Does Doom Loom for Big Business H1-B Suit?

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November 23, 2020

IRLI, tech workers file briefs in expedited appeal

WASHINGTON—On Friday, the Immigration Reform Law Institute (IRLI) and U.S. Tech Workers, a nonprofit representing the interests of American technology workers, filed dual friend-of-the-court briefs, both drafted by IRLI staff, in the Ninth Circuit Court of Appeals in a case in which industry plaintiffs, led by the National Association of Manufacturers, are challenging President Trump’s suspension of the H1-B and other guest-worker programs.

In 1952, when Congress passed the Immigration and Nationality Act, it included a provision authorizing the President to suspend the entry of all aliens or any class of aliens into the country if he found their entry detrimental to the national interest. When the bill was debated, its sponsor explained that this sweeping power would be necessary in times of epidemic or high unemployment. In June, citing high unemployment, President Trump suspended the entry of H1-B workers and other guest workers pursuant to this authority.

Under the Constitution, Congress may not transfer overly broad power to the President. But the power of suspending entry, as the Supreme Court explained in Trump v. Hawaii when it upheld President Trump’s third travel ban order, is different, because the Constitution itself gives the President broad powers over foreign policy, including the power to suspend the entry of aliens. Thus, Congress did not delegate or transfer power to the President in the suspension-of-entry provision, but merely codified his preexisting power.

Nevertheless, the California federal district court judge who enjoined Trump’s guest-worker ban found a way to rule that it violated the Constitution. He decreed that, because Trump’s ban had a domestic purpose—protecting Americans’ jobs—it was not a foreign-policy action, but a domestic-policy action, and thus the suspension provision, as applied to the ban, was an overbroad delegation of domestic power.

In its brief on appeal, IRLI takes issue with this “purpose” test for whether a power is used domestically or in foreign policy. Under that test, a war America fought abroad to secure a natural resource for domestic consumption would be mislabeled a “domestic” action, and economic stimulus measures meant to generate more funding for our armed forces abroad would be “foreign-policy” actions.

The Supreme Court has never used this paradoxical “purpose” test. Instead, when President Truman seized domestic steel production for the purpose of protecting the national defense, the Court did not find that his use of power was in foreign policy because it had a foreign-policy purpose, but looked to the subject matter of his order (steel mills in the United States) and found that he had exceeded his domestic authority. And, IRLI points out, suspending the entry of aliens abroad into the U.S., whatever its purpose, is always in the area of foreign policy.

For its part, U.S. Tech Workers takes the district court to task in its brief for failing even to consider harms to American workers when it “balanced” harms to affected parties and found that the preliminary injunction plaintiffs sought was in the public interest. Instead, the court seemed to conclude that if the injunction was good for big business, it was good for America, even if many American workers, who are a large part of the public, lost their jobs.    

“Big business has gone to court to try to protect the H1-B program for a simple reason,” said Dale L. Wilcox, executive director and general counsel of IRLI. “H1-B workers are cheaper. Industry does not have to consider the interests of American workers or of the nation, but courts ruling on injunction motions should. It is outrageous that the district court crippled a power validly conferred on the President by both Congress and the Constitution using an absurd legal test, without even considering the interests of American workers that the President used that power to protect. We hope the Ninth Circuit, which expedited this appeal, makes short work of this unlawful injunction.”

The case is National Association of Manufacturers v. DHS, No. 20-17132 (Ninth Circuit).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]

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