A Scary Idea: Ignore 94 years of Legislative History on Numerical Ceilings

By David North, May 18, 2015

There's a frightening idea out there about the use of executive discretion that I must have missed when it surfaced last year: Let's have the president define the numerical ceilings in the green card programs in such a way as to double the number of workers admitted.

"Pundits have also said that the president could effectively double the number of employment-based green cards by changing the way that employment-based green card[s] are counted," wrote immigration lawyer Chris Musillo in Immigration Daily.

If the president counted only workers, and not count their accompanying dependents, against the 140,000 ceiling, admissions would more than double, as only 45 percent of the 140,000 now admitted each year are workers; the rest are dependents.

So far this has not happened, perhaps because the White House regards this as a step too far.

To do so would be to fly in the face of 94 years of legislative history. Ever since the passage of the Emergency Quota Act of 1921, Congress has placed numerical limits on the admissions of some classes of aliens, and no limits on others (such as spouses of citizens). Those limits have changed over the years, as have the definitions of those who can come in without limits.

But every time Congress adjusts these ceilings it has done so within a framework of numerical limits, which has meant one visa = one alien and if the alien brings in a spouse or children the latter count against the ceiling. If Congress had wanted to allow the dependents to come in outside of ceilings it would have said so, as it has with citizens' spouses.

The "let's not count the dependents" scenario could be played out in two different ways:

  1. Congressional action along these lines would be terrible public policy, but would be in keeping with the Constitution.

  2. If the president were to do it by the stroke of the pen, it would be both terrible public policy and a lawless act.

Let's hope that neither happens.

For more on principal and dependent immigrants, see this CIS Backgrounder by my colleague Jon Feere.