[rayiner]

I’m going to call this one as likely to be overturned on appeal. The Immigration and Naturalization Act provides:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (INA Section 212(f).)

Congress specifically gave the President the power to make findings and impose conditions, and the APA doesn’t apply to the President. The district court side-steps this by saying that the fee is a tax and 212(f) doesn’t delegate taxing power to the President. But that’s a separation of powers problem, not an APA problem. That is, if the fee was actually a tax, it wouldn’t be permissible even if the President had explained it properly as required by the APA. The executive can’t levy a tax by going through the procedural niceties of the APA. The APA angle is a red herring.

So the real issue is whether the fee is a “tax” that only Congress can levy. I think it’s a fee, not a tax. The Supreme Court has distinguished between user fees and taxes as follows: “We there described ‘fees’ as ‘bestow[ing]’ a reciprocal ‘benefit on the [payor], not shared by other members of society.’ NCTA, 415 U. S., at 341. By contrast, ‘taxes’ are expected to ‘inure[] to the benefit’ of the wider public. Id., at 343.’” (FCC v. Consumers’ Research: https://supreme.justia.com/cases/federal/us/606/24-354/)

The H1b fee falls squarely within what the Supreme Court has called “fees.” The benefit of being able to bring over a particular foreign worker inures directly to the employer filing the visa petition, not the public at large.

[fc417fc802]

I'm in agreement with your position but I'm confused by the SCOTUS criteria for distinguishing taxes and fees. I follow the reasoning that you receive a tangible benefit as an individual for payment of a fee. That much makes sense to me. However what puzzles me is "By contrast, ‘taxes’ are expected to ‘inure[] to the benefit’ of the wider public." Do not fees also benefit the wider public to the extent that they fund the government? I'm failing to see any difference in that regard.

[redslazer]

Whether it is a fee or tax is less about whether it funds the government and more about whether when you pay the amount you get some benefit that you wouldn’t if you didn’t pay (above and beyond compliance with tax law). For example a fishing licence is a fee while a flood levy is a tax.

[fc417fc802]

Yes, I understood that (and stated as much). The first part made sense to me. It is the second that I find perplexing.

> By contrast, ‘taxes’ are expected to ‘inure[] to the benefit’ of the wider public.

That seems to apply to both taxes and fees as far as I can tell. It seems to me that a tax can primarily be distinguished by virtue of not qualifying as a fee. Put another way, are not fees paid to a government a subset of taxes much as squares are a subset of rectangles?

[Kab1r]

But then sales taxes are fees, no?

[dlcarrier]

No, because the government collecting sales tax isn't a party to the transaction. The fee itself needs to be in exchange for a good, but the government is giving you anything marginal in exchange for sales tax, instead it's going into accounts spent for public good.

[fc417fc802]

It does all seem a bit arbitrary doesn't it? If you frame it as purchasing the privilege of purchasing a certain quantity of arbitrary goods denominated in dollars then it sure looks like a fee. But obviously that isn't what is meant.

At the end of the day shall-issue permits, hyper specialized taxes, and fees all seem to amount to the same thing. However I think you can probably construct a reasonable criteria based on whether or not the other side of the transaction is fulfilled by the government and whether or not it is legal to do the thing by default. By that logic sales taxes and car tabs would indeed be taxes while fishing and camping permits would both be fees.

[rayiner]

Very sharp reading. My quotation presents the two definitions as freestanding. But as you observe, the definition of “tax” isn’t freestanding. There’s additional context, which comes from the fact that this issue only comes up when you’ve got a payment that purports to be for some government benefit. If the government imposes a payment on you in return for nothing then that’s clearly a tax. So, for example, the ACA penalty on uninsured people was a tax.

By contrast, if the government is purporting to charge you a fee in return for some benefit, that can still be a tax when the benefit that you’re getting really is a benefit to the public at large. So you’re comparing the benefit of what you’re supposedly paying for to the benefit to the public at large for operating the government. An example would be the case that alleged that PACER fees for operating the electronic court filing system were impermissible taxes. There, what you’re paying for is putatively access to a specific document. But the cost is ($0.10 per page) is way out of line with how electronic access to documents is normally valued. What you’re really paying for is the existence of the electronic filing system itself, which is something that inures to the benefit of the public at large.

[dpark]

When you pay income tax (for example), your personal benefit from that tax is no different from my benefit from your income tax. But if you pay a passport fee (for example), you receive a specific benefit that I do not.

[QGQBGdeZREunxLe]

I disagree. Fees have to be justified and USCIS is not spending $100,000 to process a H1B applicant. They are raising revenue. Which is taxation.

Calling something a fee doesn't make it a fee if, in substance, it operates like a tax.

[rayiner]

Fees don’t have to be limited to the cost of the specific transaction. Lots of agencies, not to mention the courts themselves, charge fees that go towards the operation of the agency and don’t just defray the specific costs of a single transaction.

In the NCTA case cited above, the Supreme Court upheld a law that authorized the FCC to impose “fees” on cable licensees that took into account the value of the license to the provider. So a fee need not be limited to the cost for an agency to process a license. A charge can be based on the value of the authorization or license provided and still qualify as a fee not a tax. FCC spectrum auctions are another example. The FCC charges billions of dollars for 4G/5G spectrum licenses. That’s based on value of the license to the licensees, not the cost of processing the licenses. Here, the $100k fee easily can be seen as reflecting the value to the employer of being able to hire the foreign worker.

[QGQBGdeZREunxLe]

Sure but USCIS is already funded by fees.

https://www.uscis.gov/about-us/budget-planning-and-performan...

[pas]

it sounds like USCIS should do auctions too. is that not an option, or just nobody bothered with it so far?

[dpark]

> Fees have to be justified

Do they? Honest question. Is there a law that says fees must be in some sense justified?

> Calling something a fee doesn't make it a fee if, in substance, it operates like a tax.

This seems like a nonsense response to GP. They gave a definition of fee vs tax that is based on a meaningful distinction and not what it happens to be called.

[TimorousBestie]

> Do they? Honest question. Is there a law that says fees must be in some sense justified?

Read the opinion, it isn’t very long. This facet in particular is discussed in detail there.

> They gave a definition of fee vs tax that is based on a meaningful distinction and not what it happens to be called.

GP sounds likes he’s trying out for the inevitable appeal, the tax/fee distinctions argued in the case came from different case law.

[dpark]

From what I can tell with a quick reading, it is not. The opinion states that the fee is a tax and not a penalty and based on that ruling then further rules that the tax oversteps Congress’s delegated authority.

The whole penalty thing seems weird because obviously it’s not a penalty, so I don’t know if the president’s lawyers argued a dumb point and lost or if I’m missing some legal nuance here.

Regardless, the opinion is based on the ruling that the fee amounts to a tax, not that fees must be justified.

[TimorousBestie]

Page 18 and ff.

https://storage.courtlistener.com/recap/gov.uscourts.mad.293...

> I don’t know if the president’s lawyers argued a dumb point and lost

They argued several dumb points, you’ll have to narrow it down.

[dpark]

I don’t understand what you’re getting at. Page 18 is the tax vs penalty discussion I referred to.

> They argued several dumb points, you’ll have to narrow it down.

Arguing that the fee is a “penalty” in this case seems pointlessly dumb.

Seems like they should have argued the fee a “fee”.