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 OF AMICUS CURIAE PROFESSOR

ILAN WURMAN IN SUPPORT OF RESPONDENT

__________

ILAN WURMAN*

University of Minnesota

229 S 19th Ave.

Minneapolis, MN 55455

(612) 624-8816

iwurman@umn.edu

*Counsel of Record

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

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

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

ARGUMENT ................................................................ 3

I. In this Court’s leading precedents, the only

consequence for failing to pay a regulatory

penalty was loss of the public privilege. ................ 3

A. Public rights ...................................................... 4

B. Constitutional conditions.................................. 7

C. This Court’s precedents .................................. 11

II. The Court can decide this case on the

relatively narrow ground that regulatory

penalties enforceable irrespective of the

continued receipt of public benefits, without

courts and juries, is unconstitutional. ................. 18

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Atlas Roofing Co. v. Occupational Health and Safety

Review Commission,

430 U.S. 442 (1977) ...................................... 5, 21, 22

Bartlett v. Kane,

57 U.S. 263 (1853) .................................................. 15

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ................................................ 10

Burfenning v. Chicago, St. P., M. & O. Ry. Co.,

163 U.S. 321 (1896) .................................................. 7

Buttfield v. Stranahan,

192 U.S. 470 (1904) ................................................ 14

Crowell v. Benson,

285 U.S. 22 (1932) .................................................... 6

Ex parte Curtis,

106 U.S. 371 (1882) ................................................ 12

Lloyd Sabaudo Societa Anonima per Azioni v. Elting,

287 U.S. 329 (1932) ............................................ 2, 20

N. Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50 (1982) ......................................... 6, 9

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................ 13

iii

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ................................................ 11

Oceanic Steam Navigation Co. v. Stranahan,

214 U.S. 320 (1909) .............................. 2-4, 14, 18-21

Passavant v. United States,

148 U.S. 214 (1893) ........................................... 14-16

Perry v. Sindermann,

408 U.S. 593, 597 (1972) ........................................ 11

Sampson v. Peaslee,

61 U.S. 571 (1857) .................................................. 14

Securities & Exchange Commission v. Jarkesy,

603 U.S. 109 (2024) ........................................ 3, 4, 21

South Dakota v. Dole,

482 U.S. 203 (1987) .................................... 10, 12, 13

Stern v. Marshall,

564 U.S. 462 (2011) .................................................. 6

Steward Mach. Co. v. Davis,

301 U.S. 548 (1937) ................................................ 13

Sun Valley Orchards v. U.S. Dep’t of Lab.,

148 F.4th 121 (3d. Cir. 2025) ................................. 22

United Public Workers v. Mitchell,

330 U.S. 75 (1947) ............................................ 10, 12

United States v. Sherman & Sons Co.,

237 U.S. 146 (1915) .......................................... 17, 18

iv

Wyman v. James,

400 U.S. 309 (1971) .......................................... 10, 12

Statutes

29 C.F.R. 501.16(a)(1) ................................................ 24

5 U.S.C. §§ 7321–7326 ............................................... 10

8 U.S.C. § 1188(g)(2) .................................................. 24

An Act to simplify the laws in relation to the

collection of the revenues, 26 Stat. 131, 134-35

(June 10, 1890) ....................................................... 16

Immigration Act of 1917, Ch. 29, 39 Stat. 874 ......... 21

U.S. CONST. amend V................................................... 5

U.S. CONST., amend VII .............................................. 5

U.S. CONST., art. III ..................................................... 5

Other Authorities

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND (1765) ................................................... 5

Caleb Nelson, Adjudication in the Political Branches,

107 COLUM. L. REV. 559 (2007) ............................ 6, 8

Caleb Nelson, Sovereign Immunity as a Doctrine of

Personal Jurisdiction, 115 HARV. L. REV. 1559

(2002) ........................................................................ 8

v

Developments in the Law, Immigration Policy and

the Rights of Aliens,

96 HARV. L. REV. 1286 (1983)............................. 8, 18

ILAN WURMAN, ADMINISTRATIVE LAW THEORY AND

FUNDAMENTALS: AN INTEGRATED APPROACH

(3d. ed. 2025) ............................................................ 1

Ilan Wurman, Public Rights and the Doctrine of

Unconstitutional Conditions, 78 Admin. L. Rev.

(forthcoming 2026) ................................................... 1

John Harrison, Public Rights, Private Privileges, and

Article III, 54 Ga. L. Rev. 143 (2019)................. 7, 19

Kathleen M. Sullivan, Unconstitutional Conditions,

102 HARV. L. REV. 1413 (1989)........................... 9, 12

Richard H. Fallon, Jr., Of Legislative Courts,

Administrative Agencies, and Article III,

101 HARV. L. REV. 915 (1988)................................. 18

INTEREST OF AMICUS CURIAE *

Amicus is the Julius E. Davis Professor of Law at

the University of Minnesota, where he teaches and

writes about constitutional and administrative law.

He is the author of the casebook ADMINISTRATIVE LAW

THEORY AND FUNDAMENTALS: AN INTEGRATED

APPROACH (3d. ed. 2025), the article Public Rights

and the Doctrine of Unconstitutional Conditions, 78

Admin. L. Rev. __ (forthcoming Sept. 2026), and several other articles on administrative law. He is interested in the sound development of this field. The

University of Minnesota is mentioned for identification purposes only.

SUMMARY OF THE ARGUMENT

In the courts below, none of the parties appreciated the precise nature of this case. The regulated entity argues that these matters, involving money penalties and backpay, are matters of private rights. The

agency argues that immigration and public benefits

are a matter of public rights. Neither is quite correct

because this case involves both types of rights. The

question involved is whether the government may

condition the receipt of a public right—for example,

the right to bring in foreign workers—on the recipient’s forgoing a private right.

The doctrine that resolves such questions is called

the doctrine of unconstitutional conditions, although

it would be more apt to describe it as the doctrine of

* In accordance with Rule 37.6, no counsel for any party

authored this brief in whole or in part, and no person or entity

other than amicus made a monetary contribution intended to

fund the brief’s preparation or submission.

2

constitutional conditions. This brief argues that the

government may condition a public right on the recipient’s forgoing a private right, including the right to a

jury trial prior to the imposition of a fine, but only if

the conditions meet specific requirements.

A critical component of the analysis, supported by

this Court’s historic public rights cases, is that the

consequence for failure to pay must be no more than

the loss of the public privilege. That is precisely what

occurred in this Court’s leading case, and the leading

precedent upon which the government relies: Oceanic

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

(1909); see also Lloyd Sabaudo Societa Anonima per

Azioni v. Elting, 287 U.S. 329 (1932). In these leading

cases, the only consequence for failing to pay the fine

was the loss of the public privilege (vessel clearance

to import aliens). This Court routinely stated that

that was why such matters were for “administrative”

competence.

Here, the regulatory scheme requires payment of

the penalties independently of the ongoing receipt or

loss of the public benefit and is therefore unconstitutional for that reason. And, if any backpay order

would be enforceable independently of the continuing

receipt (or not) of the public rights under this foreignworker program, then that, too, would be unconstitutional. If the only consequence, however, is loss of the

right to participate in the program—and Congress

could easily amend the statute, or the agency could

easily amend the regulations, to provide for that consequence alone—that would pass constitutional muster and be consistent with this Court’s leading precedents.

3

ARGUMENT

I. In this Court’s leading precedents, the only

consequence for failing to pay a regulatory

penalty was loss of the public privilege.

In Securities and Exchange Commission v.

Jarkesy, 603 U.S. 109 (2024), the majority and dissenting opinions appreciated the importance of one of

this Court’s leading precedents, Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909). Oceanic

Steam involved a regulatory money penalty imposed

on a vessel that sought to bring in immigrants with

diseases that could have been detected prior to embarking on the voyage. If the vessel refused to pay,

docking privileges were denied. This Court upheld

the imposition of the regulatory fine.

The majority in Jarkesy concluded that the money

penalty in Oceanic Steam was constitutional because

Congress’s power over foreign commerce and immigration was “so total” as to permit the penalties.

Jarkesy, 603 U.S. at 129 & n.1. That account does not

sufficiently appreciate that Congress’s authority over

many areas is similarly total. The dissent, on the other hand, argued that if the money penalties involved

in that case were constitutional, then “civil-penalty

claims brought by the Government” to enforce statutory prohibitions within Congress’s power to enact

must be constitutional in a broad range of contexts.

Id. at 176 (Sotomayor, J., dissenting). That is also incorrect because the failure to pay in Oceanic Steam

involved only the loss of the public privilege itself.

Oceanic Steam was rather a case about constitutional conditions. It involved the question whether

Congress can condition receipt of a public privilege

4

(docking privileges to bring in immigrants, itself a

public right) on forgoing a private right (the right to a

jury trial in an Article III court before imposition of a

money penalty). The Court concluded yes, because

the only consequence of a failure to pay was loss of a

public privilege and because the small money penalties were germane to the program in question; they

induced efficient performance of the regulatory obligation at issue.

Understanding the nature of this Court’s leading

precedents helps explain many of this Court’s public

rights cases; why Atlas Roofing Co. v. Occupational

Health and Safety Review Commission, 430 U.S. 442

(1977), erred by allowing imposition of money penalties outside a public rights scheme; and how the present case should be resolved.

A. Public rights

1. At the most basic level, private rights are natural rights belonging to the individual, which exist antecedent to civil society. 1 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 117-41

(1765); see especially id. at 119 (these rights “belong

to their persons merely in a state of nature, and

which every man is intitled to enjoy whether out of

society or in it”). These are the rights to life, liberty,

and property that the government cannot take away

without due process of law. U.S. CONST. amend V

(“[N]or [shall any person] be deprived of life, liberty,

or property, without due process of law.”). Any suit to

deprive someone of such rights pursuant to a law of

the United States would be a suit at common law, equity, or admiralty arising under the laws of the United States, thereby requiring an Article III adjudica-

5

tion, id. art. III, and the suit would require a jury for

legal remedies, id. amend VII.

The private rights category also includes disputes

between two private parties involving their legal relations—as this Court has said, “the liability of one

individual to another under the law as defined.”

Crowell v. Benson, 285 U.S. 22, 51 (1932). A court is

required to declare or adjust any relative liberty or

property rights. Thus, a court is required to declare

the property of one belongs to another under existing

law, or that a contract has been breached and performance is due. N. Pipeline Constr. Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982); Stern v. Marshall,

564 U.S. 462 (2011).

2. Public rights, in contrast, generally fall into

two overlapping categories. The first includes rights

that do not exist in the state of nature. These are

rights—or privileges or benefits, to be more precise—

that only exist by virtue of government grace or largesse. Public employment is one example. Public welfare benefits are another: there is no public treasury

in the state of nature, and certainly no private right

to access welfare benefits derived from that treasury.

Caleb Nelson, Adjudication in the Political Branches,

107 COLUM. L. REV. 559, 565-86 (2007); John Harrison, Public Rights, Private Privileges, and Article III,

54 GA. L. REV. 143, 160-79 (2019).

This reasoning applies to other resources held by

the government, such as public lands. Although there

is a private right to land ownership, there is no private right to land the government owns for the benefit of all in common. The distribution of such land is

in its nature like a welfare benefit. Once such lands

or benefits are distributed, however, those benefits

6

operate just as do private rights and thus vest in the

individual receiving them. See, e.g., Burfenning v.

Chicago, St. P., M. & O. Ry. Co., 163 U.S. 321 (1896).

A second category of public rights is common and

limited natural resources. Access to these rights do,

in a sense, exist in the state of nature. One can freely

travel on roads and rivers in the state of nature. But

unlike the general right to acquire property or to engage in locomotion or to enter into contracts, such

rights belong to all in common in a narrower geographic sense. All equally have a right to access the

common highways and rivers. All equally have a

right to access the common fisheries. All equally have

a right to access the airwaves. In their nature these

rights are limited because not all can access them at

the same time or without depletion. As Caleb Nelson

has summarized, public rights belong to the people as

a whole, and typically include “proprietary rights

held by government on behalf of the people, such as

the title to public lands or the ownership of funds in

the public treasury” and collective rights such as the

“rights to sail on public waters or to use public roads.”

Nelson, supra, at 566.

Immigration, it is undisputed here, is a classic

public right. There are no nation-states in the state of

nature. There is no private right to become a member

of any political society one wishes to join. See, e.g.,

Developments in the Law, Immigration Policy and

the Rights of Aliens, 96 HARV. L. REV. 1286, 1318

(1983) (noting the rights-privileges distinction as applied to these cases).

3. The public rights doctrine, properly so called, is

not truly an exception to Article III. If the public

rights doctrine were limited to public benefits, for in-

7

stance, sovereign immunity would bar any lawsuit

over access. Without the sovereign’s consent to suit,

there would be no defendant and therefore no “case”

or “controversy” for a court to resolve. Caleb Nelson,

Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002). Without a

“case” or a “suit,” neither Article III nor the Seventh

Amendment would apply. The sovereign’s power to

deny consent further implies the power to decide such

matters by private bill or to delegate adjudication exclusively to the executive branch. See also N. Pipeline, 458 U.S. at 67 (observing that the doctrine permitting certain cases to be adjudicated in non-Article

III courts “may be explained in part by reference to

the traditional principle of sovereign immunity,

which recognizes that the Government may attach

conditions to its consent to be sued”).

B. Constitutional conditions

1. The unconstitutional conditions doctrine, or the

constitutional conditions doctrine, relates to the doctrine of public rights. The question in such cases is

whether access to a public right can be conditioned on

forgoing a private right. The doctrine arises, that is,

when the government offers a benefit that it is “permitted but not compelled to provide”—such as direct

subsidies, other welfare benefits, or public employment—on condition that the recipient perform or forgo an activity over which he has autonomous choice

and which “a preferred constitutional right normally

protects from government interference.” Kathleen M.

Sullivan, Unconstitutional Conditions, 102 HARV. L.

REV. 1413, 1421-27 (1989).

The doctrine applies in a variety of contexts. It

applies to the question whether Congress can condi-

8

tion the receipt of federal funds on states’ forgoing

regulatory autonomy. In South Dakota v. Dole, this

Court upheld Congress’s conditioning the receipt of a

portion of federal highway funds on the states’ increasing their legal drinking age. 483 U.S. 203 (1987).

The theory seems to have been that the state has no

right to the federal funding—it is a privilege the government can grant or deny at its pleasure—and so it

can condition receipt of the privilege on the state’s

forgoing some regulatory autonomy with which the

federal government could not directly interfere.

The constitutional conditions doctrine has featured in many individual rights cases, of particular

relevance here. This Court has upheld conditions on

public employment, which is a public privilege, that

require employees to forgo First Amendment rights to

engage in partisan political activity. United Public

Workers v. Mitchell, 330 U.S. 75 (1947); Broadrick v.

Oklahoma, 413 U.S. 601, 616-17 (1973); 5 U.S.C.

§§ 7321–7326. This Court has also upheld a condition

on the receipt of welfare benefits that required recipients to forgo Fourth Amendment rights, requiring

their agreement to welfare searches of their homes.

Wyman v. James, 400 U.S. 309, 317-18 (1971). This

Court has also suggested that a state’s greater power

to deny a building permit to preserve the public right

of ocean access includes the lesser power to grant the

permit on the condition of creating a public easement

without compensation under the Fifth Amendment.

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987).

All of these problems have the same basic structure. The question is whether the government may

condition the receipt of a public privilege or benefit to

which there is no entitlement in the first place (fed-

9

eral highway funds, government employment, welfare

benefits, obstructing public access to a common resource) on the recipient’s forgoing what otherwise

would be constitutionally protected autonomy (the

right to regulate drinking age, to engage in partisan

political activities, to enjoy privacy in the home, to

prevent public access to one’s property).

It should be noted that this Court does not often

use the language of “unconstitutional conditions,” and

it has suggested that the doctrine is disfavored. This

Court has often said that the rule is that the government “may not deny a benefit to a person on a basis

that infringes his constitutionally protected interests.” Perry v. Sindermann, 408 U.S. 593, 597 (1972).

Yet, that is precisely what this Court has permitted,

so long as the government carefully adheres to the

proper framework.

2. The central part of the analysis is germaneness. In the federalism context, the Court has explained that “conditions on federal grants might be

illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” Dole,

483 U.S. at 207; id. at 208 & 208 n.3 (describing this

condition as “germaneness”). In the public employment and First Amendment cases, the Court focused

on the importance of efficiency, integrity, and neutrality among government servants and has held that

forgoing some First Amendment rights is a legitimate

and just “purpose” of legislation relating to such employment. Ex parte Curtis, 106 U.S. 371, 373 (1882);

Mitchell, 330 U.S. at 97-98. In the welfare search context, the Court has approved suspicionless searches

because the state has an “appropriate and paramount

interest and concern in seeing and assuring that the

10

intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses.” Wyman, 400 U.S. at 319. “[T]he greater power to deny for a good reason includes the lesser power

to condition for the same reason,” Professor Sullivan

has explained, citing Robert Hale, “but government

cannot impose a condition for a reason not germane

to one that would have justified denial.” Sullivan, supra, at 1460.

Critically, in each of these cases, the only consequence for failure to observe the condition was a loss

of the public privilege. As soon as a public employee

becomes again a private figure, he retains all of his

First Amendment rights. And, as this Court explained in Wyman, “[t]he only consequence of [a] refusal” to agree to welfare searches “is that the payment of benefits ceases,” which is “no different than if

she had exercised a similar negative choice initially

and refrained from applying for [welfare] benefits.”

400 U.S. at 325. If the consequence extended beyond

loss of the privilege, then it would no longer be germane to that privilege and would not be a mere incident of the grant of the public right. The condition

would instead be an impermissible regulation of private rights.

3. Another factor in the analysis is that the condition must not be unduly coercive: it must leave the

recipient with a genuine choice whether to accept or

refuse. This condition is less discussed. In the federalism cases, the Court’s “decisions have recognized that

in some circumstances the financial inducement offered by Congress might be so coercive as to pass the

point at which ‘pressure turns into compulsion.’”

Dole, 483 U.S. at 211 (quoting Steward Mach. Co. v.

11

Davis, 301 U.S. 548, 590 (1937)). In that case, losing

a mere five percent of the state’s federal highway

funds was held not to be coercive, leaving the state a

genuine choice to forgo the funds and maintain its

lower drinking age. On the other hand, threatening a

state with a loss of its entire Medicaid funding unless

it agreed to administer an expanded program for the

government was a “gun to the head.” Nat’l Fed’n of

Indep. Bus. v. Sebelius, 567 U.S. 519, 581 (2012).

C. This Court’s precedents

This Court’s public rights cases are explicable

within the framework of the constitutional conditions

doctrine. The central precedents supporting regulatory penalties involve the customs and immigration

contexts. But—crucially—the only consequence for

failure to pay would be denial of the public right.

1. Customs. The appraisal of imports has long

been held to be a public right. See, e.g., Buttfield v.

Stranahan, 192 U.S. 470, 493 (1904) (“As a result of

the complete power of Congress over foreign commerce, it necessarily follows that no individual has a

vested right to trade with foreign nations which is so

broad in character as to limit and restrict the power

of Congress to determine what articles of merchandise may be imported into this country and the terms

upon which a right to import may be exercised.”);

Oceanic Steam, 214 U.S. at 335 (quoting same).

In Passavant v. United States, 148 U.S. 214

(1893), and a few earlier cases, 1 the Court addressed

Bartlett v. Kane, 57 U.S. 263, 270 (1853);

Sampson v. Peaslee, 61 U.S. 571, 580 (1857).

1

12

whether the customs service could impose, without

judicial review, additional “penalty” duties when the

appraised value sufficiently differed from the value

declared by the importer. The Court explained as a

general matter that the government’s tariff legislation provided “for a speedy and equitable adjustment”

of the value, and if judicial review were available “the

prompt and regular collection of the government’s

revenues would be seriously obstructed and interfered with.” Passavant, 148 U.S. at 220. Judicial review would unfold years after the goods had left the

government’s possession. See also Bartlett, 57 U.S. at

272-73 (“Every importer might feel justified in disputing the accuracy of the judgment of the appraisers,

and claim to make proof before a jury, months and

even years after the article has been withdrawn from

the control of the government, and when the

knowledge of the transaction has faded from the

memories of its officers.”).

As for the additional penalty, the Court explained

that such additional duties “are the compensation for

a violated law, and are designed to operate as checks

and restraints upon fraud.” Passavant, 148 U.S. at

221 (quoting Bartlett, 57 U.S. at 274). “They are designed to discourage undervaluation upon imported

merchandise,” the Court added, “and to prevent efforts to escape the legal rates of duty.” Id. Whether

designated a duty or a “penalty,” Congress had the

power to authorize its imposition, the Court held, because it “was a legal incident to the finding of a dutiable value in excess of the entry value to the extent

provided by the statute.” Id. at 222.

The question in the case, best understood, was

whether as a condition of enjoying the public right of

13

importing foreign goods, importers could be made to

sacrifice a portion of their private rights. The answer

was yes, and the Court went to great lengths to explain the condition’s germaneness. If the reason for

the condition would justify prohibiting the importation altogether, then it would be a constitutional condition. That is, if Congress could prevent importation

altogether—which it could do without an Article III

court and Seventh Amendment jury because importation is a public right—then surely it could condition

importation on the payment of a penalty without a

court and jury, so long as the reason that would support a prohibition also underlay the condition.

Dishonesty on the part of the importer, or failing

to pay proper duties, would be proper grounds to prohibit importation altogether—again, which could be

accomplished without a judge or jury. As a consequence, the government could exercise the lesser

power of imposing a condition permitting importation

on forgoing any Article III or jury rights should the

collectors find discrepancies in the actual and stated

values. The money penalties would induce efficient

performance of the regulatory obligations, and failure

to abide by those regulations would also justify a prohibition.

Most importantly, the only consequence for failing

to pay the duty was losing a public right, namely, the

right to import the goods into the United States.

There was no consequence other than the goods could

not be unloaded without paying the additional duty. 2

2 See An Act to simplify the laws in relation to the

collection of the revenues, 26 Stat. 131, 134-35 (June 10,

14

Hence the condition was directly connected to the

continued enjoyment of a public right. This Court

confirmed this understanding in 1915. The reason

penalties and assessments could be paid without a

proper judicial proceeding, and that the question was

an “administrative matter,” was because “the assessment is in rem and against the foreign goods

which are sought to be entered.” United States v.

Sherman & Sons Co., 237 U.S. 146, 153 (1915). This

was a “limited administrative power to make a quasijudgment in rem, against goods in possession.” Id. at

155. The Court rejected the proposition—as a statutory matter but with constitutional overtones—that

the government could, without a proper judicial trial,

seek to collect new amounts after making allegations

of fraud well after the goods were imported. Id. at

156–58.

In these cases, if the penalty had been imposed irrespective of the right to import the goods, that would

have raised a thornier constitutional problem. All

penalties, even those independently enforceable,

surely deter wrongdoing, and in this case would have

deterred the importer from providing a false value.

But once the right to import the goods is forfeited,

there is no longer any reason to impose the penalty.

Any imposed penalty would no longer be germane to

the purpose of the public benefit. The individual

would have forfeited the public benefit, and the public

would have reclaimed it. A condition on the exercise

1890). If the undervaluation was by over 40 percent, the

goods could be seized, but the collector would still have to

bring an action for fraud.

15

of a privilege must terminate with the privilege, otherwise the condition itself would be the regulation rather than a mere incident of the grant of a public

privilege. And Congress could certainly not have provided as a general, standalone regulation that penalties for violations of law be paid without courts or juries.

2. Immigration. This Court’s subsequent language in the immigration context evokes the constitutional conditions doctrine more explicitly. Immigration is a classic public right: there is no private right

to enter into any country one pleases. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915, 967-70

(1988); Developments in the Law: Immigration Policy

and the Rights of Aliens, supra, 96 HARV. L. REV. at

1318. In Oceanic Steam, this Court addressed the

constitutionality of a money penalty imposed for

bringing in aliens with “loathsome” or contagious diseases that could have been detected at the port of departure. 214 U.S. at 330. The determination of the

customs and immigration officials at the port of entry

were exclusive of judicial review and therefore conclusive. Id. at 333. Critically, the only consequence for

failing to pay the penalty was the loss of the public

privilege: no clearance papers would be given to any

vessel from the company while the fines remained unpaid. Id. at 332. 3

3 John Harrison has explained that “clearance was

very valuable to the steamship company, so it had strong

incentives to pay the penalty,” but that “clearance was a

privilege, not a right,” and therefore Congress “could create a form of executive adjudication by conditioning a ben-

16

The Court did not use the term “unconstitutional

conditions doctrine,” but its language is rooted unmistakably in that idea. The Court stated: “We think

. . . the power to refuse clearance to vessels was

lodged for the express purpose of causing both the

imposition of the exaction and its collection to be acts

of administrative competency, not requiring a resort

to judicial power for their enforcement.” Oceanic

Steam, 214 U.S. at 333. That is, the greater power to

deny for a good reason a public right altogether—

clearance for vessels bringing in aliens—without a

court or jury, must necessarily include the lesser

power to condition such clearance on administrative

findings, without a court or jury, so long as the condition advances that same good reason.

What brought the question into “administrative

competency, not requiring a resort to judicial power,”

ibid, was the fact that the only consequence was the

denial of clearance, a public right. The Court subsequently reemphasized the consequence of failing to

pay the penalty—the loss of a public right—and its

connection to administrative competence: Congress’s

“complete administrative control over the granting or

refusal of a clearance also leaves no doubt of the right

to endow administrative officers with discretion to

refuse to perform the administrative act of granting a

clearance, as a means of enforcing the penalty which

there was lawful authority to impose.” Id. at 343.

The government relies heavily on Lloyd Sabaudo

Societa Anonima per Azioni v. Elting, 287 U.S. 329

efit on compliance with the result of the adjudication.”

Harrison, supra, 54 Ga. L. Rev. at 182-83.

17

(1932), but that case stands for the same proposition

as Oceanic Steam. Lloyd involved a later statute

nearly identical to the prior statute, again involving

the bringing in of aliens with diseases. Clearance was

to be denied to vessels unless they paid the fines. Id.

a 333 & n.1; Immigration Act of 1917, Ch. 29, 39 Stat.

874, 881 (providing for withholding clearance “while

the fines remain unpaid”).

3. As noted, this Court in Jarkesy may not have

sufficiently appreciated the nature of the Oceanic

Steam precedent. It does not stand for the proposition

that Congress’s power over immigration is necessarily more total than its other granted powers. But neither does it stand for the proposition that Congress

may freely permit the imposition of regulatory penalties in any area falling within its enumerated powers.

Rather, the case stands for the proposition that Congress may condition a public privilege on forgoing a

private right to an Article III court and Seventh

Amendment jury if doing so is germane to the program and the only consequence for failing to pay is

the loss of the public privilege.

4. It should now also be clear that Atlas Roofing

was wrongly decided. That case involved regulatory

penalties imposed for workplace safety violations. 430

U.S. 442. This Court upheld the penalty, reasoning

that “Congress has often created new statutory obligations” and has “provided for civil penalties for their

violation, and committed exclusively to an administrative agency the function of deciding whether a violation has in fact occurred.” Id. at 450. Both statements are true (but irrelevant): public rights cases

never required judicial process and therefore required

neither an Article III court nor a jury, and Congress

18

has indeed created new statutory obligations, such as

in Passavant and Oceanic Steam, and appended civil

penalties.

The difference is that such penalties were an incident to a public rights regime and the only consequence for failing to pay the fine was loss of the public privilege. The statute in Atlas Roofing did not involve public privileges at all, but rather traditional

private rights: the rights to operate a private business, to hire workers, and the tort obligations of employer to employee. These rights exist antecedent to

government, sovereign immunity does not apply, and

the common law governed the relevant rights and relations. The imposition of money penalties without

courts and juries cannot be understood as a condition

on the receipt of some public benefit. There is no public benefit involved. The case involved private rights

and only private rights.

II. The Court can decide this case on the relatively narrow ground that regulatory penalties enforceable irrespective of the continued receipt of public benefits, without courts

and juries, is unconstitutional.

The Department of Labor imposed, in this case,

regulatory penalties for violations of regulations governing a foreign laborer program, and ordered backpay for violation of contracts with the foreign laborers. Sun Valley Orchards v. U.S. Dep’t of Lab., 148

F.4th 121 (3d. Cir. 2025). As should now be relatively

clear, both the imposition of the fine and the contract

dispute is a matter of private right. Immigration,

however, is a public right. The case would thus seem

to be governed by the unconstitutional conditions (or

constitutional conditions) doctrine.

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The Third Circuit quite correctly observed, “[T]hat

DOL has some authority to proceed in a non-Article

III tribunal does not give it carte blanche to do so for

all violations.” Id. at 131. The court was also correct

to observe that the case was in its nature like a “suit

for breach of contract, which would have traditionally

been heard in common law courts.” Id. at 129. And it

was correct that the penalties were common-law remedies. The government, for its part, was also correct

that “immigration is traditionally a matter of public

rights,” over which the government has “plenary

power.” Id. at 129–30.

The Government mostly frames the case correctly,

except for one crucial piece. The public rights category, the Government asserts, “encompasses government programs granting employers or other third

parties the special privilege of obtaining authorization to bring aliens into the United States, subject to

the terms and conditions the government prescribes.”

Pet. Br. at 3. That is correct but incomplete. The conditions must be constitutional conditions.

The proper framework for thinking about this case

is as follows. To the extent the failure to pay the

backpay or the regulatory penalty would lead only to

the loss of privileges under the program—the loss of

the right to hire foreign workers—it would fit the

mold of typical constitutional conditions. The agency

could certainly adjudicate the matter as a condition of

continuing participation in the program. If the backpay dispute and the regulatory penalty are independently enforceable, however—the company has to

pay it whether or not the company is permitted to

continue participating in the public rights program—

then it would be a matter of purely private right. Of

20

course, in this unique case, if the company refuses to

pay the backpay and forgoes the public privilege, the

employee may still have a claim against the employer, but that would require an Article III (or state)

court exercising judicial power to resolve.

Under the regulation, the DOL penalties are independently enforceable. 29 C.F.R. 501.16(a)(1). The

agency contends that these regulations are authorized by 8 U.S.C. § 1188(g)(2), which authorizes the

Secretary “to take such actions, including imposing

appropriate penalties and seeking 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.”

The statute would seem to authorize the imposition of money penalties as a condition of continued

participation. But if interpreted to authorize the imposition of penalties that are enforceable independently of whether the regulated party wishes to

continue receiving the public benefit, such penalties

would not but germane and would not be constitutional. The Court should clarify the interrelation of

the public rights and constitutional conditions doctrine and declare the regulations unlawful to the extent they can be independently enforced. If such penalties are merely imposed as a condition of continued

participation in the program, then they would be constitutional—so long as the condition is germane and

not coercive. The Court need not, however, reach

those questions, because the penalties are enforceable

beyond the mere loss of the public right, which sufficiently establishes their unconstitutionality.

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CONCLUSION

This Court should reassess its understanding of

its leading precedents, including Oceanic Steam. The

reason money penalties were permissible in that case

was because the only consequence of failure to pay

was the loss of a public privilege, and the condition

was thought to be germane. Atlas Roofing erred because that case involved only private rights, and no

public rights were at issue. Jarkesy similarly involved

no public rights at all.

Here, a public right is at issue—immigration, and

the right to hire foreign laborers—but the money

penalties (and backpay) involve private rights. The

question is whether the statute conditions receipt of

the public right on forgoing the private right, and

whether that condition is germane. Here, the condition is not germane because the penalties are not imposed as a condition of ongoing receipt of the public

privilege but are instead enforceable irrespective of

the ongoing receipt of that privilege. It therefore goes

beyond this Court’s prior precedents, including the

precedent of Oceanic Steam.

Respectfully submitted,

ILAN WURMAN*

University of Minnesota

219 S 19th Ave.

Minneapolis, MN 55455

(612) 624-8816

iwurman@umn.edu

JULY 13, 2026

*Counsel of Record