A few weeks ago, my colleague Clark Neily suggested to those of us on Cato’s Criminal Justice team that we should strongly consider experimenting with the use of one or more artificial intelligence platforms in our daily work. Since he had already spent some time toying with Anthropic’s Claude AI, I decided to try it as well.
No technology that I’ve used in my life has been so absolutely fascinating and positively addicting. My conversations with Claude—and that is exactly how they feel—have ranged from whether God exists to the best .45-caliber pistols on the market to hypothetical, and not so hypothetical, scenarios involving executive branch overreach and constitutional crisis scenarios…which now brings me to Secretary of State Marco Rubio and the Federal Register announcement he published today (March 14).
My own take was that the language of the announcement, its seemingly dramatic sweep, and its assertion of executive branch authority in connection with the “foreign affairs function” exception of the Administrative Procedures Act were potentially unconstitutional.
Because Claude’s current data set only goes through the end of October 2024, Claude does not know—so far as I’m aware—that Marco Rubio was confirmed as Secretary of State earlier this year. Accordingly, when I asked Claude to analyze the text of the actual Federal Register announcement Rubio published today, I characterized it as hypothetical and left out the name of the Secretary of State. What now follows is Claude AI’s verbatim analysis of that Federal Register analysis.
This hypothetical Federal Register announcement raises significant legal concerns regarding its attempt to broadly expand the definition of “foreign affairs function” under the Administrative Procedure Act (APA). Here’s my analysis:
Key Legal Issues:
- Overbroad Definition of “Foreign Affairs Function”: The announcement attempts to classify virtually all border control, immigration, customs, and trade activities as “foreign affairs functions.” This is a dramatic expansion beyond the traditional scope of this exception.
- APA Implications: The foreign affairs function exception (5 U.S.C. § 553(a)(1)) exempts certain activities from APA requirements like notice-and-comment rulemaking. By expanding this definition, the announcement seeks to remove a vast array of government actions from APA procedural safeguards.
- Separation of Powers Concerns: The Secretary of State appears to be asserting authority over functions statutorily assigned to other cabinet departments, potentially violating the separation of powers doctrine and specific congressional delegations.
- Statutory Authority Questions: While the Secretary of State has primary authority over foreign relations, border control and immigration enforcement are primarily delegated by Congress to DHS and DOJ through specific statutes.
Legal Precedents and Limitations:
Courts have consistently interpreted the “foreign affairs function” exception narrowly. In cases like Zhang v. Slattery and City of New York v. Permanent Mission of India, courts required direct involvement with foreign nations or diplomatic activities to qualify for this exception.
The announcement’s broad assertion that “all efforts” related to border crossings constitute foreign affairs functions contradicts established case law limiting this exception to matters that clearly and directly involve foreign governments or international relations.
Likely Judicial Response:
If challenged, courts would likely reject this expansive interpretation as contrary to:
- The APA’s intent to provide procedural safeguards for most agency actions
- Specific statutory delegations giving primary authority over immigration and customs to DHS and DOJ
- The narrow interpretation of APA exceptions established in precedent
This announcement appears to be an attempt to centralize authority and bypass administrative procedures through an unreasonably broad interpretation of the foreign affairs exception, which would likely not withstand judicial scrutiny.
Remember that all I did was ask Claude for his analysis of the announcement; I made no editorial comments, I just asked for his analysis and pasted the verbatim text of Rubio’s announcement into my conversation window.
I’ve not yet done a point-by-point fact check on Claude’s analysis, but my experience using the platform over the past 2–3 weeks has taught me that, as a general rule, Claude usually nails it when it comes to past case law and the actual text of the Constitution and federal statutes. In my opinion, Claude’s analysis should prompt congressional and judicial attention to Secretary Rubio’s announcement.