homeland security mr pierce are you ready i am your honor all right please proceed ok thank you your honor good afternoon and no welcome from beautiful annapolis maryland  more than anything we were hoping to determine the answer to the question whose regulations appear in the department of labor's portion of the code of federal regulations its support a and by what authority were those regulations did we still despite the government's circular retreat on the authority question is the trial judge termed it do not have a for me answer from the government as to how that happened  substantively i would like to begin by addressing the issue of independent authority and the st point i would like to make is that as always  congress determines when an agency has the authority to probably rules and in this case there have been a variety of prior court decisions there's been fairly extensively  similar issues and in this instance those courts that have breached the issue of the department of labor's independent authority have all determined that they do not have and in authority no case has found otherwise although there are cases that have not reach the issue of independent d authority and in doing so that is an acknowledgment that only congress determined stand and because congress never shows the department of labor as it's selected instrumentality for the implementation of the h g v program that alone shows that the department of labor is regulations which includes two thousand and eight is different right now just focusing on independent authority that part of labor and so you independent authority that would but and and and notwithstanding they've been doing this for quite a while well they've been doing something and exactly what the something is this is far from clear  certifications they have that issue of labor certifications certainly since two thousand and eight they had procedure is related to it prior to that but if he authority by which they were doing so  as to their authority and how it is that they are able to proceed in the way that they are doing so and so that office but what puzzles me is the h s only has labor but in the end in essence they're simply saying so you know tell us certify that this is something that falls within the statute and it's been done for a long time well we don't agree with the characterization you're a part of the st point of distinction is that all this security has sacrificed as a band in its policy making folks so it's one thing to make a determination under the statute but congress still homeland security to exercise policymaking function and whether they have a particular level of expertise is beside the point it is still their responsibility to make the determination they have the bay as it appears that this mean mr pearce don't we have to consider this within the context of chevron deference and what the word consultation means and how broadly we should defer what has been termed chevron steps zero you should not even reach the question of six chevron deference because of the numerous reasons why chevron does not apply here the st being that because this is a constitutional avoidance issue you are obligated to rule their early in to avoid making a constitutional question to find out the department of labor has authority here w puts you right in the middle of a very serious non delegation issue because there are you don't we have to decide what the word consultation means in terms of what the department of labor if you mean the department of homeland security was authorized to do you do not in order to make the determination of whether chevron step ciro has been accomplished there was some disagreement if you will win this issue with his raise within the supreme court's going to a decision about a year ago but in order to be able to apply chevron b p need to figure out does it apply or not and these doctors don't really consultation is irrelevant to our inquiry here it's not that it's irrelevant it's that the st issue to engage or one is whether or not chevron applies and rightly what you're what it seems to me though that if you could answer best that what you're doing is is saying this is not a consultation it's delegation and it's contrary to the non delegation principles under which the agency is required to and because the department of labor is no longer consulting they are actually determining the fact issues that are required under the statute and homeland security is making zero effort to make those determinations either as a casual and helpful counsel just to go back to judge kenyan's question i understand i think i understand your argument the chevron step zero if we disagree with you about that do you agree that that sort of doom sure consultation argument so if we disagree at step zero with you you agree you lose chevron's actual application  yeah definitely not why because the statute is clear and in fact when this issue is raised in the th circuit's g h daniels which is an unpublished decision but which we have reference d they did not even address chevron step ciro they determine that the statute was clear on its face and that the homeland security it improperly assigned  part of labor and that was not not proper in the statute keek can you address then it versus speer process so that's another statute where an agency is required to consult with another executive agency within the executive branch and been a versus beer says that consultation which results in a biological opinion is affectively a final agency action because it has like as you would say a sort of delegated authority to decide the ultimate question and so that strikes me as an example or at least the supreme court seems to think that consult is broader than you've suggested so what why don't we look spears an example of using the word consult much more broadly than you've suggested well your honor i think that the more useful analogy here is the immigration case law which is actually cannot  start with minute versus spear and then go to case all other case unless you want to i want you to explain to me why i don't look to bennett versus spears i know that i cited that case but i can't go into the details of it right now there's apologize for that now that's one that's only a financer i just i wanted to know if you had an answer that's all ok well i'm sure i did but in the ear and a half since i wrote a brief i'd i don't have one currently  but the the immigration case law is very clear that the act of consultation as it has been construed in the history of the immigration statutes here that that term means that you cannot defer to your consultant you must use your personal judgment and independently d reach a determination something that homeland security has chosen not to do in this case and curiously even the department labor was hooked by that in a couple of cases that we cited in the seventy's where they were attempting to read delegate authority to the state workforce agencies theoretically consulting and in fact the she by the th circuit was that that was improper that they were exercising authority that only department labor could do because they had the ultimate authority before your time's up council can can you address a little bit how all you have standing on the two thousand and eight when i call the two thousand and eight regulations and in particular if we if we struck those down how does that solve any of the problems or the injuries that you've alleged has it redress those well as to standing for the two thousand and eight regulations is that what you   lease the beast authorized the department of labor for c the injury fairly flows and is traceable to that it's what the department of homeland security unable the department of labor to accomplish so that's the st issue there and then we talk in the affidavit that we submitted from the only vs executive director mr chico about the injuries that our members good afternoon you may have the court catherine craig from the department of justice on behalf of the defendants police your honor this is an appeal to district court decision upholding the department of homeland security and department of labor's exercise of long standing authority to rule making authority we ask this court uphold both holdings now starting with the st point appellants two thousand and sixteen purely facial challenges to d h us his two thousand and eight rule are plainly this two thousand and eight rule what's probably gated it's been in existence it's been in effect ever since and those are independent of the two thousand and fifteen joint rules so to be clear the two thousand and eight d h s and initially established that every h two b petitioner must the pain a labor certification from deal well the two thousand and fifteen joint rules on the other hand established the standards under which d thousand and eight rule of crude when d h was promulgated got rule when it published that rule in the federal registrar it took that can stand for two thousand and eight counsel can you can you just a question i asked you colleague if if we were to strike down the two thousand and eight mandatory certification requirement that we're talking about how would that redress the injuries that the  plaintiffs have alleged here i mean because before we get to whether it's time barred i think we've got to establish that they have standing to challenge it what would that redress their injury in some way you know your honor in fact through the chosen fifteen rules because the two thousand and fifteen rules can't operate i might have got it wrong but my understanding is that his claim is that the two thousand and fifteen rules can operate without the h s two thousand and eight rule thousand and fifteen rules sorry lots of words to miscarry could you clear this up and what impact if any did the two thousand and fourteen district court decision in florida have on the two thousand a expertise to department of labor in other words how broad is the power of consultation does the power of consultation with another agency depend on that other agencies expertise or is it broader than that regulations to determine what form the petition needs to be and the content of the opposition and then it also directed the h s to consult with appropriate agencies of the government determinate st that it should consult would deal well as it's done at the beginning of this program for half a century and nd that it's consultation to take the form of a temporary labor certification and so what  thought that would be my answer to your question counsel can i ask a maybe a variation of that question if d h just decided to console with the fish and wildlife service to get these certifications  could a court reasonably find that that's not an appropriate agency for which d h s s to console only labor issues would be you're absolutely i think if the entire  harm the domestic labor market and so can't get cast in or jet or so you said two things one do as long standing role into their expertise  i want to sort of get you to answer all bit how much were the longstanding pieces doing so imagine v h s decided next year to do new rules and say instead of the department of labor we're going to go to the department of commerce who we find has this similar expertise in their bureau of whatever it is hypothetically and they change it from deal well to department of commerce but you know the worm comers also has some information and knowledge about this types of questions could they do that if they had appropriate expertise in commerce could they make that switch such that expertise is what's really driving this and not longstanding practice on who to console for the age to a program the sister program and so it doing so it left the statue unchanged for h two b and therefore it gave the it just the discretion to choose the agency with that said i do think that there is a limiting principle here and perhaps this is you know adverse to my interest in suggesting this affirmatively but i think for under chevron step to a course this is reasonable while has that institutional expertise now if they were to go as the district court hypothesized to a private in the army to console about labor market step two perhaps that would be reasonable but in this case that's not what they've done may be imported u s workers are not available and capable of performing the job the employer is requesting that's a threshold determination that d h i suppose make before it gets to the point of making it an ultimate determination on the age to be petition so because that's a threshold determination and because deal well is the agency with the expertise and because it's played a role in providing labor program congress has never seen fit to abrogate d o h two b roll and we would ask that this court declined to take from the department's powers that they have exercised openly for decades you thank you very much and this point will hear from me because counsel thank you i'm clermont fraser ripple am pleased to have this opportunity to share the position of the media with the court i plan to focus on two main points but i  want to start with a question judge richardson asked the hypothetical he posed about whether it be appropriate for a d n a test to now pivot and name the apartment of commerce as the agency with with which it intends to consult and i think the proper way to analyze that is under separate on the air to ask congress congress excuse me clearly gave us the authority to choose an agency to consult with and to decide what that consultation should look like those are gaps that congress left and v h s then and there are several and gets to decide how to fill those gaps so if they chose department of commerce the question would be is that a permissible way to fill the gap is that consistent with a statute and i think there's an argument it would be because department of commerce could probably also answer the question are u s workers available which is the issue that the consulting agency is supposed to provide advice on but the answer is not so simple as a simply say that the supervisor will consultation with appropriate agencies and that appropriate agencies means whatever agency is appropriate which could include the department of commerce if it meets that limitation i think i really have to go through this circle the other way to get around to what the language it actually says it says you can consult with appropriate language to use it ever thirty so it could be the department of congress bifurcated the program and it specified the o l as the appropriate agency for its two way congress was agreeing when we're dealing with h two program when d s s is seeking advice from where the congress created this duty of the attorney general now the h s to consult and when congress made that delegation they expected another agency someone in addition to the h s to be involved in the administration of this program and congress asks an agency to act they're not asking agencies to act on an ad hoc basis the way agencies act is through rulemaking and the fact that congress gives implicit r making authority has been recognized many times it was recognized in chevron u s the need ringback long island health care those are supreme court cases that acknowledge that a grant of rule making authority can be implicit and and it is my position that congress granted rulemaking authority to whichever agency did chose specifically on that consul paid of question on whether u s workers are available and capable to do the set of uniform rules those rules in the beginning for the u s employment service rule used for the interstate recruitment system and the certification was through a clearance order but since  how limiting principle how should we deal with that i mean that could be pretty broad and have enormous implications so how do we what is your position on that should we narrow to specific circumstances here i think i think you should do what the supreme court did in one thousand nine hundred and seventy three and mourning the family publication where they said that rules issued by an agency based on implicit rule making delegation must be reasonably related to the purpose of the legislation so i'm i'm not suggesting that the o l have unfettered rule making authority for the it's to be program but the a well does have rule making authority related to that consultation that was created by done is proper because it has promulgated regulations that are reasonably related to what the threats to authorize the o l to do that are reasonably related to determining our us workers available proposition that there is no express rulemaking authority granted to deal well in the statute with regard to the h two b program there has been a lot of discussion here about the can consultation or the department of commerce or any other agency the issue is what the department of labor has done proportionately in furtherance of it providing consultation of advice and that is the issue the department of labor has issued binding substantive legislative regulations for which there is no express the forward it is a mistake a bill that only congress can authorize an agency all of the cases to go if cited regarding implicit authority relate implicit rule making authority in each one of those cases the subject agency had some underlying grant of authority in the question was whether they also implicitly were granted to rule making authority that is not this case the ridgeview of such united three do not agree that dio album virtue of the consultation provision  is granted the authority to consult to get rulemaking you would agree that if d h yes just called the deal on the phone and said what do you think it's like to have workers or do not have workers like this authority to provide that consultation right without a doubt judge wright so then then why is that different from the implicit delegation cases that we've cited the ul has the authority to consult the question is do they have to do it totally ad hoc or do they have an implicit delegation to structure their consultation in a manner that you know is your co counsel said your colleague said this recently related to the purpose of that delegation of authority because your honor there's nothing in the statute that specifically names the department of labor and grants them any basis or  if they have the authority to consult so they have they have authority you concede they have authority the question is only do they have the ability to structure the use of that authority or not and that seems to be exactly the implicit delegation question well i would argue your honor that to the extent well to take your example the department of homeland security could certainly call up the department of labor and ask them for instance what is the unemployment rate in a certain state where this employer seeks to employ each of you workers certainly the department of labor could provide that advice it's it's within its expertise that however is wholly different from the department of labor on its own problem getting an extensive complicated set of binding regulations that require an employer to jump through a series of hoops all of the other cases with implicit delegation federalism cases all have as they predicate in the other agency a rd party that already has some inherent authority and here the department of labor has no inherent authority and none has been it granted by congress and eighty eight dollars in that case congress specifically in clearly articulated that a condition precedent is to stablish that you must go to the secretary of labor and obtain a labor certification and that the secretary of labor has authority to issue regulations to in that regard none of that appears with regard to each to be so i think it's an implausible reading of the statute to suggest that we're not going to do anything but if they hadn't been exercising an analogous role of consultation before in the agricultural crow graham congress could have laid it out pacifically to get think the department of labor treated agricultural and non agricultural d workers in applications in a similar manner which just highlights the structural difference between  altered format we appreciate all the hard work you put into the case and now and now we're all operating at a little bit of a level of difficulty because of it but you've made it a lot easier for us today said thank you very much we'll take a