Summary
New State Department Determination Expands Foreign Affairs Exemption Under the APA. A Federal Register notice published on March 14, 2025, delivers a broad new determination from Secretary of State Marco Rubio declaring that all federal efforts related to border control, immigration, and cross-border transactions fall under the foreign affairs function exemption of the Administrative Procedure Act (APA), 5 U.S.C. 553, 554.
- Read the notice published at 90 FR 12200 (March 14, 2025)
This determination could significantly impact rulemaking and adjudications by agencies such as the Department of State (DOS), Department of Homeland Security (DHS), and Department of Labor (DOL) by:
- Allowing these agencies to issue new immigration and border-related regulations without public notice and comment.
- Making legal challenges based on APA procedural violations more difficult.
- Potentially reducing transparency in immigration adjudications, including removal proceedings.
While DOS has long asserted its own foreign affairs exemption, this new determination formally extends the rationale across all federal agencies involved in border security, immigration, and trade.
Some more details
A Federal Register notice published at 90 FR 12200 (March 14, 2025) delivers a sweeping "determination" by Secretary of State Marco Rubio "that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act, 5 U.S.C. 553, 554."
Relevant extracts from the determination notice:
"Securing America’s borders and protecting its citizens from external threats is the first priority foreign affairs function of the United States. This effort requires the United States to marshal all available resources and authorities. These resources and authorities also include, but are not limited to, those of the Department of State, the Department of Defense, the Department of Homeland Security, the Department of Justice, and many other federal agencies...
"... For these reasons, I hereby determine that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act, 5 U.S.C. 553, 554."
Implications
5 USC 553 cited in the DOS notice covers agency rulemaking, and provides an exception to the notice and comment requirement APA to the extent that the rulemaking involves "foreign affairs functions." This could, for example:
- Encourage DOS, DHS and any other agency involved in the immigration process (e.g., DOL) to issue regulations without being obliged to first publish a proposed rule and accept/analyze/respond to public comment. This could impact the timing and forewarning of new and revised rules.
- Make court cases and rulings based on APA notice and comment failures more difficult to bring and to win.
5 USC 554 cited in the COS notice covers adjudications, and provides an exception to the need for adjudications "required by statute to be determined on the record after opportunity for an agency hearing" to the extent that the adjudication involves "foreign affairs functions." This could, possibly, impact the transparency of removal proceedings.
Notes
The Department of State has always considered its own rulemaking to be exempt from the APA under the foreign affairs exceptions. Here’s an example of the language in the preamble to the 2014 subpart A rule that asserted DOS's claim to APA foreign affairs exemption:
“The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from sections 553 (Rulemaking) and 554 (Adjudications) of the Administrative Procedure Act (APA)… Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department previously published this rule as a notice of proposed rulemaking, with a 60-day provision for public comment; and it is now publishing this rule as a final rule with a 60-day provision for public comment. This is without prejudice to its determination that the Exchange Visitor Program is a foreign affairs function.”
In the DOS 2025 notice, though the agency asserts "that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act."