Appeals – Stay

Where a U.S. District Court judge vacated actions taken by officials of the U.S. Department of Homeland Security and the U.S. Department of State to implement a presidential proclamation requiring that a $100,000 payment accompany all H-1B visa petitions, the defendants’ emergency motion for a stay pending appeal should be denied because they have not made a “strong showing” that they are likely to succeed on the merits.

“Before us is a motion to stay, pending appeal to this Court, a district court order and final judgment that vacated actions taken by officials at the U.S. Department of Homeland Security (‘DHS’) and the U.S. Department of State (‘DOS’) to implement a presidential proclamation requiring that a $100,000 payment accompany all H-1B visa petitions. In doing so, the United States District Court for the District of Massachusetts agreed with the plaintiffs — a set of twenty states — that the actions the officials and their respective agencies (collectively, ‘the defendants’) took violated the Administrative Procedure Act (‘APA’) and were otherwise unconstitutionally ultra vires. We deny the motion. …

“… We note that the plaintiffs’ excess-of-statutory-authority APA claim, … if sound, in and of itself fully supports the relief that the defendants seek to have stayed during the pendency of their appeal. Thus, because we conclude that the defendants have not made a ‘strong showing’ that they are likely to succeed in challenging this claim on the merits, we confine our analysis to what the defendants have to say about that claim.

“In concluding that the Policy constitutes agency action ‘in excess of statutory … authority,’ the district court reasoned — based on Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 224 (1989) — that given the nature of the $100,000 payment requirement, Congress needed to have clearly delegated the power to the executive to require such a payment. In so doing, the district court emphasized the features of the $100,000 payment requirement that the district court believed made the imposition more like a tax within the meaning of the taxing power that Congress enjoys under Article I of the U.S. Constitution. The defendants, based on Edye v. Robertson, 112 U.S. 580, 589, 595 (1884), disagree with that conclusion because they contend that the $100,000 payment requirement is not a tax in that sense and is instead an ‘immigration regulation’ that Congress could enact pursuant to its powers under the Commerce Clause of Article I.

“As the plaintiffs correctly point out, Skinner‘s admonition that Congress speak ‘clearly’ applies whenever the executive claims ‘discretionary authority to recover administrative costs not inuring directly to the benefit of regulated parties by imposing additional financial burdens, whether characterized as “fees” or “taxes,” on those parties.’ 490 U.S. at 224. The defendants, however, contend that Skinner did not impose such ‘a heightened clarity standard,’ and they rely for this contention on FCC v. Consumers’ Research, 606 U.S. 656, 674 (2025), which noted that Skinner did not ‘create a special nondelegation rule for revenue-raising legislation.’ But, as the plaintiffs correctly point out, the question here is not whether Congress may delegate the authority in question. It is whether Congress has done so. And as to that question, Skinner does set forth a requirement for the executive to show that Congress spoke ‘clearly’ in conferring ‘discretionary authority to recover administrative costs not inuring directly to the benefit of regulated parties by imposing additional financial burdens, whether characterized as ‘fees’ or ‘taxes,’ on those parties.’ Skinner, 490 U.S. at 224. This case presents that question, and apart from their mistaken reliance on FCC, the defendants do not explain why such a clear statement is not required here. …

“… Accordingly, we deny the defendants’ motion to stay pending appeal to this Court the district court’s June 8, 2026, Memorandum and Order and accompanying Judgment.”

State of California, et al. v. Mullin, et al. (Lawyers Weekly No. 01-159-26) (7 pages) (Docket No. 26-1699) (July 24, 2026).

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