"But it is an immigration program," Justice Elena Kagan told the lawyer for a New Jersey farm near the end of Tuesday's argument. "It's all about when do we allow the admission of foreign workers given the fact that we're concerned that foreign workers will undercut the economic status of domestic workers."
That sentence was the government's whole case in miniature. On November 10, 2026, the Supreme Court heard 103 minutes of argument in Department of Labor v. Sun Valley Orchards, No. 25-966, over whether the Labor Department may use its own administrative judges to order back wages and civil penalties against a farm that used the H-2A seasonal visa program, or whether the 2024 decision in SEC v. Jarkesy requires a federal court.
The stakes for the farm are $556,745.80, the total of $211,800 in penalties and $344,945.80 in back wages that a Labor Department judge and review board imposed, as we laid out in our preview of the case. The Third Circuit ruled for the farm in July 2025.
Two openings, two theories
Principal Deputy Solicitor General Sarah M. Harris began at 10:04 a.m. by conceding the starting rule and claiming the exception. When a claim resembles a common law action, she said, the Court presumes Article III adjudication is required. "But, as Jarkesy reaffirmed, that presumption is overcome when the federal claim fits within historical categories of public rights," she said, naming two that overlap here: "sovereign control of immigration and government-granted privileges."
Robert E. Johnson, arguing for Sun Valley, turned the same precedent around. "This Court in Jarkesy made clear that the public rights exception is an atextual exception to Article III that must be applied carefully and with close attention to history," he said. The government, he argued, could point to no history of agencies imposing "what amounts to a judgment imposing penalties and back wages" on a claim like this one.
Our count: the words of the argument
We downloaded the official transcript, which the Court marks as subject to final review, split it by speaker and counted key terms. The counts are ours. Each figure counts every use of the word or its forms, so "contract" includes "contracts" and "contractual."
"Immigration," 94 uses. Harris said it 28 times and Johnson 22. The justices said it 44 times, led by Justice Amy Coney Barrett with 11, Kagan with seven, and Justices Sonia Sotomayor and Ketanji Brown Jackson with six each. Chief Justice John Roberts did not use the word once.
"Contract," 64 uses. Harris 27, Johnson 17, and justices 20: Kagan and Sotomayor six each, Justice Samuel Alito five, Justice Neil Gorsuch two and Justice Clarence Thomas one.
"Oceanic," 58 uses, for Oceanic Steam Navigation Co. v. Stranahan, a 1909 case upholding fines imposed by immigration officials on a steamship company. Harris cited it 25 times and Johnson 18.
"Public rights," 59 uses. Harris said it 35 times. Among the justices, Jackson used it 14 times, more than all the other justices combined.
"Jarkesy," 26 uses. Harris 14, Johnson six, Kagan three, Justice Brett Kavanaugh two and Roberts one.
On volume, Barrett spoke about 1,300 words, the most of any justice, followed by Jackson at about 1,235. Gorsuch took the most separate speaking turns, 42, many of them short follow-ups. Thomas spoke about 88 words, but he asked the first question of each lawyer.
What the counts show is a fight over vocabulary. The government needed the case to sound like immigration. The farm needed it to sound like a contract dispute. Justices on both sides of the bench used the other side's word to test it.
Which justices pushed on the government's theory?
Roberts went first on Oceanic Steam, calling it a case about "a classic condition of entry." He told Harris, "you're just trying to leverage what is a significant barrier to entry" into a condition of work, noting that the H-2A workers "have been in the country for some time."
Kavanaugh read from Tull v. United States, a 1987 decision, which he said held that a civil penalty "was a type of remedy at common law that could only be enforced in courts of law." He noted that Jarkesy repeated that line. "That's a fairly definitive statement in our precedent," he said.
Gorsuch asked how far the theory reached, with a hypothetical about the Commerce Department running its own court for wage and product rules on importers. He also compared the H-2A penalty language to the statute in last term's FCC case involving AT&T, and asked why the Labor Department should be allowed "to set up a whole court system" when the FCC was not.
Barrett said the government's framework had "a mix-and-match flavor," drawing on immigration in one breath and customs and public benefits in the next. "Do you have to pick a bucket?" she asked. She added that "having taught federal courts, I think it's very confusing."
Which justices pushed on the farm's theory?
Kagan argued that the farm's obligations come from the regulations, not the job order that repeats them. "It's not a scheme about enforcing contract rights," she said. She called the alleged conduct "a kind of visa fraud or immigration fraud."
Jackson said the Third Circuit and the farm "appear to be asking for a new way of evaluating public rights versus private rights," and noted that "the public rights doctrine is centuries old."
Sotomayor told Harris that the H-2A terms are "the most unusual employment contract I've ever seen."
Alito questioned both sides. He asked Harris why she accepted the breach of contract framing at all, calling the analogy "a bit of a stretch" and adding, "The aliens have no say." Later he pressed Johnson on where the immigration exception stops.
Thomas put the government's point to Johnson directly: the department "did not bring a breach-of-contract claim," but a claim that the farm violated regulations.
The closing warning
Harris used her rebuttal to warn about the cost of a loss. "It would be a big deal for the government to lose, but an even bigger deal would be to have a mess," she said, with "no sense of what's left of Atlas Roofing," the 1977 decision upholding workplace safety penalties imposed by an agency.
The argument came a day after the Court heard two other cases on November 9, the Bivens case of Nielsen v. Watanabe and the North Dakota pipeline fee case Hoffmann v. WBI Energy. On the same day, the D.C. Circuit ruled that the Civil Service Reform Act did not keep the Voice of America director's case out of district court, in our story on the Abramowitz decision.
What to watch
A decision is expected by the end of the term, usually late June. The Court can decide the case on the constitutional question or on the narrower statutory question it also granted, whether 8 U.S.C. 1188(g)(2) authorizes the department to adjudicate these claims at all, according to the case docket. A ruling for the farm on the Constitution would reach other agencies that impose penalties through their own judges.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
