Rubio to be the Boss of Everything?

With little fanfare, the Secretary fo State has assumed authority over a broad swath of trade and immigration policy, potentially setting up even more confusion and opacity as the new adminstration reshapes the federal government.

In a bland Federal Register notice published Thrusday, Secretary of State Marco Rubio published a February 28 memo announcing that he was responsible for:

"visa policies, export control enforcement policies and practices, and other foreign affairs functions entrusted to me, as Secretary of State, under the Constitution, at the direction of the President, and by statute [...]

"that includes all policy related to the protection and travel of U.S. citizens overseas, visa operations and visa issuance, implementation of the Arms Export Control Act, and implementation of the Mutual Educational and Cultural Exchange Act of 1961, as amended, among other authorities[...]

"I hereby determine that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act, 5 U.S.C. 553, 554.

Former Commerce official Kevin Wolf notes in a LinkedIn post: "ECRA is exempt from APA review per 50 USC 4821(a).  DDTC has always taken the position that the ITAR is exempt from AP review because it is a military or foreign affairs function of the US.  But, wow, on immigration and customs issues."

Former Exim official Thomas Reynolds comments: "And since 5 U.S.C. 553 generally requires that proposed regulatory rule-making should be publicly noticed and interested parties be provided an opportunity to comment, with an exception for those related to foreign affairs functions, further trade updates might not make it to the Federal Register or regulations.gov.

"Even further, 5 U.S.C. 554 exempts foreign affairs functions from what might be considered due process rights in the context of adjudications, agency hearings, and investigations," he concludes.

[Public Notice: 12682] Determination: Foreign Affairs Functions of the United States

1. Serving as America’s 72nd Secretary of State is the highest honor of my professional life. In Executive Order 14150, President Trump has given me a clear direction to place our core national interests as the guiding mission of American foreign policy, and always put America and American citizens first.
2. Securing America’s borders and protecting its citizens from external threats is the first priority foreign affairs function of the United States. This effort requires the United States to marshal all available resources and authorities. These resources and authorities also include, but are not limited to, those of the Department of State, the Department of Defense, the Department of Homeland Security, the Department of Justice, and many other federal agencies. See, e.g., Executive Orders 14150, 14157, 14160, 14161, 14165.
3. The threats to U.S. citizens from an unsecured border can include foreign spies, contraband, and harmful materials that flow across the border, as well as unchecked mass migration, narcotics trafficking, human smuggling and trafficking, and other destabilizing or unlawful activities, including the flow of dangerous drugs, weapons, and technology. Eliminating or mitigating these threats involves visa policies, export control enforcement policies and practices, and other foreign affairs functions entrusted to me, as Secretary of State, under the Constitution, at the direction of the President, and by statute.
4.  The Department of State enjoys primacy among federal agencies in the conduct of our foreign policy. When he appointed me as Secretary of State, the President entrusted me with all matters respecting the conduct of foreign affairs, including my primary foreign affairs duty: the duty to protect the people of the United States from any threats originating from foreign actors or from foreign soil. For the Department of State, that includes all policy related to the protection and travel of U.S. citizens overseas, visa operations and visa issuance, implementation of the Arms Export Control Act, and implementation of the Mutual Educational and Cultural Exchange Act of 1961, as amended, among other authorities. But the scope of a foreign affairs function of the United States is much broader.
5. . For these reasons, I hereby determine that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act, 5 U.S.C. 553, 554.

Foreign Affairs Functions of the United States