History is on workers' side

By Jan Ting on February 20, 2015
philly.com

, February 20, 2015

This week, U.S. District Judge Andrew Hanen halted implementation of President Obama's executive order that would shield from deportation about five million immigrants who are in the United States illegally. The president, in announcing his administration's intention to appeal the injunction, predicted eventual vindication for his unilateral initiative because "history is on our side." I see history differently.

Ever since Congress began to limit the number of immigrants to the United States, our nation's courts have repeatedly found that protecting the jobs and wages of American workers was one of Congress' "great" and "primary" purposes for limiting immigration.

In 2002, in Hoffman Plastic Compounds Inc. v. NLRB, the Supreme Court found "combating the employment of illegal aliens in the United States central to the policy of immigration law." In overturning the decision of an executive branch agency to grant benefits to illegal aliens, the high court said that allowing such benefits would "unduly trench upon explicit statutory prohibitions critical to federal immigration policy" and "would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations."

And that is exactly what Obama is proposing to do by directing executive branch agencies to issue work authorization to five million illegal aliens who would directly compete with American workers for jobs.

The latest official U.S. jobs report shows that there are nine million unemployed Americans actively seeking work, 6.8 million part-time workers who want but can't find full-time work, and 2.2 million dubbed "marginally attached" who were looking for work in the past year, but not in the past month — this includes the discouraged who have concluded there is no job available for them.

The official unemployment rate remains high, at 5.7 percent. But it is higher depending on what group one considers. The overall number for men is 5.9 percent, but 18.8 percent for teenagers. For African Americans, the unemployment rate is 10.3 percent, ticking up to 10.6 percent for black men and an astonishing 29.7 percent for African American teens. At the same time, about 47 million Americans are receiving food stamps through the Supplemental Nutrition Assistance Program to help them make ends meet. That's almost one in six.

A recent report from the Center for Immigration Studies says that while 9.3 million jobs were added to the U.S. workforce since 2000, during the same period 18 million new immigrants, both legal and illegal, entered the country. No wonder wages remain stagnant even as the economy expands and the stock market keeps hitting new highs. Compare those numbers with the five million work authorizations Obama wants to unilaterally issue to illegal aliens in 2015 alone.

The shortage of jobs is at the root of most social problems in the United States. If companies created more better-paying jobs, we could address more of these issues. But business leaders support increasing immigration in order to hold down labor costs and keep profits rising. It is the job of Congress to strike a balance between the interests of business and labor. Congress must set limits on immigration that allow the economy to innovate and expand, while also allowing American workers to share in the prosperity of a growing economy.

Congress has enacted limitations that, in its judgment, strike the right balance, and it can modify those limitations at any time. But because Obama has been unable to get lawmakers to pass the modifications he advocates, he feels empowered to unilaterally promulgate new rules. Judge Hanen describes these actions as "in effect, a new law," as well as "a complete abdication" of immigration enforcement and "a program whereby it [the Department of Homeland Security] not only ignores the dictates of Congress, but actively acts to thwart them."

Hanen properly limited his ruling to the narrow legal ground that the Obama administration failed to comply with requirements for a period of public comment on the proposed rule changes and subsequently consideration by the government of those comments. He wisely did not invoke the underlying constitutional conflict because it was unnecessary for the issuance of his temporary injunction.

The constitutionality of the president's executive action will eventually be considered on the merits by the courts even as it is debated in Congress. Despite Obama's hopes, I suspect that history will prove to be on the side of leaders who stand up for the interests of American workers even as they promote shared economic growth and innovation.