2013); statute of limitations, Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014); and APA challenges to statutory authority, Perez v. Cuccinelli, 949 F.3d 865, 872 (4th Cir. 2020). Because standing implicates our Article III power to hear the case, we must resolve it first. Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597 (2007).
A. Justiciability
To establish standing, the Employers must show: (1) a concrete and particularized injury that is actual or imminent, (2) a causal connection between the injury and the defendant‘s conduct, and (3) a likelihood that a court could redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). A plaintiff has the burden to “demonstrate standing for each claim he seeks to press” and “for each form of relief” sought. Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008).
Employers seek to enjoin the 2008 and 2015 Rules. To have standing to seek an injunction, Employers must show they are in immediate danger of sustaining some direct injury. City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983). Mere “[p]ast exposure to illegal conduct does not in itself show a present case.” Id. at 103. That said, “continuing, present adverse effects” from past illegal conduct can suffice, and past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. O‘Shea v. Littleton, 414 U.S. 488, 495–496 (1974). “The prospect of future injury becomes significantly less speculative where, as here, plaintiffs have identified concrete and consistently-implemented policies claimed to produce such injury.” In re Navy Chaplaincy, 697 F.3d 1171, 1176–77 (D.C. Cir. 2012). Similarly, the more “concrete” the plan and the “specification of when” plaintiffs will act and face these policies makes a future injury more imminent. Lujan, 504 U.S. at 564.
Employers received every labor certification and visa they requested. But their injury stems from the alleged costs and delays that come from the new rules. Employers offer specific facts that several of their members faced increased compliance costs because of the new regulations and delays in getting workers, which caused layoffs, lost revenue, contractual defaults, and even bankruptcy. Supplemental Br. of Employers 2, 10; Chiecko Aff. 2-5. Outdoor Amusement itself says the regulations have hurt membership, reduced dues, diverted resources, and increased litigation costs. Id.
1. There is standing to challenge the 2008 Rules but the challenge is time-barred
The Government argues that no plaintiff has standing to challenge the 2008 Rules because none of them were ultimately denied labor certifications or visas. Thus, their only injuries stem from compliance costs and delays, so enjoining the 2008 Rules would not remedy their injuries because they would still have to get a labor certification under the preexisting rules.
There is, however, one plaintiff who claims injuries that could be redressed by enjoining the 2008 Rules. And only one plaintiff needs to have standing for a court to hear the case. Bowsher v. Synar, 478 U.S. 714, 721 (1986). Plaintiff Three Seasons, a landscaping company, was at first denied a labor certification for failure to comply with the 2015 Rules. After that denial, it was required by Labor to re-apply as a job contractor. J.A. 101-02. By the time Three Seasons re-applied and jumped through all of Labor‘s hoops to receive a certification, half the season was over, and the workers did not arrive in time. Id. Without the 2008 Rules, Three Seasons could have gone to Homeland Security directly and offered countervailing labor-market evidence after Labor denied certification, potentially avoiding the re-application process and the costly procedures and delay that accompany it. G.H. Daniels, 626 F. App‘x at 207; 31 Fed. Reg. 4446, 6611 (1966) (countervailing evidence allowed); 38 Fed. Reg. 35,427 (1973) (same). But under the 2008 Rules, Three Seasons had to re-apply and meet Labor‘s other demands to get a labor certification before they could even petition Homeland Security.
While it is true that mere “past exposure to illegal conduct does not in itself show a present case,” Lyons, 461 U.S. at 103, this past exposure evidences a non-speculative threat of future injury. Three Seasons will continue to seek H-2B visas in the upcoming season and will again be subject to the 2008 Rules when they do. And where a policy that produced a plaintiff‘s prior injuries remains in effect, “[t]he prospect of future injury becomes significantly less speculative.” Navy Chaplaincy, 697 F.3d at 1176–77; Lyons, 461 U.S. at 105–06 (the existence of a policy authorizing the injurious conduct and a high likelihood of again being subject to that policy suffices to establish standing). The 2008 Rules facilitated Three Seasons’ injury and will continue to facilitate potential future injuries. Id. Indeed, the nature of Labor‘s inquiry confirms that Three Seasons could be denied again. If there are “United States workers capable of performing the temporary services” for Three Seasons one year, there will likely be workers available the next.
But even with standing, Employers still must bring their case within the applicable statute of limitations. Employers brought a facial challenge against the 2008 Rules in 2016, eight years after they were promulgated. 73 Fed. Reg. 78,104. The law is clear, however, that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of
2. There is standing to challenge the 2015 Program and Wage Rules
The challenges to the 2015 Program and Wage Rules, however, may go forward. Employers have provided enough specific facts to show that the 2015 Program and Wage Rules have harmed them and that they will continue to harm them in the future. Employers have proffered evidence that the Rules will cost over a billion dollars in ten years. And they have shown that the delays and compliance costs of dealing with the wage calculations, increased wages, and procedures for the labor certifications have cost them and their members greatly. Id. The harms include contractual defaults and damages, layoffs, understaffing of up to 30%, lost customers, and even bankruptcy. J.A. 30–34, 64–66. Three Seasons lost most of its customers and supervisors because of delays. J.A. 102. Plaintiff Lasting Impressions had to file for bankruptcy and lost 30% of its customers. J.A. 99. Such compliance costs and economic harms related to regulations are cognizable injuries. Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 347 (1977). Outdoor Amusement also claims that over 100 members have used the H-2B visa program and plan to do so again. Chiecko Aff. 2–5. Many of their members have received visas several years in a row and will continue to seek visas, facing similar costs in the future. Id. Lasting Impressions, for example, has received 12 visas in both of the last 2 years. Appellee‘s Supplemental Br. at Exhibit B. Many cases reviewing challenges to these or similar regulations have found similar facts enough to confer standing. See, e.g., Bayou, 173 F. Supp. 3d at 1282; LFA, 889 F. Supp. 2d at 720; Comite de Apoyo a los Trabajadores Agricolas, 2010 WL 3431761, at *5.
This evidence suffices to show injury in fact for the 2015 Program and Wage Rules and to show a likelihood of future harm. Employers have provided evidence of past injuries from these regulations in the form of compliance costs and delays and have made credible allegations that many Employers will continue to apply for H-2B
Further, Outdoor Amusement has standing to sue on behalf of its injured members. An association has associational standing when at least one of its “identified” members “would otherwise have standing to sue in their own right, the interests at stake are germane to the organization‘s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The Supreme Court has regularly found associational standing for trade associations when an injunction would benefit many of their members. Hunt, 432 U.S. at 342. As shown above, at least some of Outdoor Amusement‘s members have individual standing. And Outdoor Amusement represents and educates trade members, many of whom use H-2B visas. An injunction reducing delays and costs in the issuance of H-2B visas would therefore benefit many of its members without requiring any member‘s individual participation in the suit. Because Outdoor Amusement has associational standing, we need not address whether they have organizational standing.
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Employers’ challenges to the 2015 Program and Wage Rules are their only justiciable claims.6 We therefore turn to the merits of those issues.
B. The 2015 Program and Wage Rules are valid
Executive agencies have broad, but not unlimited, authority to administer their programs. Employers argue that Homeland Security and Labor have exceeded their statutory authority to administer the H-2B program by promulgating the 2008 Rules and the 2015 Program and Wage Rules.
Because the challenge to Homeland Security‘s 2008 Rules is time-barred, we need not decide whether Homeland Security may interpret “consultation” to require a
As Employers point out, “[i]t is axiomatic that an administrative agency‘s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).8 But that delegation need not be express, “it can still be apparent from the agency‘s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” United States v. Mead Corp., 533 U.S. 218, 229 (2001). The “power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). When a gap exists, “a court may assume that Congress implicitly delegated the interpretive function to the agency.” Public Citizen v. F.T.C., 869 F.2d 1541, 1553 (D.C. Cir. 1989); see also Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 691 (D.C. Cir. 1991) (finding that the Legal Services Corporation has an implied delegation to rulemake). And in filling these gaps, agencies can choose between rulemaking and adjudications. Morton, 415 U.S. at 232; Sec. & Exch. Comm‘n v. Chenery Corp., 332 U.S. 194, 202–03 (1947) (Chenery II).
The broad statute here leaves gaps to be filled. The relevant section says that “any specific case or specific cases shall be determined by the [Secretary], after consultation with appropriate agencies of the Government, upon petition of the importing employer.... The petition shall be in such form and contain such information as the
[Secretary] shall prescribe.”
Once Homeland Security used its discretion to consult with Labor through labor certifications, this imposed a duty on Labor as the consulting agency to administer the grant of those certifications. Once designated as the consulting agency, Labor still faced statutory gaps in how to administer the consultation. This “necessarily requires the formulation of policy and the making of rules to fill” that statutory gap. Morton, 415 U.S. at 231. And Labor may choose rulemaking to structure the certification process. See Chenery II, 332 U.S. at 202-03. Indeed, courts-and the regulated community-often prefer rulemaking to adjudication for the former‘s transparency, public input, notice, process, review, and stability. See id. (advocating rulemaking over adjudications); David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 HARV. L. REV. 921, 929-42 (1965) (same). The alternative is for Labor to use an unstructured ad hoc process or return to informal guidance letters, both of which could lead to further delays, costs, and reduced accountability through shifting determinations. See LFA, 889 F. Supp. 2d at 716-17 (collecting various letters). But Congress adopted the APA to provide agencies with procedures that avoid “the inherently arbitrary nature of unpublished ad hoc determinations.” Morton, 415 U.S. at 232.
The statutory provisions surrounding
Congress has also given Labor varying degrees of control and responsibility over labor certifications in other parts of the INA, including H-2A visas.
Employers counter with the expressio unius canon: because Congress chose Labor as the consulting agency and defined its role elsewhere in the INA, the fact that Congress did not do so here means Congress meant to preclude Labor from occupying a similar role for H-2B visas. See Bayou Lawn & Landscape, 713 F.3d at 1084-85 (relying on similar reasoning to determine that Labor does not have rulemaking authority). The Supreme Court has said that Congress must “clearly delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (emphasis added). And Employers argue that this is a clear statement rule that requires a statute to identify the agency by name. Employers also argue that there is a presumption that only one agency will have authority to promulgate rules under a statute, a presumption that they contend serves to avoid the promulgation of conflicting rules. See Union Pac. R.R. Co. v. Surface Transp. Bd., 863 F.3d 816, 826 (8th Cir. 2017). So Employers claim that Homeland Security has sole rulemaking authority because Labor is neither named nor given functions specifically for the H-2B program (in contrast with other provisions of the INA that specify Labor as the agency to perform certain functions).
These contentions fail for two reasons. First, the existence of unconstrained discretion under H-2B does nothing to imply that Labor could not be chosen for the same role it has elsewhere. The D.C. Circuit rejected a similar expressio unius argument where one part of a statute provided procedures for handling competing bids but another section was silent. Cheney R. Co. v. ICC, 902 F.2d 66, 68-69 (D.C. Cir. 1990). The court explained that “the contrast between Congress‘s mandate in one context with its silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion.” Id. (emphasis omitted). Here, the same section requires Homeland Security to engage in “consultation with appropriate agencies” for H-2B and H-2A visas.
History also supports our reading. Labor has been consulting through labor certifications and has promulgated rules governing the certifications since at least 1968, before H-2A and H-2B were divided. 33 Fed. Reg. 7570 (1968 Labor regulation governing the certification process); 43 Fed. Reg. 19,306 (1978); 55 Fed. Reg. 50,510 (1990). Only in 1986 did Congress separate H-2B from H-2A and specify that the consulting agencies for H-2A were Labor or Agriculture.
Second, multiple agencies commonly cooperate with overlapping statutory duties. See generally Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012). Employers do not contend that Labor‘s role in H-2A raises any concerns, so it is not clear why having an unnamed agency with a consulting role in H-2B would create problems. An analogous example comes from section 7 of the Endangered Species Act: “[e]ach federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action . . . is not likely to jeopardize the continued existence of any endangered species.”
The Eleventh Circuit rejected this implicit delegation for Labor to rulemake based on its role as a consulting agency because this would mean that “any federal employee with whom the Secretary of [Homeland Security] deigns to consult would then have the authority to issue legislative rules to structure [his] consultation with Homeland Security.” Bayou Lawn, 713 F.3d at 1084. We find this concern unwarranted.10 Homeland Security lacks unlimited discretion to consult with any agency, much less any federal employee. The statute requires “consultation with appropriate agencies of the Government.”
And even when Homeland Security chooses an appropriate consulting agency, that agency does not acquire unlimited rulemaking authority or even authority commensurate with Homeland Security. The Supreme Court has said that a regulation
The 2015 Program and Wage Rules are valid exercises of Labor‘s implied delegation to rulemake as part of its duty as Homeland Security‘s chosen consulting agency. This implied delegation is evident from the statutory circumstances in the INA, including the requirement that Homeland Security engage in “consultation with appropriate agencies,” the definition of H-2B, and Labor‘s rulemaking powers for similar visas. While there are limits on which agencies Homeland Security can choose and on those agencies’ ability to rulemake, Labor‘s 2015 Program and Wage Rules fall within both boundaries.
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Agencies have wide latitude in administering the programs Congress has tasked them with. But agencies do not have unlimited power in the areas they govern. As a result, those burdened by regulations may challenge agency actions as exceeding their statutory authority. Our job is to police the boundary between permissible agency actions that help fulfill the goals of the political branches and agency overreach that threatens to unjustly burden those they regulate and blur the lines upholding the separation of powers.
As one of the three branches, however, we also have our own limits. One of those limits comes from Article III itself: standing. Here, Employers have shown standing to challenge the 2008 Rules and the 2015 Program and Wage Rules.11 Another type
Once we have shown that we are operating within our lawful sphere, we can begin to examine the validity of agency actions. In doing so, we find that the 2015 Program and Wage Rules were properly promulgated based on Congress’ implied delegation to Labor as the consulting agency. The Government‘s regulations stand, and the judgment of the district court is therefore
AFFIRMED IN PART AND VACATED IN PART.