Amicus Curiae Brief — Department of Labor, et al., Petitioners v. Sun Valley Orchards, LLC

No. 25-966

In The

Supreme Court of the United States

Department of Labor, et al.,

Petitioners,

v.

Sun Valley Orchards, LLC,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF FOR AMICUS CURIAE AMERICAN

FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS

IN SUPPORT OF PETITIONERS

Matthew J. Ginsburg

Darin M. Dalmat

Counsel of Record

Andrew Lyubarsky

Hannah Cohen Smith*

AFL-CIO

815 16th St., N.W.

Washington, DC 20006

202-637-5021

ddalmat@aflcio.org

*Admitted in ME only. Practice

supervised by D.C. Bar members.

Counsel for Amicus Curiae

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

1

6/11/08

12:44:0

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1

SUMMARY OF ARGUMENT..................................... 1

ARGUMENT................................................................ 4

I. Sun Valley and other employers applying

to recruit guestworkers consent to

Executive enforcement of H-2A conditions....... 4

II. The regulation of guestworker admissions,

including their labor conditions, involves

heartland public rights enforceable

through Executive procedures imposing

civil penalties...................................................... 7

A. Regulating temporary admission

to work is an express, exclusive

constitutional function of the political

branches......................................................... 8

B. Recruiting workers from abroad to

work domestically is a privilege subject

to legislative grace and executive

enforcement................................................. 14

III. Regulating the terms and conditions of work

that guestworkers are admitted to perform

cannot be divorced from immigration policy.... 16

A. Regulating migrant labor has been

central to immigration policy from the

start.............................................................. 16

B. The H-2A labor conditions remain

integral to Congress’s exercise of its

authority over immigraiton........................ 24

CONCLUSION........................................................... 29

iii

TABLE OF AUTHORITIES

Page

Cases

Alfred L. Snapp & Son, Inc. v. Puerto Rico,

ex rel., Barez, 458 U.S. 592 (1982)........................ 15

Am. Ins. Co. v. Canter,

26 U.S. (1 Pet.) 511 (1828)...................................... 8

Atlas Roofing Co. v. Occupational Safety and

Health Rev. Comm’n, 430 U.S. 442 (1977)........... 13

Arizona v. United States,

567 U.S. 387 (2012)................................... 10, 11, 12

Bartlett v. Kane,

57 U.S. (16 How.) 263 (1853)............................ 8, 13

Buttfield v. Stranahan,

192 U.S. 470 (1904)........................................... 8, 13

Crowell v. Benson,

285 U.S. 51 (1932)................................................. 14

Dep’t of Homeland Sec. v. Thuraissigiam,

591 U.S. 103 (2020)......................................... 14, 16

Dep’t of State v. Muñoz,

602 U.S. 899 (2024)..................................... 9, 12, 14

Edye v. Robertson (Head-Money Cases),

112 U.S. 580 (1884)............................................... 10

Elton Orchards, Inc. v. Brennan,

508 F.2d 493 (1st Cir. 1974)................................. 25

Examining Bd. v. Flores de Otero,

426 U.S. 572 (1976)............................................... 12

Fla. Sugar Cane League, Inc. v. Usery,

531 F.2d 299 (5th Cir. 1976)................................. 25

Fong Yue Ting v. United States,

149 U.S. 698 (1893)................................................. 9

iv

TABLE OF AUTHORITIES—Continued



Page

Graham v. Richardson,

403 U.S. 365 (1971)............................................... 12

Harisiades v. Shaughnessy,

342 U.S. 580 (1952)............................................... 11

Henderson v. Mayor of City of New York,

92 U.S. (2 Otto) 259 (1875)............................... 8, 11

Hines v. Davidowitz,

312 U.S. 52 (1941)................................................. 12

Hoffman Plastic Compounds, Inc. v. NLRB,

535 U.S. 137 (2002)............................................... 10

Holy Trinity Church v. United States,

143 U.S. 457 (1892)......................................... 17, 18

Kansas v. Garcia,

589 U.S. 191 (2020)............................................... 10

Katchen v. Landy,

382 U.S. 323 (1966)................................................. 8

Keller v. Potomac Elec. Power Co.,

261 U.S. 428 (1923)................................................. 8

Landon v. Plasencia,

459 U.S. 21 (1982)................................................. 14

Lees v. United States,

150 U.S. 476 (1893)............................................... 18

Lem Moon Sing v. United States,

158 U.S. 538 (1895)................................................. 9

Lloyd Sabaudo Societa Anonima Per Azioni v. Elting,

287 U.S. 329 (1932)............................... 2, 10, 12, 13

Mallory v. Norfolk S. Ry. Co.,

600 U.S. 122 (2023)................................................. 6

v

TABLE OF AUTHORITIES—Continued



Page

Mathews v. Diaz,

426 U.S. 67 (1976)..................................... 10, 11, 14

Murray’s Lessee v. Hoboken Land & Improvement Co.,

59 U.S. 272 (1856)................................................... 8

Ng Fung Ho v. White,

259 U.S. 276 (1922)................................................. 9

Nishimura Ekiu v. United States,

142 U.S. 651 (1892)........................................... 9, 14

Oceanic Steam Navigation Co. v. Stranahan,

214 U.S. 320 (1909)............................... 2, 10, 12, 13

Oil States Energy Servs., LLC v. Greene’s Energy

Grp., 584 U.S. 325 (2018)............................. 7, 8, 12

Phillips v. Comm’r of Internal Revenue,

283 U.S. 589 (1931)........................................... 8, 13

Ping v. United States,

130 U.S. 581 (1889)................................................. 9

Pub. Clearing House v. Coyne,

194 U.S. 497 (1904)........................................... 8, 13

SEC v. Jarkesy,

603 U.S. 109 (2024)....................................... 7, 9, 14

Shaughnessy v. U.S. ex rel. Mezei,

345 U.S. 206 (1953)................................................. 9

Stern v. Marshall,

564 U.S. 462 (2011)........................................... 4, 14

Takahashi v. Fish & Game Comm’n,

334 U.S. 410 (1948)............................................... 12

U.S. ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950)................................................. 9

vi

TABLE OF AUTHORITIES—Continued



Page

United States v. Duell,

172 U.S. 576 (1899)............................................... 14

United States v. Ferreira,

54 U.S. (13 How.) 40 (1851).................................... 8

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011)................................................. 8

United States v. Morris,

252 F.2d 643 (5th Cir. 1958)................................. 23

United States v. Ward,

309 F.2d 640 (5th Cir. 1962)................................. 23

Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665 (2015)............................................. 4, 7

Zakonaite v. Wolf,

226 U.S. 272 (1912)........................................... 9, 14

Constitutional Provisions

U.S. Const., art. III, § 1.............................................. 7

Statutes

8 U.S.C. § 1101(a)(15)(H)(ii)..................................... 24

8 U.S.C. § 1184(c)...................................................... 24

8 U.S.C § 1188(a)......................................... 13, 15, 25

8 U.S.C. § 1188(b)............................................... 13, 25

8 U.S.C. § 1188(c).......................................... 13, 15, 25

8 U.S.C. § 1188(g)(2)........................................... 13, 26

8 U.S.C. § 1324a........................................................ 10

8 U.S.C. § 1324a(a)(1)............................................... 10

vii

TABLE OF AUTHORITIES—Continued



Page

8 U.S.C. § 1324a(e).................................................... 10

Act Amending Alien Contract Labor Act, ch. 220,

24 Stat. 414 (1887)................................................ 18

Act Amending Alien Contract Labor Act, ch. 551,

26 Stat. 1084 (1891).............................................. 18

Act to Amend the Agricultural Act of 1949, ch. 223

(Pub. L. No. 78), 65 Stat. 119 (1951).............. 20, 21

Act to Amend Title V of the Agricultural Act of 1949,

Pub. L. No. 87-345, 75 Stat. 761 (1961)............... 24

Act of July 6, 1798 (Alien Enemies Act), ch. 66,

1 Stat. 577............................................................. 17

Act of June 25, 1798 (Alien Friends Act), ch. 58,

1 Stat. 571............................................................. 17

Alien Contract Labor Act of 1885 (Foran Act),

ch. 164, 23 Stat. 332:............................................. 17

Immigration Act of 1882, ch. 376, 22 Stat. 214......... 16

Immigration Act of 1903, ch. 1012, 32 Stat. 1213..... 18

Immigration Act of 1917, ch. 29, 39 Stat. 874..... 18, 19

Immigration and Nationality Act of 1952, ch. 477

66 Stat. 163 (1952)................................................. 24

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359................ 25, 26

Regulations

8 C.F.R. § 214.2(h)(3)(i) (1964)................................. 24

20 C.F.R. § 602.10a (1967)........................................ 25

20 C.F.R. § 610.10(c)(1) (1964)................................. 25

20 C.F.R. § 655.0(e) (1978)....................................... 25

viii

TABLE OF AUTHORITIES—Continued



Page

20 C.F.R. § 655.101..................................................... 6

20 C.F.R. § 655.103(b)................................................. 6

20 C.F.R. § 655.104..................................................... 6

20 C.F.R. § 655.122............................................... 6, 15

20 C.F.R. § 655.132..................................................... 6

20 C.F.R. § 655.135..................................................... 6

20 C.F.R. § 655.181..................................................... 6

20 C.F.R. § 655.182..................................................... 6

20 C.F.R. § 655.185..................................................... 6

29 C.F.R. § 501.4....................................................... 26

29 C.F.R § 501.9......................................................... 6

29 C.F.R. § 501.10..................................................... 26

29 C.F.R. § 501.15....................................................... 6

29 C.F.R. § 501.16................................................. 6, 26

29 C.F.R. § 501.16 (2015)............................................ 5

29 C.F.R. § 501.17....................................................... 6

29 C.F.R. § 501.18....................................................... 6

29 C.F.R. § 501.19................................................. 6, 26

29 C.F.R. § 501.19 (2015)............................................ 5

29 C.F.R. § 501.20..................................................... 26

29 C.F.R. § 501.22..................................................... 26

29 C.F.R. § 501.30....................................................... 6

29 C.F.R. § 501.31................................................. 6, 26

29 C.F.R. § 501.32................................................. 6, 26

29 C.F.R. § 501.33................................................. 6, 26

29 C.F.R. § 501.34................................................. 6, 26

29 C.F.R. § 501.35................................................. 6, 26

29 C.F.R. § 501.36................................................. 6, 26

29 C.F.R. § 501.37................................................. 6, 26

29 C.F.R. § 501.38................................................. 6, 26

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TABLE OF AUTHORITIES—Continued



Page

29 C.F.R. § 501.39................................................. 6, 26

29 C.F.R. § 501.40................................................. 6, 26

29 C.F.R. § 501.41....................................................... 6

29 C.F.R. § 501.42................................................. 6, 26

29 C.F.R. § 501.43................................................. 6, 26

29 C.F.R. § 501.44................................................. 6, 26

29 C.F.R. § 501.45................................................. 6, 26

29 C.F.R. § 501.46....................................................... 6

29 C.F.R. § 501.47....................................................... 6

Administrative Materials

Enforcement of Contractual Obligations for

Temporary Alien Agricultural Workers

Admitted Under Section 216 of the Immigration

and Nationality Act, 52 Fed. Reg. 20524

(June 1, 1987)........................................................ 26

Foreign Agricultural Labor,

32 Fed. Reg. 4569 (Mar. 28, 1967)....................... 25

Temporary Agricultural Employment of H-2A

Aliens in the United States,

73 Fed. Reg. 77110 (Dec. 18, 2008)...................... 26

International Agreements

Agreement Concerning Temporary Agricultural

and Non-Agricultural Worker Programs,

Guatemala-U.S., Sept. 2020, available at

https://tinyurl.com/mrxdfara................................ 28

Agreement Concerning the Temporary

Agricultural and Non-Agricultural Worker

Programs, Honduras-U.S., Sept. 2019,

available at https://tinyurl.com/fs54232b............ 28

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TABLE OF AUTHORITIES—Continued



Page

Agreement Respecting the Temporary Migration

of Mexican Agricultural Workers, Mex.-U.S.,

Aug. 4, 1942, 56 Stat. 1759................................... 20

Mem. of Understanding Concerning Labor Mobility

and the Protection of Participants in Temporary

Foreign Worker Programs, Mex.-U.S., Jan. 2023,

available at https://tinyurl.com/yruk7p6a....... 27, 28

Migrant Labor Agreement of 1951, Mex.-U.S.,

Aug. 11, 1951, 2 U.S.T. 1940.................... 21, 22, 23

Miscellaneous Authorities

Andorra Bruno, Cong. Rsch. Serv., R44849,

H-2A and H-2B Temporary Worker Visas:

Policy and Related Issues 22–23 (2023),

available at https://tinyurl.com/4x3vh3m9.......... 15

Cong. Rsch. Serv., S. Judiciary Comm. R.,

96th Cong, 2nd Sess., Temporary Worker

Programs: Background and Issues

(Comm. Print Feb. 1980)................................ 19, 20

General Instructions, H-2A Agricultural Clearance

Order Form ETA-790/790A, U.S. Dept. of Labor,

available at https://tinyurl.com/3mbj5674................ 6

H-2A Agricultural Clearance Order Form

ETA-790A, Department of Labor, available

at https://tinyurl.com/mu65wh4e........................... 6

Prescott F. Hall, The Federal Contract Labor Law,

11 Harv. L. Rev. 525 (1898).................................. 18

Sarah H. Cleveland, Powers Inherent in Sovereignty,

81 Tex. L. Rev. 1 (2002)....................................... 17

1

INTEREST OF AMICUS CURIAE 1

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO) is a federation of

65 national and international labor organizations that

represent 15 million working people.

One such organization, the Farm Labor Organizing

Committee, represents both domestic farm workers and

foreign workers who migrate seasonally to the United

States to work for American farms. Both agricultural

guestworkers admitted under the H-2A program and

others who work alongside them depend on the Department of Labor (DOL)’s enforcement of the H-2A program’s labor protections to ensure that wages and working conditions remain up to prevailing standards.

Other AFL-CIO unions represent domestic workers

who would also be harmed if American farmers were

allowed to employ guestworkers at wages or working

conditions that undercut domestic standards.

The AFL-CIO thus has an interest in the efficient,

effective enforcement of H-2A labor regulations, both to

protect foreign-national guestworkers whose brief stay

here is tied to a single sponsoring employer—making

those workers especially vulnerable to exploitation—

and to protect the wages and working standards enjoyed by domestic workers who compete in the same

labor market for agricultural jobs and related work.

SUMMARY OF ARGUMENT

1. The Court need not reach the question whether

Executive enforcement of H-2A labor conditions violates Article III because, in this case, Sun Valley ex1 No counsel for a party authored this brief in whole or part,

and no person or entity, other than amicus curiae, made a monetary contribution to the preparation or submission of this brief.

2

pressly consented to administrative enforcement,

including through civil penalties, of those conditions.

Under this Court’s precedent, that express consent

waived any right Sun Valley may have to defend itself in an Article III court. What’s more, all employers seeking to recruit foreign guestworkers now expressly consent to administrative enforcement of the

H-2A labor conditions when they complete and submit their H-2A application papers, making viable

questions of Article III violations unlikely to arise in

the future.

2. In the event that the Court does reach the Article

III question, it should reverse the decision below. Article III confines the exercise of the judicial power of

the United States to tenure- and salary-protected federal judges, but that requirement does not apply to

resolution of public-rights contests. Two independent

grounds situate the regulation of temporary, agricultural guestworkers at the heartland of this Court’s

public rights doctrine.

First, regulating migration to the United States is

an express, exclusive constitutional function of the political branches. The political branches’ power over

immigration embraces every aspect of that subject, including regulation of temporary migrant contract labor. Because this subject stands at the heart of the

public rights doctrine, Congress may prescribe civil

penalties for violations of H-2A requirements and may

direct the Executive branch to enforce those rules

through administrative proceedings. This Court has

upheld precisely such a result in the immigration context at least twice. See Lloyd Sabaudo Societa Anonima Per Azioni v. Elting, 287 U.S. 329 (1932); Oceanic

Steam Navigation Co. v. Stranahan, 214 U.S. 320

(1909). The lower court provides no reason to depart

from that governing precedent.

3

Second, domestic employers may recruit workers

abroad to work their fields only as a matter of legislative grace, not personal right. So, Congress may condition that privilege on substantive and procedural

terms of its choosing—including the imposition of civil penalties through Executive procedures. It has done

so here, and this independent branch of public rights

doctrine reinforces the Executive exercise of the political branches’ constitutional powers.

3. Sun Valley’s consent to administrative adjudication, buttressed by two independent lines of precedent

situating immigration regulation at the center of this

Court’s public-rights doctrine, should have made this

an easy case for the DOL. The lower court even conceded that immigration regulation is a public-right

matter. It nonetheless resisted the logical consequence

of that concession because, in its view, the H-2A labor

conditions were merely employment-law matters that

could be isolated from the immigration policy regulated by the remainder of the H-2A program. That

mistaken view overlooks nearly 150 years of history,

which teaches that, from the very beginning of Congress’s efforts to regulate immigration, a central feature of immigration policy has been to prescribe the

terms on which foreign workers may be admitted to

this country to work and the conditions under which

they may work while here.

To be sure, Congress has taken a variety of approaches to regulating migrant labor. Congress has

completely prohibited Americans from contracting

with workers abroad for domestic employment; prohibited such contracts subject to specified exceptions;

permitted them subject to labor conditions set by international agreement; and permitted them subject to

labor conditions enforced through Executive procedures. It is far too late in the day to suggest that the

4

terms under which migrant laborers work while admitted to this country can be isolated from Congress’s

powers to regulate immigration and impose conditions

on the privilege of admission to this country. The lower court’s attempt to divorce labor and immigration

policy defies our history and must be rejected.

ARGUMENT

I. Sun Valley and other employers applying to

recruit guestworkers consent to Executive

enforcement of H-2A conditions.

The Court need not decide whether Executive enforcement of H-2A conditions violated Article III because Sun Valley expressly waived any right to defend

itself in an Article III court by consenting to DOL enforcement.

Litigants may “validly consent to adjudication” by

administrative proceedings. Wellness Int’l Network,

Ltd. v. Sharif, 575 U.S. 665, 674 (2015) (involving

state-law claims that, following Stern v. Marshall, 564

U.S. 462 (2011), cannot be adjudicated in bankruptcy

court absent consent). After all, “[a]djudication by

consent is nothing new”: at the Founding, federal

courts “regularly referred adjudication of entire disputes to non-Article III referees, masters, or arbitrators . . . .” Id. (cleaned up). A litigant may consent to

non-Article III adjudication either expressly or impliedly through conduct. Id. at 683–85. As long as the

consent is “knowing and voluntary,” it suffices to

waive the right to an Article III forum. Id. at 685.

1. Here, as part of its H-2A application materials,2

Sun Valley expressly acknowledged that it was “fa2 Sun Valley gave its consent to DOL penalty enforcement

through an agreement with a consulting service, which Sun Val-

5

miliar with the regulations and requirements of the

H-2A program and agree[d] to comply with all of the

terms and conditions of employment” described in the

agricultural clearance order form, ETA-790, and attachments, as well as in the application for temporary employment certification form, ETA 9142, and

attachments. AR-1543, 1582. Sun Valley also

“agree[d] to comply with all obligations imposed on

[it] as an employer of domestic and/or H-2A workers

found in applicable law and regulations, including . . .

those at . . . 29 CFR part 501 (DOL Wage and Hour

Enforcement Regulations) . . . .” Id. at 1543, 1582.

Then, as now, those regulations authorized DOL to

impose civil penalties through administrative proceedings. 29 C.F.R. §§ 501.16(a)(1) (2015) (authorizing DOL to assess civil money penalties in “appropriate administrative proceedings”), 501.19(a) (2015)

(setting forth criteria to determine the amount of

such penalties).3

2. While the 2015 application form did not generally call for express consent from all participating

employers—although Sun Valley did indeed expressly consent through its consultant agreement—the

current application form now does so. The general

instructions make clear that any employment resulting from the H-2A recruitment process is highly regulated by DOL, and includes adjudication of alleged

violations before the agency’s administrative law

ley had authorized to complete and file its H-2A application. AR1531–34, 1541–43. Sun Valley was required to include the consulting agreement as part of its H-2A application. AR-1531. The

consultant attested to the truth of the representations in the application under penalty of perjury. Id. (Citations to “AR” are to

the certified administrative record filed in the district court.)

3 The current versions of these provisions are materially

identical.

6

judges. See General Instructions, H-2A Agricultural

Clearance Order Form ETA-790/790A, U.S. Dept. of

Labor, available at https://tinyurl.com/3mbj5674.

The application form itself contains several references

to 29 C.F.R. part 501 (governing enforcement of the

H-2A requirements). See H-2A Agricultural Clearance Order Form ETA-790A, Department of Labor,

available at https://tinyurl.com/mu65wh4e.4 And

these enforcement regulations spell out in detail

DOL’s administrative enforcement of the statutorily

authorized civil penalties. 29 C.F.R. §§ 501.9, 501.15–

501.19, 501.30–501.47.

By signing and submitting the clearance order form,

all H-2A applicants now certify their “knowledge of

and compliance with applicable Federal, State, and local employment-related laws and regulations,” including several H-2A specific requirements, and declare

under penalty of perjury that the information they

provide on the clearance order is true. Form ETA790A at 5.

For employers currently participating in the program, the acts of completing and submitting an agricultural clearance order thus charge them with

knowledge of their obligations and the administrative system for enforcing those obligations, including

civil penalties in the event of a violation. See, e.g.,

Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 134–35­

4 The form also contains numerous references to 20 C.F.R.

655, Subpart B (governing labor certification process), which itself repeatedly cross-references DOL’s enforcement regulations.

See, e.g., 20 C.F.R. §§ 655.101(b)–(c), 655.103(b) (definitions of

H-2A labor contractor, Wage and Hour Division, work contract),

655.104(a), (c), 655.122(q) (disclosure of work contract), 655.132(c)

(1), 655.135 and .135(h) (assurances and obligations of H-2A employers), 655.181(a) (revocation), 655.182(a), (d), (e) (debarment),

655.185(a) (complaints involving work contracts).

7

(2023) (registration charged corporation with knowledge of state statutory requirement to answer lawsuits there). That conduct establishes participating

employers’ implied consent to administrative enforcement proceedings. See Wellness Int’l Network,

575 U.S. at 683–85. As a result, viable questions of

Article III violations are unlikely to arise in future

H-2A cases.

II. The regulation of guestworker admissions,

including their labor conditions, involves

heartland public rights enforceable through

Executive procedures imposing civil

penalties.

If the Court nonetheless reaches the Article III

question, it should reverse the decision below. Article

III generally confines the exercise of “[t]he judicial

Power of the United States” to federal courts, whose

judges enjoy tenure and salary protections provided

by that Article. U.S. Const. art. III, § 1. See Oil States

Energy Servs., LLC v. Greene’s Energy Grp., 584 U.S.

325, 334 (2018). But it doesn’t require Article III

courts to resolve public-rights contests. Id. at 344–45;

accord SEC v. Jarkesy, 603 U.S. 109, 122, 127 (2024).

As this Court has acknowledged, its public-rights

precedents have not always spoken precisely or clearly, making the full extent of this doctrine hazy. Jarkesy, 603 U.S. at 130 (citing cases). This case, however,

lies nowhere near the doctrine’s outer bounds.

Two independent grounds situate Executive enforcement of labor conditions on the admission and

stay of temporary, foreign guestworkers at the heartland of public-rights doctrine. The Court need traverse only well-trod paths to hold that DOL may enforce H-2A labor conditions, including through civil

penalties, in Executive proceedings.

8

A. Regulating temporary admission to work

is an express, exclusive constitutional

function of the political branches.

When Congress regulates within one of its express,

exclusively federal, constitutional powers, it may establish the rules governing that subject and, in its

discretion, assign the Executive Department the responsibility to implement those rules through Executive procedures. See Oil States, 584 U.S. at 335–37

(patent cancellation); United States v. Jicarilla

Apache Nation, 564 U.S. 162, 174–75 (2011) (relations with Indian tribes); Katchen v. Landy, 382 U.S.

323, 336–37 (1966) (bankruptcy claim adjustment);

Phillips v. Comm’r of Internal Revenue, 283 U.S. 589,

595 (1931) (tax collection); Keller v. Potomac Elec.

Power Co., 261 U.S. 428, 442–44 (1923) (D.C. courts);

Buttfield v. Stranahan, 192 U.S. 470, 492–96 (1904)

(customs duties on imports); Pub. Clearing House v.

Coyne, 194 U.S. 497, 506–10 (1904) (postal services);

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272, 281 (1856) (collection of

debts owed federal government); Bartlett v. Kane, 57

U.S. (16 How.) 263, 264, 266, 272–74 (1853) (tariffs);

United States v. Ferreira, 54 U.S. (13 How.) 40, 45–48

(1851) (adjustment of foreign nationals’ treaty-based

claims); Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511,

546 (1828) (territorial courts).

As this Court has consistently recognized for over a

century, regulating immigration, including by migrant laborers, is one of the clearest examples of exclusively federal constitutional power. See Henderson

v. Mayor of City of New York, 92 U.S. (2 Otto) 259,

270–71, 274 (1875) (invalidating state statute requiring shippers of migrant workers to indemnify state

against expenses of the workers becoming public

charges because migrant “labor . . . to till our soil,

9

build our railroads, and develop [our] resources” is undoubtedly part of foreign commerce, subject to Congressional regulation). Accord, e.g., Dep’t of State v.

Muñoz, 602 U.S. 899, 907–08 (2024); Jarkesy, 603 U.S.

at 160–61 (Gorsuch, J., concurring); Shaughnessy v.

U.S. ex rel. Mezei, 345 U.S. 206, 210 (1953); U.S. ex

rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

That power emanates from several constitutional

sources, including Congress’s power to regulate commerce with foreign nations, the President’s power as

Commander in Chief of the army and navy, the political branches’ treaty-making power, and Congress’s

power to make laws necessary and proper for executing its enumerated powers. See Fong Yue Ting v.

United States, 149 U.S. 698, 711 (1893); Nishimura

Ekiu v. United States, 142 U.S. 651, 659 (1892); Ping

v. United States, 130 U.S. 581, 604 (1889).

Congress’s expansive authority includes, at its core,

the powers to admit or exclude persons seeking to enter this country (and to set admission conditions)5 and

to prescribe the conditions for noncitizens to remain

here.6 The lower court’s decision here purports to circumscribe Congress’s power over immigration to these

domains alone. Pet. App. 16a (restricting Congress’s

Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895)

(power to set conditions for admission); Nishimura Ekiu, 142

U.S. at 659 (same); Ping, 130 U.S. at 606–10 (power to exclude).

5

6 Ng Fung Ho v. White, 259 U.S. 276, 279–81 (1922) (denying

relief to Chinese laborers ordered deported for lacking residency

certificate required after their lawful admission); Zakonaite v.

Wolf, 226 U.S. 272, 274–75 (1912) (denying relief to woman ordered deported for engaging in prostitution after lawful admission); Fong Yue Ting, 149 U.S. at 713–14, 724 (power to set deportation conditions, amendable at Congress’s will).

10

immigration power to those subjects that “directly address the admission and exclusion of aliens”).7

This Court’s longstanding precedents have never

spoken so narrowly. Instead, they have made clear

that—in addition to its core authority over admission

and exclusion—Congress also enjoys the power to determine the privileges and protections foreign nationals may enjoy while residing here,8 and to penalize

Americans who recruit foreign nationals or assist

them in arriving in violation of its rules.9 Indeed, “over

no conceivable subject is the legislative power of Congress more complete” than it is over immigration,

where it “embraces every conceivable aspect of that

subject . . . .” Oceanic Steam, 214 U.S. at 339–40; see

Taken to its logical conclusion, the lower court’s reasoning

would render unconstitutional from its inception the entire employer sanctions regime barring the hiring of unauthorized workers. See 8 U.S.C. § 1324a. Relating neither to admission or exclusion, this statute allows for the administrative assessment of

civil penalties, id. § 1324a(e)(4)–(5), stemming from domestic contracts made between employers and employees, id. § 1324a(a)(1).

While the AFL-CIO does not support these provisions on policy

grounds, we observe that the Court has repeatedly assumed their

constitutionality. See Kansas v. Garcia, 589 U.S. 191, 195–96

(2020); Arizona v. United States, 567 U.S. 387, 396 (2012); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 148 (2002).

7

Mathews v. Diaz, 426 U.S. 67, 81–84 (1976) (Congress may

condition resident aliens’ access to supplemental Medicare insurance on five years’ continuous residence and submission of an

application for permanent residency); Edye v. Robertson (HeadMoney Cases), 112 U.S. 580, 590–91 (1884) (Congress may impose duties on shippers, and liens on ships, transporting immigrants, to fund benefits for legal protection of “poor and helpless

immigrant[s]”).

8

9 Oceanic Steam, 214 U.S. at 337–43 (power to prescribe monetary penalties on shippers who transport migrants in violation

of immigration restrictions, and to do so administratively); Lloyd

Sabaudo, 287 U.S. at 334–35 (same).

11

also Arizona, 567 U.S. at 394–95 (federal government

has “broad, undoubted power over . . . the status of

aliens,” because “[i]mmigration policy can affect . . .

diplomatic relations for the entire Nation, as well as

the perceptions and expectations of aliens in this

country who seek the full protection of its laws”); Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952).

Mathews v. Diaz, 426 U.S. 67 (1976), exemplifies

the full scope of Congress’s power over immigration.

Addressing neither admission nor exclusion, Diaz affirmed that Congress could condition Medicare supplemental insurance benefits on durational residency

and status requirements. Upholding these restrictions, the Court observed that “the responsibility for

regulating the relationship between the United States

and our alien visitors has been committed to the political branches of the Federal Government.” Id. at 81.

As the Court emphasized, this broad category of decisions extends far beyond admission and exclusion and

includes “a wide variety” of governmental action implicating “our relations with foreign powers” and foreign nationals, and must therefore be handled by the

political branches, which are better situated than

courts to assess “changing political and economic circumstances . . . .” Id.

The federal power to regulate immigration is more

than complete; it is generally exclusive. In enforcing

this principle, the Court has struck down state laws

that sought to directly govern the admission of noncitizens into their territories.10 And it has also invali10 Henderson, 92 U.S. at 270–75 (invalidating state law taxing transportation of immigrants to state from abroad); Chy

Lung v. Freeman, 92 U.S. (2 Otto) 275, 276–81 (1875) (similar);

New York v. Compagnie Generale Transatlantique, 107 U.S. (17

Otto) 59, 59–63 (1883) (similar).

12

dated a host of state regulations restricting other privileges enjoyed by non-citizens within our borders. See,

e.g., Examining Bd. v. Flores de Otero, 426 U.S. 572,

575, 605 (1976) (civil engineering licenses); Graham v.

Richardson, 403 U.S. 365, 380 (1971) (state welfare

benefits); Takahashi v. Fish & Game Comm’n, 334

U.S. 410, 414, 418–19 (1948) (commercial fishing licenses). Further still, it has overturned state attempts

to implement additional requirements not imposed by

federal law. Arizona, 567 U.S. at 405–07 (state-law

criminal penalties for unauthorized employment);

Hines v. Davidowitz, 312 U.S. 52, 59, 73–74 (1941) (requirement to carry state-issued identity cards).

These cases exemplify that Congress’s express, comprehensive, exclusive power to regulate immigration

indeed “embraces every conceivable aspect of that

subject . . . .” Oceanic Steam, 214 U.S. at 340. And

where that is so, Congress may task the Executive Department with the responsibility to enforce its immigration rules, including through Executive proceedings. Muñoz, 602 U.S. at 907–08 (citing Harisiades,

Knauff, Nishimura Ekiu, and other cases).

Congress, moreover, may prescribe civil penalties to

sanction violations of its immigration rules. See Lloyd

Sabaudo, 287 U.S. at 330–31, 334–38, 341 (sustaining

fines assessed by customs collector and affirmed by

Secretary of Labor against company that transported

persons with contagious diseases that started abroad).

And where Congress acts within its express, exclusive constitutional powers and has authorized the Executive Department to assess and impose civil monetary penalties, this Court has long held that such

Executive imposition of monetary penalties or seizure

of other property does not offend Article III. See Oil

States, 584 U.S. at 335–39 (sustaining administrative

cancellation of patent, a form of private property); Phil-

13

lips, 283 U.S. at 595 (sustaining administrative procedures to collect delinquent taxes from corporate transferee, as well as direct taxpayers); Buttfield, 192 U.S. at

497–98 (sustaining customs officer’s seizure and destruction of imported tea that failed quality regulations); Pub. Clearing House, 194 U.S. at 508­–10 (finding postmaster’s administrative fraud order sufficient

for executive seizure of letters, subject to post-deprivation judicial review); Bartlett, 57 U.S. at 264, 269, 272

(sustaining undervaluation statutory penalty imposed

by Treasury official, without jury, on importer).11

The Court has squarely applied that principle in the

immigration context. Oceanic Steam, 214 U.S. at 337

(sustaining administrative order imposing monetary

penalty on shipper who transported immigrants in violation of immigration law); Lloyd Sabaudo, 287 U.S. at

334–35 (same: “[C]ontrol of the admission of aliens is

committed exclusively to Congress, and, in the exercise of that control, it may lawfully impose appropriate

obligations, sanction their enforcement by reasonable

money penalties, and invest in administrative officials

the power to impose and enforce them.”).

Congress’s express grant of authority to the Secretary of Labor to “impos[e] appropriate penalties,” 8

U.S.C. § 1188(g)(2), on employers who violate the

H-2A labor conditions set forth in § 1188(a)–(c), and

the program’s implementing regulations, thus resoundingly passes constitutional muster under this

long line of unwavering precedent. The Court could

easily reverse the lower court’s contrary conclusion on

this ground alone.

11 This principle also applies to administrative enforcement of

public rights created by statute with no common-law analogue.

Atlas Roofing Co. v. Occupational Safety and Health Rev.

Comm’n, 430 U.S. 442, 449–56 (1977).

14

B. Recruiting workers from abroad to work

domestically is a privilege subject to

legislative grace and executive

enforcement.

A second, independent line of public-rights precedent reinforces the constitutionality of DOL’s enforcement of H-2A labor conditions. When Congress

grants “public benefits”—such as “payments to veterans,” “pensions,” and “patent rights”—it may impose conditions on those benefits, enforceable

through Executive proceedings. Jarkesy, 603 U.S. at

130 (citing Crowell v. Benson, 285 U.S. 51 (1932);

United States v. Duell, 172 U.S. 576, 582–83 (1899)).

Accord id. at 153 (Gorsuch, J., concurring); Stern,

564 U.S. at 493.

An employer’s ability to recruit a worker from

abroad to work domestically and to employ the

guestworker throughout a harvest season are precisely such public benefits because admission to (and

the right to remain in) the United States, from the

beginning, have been matters of legislative grace,

not personal right. See, e.g., Muñoz, 602 U.S. at 912;

Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S.

103, 107, 139 (2020); Landon v. Plasencia, 459 U.S.

21, 32 (1982); Zakonaite, 226 U.S. at 275; Nishimura

Ekiu, 142 U.S. at 660. The Constitution permits

Congress to impose conditions on the prerogatives

of coming to, or staying in, America, so long as the

conditions are not “wholly irrational” and do not

transgress other constitutional rights. Diaz, 426

U.S. at 83.

The H-2A program conditions American employers’

privilege to recruit foreign guestworkers, bring them to

the United States, and employ them for a season on the

employers’ compliance with specified labor conditions.

15

Namely, there must be insufficient domestic workers to

perform the work, 8 U.S.C. § 1188(a)(1)(A); employment of a foreign guestworker must not adversely affect domestic wages and working conditions, Id.

§ 1188(a)(1)(B); and the employer must provide, among

other things, housing, workers’ compensation insurance, tools and equipment, meals (or adequate cooking

facilities), transportation, a guaranteed amount of

work (at least three-fourths of the term of the contract),

a minimum wage, and regular pay, Id. § 1188(c)(4); see

also 20 C.F.R. § 655.122(c)–(m).

The “obvious point” of this “statutory and regulatory

framework is to provide two assurances to United States

workers . . . .” Alfred L. Snapp & Son, Inc. v. Puerto

Rico, ex rel., Barez, 458 U.S. 592, 596 (1982). First, the

framework gives them “a preference over foreign workers for jobs that become available within this country.”

Id. Second, “to the extent that foreign workers are

brought in, the working conditions of domestic employees are not to be adversely affected, nor are United

States workers to be discriminated against in favor of

foreign workers.” Id. Equally, it protects the guestworkers themselves against exploitation that they would

otherwise be especially vulnerable to, because their

right to work within the United States is usually tied to

a single employer (or other qualifying employers who

apply to continue the guestworkers’ employment)—thus

making it extremely challenging for guestworkers to

find other, better jobs in the event of broken promises or

substandard working conditions. See, e.g., Andorra Bruno, Cong. Rsch. Serv., R44849, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues 22–23

(2023), available at https://tinyurl.com/4x3vh3m9.

These conditions are more than merely rational; they

are eminently sensible. They pass constitutional muster and require no Article III proceedings.

16

III. Regulating the terms and conditions of

work that guestworkers are admitted to

perform cannot be divorced from

immigration policy.

In the face of Sun Valley’s consent to Executive adjudication; the political branches’ express, exclusive,

comprehensive power to regulate immigration; and

this Court’s repeated recognition that recruiting and

employing foreign guestworkers to work domestically is a privilege, subject to legislative grace, the lower

court should easily have rejected Sun Valley’s Article

III claim.

It even acknowledged “immigration is traditionally

a matter of public rights.” Pet. App. 13a. Yet, it found

the public-rights doctrine inapplicable because, in its

view, the H-2A labor protections merely concerned

“domestic wages” and other aspects of “employment

law”—such as “[r]ules about worker hours, housing,

cooking, and transportation”—which could be segregated and isolated from Congress’s “authority to control immigration”). Pet. App. 16a–17a. The history of

federal immigration regulation teaches a contrary lesson. Regulating the admission of foreign workers to

work within our borders and the terms on which they

may work while here has always been a central feature of Congress’s authority over immigration.

A. Regulating migrant labor has been central

to immigration policy from the start.

Congress enacted the first statute comprehensively

regulating immigration in 1882. Immigration Act of

1882, ch. 376, 22 Stat. 214.12 Just three years later, it

12 From the Founding until after the Civil War, federal immigration legislation was scant and entry into the Nation’s border

was “relatively unrestricted.” Thuraissigiam, 591 U.S. at 178

17

began regulating migrant work. The Alien Contract

Labor Act (Foran Act) of 1885 prohibited contracting

with foreign workers for domestic employment and

voided contracts for migrant labor reached “previous

to the migration or importation of the person . . .

whose labor or service is contracted for into the United

States.” Ch. 164, §§ 1–2, 23 Stat. 332. Thus, for nearly

150 years, regulating foreign workers’ ability to come

to this country for work has occupied the center of federal immigration policy.

That policy reflected Congress’s view that “it had become the practice for large capitalists” to contract with

foreign migrant laborers and pay for their transportation to come work domestically “for a certain time at a

low rate of wages.” Holy Trinity Church v. United

States, 143 U.S. 457, 463 (1892) (cleaned up). That

practice broke “down the [domestic] labor market,” and

reduced the working standards of domestic workers

“engaged in like occupations to the level of the assisted

immigrant.” Id. at 463–64. It also created sufficient domestic outcry to “raise the standard of foreign immigrants” and to discourage migration of foreign workers

(Sotomayor, J., dissenting). The Alien Friends Act, which was in

effect for only two years from its enactment, granted the President

power to detain and expel any noncitizen he deemed “dangerous to

the peace and safety of the United States.” Act of June 25, 1798,

ch. 58, 1 Stat. 571. And the Alien Enemies Act, which purports to

authorize the President, by proclamation, to detain and expel resident “alien enemies” during wartime, is still in effect today. Act of

July 6, 1798, ch. 66, 1 Stat. 577. Apart from those two short-lived

or narrowly drawn statutes, Congress imposed “[n]o meaningful

federal restrictions on immigration” and, in line with its “express

policy . . . to encourage settlement in the new nation,” instead enacted a variety of laws “to ensure the health and safety of passengers and to grant duty‑free admission to their personal and professional possessions.” Sarah H. Cleveland, Powers Inherent in

Sovereignty, 81 Tex. L. Rev. 1, 98–99 (2002).

18

under fixed-term labor contracts—all for the ultimate

purpose of maintaining American labor standards. Id.

at 464. Accord Prescott F. Hall, The Federal Contract

Labor Law, 11 Harv. L. Rev. 525 (1898).

Congress refined its migrant-labor policy in a series

of subsequent enactments, which gave the Treasury

Secretary enhanced responsibilities, expanded the

proscribed conduct to prohibit advertising for job opportunities abroad, and imposed the costs of returning

inadmissible migrant laborers on the owners of the

shipping vessels who transported them. See Act

Amending Alien Contract Labor Act, ch. 220, §§ 6, 8,

24 Stat. 414 (1887); ch. 551, 26 Stat. 1084 (1891).

This Court long ago sustained Congressional authority to enact such policies, holding that Congress’s

“absolute power to exclude aliens” included “the power

to punish any who assist in their introduction.” Lees v.

United States, 150 U.S. 476, 480 (1893).

After the turn of the century, Congress enacted the

Immigration Act of 1903. Ch. 1012, 32 Stat. 1213. Continuing Congress’s focus on migrant labor as part of immigration policy, the Act prohibited Americans from

contracting with, recruiting, or assisting foreign labor

for domestic employment. Id. § 4. It prescribed civil

penalties for violations of the migrant-contract-labor

ban, both on employers contracting with migrant laborers and on companies that transport such migrant

workers to America. Id. §§ 5–6. Like previous statutes,

the 1903 Act also built labor policy into its admissibility

determinations, allowing “skilled labor” to “be imported, if labor of like kind unemployed can not be found in

this country,” and exempting from the contract-labor

provisions several enumerated professions. Id. § 2.

Congress’s next substantive enactment was the Immigration Act of 1917, ch. 29, 39 Stat. 874, which con-

19

tinued to bar admission of contract laborers, and prohibited Americans from contracting with, recruiting,

or assisting the immigration of migrant laborers (with

a proviso excluding skilled labor). Id. §§ 3, 4. The 1917

Act also gave the Commissioner General of Immigration, with the Secretary of Labor’s approval, authority

to “issue rules and prescribe conditions . . . to control

and regulate the admission and return of otherwise

inadmissible aliens applying for temporary admission.” Id. § 3 (ninth proviso). Relying on this authority

to address labor shortages caused by World War I, in

May 1917, the Secretary of Labor authorized suspension of the bar on admission of contract laborers to

allow migrant workers, largely from Mexico, to enter

temporarily for agricultural employment. Cong. Rsch.

Serv., S. Judiciary Comm. R., 96th Cong, 2nd Sess.,

Temporary Worker Programs: Background and Issues

7–8 (Comm. Print Feb. 1980).

Additional DOL orders prescribed the procedures

employers could use to recruit agricultural guestworkers. Id. at 9. Under those orders, a prospective employer would apply for permission to “import” laborers

by setting forth the number of workers it desired, the

class of work, wages offered, and place of employment,

along with the employer’s agreement to comply with

applicable regulations and proof that the local labor

supply was inadequate to meet the employer’s needs.

Id. at 9–10. A DOL order also required the employer

to “ ‘pay the current rates of wages for similar labor in

the community in which the admitted aliens are to be

employed,’ ” provide satisfactory housing, and to bear

the costs of any deportation charge for the aliens or

any alien family. Id. at 10.

The first DOL guestworker program ended in 1921.

But during World War II, labor shortages returned,

prompting the federal government to revive a similar

20

initiative once again. This time, as a result of Mexico’s

dissatisfaction with the United States enacting the

original program unilaterally,13 Congress established

its successor through an international agreement with

Mexico. See Agreement Respecting the Temporary

Migration of Mexican Agricultural Workers, Mex.U.S., Aug. 4, 1942, 56 Stat. 1759. This bilateral program is often referred to as the bracero (i.e., manual

laborer) program.

The 1942 Agreement provided that Mexicans entering the United States would enjoy guaranteed transportation, covered living expenses, and repatriation,

and would not displace U.S. domestic workers or otherwise reduce “rates of pay previously established.”

Id. at 1766. Under the 1942 Agreement, employers

and workers would enter contracts “under the supervision of the Mexican Government.” Id. Mexican

guestworkers would be paid the same wages as paid

“for similar work to other agricultural laborers in the

respective regions of destination.” Id. at 1767. The

Agreement entitled guestworkers to prevailing housing, sanitary, medical, health, and safety standards.

Id. It also guaranteed them work (or guaranteed daily

pay) for 75% of the contracting period. Id.

A decade later, Congress enacted an Act to Amend

the Agricultural Act of 1949, commonly known as

Public Law 78. Ch. 223, 65 Stat. 119 (1951). This law

enshrined in statute the principles DOL had previously applied administratively. It allowed admission

of agricultural guestworkers only upon the Secretary

of Labor’s determination and certification that (1) insufficient domestic workers are able, willing and qualified for the position sought by the employer, (2) the

13 Cong. Rsch. Serv., Temporary Worker Programs: Background and Issues at 13–14.

21

employment of migrant workers “will not adversely

affect the wages and working conditions of domestic

agricultural workers similarly employed,” and (3)

“reasonable efforts have been made to attract domestic workers for such employment at wages and standard hours of work comparable to those offered to foreign workers.” Id. § 503. And it authorized the

Secretary of Labor to guarantee an employer’s wage

payments and provision of transportation, while requiring the employer to indemnify the government for

any loss “by reason of its guaranty of such employer’s

contracts.” Id. §§ 501(6), 502(1).

Following the enactment of Public Law 78, the

United States and Mexico negotiated a successor

agreement imposing detailed labor conditions on the

bracero migrant labor program. See Migrant Labor

Agreement of 1951, Mex.-U.S., Aug. 11, 1951, 2 U.S.T.

1940. Among others conditions, the Agreement established a preference for domestic employment, prohibiting the employment of Mexican workers in the United States in jobs “for which domestic workers can

reasonably be obtained or where the employment of

Mexican Workers would adversely affect the wages

and working conditions of domestic agricultural workers in the United States.” Id. Art. 9. The Agreement

itself governed migrant labor contracts (Art. 11)14 and

limited guestworkers to working domestically only for

employers authorized under the program (Art. 12). It

entitled guestworkers to, among other things, prevail14 Specifically, the Agreement required all employers of Mexican guestworkers to enter into a standard “Work Contract which

is . . . made a part” of the Agreement and was reproduced immediately below its text. Migrant Labor Agreement of 1951, Art. 11.

That contract, in turn, specifically “incorporated . . . by reference

. . . the provisions of the Migrant Labor Agreement of 1951.” We

refer to this document as the “Work Contract.”

22

ing wages (Art. 15), guaranteed work (or pay) for

three-fourths of the work days of the contracting period (Art. 16), transportation (Art. 17), medical care

and compensation for work‑related injury and disease

(Art. 19), lodging (Work Contract, ¶ 2), tools and

equipment (Work Contract, ¶ 5), cooking facilities or

the value of three daily meals beyond a $1.75 daily

deduction (Work Contract, ¶¶ 6(d), 12), and potable

water (Work Contract, ¶ 8). Any contract modification

had to be approved by both governments. Id. Art. 26.

It also prohibited Mexican guestworkers from replacing domestic workers on strike. Id. Art. 22.

The United States guaranteed employers’ performance of each bracero work contract, which meant

that, when participating employers violated their obligations, the government paid any “amounts found to be

due from a defaulting Employer” to the Mexican worker. Id. Art. 32. Because participating employers were

required by statute to indemnify the United States government for any such payments, the Agreement had to

provide for a mechanism to calculate an employer’s liability for any violations of its labor provisions.

This mechanism operated entirely outside the confines of Article III. The Agreement assigned responsibility to enforce its obligations to the Secretary of Labor who, upon finding a violation following a joint

investigation with a Mexican consul, would revoke the

employer’s certification and require the offending employer “to pay all of his obligations under the Contract,” including the “three-fourths guarantee” for the

“full duration of the Contract . . . .” Id. Art. 30(c). It

directed the Mexican consul and DOL regional representative to complete their investigation and render

an initial determination on a complaint within ten

days of its receipt, with disputes referable to the Secretary of Labor and Representative of the Mexican

23

Government in Washington, who would review the

facts and render a “final joint determination” without

a judicial trial. Id. Art. 30(h)(1)–(2). The employer was

required to “agree that the Secretary of Labor’s determinations as to [its] indebtedness for wages and transportation costs shall be final and binding upon [it].”

Id. Art. 32.

Several of the rights under the 1951 Agreement

closely mirror those at issue in this case under current

H-2A regulations. See Pet. App. 53a, 62a–74a (detailing violations of requirements for cooking facilities,

meal provisions, potable water, adequate housing,

wages, and guaranteed work). The substance of these

rights originated in reticulated international obligations, negotiated and refined over many years, after

Mexico was dissatisfied with the United States’s initial effort during World War I to admit agricultural

guestworkers unilaterally.

This history belies the lower court’s misperception

of these rights as a simple “employment matter” unrelated to Congress’s authority over immigration. Pet.

App. 16a. Instead, the H-2A labor conditions originate

in international diplomacy, enforced on the United

States’ side entirely through Executive procedures.

Moreover, pursuant to the political branches’ power

over foreign affairs, such enforcement was conducted

in concert with another sovereign nation. These nonArticle III proceedings resulted, where appropriate, in

monetary relief, which was enforced by courts without

de novo review of Executive factfinding. See, e.g., United States v. Ward, 309 F.2d 640, 642–43 (5th Cir.

1962) (awarding United States indemnity for employer’s violations of wage guarantees based on Executive

fact finding that, under the Agreement, is “binding on

the employer”); United States v. Morris, 252 F.2d 643,

649 (5th Cir. 1958) (awarding government indemnifi-

24

cation for employer’s wage guarantee violations because “all matters involved in or related to” the joint

Executive proceedings were “final”).

B. The H-2A labor conditions remain integral

to Congress’s exercise of its authority

over immigration.

In 1961, President Kennedy approved the reauthorization of the bracero program. Act to Amend Title V

of the Agricultural Act of 1949, Pub. L. No. 87-345, 75

Stat. 761 (1961). The program then expired at the end

of 1963. Id. § 6. Following its expiration, the H-2 provisions of the Immigration and Nationality Act of

1952, ch. 477, 66 Stat. 163 (INA) governed guestworker admissions and labor conditions. See id. § 101(a)

(15)(H)(ii), 66 Stat. at 168 (codified at 8 U.S.C.

§ 1101(a)(15)(H)(ii)) (defining nonimmigrant to include foreign nationals living abroad with “no intention of abandoning” their home who come temporarily

to the United States to perform temporary labor “if

unemployed persons capable of performing such service or labor cannot be found in this country”).

The INA authorized the Attorney General, through

the Immigration and Nationalization Service (INS)

and in consultation with other federal agencies, to admit H-2 guestworkers upon petition, containing information required by regulations, of the “importing employer.” 8 U.S.C. § 1184(c). After the bracero program

expired, the implementing regulations required “a

certification from the Secretary of Labor” that domestic workers were unavailable for the job and the employment would “not adversely affect the wages and

working conditions of workers in the United States

similarly employed.” 8 C.F.R. § 214.2(h)(3)(i) (1964).

Related regulations also initially required employers

to comply with the labor obligations under the 1951

25

Migrant Labor Agreement, despite the expiration of

the bracero program that it governed. 20 C.F.R.

§ 610.10(c)(1) (1964). DOL then updated the regulations to incorporate rights to adequate housing, wages, meals, transportation, and guaranteed work for

three-fourths of the contract period directly into law,

rather than by reference to the now-defunct international agreement. Foreign Agricultural Labor, 32 Fed.

Reg. 4569 (Mar. 28, 1967) (codified at 20 C.F.R.

§ 602.10a (1967)).

In 1978, DOL clarified the requirements to underscore the longstanding policy that the purpose of the

guestworker program is to employ U.S. workers

“wherever possible.” 20 C.F.R. § 655.0(e) (1978). To

that end, guestworkers could be admitted only on

terms and conditions of employment that would not

lower “the terms and conditions of domestic workers

similarly employed . . . .” Id. Courts consistently upheld these regulatory requirements. See, e.g., Fla.

Sugar Cane League, Inc. v. Usery, 531 F.2d 299, 300–

01 (5th Cir. 1976); Elton Orchards, Inc. v. Brennan,

508 F.2d 493, 500 (1st Cir. 1974).

In 1986, Congress enacted the Immigration Reform

and Control Act (IRCA) and enshrined in statute the

longstanding regulatory requirement that guestworkers be admitted only upon certification by DOL that

their employment will not “adversely affect the wages

and working conditions of workers in the United

States similarly employed.” Pub. L. No. 99-603,

§ 301(c), 100 Stat. 3359, 3411 (amending INA to add

§ 216, codified at 8 U.S.C. § 1188(a)(1)(B)). IRCA also

precludes admission of guestworkers who would replace strikers, id. § 1188(b)(1), and requires H-2A employers to provide guestworkers workers’ compensation, id. § 1188(b)(3), and adequate housing, id.

§ 1188(c)(4). It also authorizes the Secretary of Labor

26

to “impos[e] appropriate penalties and seek[] appropriate injunctive relief and specific performance of

contractual obligations, as may be necessary to assure

employer compliance with terms and conditions of

employment under this section.” Id. § 1188(g)(2).

Finally, IRCA expressly directed the Attorney General, in consultation with the Secretary of Labor and of

Agriculture, to approve regulations implementing the

H-2A program and new statutory requirements. IRCA,

Pub. L. No. 99-603, § 301(e), 100 Stat. 3359, 3416

(1986) (codified at 8 U.S.C. § 1188 note).

The next year, DOL promulgated 29 C.F.R. part 501,

which provides for Executive enforcement of IRCA’s

statutory civil penalties. Enforcement of Contractual

Obligations for Temporary Alien Agricultural Workers

Admitted Under Section 216 of the Immigration and

Nationality Act, 52 Fed. Reg. 20524 (June 1, 1987).

The regulations prohibited H-2A employers from

seeking to have H-2A workers waive their statutory or

regulatory rights (§ 501.4), defined “work contract” to

include all regulatory requirements set forth in 20

C.F.R. Part 655 (§ 501.10(d)), directed the Labor Secretary to institute “appropriate administrative proceedings” for unpaid wages and civil monetary penalty

assessments (§ 501.16(a)), hold administrative hearings after proper notice (§§ 501.31–501.40), hear administrative appeals (§§ 501.42–501.45), assess civil

monetary penalties for violations of the work contract

or regulations (§ 501.19), investigate violations

(§ 501.20), and collect civil penalties assessed in final

administrative orders (§ 501.22). Since at least 2008,

these regulations have made clear that aggrieved employers may seek judicial review from adverse agency

decisions. See Temporary Agricultural Employment of

H-2A Aliens in the United States, 73 Fed. Reg. 77110,

77237–38 (Dec. 18, 2008) (modifying §§ 501.33, 501.42

27

to clarify and confirm that aggrieved parties may seek

judicial review of adverse agency decisions).

Over 150 years of federal regulation of migrant contract labor generally, and several decades of federal

regulation of the H-2A statutory and regulatory provisions specifically, teach an overriding lesson: the federal concern with labor conditions of foreign guestworkers admitted to perform temporary agricultural

labor is not mere “employment law” (Pet. App. 16a)

unrelated to immigration policy. The federal government thoroughly regulates those “contracts” to further

broad interests in protecting domestic labor standards

against dilution by workers abroad willing to work for

less than the prevailing standards in the United States.

Furthermore, executive enforcement of H-2A labor

conditions promotes international interests in friendly relations with those countries sending migrant

workers our way. The United States is currently party

to agreements with several sovereign nations that

emphasize the Executive’s commitment to enforcing

labor conditions for these countries’ citizens participating in the H-2A program. These agreements make

express reference to the scheme that Sun Valley challenges here. For instance, a 2023 Memorandum of Understanding binding DOL, the Department of State,

and their Mexican counterparts emphasizes “the importance of safe and lawful recruitment, employment,

working conditions, housing facilities, and transportation services, the timely and correct payment of

wages, and access to complaint mechanisms and lawful remedies, including the return of back wages owed

to temporary foreign workers.” Mem. of Understanding Concerning Labor Mobility and the Protection of

Participants in Temporary Foreign Worker Programs,

Mex.-U.S., § 3, Jan. 2023, available at https://tinyurl.

com/yruk7p6a (emphasis added); see also id. §§ 3(4),

28

3(6) (committing parties to binational efforts to

“[e]ducate intending H-2 workers about available

worker protections under applicable laws, rules, and

regulations” and “[w]ork to return back wages found

due by the [DOL] Wage and Hour Division in a timely

fashion to Mexican workers”).15 Thus, far from a matter of local employment conditions unrelated to the

political branches’ authority over foreign affairs, the

enforcement of H‑2A labor conditions remains a matter of acute interest for our international partners.

Taking these interests into account, Congress has

followed a variety of approaches over the years to regulating migrant labor contracts. It has barred them

completely; set statutory terms unilaterally, enforced

through unreviewable Executive procedures; set

terms through bilateral international agreements,

implemented through statutes and federal regulations and administered through Executive procedures;

and set some substantive terms by statute (mirroring

lapsed agreements while continuing to be tinged by

international concerns), while directing others to be

set by regulation—and all to be enforced by Executive

procedures, subject to judicial review.

Across these approaches, one lesson emerges clearly: Congress’s authority to admit foreign nationals to

work domestically, and to regulate the terms on which

they may work while here, is part and parcel of immigration policy and foreign affairs. The lower court’s

attempt to divorce enforcement of the terms on which

15 The United States is also party to similar agreements with

Guatemala and Honduras. Agreement Concerning Temporary

Agricultural and Non-Agricultural Worker Programs, Guatemala-U.S., Sept. 2020, available at https://tinyurl.com/mrxdfara;

Agreement Concerning the Temporary Agricultural and NonAgricultural Worker Programs, Honduras-U.S., Sept. 2019,

available at https://tinyurl.com/fs54232b.

29

migrant laborers may work while here from Congress’s authority to regulate immigration defies that

history. Doing so unduly constrains the political

branches’ expansive constitutional authority to regulate and enforce the terms on which migrant laborers

may work, threatening to disrupt the many sensitive

foreign relations interests implicated by those regulations. This Court should heed the lessons of history

and reverse, holding that it is not the judiciary’s role

to sever Congress’s regulation of migrant labor from

its authority to regulate immigration more generally.

CONCLUSION

For these reasons, the Court should reverse and remand with instructions to enter judgment for the Department of Labor, which may constitutionally enforce

the H-2A labor regulations imposing civil monetary

penalties through Executive proceedings, without offending Article III.

Respectfully submitted,

/s/ Darin M. Dalmat

maTThew J. GInSburg

DarIn m. DaLmaT

Counsel of Record

Andrew LyubarSky

Hannah cohen SmITh*

AfL-cIO

815 16th St., N.W.

Washington, DC 20006

202-637-5021

ddalmat@aflcio.org

*Admitted in ME only. Practice

supervised by D.C. Bar members.

Counsel for AFL-CIO

June 25, 2026