Rubio issued APA determination exempting all immigration and border regulations from notice-and-comment rulemaking

On March 14, 2025, Secretary of State Marco Rubio published a formal determination in the Federal Register declaring that all federal efforts to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across U.S. borders constitute a "foreign affairs function of the United States" under the Administrative Procedure Act — a classification that, by statute, exempts the covered activities from the APA's notice-and-comment rulemaking requirements.

The APA's notice-and-comment process is a core congressional mechanism: before a binding federal regulation takes effect, agencies must publish proposed rules, accept public comments, and respond to substantive objections. The foreign affairs exception was historically interpreted narrowly, confined to diplomatic agreements and international negotiations where advance public disclosure would compromise U.S. bargaining positions. Courts and legal scholars long held it inapplicable to domestic immigration enforcement programs, visa processing, and cross-border trade regulation.

Rubio's determination extended the exception to cover all such activity — every regulation issued by DHS, DOL, the State Department, and other agencies touching border control and immigration — regardless of how domestic in character the rulemaking might be. Economic Policy Institute analysts and Bloomberg Law reporters noted that the action would significantly limit judicial review of immigration regulations and foreclose the principal procedural avenue that advocacy groups had used to challenge rapid regulatory changes. Rubio cited Trump's "America First Policy Directive" (EO 14150) as authority for the declaration. Legal scholars characterized the reinterpretation as without precedent and inconsistent with the APA's text and legislative history.