Legislative History of the APA as a Tool to Minimize Government Use of the Foreign Affairs Function Exception

Confusion pervades judicial interpretation of the foreign affairs function exception of the Administrative Procedure Act. The D.C. District Court, eschewing legislative history, applies a textualist approach, construing the exception narrowly. Courts in other circuits, using legislative history and other interpretive approaches, have created a tangled mesh of tests for when the exception applies. This article provides advice for immigration lawyers to minimize the scope of the foreign affairs function exception. In the D.C. Circuit, this advice is simple: cite the existing caselaw. In other circuits, we demonstrate how legislative history can be used as a tool to minimize government use of the foreign affairs function exception.