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  by  Jared Culver

The D.C. Circuit Court of Appeals rejected the appeal of U.S. tech workers desperate for a fighting chance for a job today in the latest chapter of a 14-year lawsuit. The workers challenged the power of the Federal government to allow foreign students in the United States to work, while being exempt from Social Security and Medicare taxes, after they graduate from a U.S. university. These foreign graduates are no longer students (which begs the question as to how they maintain immigration status as students), and are substantially cheaper than their American competitors due to FICA tax exemptions. They are also unable to leave their job without fear of losing their immigration status.

Imagine being a U.S. tech worker competing with workers who are cheaper than you and cannot quit. You may be wondering how in the world Congress created a work visa that tilts the scale so far to the advantage of foreign workers and the employers who exploit them, but, at least in this case, Congress decidedly did not do that. Rather, our executive branch is writing laws itself and the courts have continuously rubber-stamped them. If you’re wondering where the American people have a say in that process, you can simply read the Circuit Court’s opinion today and realize we aren’t even considered.

For a bit of background, the program in question that allows foreign students to work is called Optional Practical Training (OPT). OPT allows students to work in a field closely associated with their course of study after they graduate. This is supposedly to help the students get training for their professional careers back home and is thus educational, but the reality is that for many graduates it is simply their opportunity to get their first job with a company seeking to sponsor them for an H-1B visa after their OPT term ends.

If you check the statute defining F-1 students you will find not a word about OPT. In fact, the statute defining F-1 student visitors says they must be seeking to “solely” study. According to the courts this is not sufficient because the statute is silent to the controls on the alien once they are in the United States. So to them, Congress saying they must be coming “solely” to study counts as silence about whether they can arrive and then work under student status.

Because of this supposed loud silence, the D.C. Circuit believes Congress delegated the authority to determine the regulations governing foreign students to the Executive Branch. Apparently, whatever Congress did not explicitly bar is up to the President to regulate. Taken to the logical conclusion, the President has all the powers of Congress on any issue where the Congress is silent. The joke’s on all of you who thought Congress wrote the laws and the President enforced them. The truth is that where Congress is silent, the President becomes the God-of-the-Gaps writing between the lines as he sees fit.

In the case of OPT, this is not some limited use of discretion or some simple bureaucratic regulation. OPT is one of the largest foreign worker programs in the country. The D.C. Circuit opinion itself speaks of 100,000 OPT workers each year. According to figures released during the Trump Administration, the number of new OPT workers was north of 154,000 in FY16, 162,000 in FY17, and 143,000 in FY18. For reference, that is more workers than allowed annually in the H-1B tech visa program (85,000 total) and the H-2B non-agricultural visa program (66,000). There is no cap on the number of OPT workers and no labor protections like a required minimum wage or a requirement for employers to attempt to recruit American workers before hiring an OPT worker.

Because Congress has not explicitly banned work in student visas, according to courts, they inadvertently created a massive work visa within a visa category for students that eclipses the number of workers allowed in visa categories designed specifically to admit foreign workers. In other words, Congress allowed more foreign workers into the United States through silence than they ever did through actual legislative text. That certainly seems like a major question for courts about whether Congress actually intended a student visa to be a massive labor visa. When the Executive Branch is interpreting statutes and finding massive power in silence, the degree of skepticism of Courts should be at its highest ringing alarm bells level.

As a thought experiment, what would be the end result of the D.C. Circuit’s reasoning in immigration law? If silence is a delegation of authority to the Executive Branch, then each new President has unfettered authority to create the immigration system they desire without any say from the American people. All watchers of Congress know legislative silence is their specialty. The statutes are not drafted in anticipation of every possible regulation created by the Executive. In fact, they are drafted with the presumption that the President will act in good faith to enforce the law faithfully as the Constitution requires. This is where the Judiciary is supposed to step in and make sure the Executive actually follows the Constitution and enforces the law in good faith. The notion that where Congress does not speak then the Executive is free to act flips the entire notion of faithful execution of the law on its head. The burden is placed on Congress to directly address every potential eventuality or be deemed to have delegated the legislative authority to the Executive Branch. While it may be true (but is hotly disputed) that Congress can delegate their Constitutional authority to make the law to the Executive Branch, especially in complex policy areas, at least the delegation itself should be clearly visible in the legislation written by Congress. Where Congress has been silent, how can that be interpreted as consent?

Luckily, the Supreme Court has finally awakened to these absurdities of jurisprudence where silence is interpreted as consent. I have written before about how the Biden Administration’s immigration agenda is occuring amidst a judicial revolution on the idea of deference to the regulatory state. In the last term, SCOTUS struck a blow against the Environmental Protection Agency (EPA), arguing their regulations went well beyond the statutory limits. Multiple recent examples exist of the Supreme Court striking down broad expansions of executive power that mirror the claims of power within OPT.

The tech worker plaintiffs in this OPT challenge are not only fighting for all American workers to have a chance to earn a living in a fair, competitive labor market. They are also the latest line of challengers pushing back against an undemocratic unitary executive. We do not yet know if SCOTUS will even deign to hear the concerns of the citizens. However, if Justice Gorsuch and the ongoing revolution against the unaccountable regulatory state is worth its salt, then this is a case that must be heard. If the Court can strike down EPA regulations that harm big energy companies, then they must take that same skepticism and apply it where the Federal government is directly harming ordinary American workers. Of course, we all have reason to worry it won’t shake out that way because, while the Supreme Court is often friendly to major industries, their rulings often ignore and overlook the employees.

How can silence from Congress be interpreted to allow a student visa to become one of our largest work visas? How can a student visa with no mention of numerical caps or labor protections like other temporary work visa categories reasonably be read to allow for labor within that same exact statutory framework? If this is legal, what actual limits would apply if a President allowed work in all visa categories? Could tourists also stay in the United States and work (spoiler alert: the Executive Branch does allow some tourist visa holders to work including home domestic workers)? What is the purpose of Congress defining visa categories at all if the President can simply use any silence, real or imagined, to authorize any regulation he sees fit? If the Supreme Court refuses to ask and answer these questions, then we can interpret their silence to mean all their talk of enforcing the Constitution’s separation of powers as a simple cover to protect their big business friends.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Wed, Oct 5th 2022 @ 1:58pm EDT

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