Well, it’s Groundhog Day, again. And if you want a weather prediction for U.S. workers: It’s gonna be cold, it’s gonna be gray, and it’s gonna last you the rest of your life. You can’t say that American workers aren’t trying to save themselves when their elected representatives are asleep at the wheel. Last year, in a stunning opinion, a panel of three judges on the D.C. Circuit Court of Appeals ruled that alien students on F-1 visas were allowed under immigration law to stay after graduation and work for years. The judges said that the law governing F-1 students were mere entry requirements, and after they entered the country, the Department of Homeland Security (DHS) was free to allow them to stay because Congress was silent on the issue. Not to be deterred, the workers who had lost the case appealed to the Circuit as a whole in the hope that a rehearing en banc would bring saner results. However, avid fans of the film Groundhog Day and watchers of the D.C. Circuit know that time is a flat circle doomed to be repeated. The D.C. Circuit denied the request of workers to even be heard.
One bright ray of hope is that Judge Rao definitely saw her shadow in a stinging dissent against the denial of rehearing en banc. I encourage everyone feeling hopeless at the D.C. Circuit’s inane ruling to read her dissent that makes clear that some judges do take statutes seriously. The issue in this case is surprisingly simple: Our immigration laws go on for pages and pages defining specific categories of temporary nonimmigrants eligible to come to the United States. There are categories for tourists, agricultural workers, diplomats, etc. One specific category is students. The law clearly says that students must be coming for the sole purpose of study. Seems clear so far, but our noble bureaucrats have spent decades allowing these students to stay after their graduation to work. This program was created solely by executive fiat and is called Optional Practical Training (OPT). The justification is that their full-time work for employers (while being exempt from payroll taxes) is really just an extension of their study as they are being trained in the field they studied in school. But, of course, the United States has multiple categories of work visas available for graduate aliens to apply for if they want to work and continue their “education.” None of this matters to our betters on the D.C. Circuit, though. The law Congress passed just isn’t as important as what they did not say. Since Congress didn’t explicitly deny the executive the power to create OPT, the D.C. Circuit concludes that the law allows hundreds of thousands of foreign workers in a category created “solely” for study.
As Judge Rao points out in her dissent, this precedent, taken to its logical conclusion, erases immigration law as we know it. All categories of visas are mere requirements at entry and after aliens arrive the executive branch can basically do whatever they want. Future tourists can have a tourist work program where they get to see the wonderful sights of Disney World by working there instead of just visiting. Every visa could become a one-stop shop for any and all purposes and all because Congress is silent. The silence of Congress in this instance is signing a blank check authority to the executive branch to do whatever they want. How does this square with our form of government and what does it mean for American workers? Well, the D.C. Circuit is too busy to answer those questions.
Since the judges won’t answer these questions, I thought I might take a shot at it. Reading specifically defined categories of visas to actually mean anything the executive branch wants them to mean creates immigration law by bureaucracy instead of by the elected Congress. It shuts out the ability of the American people to have a say in immigration law. Bureaucrats unencumbered by the fear of facing voters do not have to create policy with any concern on its impact on American workers. When you also factor in that judges routinely defer to the bureaucracy (Chevron deference), it means the executive branch has no checks whatsoever on their authority. Congress and the American people are shut out and the courts are checked out.
So it comes down to the Supreme Court having a conscience. There is hope, here, as I have noted before. Judge Rao cites the Supreme Court’s recent statement that broad delegations of authority to the executive branch require explicit language from Congress instead of mere silence. OPT is the classic example of Congress giving not even an inch and the executive taking a nautical mile. Despite the F-1 visa category explicitly requiring students to come to the United States solely for study, the executive branch has turned F-1 into one of the largest employment visas in the country. If the Supreme Court cannot be bothered to stop this, then the judicial revolution against the over-reaching administrative state ends not with a bang, but a whimper.
JARED CULVER is a Legal Analyst for NumbersUSA
Updated: Fri, Feb 3rd 2023 @ 6:22am EST