Is the H-4 Rule on Its Way Out?

By John Miano on April 6, 2017

An update is in order on the H-4 (spouses and children under 21 years of age of H-1B visa holders) work authorization case: Save Jobs USA v. U.S. Dep't of Homeland Security. While the case got little attention initially, over the past few weeks there has been a surge of coverage, consisting largely of misleading plant pieces and mindless hysteria.

A little bit of history is in order first. Administrative abuse has been a constant problem with the immigration system. Congress authorizes the executive to do certain things and then the president does whatever he wants. One recurring problem has been the executive authorizing alien employment on improper visas. In fact, the H-1B program was created in response to such abuse.

In the past, this kind of agency abuse was justified with a song and a dance. Obama was the first president to claim that he had the unlimited authority to allow any alien to work. Obama's administration made the laughable claim that this unlimited authority came from 8 U.S.C. § 1103(a) and 8 U.S.C. § 1324a(h)(3).

Like a child with a brand new toy, Obama took many administrative actions authorizing aliens to be employed where there is no statutory authorization. The most famous of these are DAPA and DACA. The rule at issue in the H-4 case authorized certain spouses of H-1B workers to be employed, even though there is no statute authorizing such employment. The scope of presidential power in such cases is defined by what Congress delegates; not by what it withholds.

Save Jobs USA, a group of American citizens who were replaced by H-1B workers at Southern California Edison, filed a lawsuit challenging this work authorization because it was in excess of DHS's statutory authority.

In the district court, Save Jobs USA lost on two fronts: The court held they lacked standing and that the president has the unlimited authority to allow aliens to work in the United States.

Save Jobs USA then appealed to the D.C. Circuit. You are at a much better advantage in the appeals court when you win in the district court.

I have written before about standing.

Plaintiffs face two major problems in regard to standing. First, the rules of standing that Justice Scalia invented out of thin air are nonsensical (if anyone tells you Scalia was an originalist, respond with the word "standing"). Second, the precedent applying those rules is inconsistent. Finally and most importantly, the courts invent new rules at will to allow plaintiffs entry or to keep them out. One of the latest examples was in the Washington v. Trump case where Judge Robarts addressed the plaintiff's obvious standing problems by simply declaring the law of standing to be "murky".

Standing is not law. It is strictly politics.

The problem for the court of appeals is how to make standing look like law. In the Save Jobs USA opinion, the district court invented several new rules to deny standing. For example, the D.C. Circuit has repeatedly held that a party has standing when a government action allows competition with the plaintiff.

The district court noted that the H-4 rule allows aliens to work anywhere (thus they are allowed to work in competition with Save Jobs USA members). However, the district court then created a new standard using the rules for injunctive relief that says something else must be shown beyond allowing competition. The D.C. Circuit would have to abandon much precedent to adopt the district court's new rule — and that is just the start of the new rules that were created to deny Save Jobs USA standing. As such, we do not believe standing is as big an issue on appeal as it might otherwise be.

The more interesting question is the scope of presidential authority. Here there has been a major change in the dynamics of the case. In the district court, the basic merits question was "Does President Obama have the unfettered authority to do whatever the hell he wants on immigration?" On appeal that question becomes "Does President Trump have the unfettered authority to do whatever the hell he wants on immigration?"

In theory, that should not make a difference in law. In practice, it is a major difference. Just look at how the Ninth Circuit responded to President Trump exercising authority to deny entry to aliens that is explicitly in the statutes. The Ninth Circuit dared not even mention that statutory provision is at issue. I dare say that we will not see 225 Democrat members of Congress filing an amicus brief saying:
 

Congress understands that the Executive is often better positioned to determine how to adjust quickly to changing circumstances in complex fields, particularly ones involving law-enforcement and national-security concerns. Congress therefore regularly gives the executive broad discretion to determine how to enforce such statutes. Rarely has it done so more clearly than in the Nation's immigration laws.

 

At least not while President Trump is in office. Undoubtedly, the scope of presidential power on immigration changed when President Trump took office.

Oral argument in the case was set for March 31 and Save Jobs USA had filed its opening brief. However, shortly after the election, DHS asked for a 60-day delay to allow the incoming administration to study the case. Save Jobs USA consented and the Court granted the motion.

That DHS motion started wild rumors in the Indian press that DHS was not going to defend the case. People ignored that, even if President Trump opposes the H-4 Rule, he may not oppose having the power to make the H-4 Rule.

This week was the time for the parties to decide what to do next. DHS asked for an additional 180-day extension. This time Save Jobs USA opposed and moved the court to put the case back on schedule.

This motion, too, has produced all kinds of wild speculation. One newspaper chain writes of these opposing (and undecided motions): "An effort to restrict immigrant visas for the spouses of foreign workers has suffered a setback in the courts."

This is yet another example of why you should not believe what you read in the newspaper.

I have no inside knowledge of what goes on at DHS, but my own interpretation of events is that DHS wants to preserve the power to make such rules yet wants the H-4 Rule to go away. I base that on these statements in their motion:

 

 

 

[T]he Department of Homeland Security has concluded that it is appropriate to actively reconsider whether to revise the H-4 Rule through notice-and-comment rulemaking.

If the Department elects to promulgate a new rule that is different from the Rule at issue in this appeal, that may obviate the need for judicial review of the current rule.

 

It looks to me like the H-4 Rule is going away, even if Save Jobs USA loses in court.

In any event, the surge of publicity in this case illustrates that most people think the courts will view the scope of President Trump's power on immigration as less than that of President Obama's.