On March 14, 2025, the Federal Register unveiled a determination from Secretary of State Marco Rubio, which stated that all efforts by any federal agency to control the status, entry, and exit of individuals into the United States would not be subject to the notice-and-comment provisions of the Administrative Procedure Act (APA). This sweeping exemption is likely to be applied across various immigration policies that could significantly impact eligibility and processing of immigration benefits.
The APA generally necessitates federal agencies to adhere to specific notice-and-comment protocols when they intend to issue substantive rules affecting legal rights or obligations. These procedures mandate that agencies first announce proposed amendments in the Federal Register, allowing for a public comment period typically lasting between 30 to 60 days. Following this, agencies must respond to all significant feedback before finalizing the rule. However, according to Rubio, “all efforts, conducted by any agency” of the federal government regarding border control, would no longer adhere to these rules.
The ability to implement new rules without extensive public commentary could streamline the agency’s actions but could also lead to a lack of public oversight on critical immigration policies. A high volume of comments can often delay rulemaking processes, as demonstrated in 2018 when the Department of Homeland Security (DHS) received over 266,000 comments on its proposed rule regarding inadmissibility based on public charge grounds.
This determination builds on the precedent set by previous administrations. For instance, the Biden administration amended the Exchange Visitors Skills List in December 2024 without engaging in the notice-and-comment procedure. The justification for bypassing public discourse often involves concerns over predicting “undesirable international consequences” associated with potential public discussions regarding immigration policy changes.
Rubio’s determination stems from President Trump’s Executive Order 14150, dubbed the “America First Policy Directive.” This order explicitly directs the Secretary of State to prioritize core national interests in the U.S. foreign policy and to marshal all available resources to secure borders. As outlined by Rubio, this includes addressing threats linked to foreign spies, illegal contraband, narcotics trafficking, and other destabilizing activities through appropriate immigration and visa policies.
This unprecedented move raises questions about its legality and longevity. It's unclear whether courts in various federal circuits will regard any immigration rules that influence the “status, entry, and exit of individuals” as legitimately classified under the foreign affairs function. Critics argue that linking such actions to foreign affairs might be seen as an overreach, especially considering immigration policies traditionally intertwine domestic with international issues.
In a related legal context, House Democrats have voiced concerns over Rubio’s dual responsibilities as head of the State Department, U.S. Agency for International Development (USAID), and the National Archives and Records Administration (NARA). On March 24, 2025, Representatives Gerry Connolly and Gregory Meeks criticized the conflicts arising from Rubio’s appointments following a memo instructing USAID personnel to prepare for massive records destruction. This arrangement has raised significant ethical and operational questions regarding governmental transparency.
In the letter sent to Rubio, Connolly and Meeks described the “triple-hatted” role as fundamentally inappropriate given the independent functions and responsibilities assigned to each agency. They emphasized that “Your temporary appointment to NARA represents a fundamental conflict of interest that undermines Congress’ intent with the Federal Records Act.”
This situation came to light after a memo dated March 11, 2025, called for the destruction of classified documents at USAID. Concerns were heightened as many documents involved were crucial, and their disposal was reportedly done without appropriate transparency. The lawmakers highlighted that the agency’s responses to previous court actions have not fully disclosed the scope and nature of the destruction of classified documents, which further compounded the issue.
Moreover, a ruling from a federal district court confirmed misfiring concerning the influence of the Department of Governmental Efficiency (DOGE) on the restructuring of USAID. The court sided with employees challenging the actions of DOGE, reflecting broader constitutional issues at play regarding the disruptions caused within USAID and the impact on its operational integrity.
As the situation evolves, it remains uncertain how Rubio’s administrative decisions will be interpreted by the federal court system and under what degree of scrutiny they may face moving forward, particularly given the substantial matters of immigration policy intersecting with foreign relations obligations. Federal court precedents have historically taken a narrow view of the APA exceptions, stipulating that any invocation must present clear and direct involvement with international relations.
Rubio’s policies may open avenues for expedited immigration rule changes without public discourse, potentially leading to vital legal challenges and implications that require careful navigation. The forthcoming months may reveal how this strategy withstands judicial review, and if it indeed aligns with the broader aims of immigration policy reform.
