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.,

v.

Petitioners,

SUN VALLEY ORCHARDS, LLC,

Respondent.

──────────────────────────

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

──────────────────────────

BRIEF OF AMICI CURIAE

SOUTHEASTERN LEGAL FOUNDATION,

NATIONAL COUNCIL OF AGRICULTURAL

EMPLOYERS, AND NATIONAL AND STATE

AGRICULTURAL ASSOCIATIONS

IN SUPPORT OF RESPONDENT

─────────────────────────

JAMES V. F. DICKEY

Counsel of Record

BENJAMIN I. B. ISGUR

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

jdickey@southeasternlegal.org

bisgur@southeasternlegal.org

July 31, 2026

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE................................ 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 6

I. The original meaning of Section 1188(g)(2)

does not authorize the Secretary of Labor to

adjudicate monetary penalties in agencycreated courts. .................................................. 6

A. The text authorizes assessment, not

final adjudication. ....................................... 7

B. Congress knows how to write agency

adjudications. ............................................ 10

C. The drafting conventions of the time

confirm this interpretation of the

statute. ...................................................... 12

II. If Section 1188(g)(2) means what the

Department of Labor says, it delegates broad,

undefined, and unchecked legislative power

to the Secretary of Labor. .............................. 14

A. On the Department’s reading, Congress

legislated nothing but the delegation

itself. .......................................................... 14

B. The delegation is unchecked. ................... 15

C. The Court confronting the delegation

costs the government little. ...................... 16

CONCLUSION.......................................................... 18

ii

TABLE OF AUTHORITIES

Cases

Ex parte Siebold,

100 U.S. 371 (1879) ............................................... 17

FCC v. AT&T, Inc.,

146 S. Ct. 1418 (2026) ..................................... 5, 8, 9

Gundy v. United States,

588 U.S. 128 (2019) (plurality opinion) ................ 14

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ................................................. 12

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ............................................... 14

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022),

aff’d on other grounds, 603 U.S. 109 (2024) ......... 16

Kisor v. Wilkie,

588 U.S. 558 (2019) ................................................. 1

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................. 1

Michigan v. EPA,

576 U.S. 743 (2015) ............................................... 14

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ................................................. 1

New York v. United States,

505 U.S. 144 (1992) ................................................. 8

NLRB v. Noel Canning,

573 U.S. 513 (2014) (Scalia, J., concurring) ......... 12

iii

Rapanos v. United States,

547 U.S. 715 (2006) (plurality opinion) ................ 12

SEC v. Jarkesy,

603 U.S. 109 (2024) ........................................... 8, 11

Touby v. United States,

500 U.S. 160 (1991) ............................................... 16

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................. 1

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................. 14

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................... 14

Statutes

15 U.S.C. § 77h-1(g)(1)................................................ 8

15 U.S.C. § 77t(d)(1) ................................................... 8

15 U.S.C. § 78u(d)(3)(A) .......................................... 8, 9

15 U.S.C. § 78u-2(a)(1) ............................................... 8

15 U.S.C. § 78y(a)(4) ................................................. 11

28 U.S.C. § 2461(a) ............................................... 5, 17

29 U.S.C. § 1853 .............................................. 5, 10, 11

29 U.S.C. § 216(c) ...................................................... 11

29 U.S.C. § 217 .......................................................... 11

31 U.S.C. §§ 3801–3812 ............................................ 13

42 U.S.C. § 9609 ........................................................ 13

47 U.S.C. § 503(b)(1) ................................................... 9

47 U.S.C. § 503(b)(2)(E) .............................................. 9

47 U.S.C. § 503(b)(4) ................................................... 9

iv

8 U.S.C. § 1101(a)(15)(H)(ii)(a) .................................. 4

8 U.S.C. § 1182(n)(2)(C) ............................................ 11

8 U.S.C. § 1182(t)(3)(C) ............................................ 11

8 U.S.C. § 1184(c)(14) ............................................... 11

8 U.S.C. § 1188(a)(1) ................................................... 4

8 U.S.C. § 1188(b)(2)(A) .............................. 5, 9, 10, 17

8 U.S.C. § 1188(e)(1) ....................................... 5, 10, 17

8 U.S.C. § 1188(g)(1), (3), (4) ...................................... 9

8 U.S.C. § 1188(g)(2) ......................... 3, 4, 6, 11, 12, 17

8 U.S.C. § 1288(c)(4)(E) ............................................ 11

8 U.S.C. § 1324a(e)(3) ........................................... 5, 10

8 U.S.C. § 1324a(e)(4) ............................................... 10

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

8 U.S.C. § 1324a(e)(9) ............................................... 10

8 U.S.C. § 1324b(e)–(g) ......................................... 5, 10

8 U.S.C. § 1324b(i) .................................................... 10

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

8 U.S.C. § 1324c(d)(2) ........................................... 5, 10

Other Authorities

Admin. Conf. of the U.S., Recommendation 72-6,

Civil Money Penalties as a Sanction,

38 Fed. Reg. 19,972 (1972) .................................... 13

Admin. Conf. of the U.S., Recommendation 93-1,

Use of APA Formal Procedures In Civil Money

Penalty Proceedings,

58 Fed. Reg. 45,409 (1993) .................................... 13

v

Congressional Research Service, H-2A and H-2B

Temporary Worker Visas: Policy and Related

Issues (May 11, 2023) ............................................. 4

H. R. Rep. No. 111-687 (2010) .................................... 8

Pub. L. No. 97-470,

title V, § 503, 96 Stat. 2596 (1983) ......................... 5

Pub. L. No. 99-499,

§ 109, 100 Stat. 1613 (1986) ................................. 13

Pub. L. No. 99-509,

100 Stat. 1874 (1986) ............................................ 13

The Federalist No. 47 (James Madison)

(C. Rossiter ed. 1961) ............................................ 16

The Oxford English Dictionary (2d ed. 1989) ............ 7

Rules

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

29 C.F.R. § 501.19 ................................................. 7, 15

29 C.F.R. § 501.22 ..................................................... 15

29 C.F.R. § 501.30 ................................................. 7, 15

29 C.F.R. § 501.32 ....................................................... 7

29 C.F.R. § 501.33 ....................................................... 7

29 C.F.R. § 501.34 ..................................................... 15

29 C.F.R. pt. 501 ................................................... 5, 15

Constitutional Provisions

U.S. Const. art. I, § 1 ................................................ 14

1

INTEREST OF AMICI CURIAE1

Southeastern Legal Foundation (SLF) is a

national, nonprofit legal organization dedicated to

rebuilding the American Republic by reclaiming civil

liberties, protecting free speech, securing property

rights, and restoring constitutional balance. Since

1976, SLF has advocated, both in and out of the

courtroom, to protect individual liberty by restoring

constitutional balance. This aspect of its advocacy is

reflected in its regular representation and support of

those challenging government overreach and other

actions in violation of the constitutional framework.

See, e.g., Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S.

109 (2018); Util. Air Regul. Grp. v. EPA, 573 U.S. 302

(2014). SLF also regularly files amicus curiae briefs

with this Court about issues of agency overreach and

deference. See, e.g., Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024); Kisor v. Wilkie, 588 U.S. 558

(2019).

Founded in 1964, the National Council of

Agricultural Employers (NCAE) is the only national

association focusing exclusively on agricultural labor

issues from the agricultural employer’s viewpoint.

NCAE represents labor-intensive agriculture before

Congress, with federal agencies, and where

necessary, in court. NCAE’s membership, including

farmers represented by its association members,

represents an estimated 85% of all agricultural

employers directly engaged in the production of food

and nursery crops in the United States, and its

1Rule 37 statement: No party’s counsel authored any of this

brief; Amici alone funded its preparation and submission. Sup.

Ct. R. 37.6.

2

members employ roughly 90% of all H-2A workers in

the United States. Farm labor costs are the primary

expense for NCAE’s members, and NCAE believes

that a stable and affordable H-2A visa program is

essential to sustaining American agriculture. To that

end, NCAE believes it is essential for the Department

of Labor to administer the H-2A program under

statutory and constitutional limits.

The national and state agricultural association

amici are:

AmericanHort;

California Farm Bureau Federation;

Florida Farm Bureau Federation;

Florida Fruit & Vegetable Association;

Georgia Fruit and Vegetable Growers Association;

Idaho Dairymen’s Association;

International Fresh Produce Association;

National Association of Landscape Professionals;

National Onion Association;

National Potato Council;

New York State Horticultural Society;

New York State Vegetable Growers Association;

North Carolina Growers Association;

North Carolina Sweetpotato Commission;

Texas Citrus Mutual;

3

Texas International Produce Association;

Texas Vegetable Association;

Washington State Dairy Federation; and

Western Growers Association.

These associations are members of NCAE and

themselves represent and advocate for producers,

growers, farmers, landscapers, and ranchers across

the United States. Like NCAE, these Amici believe it

is essential for the Department of Labor to administer

the H-2A program under statutory and constitutional

limits.

SUMMARY OF ARGUMENT

The original public meaning of 8 U.S.C.

§ 1188(g)(2) does not confer on the Secretary of Labor

(Secretary) the power to create the Department of

Labor’s (Department) own courts and to adjudicate

proceedings to collect monetary penalties related to

the H-2A agricultural visa program. But even if the

Court were to hold that the statute meant that in

1986, the law would then be an unconstitutional

unchecked delegation to the Secretary.

America’s

farms

need

farmhands.

But

unfortunately, there are not always enough American

workers available to adequately staff our country’s

farms. Recognizing the national importance of a

strong domestic agricultural industry and the critical

need of domestic agricultural producers to have

sufficient and predictable labor, Congress passed the

Immigration Reform and Control Act (IRCA) in 1986.

Through the IRCA, Congress created a special class of

temporary foreign migrant agricultural workers,

4

commonly referred to as “H-2A workers.” 8 U.S.C.

§ 1101(a)(15)(H)(ii)(a). The IRCA allows domestic

agricultural producers to supplement their domestic

workforce with foreign workers when there is

insufficient domestic labor.

Despite the labor implications, though, the IRCA is

not a Department statute. It is chiefly an immigration

statute administered by the U.S. Department of

Homeland Security (specifically, U.S. Citizenship and

Immigration Services). See generally Congressional

Research Service, H-2A and H-2B Temporary Worker

Visas: Policy and Related Issues (May 11, 2023),

https://www.congress.gov/crs-product/R44849.

Under the IRCA, the Secretary does not perform a

core immigration-related function, like adjudicating

immigration status. Instead, the Secretary performs

a ministerial function to certify that (1) there are not

sufficient American or lawful permanent resident

workers to perform the necessary work and (2) foreign

workers will not adversely affect the wages and

working conditions of workers in the United States

who are similarly employed. 8 U.S.C. § 1188(a)(1). In

addition, the Secretary has some limited authority to

ensure that employers keep their end of the bargain

when employing H-2A workers. To that end, Congress

authorized the Secretary to “impose” penalties and to

“seek” equitable relief to address alleged violations of

the “terms and conditions” of employment under the

H-2A agricultural visa program. Id. § 1188(g)(2).

Without congressional authority, the Secretary

turned this limited authorization into a full-fledged,

in-house adversarial adjudication system that doles

out binding penalties with the agency itself as judge,

5

jury, and executioner. Within this adjudication

system, the Secretary has created a hearing right, a

finality rule, a review channel, a collection

mechanism, a penalty cap, and assessment factors for

adjudicating the amount of a civil money penalty. See

29 C.F.R. pt. 501.

The Secretary unilaterally created and built his

final and binding in-house adjudications on statutory

silence, not on anything Congress enacted. This

silence speaks volumes because where Congress has

wanted agency adjudication, it has said so. It did so

twice elsewhere in this very section, three times in

this same public law, and once in the Department’s

parallel farmworker statute three years earlier. See 8

U.S.C. §§ 1188(b)(2)(A), 1188(e)(1), 1324a(e)(3),

1324b(e)–(g), 1324c(d)(2); 29 U.S.C. § 1853; see also

Pub. L. No. 97-470, title V, § 503, 96 Stat. 2596 (1983).

The Secretary’s ex nihilo creation of this final

adjudication process ignores that Congress elsewhere

expressly provided the mode of recovery for the

penalties the Secretary imposes: a civil action. See 28

U.S.C. § 2461(a). At most, Section 1188(g)(2) could

perhaps be read to authorize the architecture this

Court described recently in FCC v. AT&T, Inc., 146

S. Ct. 1418 (2026): an agency assessment that binds

no one until enforced by an Article III court. But it

certainly does not authorize the Secretary to create

his own entirely in-house court system and enter final

binding legal decisions.

Further, even if the Department were right that

the statutory text permits its current process, its

reading would not save the statute. On that reading,

three words (“imposing appropriate penalties”) would

6

hand the Secretary the legislative power to write the

penalty schedule and define its factors, choose his

own forum, author his own procedures, judge his own

cases, and collect the proceeds, with no standard from

Congress guiding or checking any of it. The

Department’s reading amounts to a broad, undefined,

and unchecked delegation of legislative power—

violating

basic

principles

of

constitutional

interpretation. The Court would be obliged to confront

that enormous grant of power, not construe around it.

And it would be unconstitutional.

ARGUMENT

I. The original meaning of Section 1188(g)(2)

does not authorize the Secretary of Labor to

adjudicate monetary penalties in agencycreated courts.

Section 1188(g)(2) provides in full:

The Secretary of Labor is authorized 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.

From that grant of power, the Secretary has

manufactured a complete adjudicatory system:

agency prosecutions, an agency-written penalty

schedule, hearings before agency judges, orders that

become “final and unappealable” without any court’s

involvement, and administrative collection of both

penalties and back wages, payable to the Department.

7

See 29 C.F.R. §§ 501.19, 501.30, 501.32, 501.33; Pet.

App. 8a, 183a–186a. In this case alone, that system

assessed $211,800 in civil penalties and $344,945.80

in back wages against Respondent Sun Valley. Pet.

App. 7a. The text Congress enacted in 1986 does not

empower the Secretary to create and run such a

regime within the Department.

A. The text authorizes assessment, not final

adjudication.

Both the ordinary meaning and context of the

phrase “imposing appropriate penalties” in Section

1188(g)(2) indicate that Congress did not give the

Secretary the authority to adjudicate and issue final

binding decisions on whether a regulated party owes

a monetary penalty for an alleged violation of the H2A program’s terms and conditions.

Start with the ordinary meaning of “imposing” on

its own. To impose a penalty is to levy it. The

Department’s own dictionary citation defines

“impose” as “to levy or enforce authoritatively.” Pet.

Br. 20 (citing 7 The Oxford English Dictionary 730–31

(2d ed. 1989) (def. 4)). The word, standing alone,

describes the act of assessment, not a process of

adjudication. Its ordinary meaning does not

automatically connote that an “imposition” is final

and binding. The Department itself uses the word to

connote an initial levy and not a final and binding

adjudication: its Wage and Hour Administrator

“imposed” penalties in a determination letter issued

prior to a hearing. Pet. App. 184a (notifying

Respondent that “sanctions/remedies are being

imposed”); see also Pet. App. 183a–199a.

8

Without any refuge in the ordinary meaning of

“imposing” alone, the Department leans on the

contextual contrast between “imposing” penalties and

“seeking” injunctive relief. Pet. Br. 20–22. But here

this is a distinction that does not lead to the difference

the Department claims. The operative question is

whether the phrase “imposing appropriate penalties,”

in context, allows the Department to “settle[] the

[defendant’s] rights and duties” through final and

binding adjudication. FCC v. AT&T, Inc., 146 S. Ct.

at 1429 (citing New York v. United States, 505 U.S.

144, 169–70 (1992)). As just demonstrated, the

ordinary meaning of the word “impose” does not

require that. Id. Likewise, the contextual use of

“impose” in the “overall statutory scheme” does not

allow that. Cf. id.

The securities laws at issue in SEC v. Jarkesy, 603

U.S. 109 (2024), on which the Department relies,

prove this point by contrast. There, Congress used the

same two verbs—“impose” and “seek.” However, in

that statute, Congress specified that the Commission

could “impose” penalties in a final, binding way in its

own proceedings under provisions that expressly

created those proceedings, 15 U.S.C. §§ 77h-1(g)(1),

78u-2(a)(1), or “seek” penalties in district court, id.

§§ 77t(d)(1), 78u(d)(3)(A). See Jarkesy, 603 U.S. at

118. In that case, Congress explicitly made the

Commission’s power to “impose” a penalty in-agency

“coextensive with its authority to seek penalties in

federal court.” Id. (citing H. R. Rep. No. 111-687, p. 78

(2010)). The same statute also expressly equated

“imposing” with the power to adjudicate monetary

penalties; it said that when the SEC brings an action

in district court, “the court shall have jurisdiction to

9

impose” penalties. 15 U.S.C. § 78u(d)(3)(A). Context

makes this use of “impose” a final determination of

legal rights, not the word standing alone.

This Court’s decision in FCC v. AT&T, Inc. further

proves this point. 146 S. Ct. at 1429–30. The statute

at issue in FCC v. AT&T authorizes the FCC to

“impose[]” a “forfeiture penalty” after determining the

regulated party has violated the communications

laws. Id. (citing 47 U.S.C. §§ 503(b)(1), (b)(2)(E),

(b)(4)). But the Court expressly held that the word

“impose” in that statute does not provide for final,

binding adjudication. Id. Instead, “impose” in context

refers to a possible end result of “preliminary

procedures” with a separate, explicitly stated showcause process that describes how the adjudication

takes place. Id. (internal quotation marks and

citation omitted); 47 U.S.C. § 503(b)(4).

The company which Section 1188(g)(2) keeps

points the same way. Every other paragraph of

subsection (g) is an authorization of appropriations. 8

U.S.C. §§ 1188(g)(1), (3), (4). Congress placed this

sentence, the subsection’s only non-funding provision,

under the caption “Authorization of appropriations,”

surrounded by money for recruiting workers and

processing certifications. That is a sensible place for a

general grant of enforcement authority. It is no place

at all for the creation of a system of binding agency

courts, complete with jurisdiction over an unlimited

number of cases with potentially huge employer

liability. And statutory texts where Congress did

create agency adjudications agree—they all use

section headings referring to hearings or agency

adjudications. See, e.g., 8 U.S.C. §§ 1188(b)(2)(A),

10

1188(e)(1), 1324a(e)(3), 1324b(e)–(g), 1324c(d)(2); 29

U.S.C. § 1853.

B. Congress knows how to write agency

adjudications.

When

Congress

intends

administrative

adjudication, it says so. It said so twice in this very

section. An employer may be denied certification

under the H-2A program only after the Secretary “has

determined, after notice and opportunity for a

hearing,” that the employer substantially violated a

material term or condition of a labor certification.

8 U.S.C. § 1188(b)(2)(A). And Congress directed an

“expedited procedure for the review of a denial of

certification . . . or, at the applicant’s request, . . . a de

novo administrative hearing.” Id. § 1188(e)(1).

Subsection (g)(2)’s procedural silence is a deliberate

contrast, not an oversight.

Similarly, the IRCA’s employer-sanctions provision

pairs the power to impose civil monetary penalties

with notice and a hearing before an administrative

law judge “in accordance with the requirements of

section 554 of title 5,” penalty ranges fixed by

Congress for each tier of violation, final orders,

judicial review, and enforcement suits by the

Attorney General. See 8 U.S.C. § 1324a(e)(3)(B),

(e)(4), (e)(8), (e)(9). The IRCA’s prohibition on unfair

immigration-related employment practices created a

second full scheme, with a special counsel, ALJ

hearings, and court-of-appeals review. Id. § 1324b(e)–

(g), (i). And the IRCA’s document-fraud provision

created a third. Id. § 1324c; see also Pet. Br. 44. The

99th Congress knew how to write binding

administrative penalty adjudications, and it built

11

three in this very statute. In Section 1188(g)(2), it

declined to do so.

Three years earlier, for the same agency and the

same workforce, Congress did do so. The Migrant and

Seasonal Agricultural Worker Protection Act

authorizes the Secretary to assess civil monetary

penalties against agricultural employers, and there

Congress enacted every element missing here: a

statutory ceiling of $1,000 per violation, statutory

assessment factors, an opportunity for a hearing on

the record “in accordance with section 554 of title 5,”

judicial review, and collection actions by the Attorney

General in which “the validity and appropriateness of

the final order imposing the civil penalty shall not be

subject to review.” 29 U.S.C. § 1853.2 And when

Congress wants the Secretary to recover unpaid

wages for workers, it authorizes him to sue. 29 U.S.C.

§§ 216(c), 217.

Congress’s later visa-program amendments

confirm this pattern. Each time Congress extended

monetary enforcement to another guest-worker

program, it wrote the hearing into the statute: the H1B program, 8 U.S.C. § 1182(n)(2)(C); the H-1B1 and

E-3 programs, id. § 1182(t)(3)(C); the H-2B program,

id. § 1184(c)(14); and the D-1 crewmember program,

id. § 1288(c)(4)(E). Only here—in the case of

2 The judicial review standard under 29 U.S.C. § 1853—reversal

only where a finding is “unsupported by substantial evidence”—

is similar to the standard that the Jarkesy Court found

problematic in 15 U.S.C. § 78y(a)(4). 603 U.S. at 117. But

whether that Act is constitutional is beside the question whether

it—as a matter of statutory interpretation—provides for binding

agency adjudication.

12

Section 1188(g)(2)—does the Department claim the

power from silence.

“[D]ifferences in language like this convey

differences in meaning.” Henson v. Santander

Consumer USA Inc., 582 U.S. 79, 86 (2017). Congress

detailed the power and procedure of agency hearings

and adjudications when it wanted them—before,

during, and after Section 1188(g)(2) was enacted.

That evidence confirms the obvious impact of the

statutory silence: the original intent of the section

was not an agency adjudication process. And, despite

this adjudicatory process having been around for a

long time, allowing it to continue would be “a novel

principle of administrative law—a sort of 30-year

adverse possession that insulates disregard of

statutory text from judicial review.” Rapanos v.

United States, 547 U.S. 715, 752 (2006) (plurality

opinion); see also NLRB v. Noel Canning, 573 U.S.

513, 613–14 (2014) (Scalia, J., concurring) (explaining

an agency cannot “accumulate power through adverse

possession by engaging in a consistent and

unchallenged practice over a long period of time”

(emphasis omitted)). The original meaning of

Section 1188(g)(2) did not include an agency

adjudication.

C. The drafting conventions of the time

confirm this interpretation of the statute.

By 1986, the convention governing administrative

civil money penalties and how they are imposed was

uniform. In 1972, the Administrative Conference of

the United States recommended that when Congress

authorizes agencies to impose civil money penalties,

it provides explicitly for their imposition after a

13

hearing conducted under the Administrative

Procedure Act. Admin. Conf. of the U.S.,

Recommendation 72-6, Civil Money Penalties as a

Sanction, 38 Fed. Reg. 19,972 (1972). Congress

listened: it “followed that recommendation in

hundreds of contexts” over the following two decades.

Admin. Conf. of the U.S., Recommendation 93-1, Use

of APA Formal Procedures In Civil Money Penalty

Proceedings, 58 Fed. Reg. 45,409 (1993).

The Congress that enacted Section 1188(g)(2)

followed the convention in the very weeks it acted

here when enacting laws like the Superfund

Amendments and Reauthorization Act (SARA), which

amended

the

Comprehensive

Environmental

Response, Compensation, and Liability Act

(CERCLA). In SARA, on October 17, 1986, Congress

created administrative penalty authority under

CERCLA and wrote it out in full: classes of penalties,

hearings on the record, and judicial review. 42 U.S.C.

§ 9609; Pub. L. No. 99-499, § 109, 100 Stat. 1613

(1986).

Congress did likewise on October 21, 1986, when it

enacted the Program Fraud Civil Remedies Act, an

entire administrative penalty code with presiding

officers, hearing procedures, judicial review, and

collection by the Attorney General. 31 U.S.C. §§ 3801–

3812; Pub. L. No. 99-509, 100 Stat. 1874 (1986).

Again, Congress was explicit about creating agency

adjudication.

Under the conventions of 1986, the absence of an

explicit grant of agency adjudication power meant the

absence of the power.

14

II. If Section 1188(g)(2) means what the

Department of Labor says, it delegates

broad, undefined, and unchecked legislative

power to the Secretary of Labor.

The Constitution vests “[a]ll legislative Powers

herein granted” in Congress. U.S. Const. art. I, § 1.

Congress may enlist the Executive’s help, but it “may

not transfer to another branch powers which are

strictly and exclusively legislative.” Gundy v. United

States, 588 U.S. 128, 135 (2019) (plurality opinion)

(internal quotation marks omitted) (quoting Wayman

v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825)). If

the Department’s reading of Section 1188(g)(2) were

correct, Congress enacted the delegation and did

nothing to constrain it.

A. On the Department’s reading, Congress

legislated nothing but the delegation

itself.

Section 1188(g)(2), on the Department’s reading,

tells it nothing but to impose penalties as it sees fit.

It contains no maximum, no minimum, no factors, no

procedures, no review, and no limits of any kind. The

entire “intelligible principle,” J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409 (1928), is the

word “appropriate,” which this Court has called “the

classic broad and all-encompassing term.” Michigan

v. EPA, 576 U.S. 743, 752 (2015) (citation omitted). A

word that includes consideration of everything

decides nothing. Nor can the Department’s

regulations supply the missing principle: an agency

cannot cure a standardless delegation by adopting

limits of its own devising, Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472–73 (2001), so the self-

15

written schedule and factors of 29 C.F.R. § 501.19 are

constitutionally

irrelevant.

The

Department

identifies no decision of this Court sustaining a penal

delegation consisting of a single adjective, and Amici

are aware of none.

B. The delegation is unchecked.

Consider what the Secretary does under the

Department’s reading:

•

He defines program violations by writing the

program’s terms into regulation and then into

every employer’s work contract. 20 C.F.R. §

655.122; 29 C.F.R. pt. 501.

•

He prices them by writing the penalty

schedule. 29 C.F.R. § 501.19.

•

He prosecutes.

•

He selects the forum—his own—and makes it

exclusive for penalties. Id. § 501.30.

•

He writes the rules of that forum, down to the

inapplicability of the Federal Rules of

Evidence. Id. § 501.34.

•

He adjudicates, through administrative law

judges and a review board housed in his own

Department.

•

He collects, with the money payable to the

Department itself without ever bearing the

burden of persuading anyone outside the

agency unless the defendant brings the case to

a district court. Id. § 501.22.

16

The Secretary does all this despite our Founding

Fathers’ astute warning that “the accumulation of all

powers, legislative, executive, and judiciary, in the

same hands” is the very evil the separation of powers

exists to prevent. The Federalist No. 47, at 301

(James Madison) (C. Rossiter ed. 1961).

Leaving the forum choice to the Secretary, by itself,

demonstrates

constitutional

infirmity.

The

“decision . . . to assign certain actions to agency

adjudication . . . is a power that Congress uniquely

possesses.” Jarkesy v. SEC, 34 F.4th 446, 462 (5th Cir.

2022), aff’d on other grounds, 603 U.S. 109 (2024). The

Fifth Circuit held that Congress may not hand even

that single legislative choice to the enforcing agency

without an intelligible principle. Here, on the

Department’s reading, Congress handed over the

choice of forum and every other legislative choice

besides, and it handed them to the prosecutor. This is

deeply concerning. And because the delegation carries

punitive consequences, the concern is at its apex. This

Court has explicitly reserved whether “something

more than an ‘intelligible principle’ is required” for

delegations that contemplate penal sanctions. Touby

v. United States, 500 U.S. 160, 165–66 (1991). The

Court need not decide how much more is required to

recognize that there is nothing here at all.

C. The Court confronting the delegation

costs the government little.

If the Court holds that Section 1188(g)(2) does in

fact delegate such broad and unchecked power, it

should engage the statute head-on and declare it

unconstitutional. Holding the Department to the

statute Congress enacted disturbs no legitimate

17

enforcement interest. “An unconstitutional law is

void, and is as no law.” Ex parte Siebold, 100 U.S. 371,

376 (1879).

But also, the Secretary has other means to gain

compliance with the requirements of the H-2A

program. The Secretary may sue for civil penalties, 28

U.S.C. § 2461(a), a route even the government does

not foreclose, see Pet. Br. 23 n.4. He may seek

injunctions and specific performance of every H-2A

contractual obligation, including unpaid wages. 8

U.S.C. § 1188(g)(2). He may deny certifications and

exclude violators from the program through the

administrative procedures Congress actually wrote.

Id. § 1188(b)(2), (e). The government’s warnings about

other immigration statutes, Pet. Br. 43–45, cut

against its position. Every statute it lists rests on

express adjudication provisions that a decision here

would not touch.

Congress, for its part, remains free to enact an

explicit agency adjudication system, as it has done

many times before. What Congress may not do, and

what it did not do in 1986, is hand the Secretary of

Labor a blank penal code to enforce as and where he

pleases.

18

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

JAMES V. F. DICKEY

Counsel of Record

BENJAMIN I. B. ISGUR

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

jdickey@southeasternlegal.org

bisgur@southeasternlegal.org

July 31, 2026

Counsel for Amici Curiae