Challenges to President Trump’s various administrative actions have been flying through the courts at SR-71 speed. However, not all similar cases go through the courts on overdrive.
This Thursday, May 29, will mark the eleventh anniversary of the start of the litigation challenging whether the OPT (Optional Practical Training) program is within DHS authority.
DHS created the OPT program through regulation, with no directive from Congress. OPT allows aliens to work for years after graduation on student visas. (And both the employed "students" and their employers are exempt from the payroll taxes everyone else has to pay.) Measured in workers per year, OPT is now the largest guestworker program in the immigration system – yet it was never enacted by Congress.
The litigation raises the two simple question of law: (1) does DHS have the authority to allow aliens to remain in the country on student visas when they aliens are no longer students and (2) does DHS have the authority to allow these aliens to work? The case is based on an administrative record so there is no discovery or anything else to make the case complex.
Nonetheless, the courts have used justiciability issues (most notoriously the question of standing) to repeatedly kick the can down the road, transforming the endless litigation into something straight out of Dickens.
In 2015 I was invited to testify before the Senate Judiciary Committee on the case. Before the hearing I had a meeting with some of the staff members during which one of them said, "Every year the Chief Justice sends us a report saying the courts are overburdened and we need more judges. Then we see cases like yours where the courts simply make more work for themselves."
Four years later, there is still no progress and no end in sight.