Who Makes Immigration Law?

We will soon see how serious the Trump administration is about cracking down on immigration abuse from previous administrations.

Last week I filed a petition for certiorari in Save Jobs USA v. DHS in the Supreme Court. This is the latest in a series of petitions over the past decade that have called on the Supreme Court to resolve the question of whether DHS shares with Congress the power to independently authorize alien employment.

By creating work programs on its own through regulation, DHS has created a second immigration system in addition to the one created by Congress. The power to create classes of aliens with authorization to work (and are thus issued Social Security numbers) is also the power to create classes of aliens who can stay in the United States. Allowing work through regulation – rather than legislation – gives the administrative state the ability to create new immigration programs behind Congress’s back.

Allowing work through regulation – rather than legislation – gives the administrative state the ability to create new immigration programs behind Congress’s back.

Since the Obama administration, DHS has been using the claim of having the power to create massive alien employment programs with no approval from Congress to reshape the immigration system. The employment at issue in Save Jobs USA is work authorization for spouses of H-1B guestworkers, who have H-4 status. The H-4 visa statute does not authorize work and for 45 years after it was created, it was interpreted as not permitting work. Then in 2015, the Obama administration proclaimed that it shared with Congress the power to permit alien employment and allowed certain H-4 spouses to be employed.

The D.C. Circuit held that DHS can permit such employment because of DHS’s inherent power to do so. H-4 employment is just a small part of the administrative state’s alien employment system.

H-4 employment was the first of several alien employment programs made under the claim of sharing power with Congress. Another example that has been in the news recently is parole.

The Immigration and Nationality Act includes the concept of parole that allows the executive to bypass the restrictions on immigration on a case-by-case basis for short-term stays. To illustrate the concept, the executive could allow people from countries that are banned from travel to the U.S. to come here anyway emergency surgery or to testify in a criminal trial in the U.S. after being granted parole.

The Obama administration put forth a regulation that authorized parolees to work. This regulation was structured so that no one would have standing to challenge its validity in court.  When the six-year statute of limitations expired to challenge that regulation, the people that created the regulation were back in power under the Biden administration. They then created the Humanitarian Parole Program, under which the government was flying 30,000 aliens a month into the U.S. and granting them work permits. With no involvement of Congress, parole was transformed from an exceptional, short-term system as enacted by statute into a new immigration program causing havoc in communities across America. International criminal gangs were even being imported into the United States. 

Directly conflicting with the interpretation of the D.C. Circuit, the Fifth Circuit holds that DHS does not have the power to create alien employment programs on its own. The Fifth Circuit affirmed that view in January in Texas v. Mayorkas that held the grant of work permits under DACA exceeded DHS’s authority.

The result of this conflict between circuits is that we now have chaos in the law and bedlam in the immigration system. It is now up to the Supreme Court to resolve the issue. In fact, the Fifth Circuit even stayed its decision on DACA in Texas v. Mayorkas, knowing that the Supreme Court will ultimately have to decide the employment question.

The Supreme Court has been presented with multiple petitions over the past decade asking it to resolve the question of whether DHS inherently has the power to authorize alien employment through regulation. Each time the Supreme Court has found a way not to decide the issue, allowing the immigration chaos and the litigation over that chaos to expand.

The hope is that the Supreme Court will finally step up to the plate in Save Jobs USA and resolve the question of whether DHS shares with Congress the power to permit alien employment. Once there is an authoritative decision on what the law means, Congress can then decide whether the law needs to be changed.

Will the Trump legal team endorse the expansive alien employment power that the Obama and Biden administrations used to create havoc? Or will it call for putting a stake in the heart of this source of administrative state abuse?

A more interesting question is how the Trump administration will respond. Will the Trump legal team endorse the expansive alien employment power that the Obama and Biden administrations used to create havoc? Or will it call for putting a stake in the heart of this source of administrative state abuse?

The issues here extend beyond alien employment and into the realm of who actually legislates in America. Nearly all federal law now comes in the form of regulation made by the administrative state. The practice of making law through Congress is much different than the practice of making law through the administrative state.

While the average voter’s influence is less than that of major donors over Congress, your congressman still needs your vote to stay in office, and most hold town meetings in their communities. The administrative state, on other hand, is largely under the control of money interests, and the average citizen has no influence at all.

Influencing the administrative state requires being in Washington. Those making the decisions in the administrative agencies are often looking out for their post-administration consulting jobs that moneyed interests can offer but the general public cannot. Influencing the administrative state requires being able to throw dinner parties that government officials will attend. 

In theory, the administrative state is limited to implementing the statutory schemes enacted by Congress. As is demonstrated by the creation of new immigration programs through regulation, the administrative state has now expanded into a legislative body.

There had been some hope that the Supreme Court had reined in the uncontrolled power of the administrative state in the recent West Virginia v. EPA and Loper Bright v. Raimondo decisions. Yet we are not seeing any change in practice because the lower courts are doing things just as they always did and are holding that the administrative state possesses vast legislative power to go with its administrative power. This shift of power is making Congress as meaningless as the Roman Senate became in the first century B.C.