In a sense, the United States is no longer a democracy. Over the past century, the nation’s government has transformed into a bureaucracy where nearly all law comes in the form of regulations promulgated by unelected bureaucrats. Immigration law is no exception.
The professional lobbying class loves the bureaucratic state. Instead of having to influence members of Congress who have to look to the next election, lobbyists have to influence bureaucrats who have to look to their post-administration lobbying and consulting jobs — that they can provide.
The displacement of democracy has come about because of Congress and the federal courts. Congress has become lazy but wants to be involved in more than it can govern. The bureaucratic state allows Congress to avoid having to look at issues and solve problems. Instead, these days Congress simply passes laws that say some agency can make regulations.
In theory, the federal courts are supposed to ensure that agencies act within the authority that Congress grants them. In practice, the courts have allowed agencies to run amok. One example is that the Supreme Court invented out of thin air the doctrine of "standing" to protect the New Deal. The Court later declared that standing is a constitutional requirement even though it is never mentioned in the Constitution and the concept would have been alien to its drafters. In order to challenge an agency action, a party first has to prove it has standing to bring the case. The rules of standing set forth by the Supreme Court are so vague that standing is politics rather than law. When the courts want a case to proceed, they declare the law of standing to be “murky” and open the doors wide. If a court is not eager for a case to proceed, standing becomes an exercise in pettifoggery.
The effect of standing is that the Supreme Court has created a defense for every administrative action. Even for the most outrageous unlawful actions, an agency has the defense that the challenger does not have standing to challenge it. You can easily spend six years litigating standing in the federal courts before you can even get to the merits of the case.
Another gift to the agencies is deference, usually referred to as “Chevron deference” from the name of the case involved. Deference to an agency is not completely a bad thing. The problem is that the Supreme Court has never spelled out in a rational manner where there should be deference.
Assume that Congress enacts a statute that gives an agency the authority to regulate bridges in some way and the agency uses that provision to issue regulations governing roads. A party challenges those regulations as unlawful, gets past six years of litigating standing, and comes to the merits.
The hypothetical statute involved bridges, so it was silent on roads.
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984) instructs:
[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
The agency can then argue that one meaning of a bridge is a connection. In that sense, a road from A-to-B is a "bridge" from A-to-B. A court then holds the statute could be read that way. So a statute governing bridges becomes a statute that authorizes regulating roads.
There are signs that the Supreme Court has recognized that the agencies are now out of control and a return to democracy is needed. In West Virginia v. EPA, the Court held that major questions of authority require specific congressional approval.
In immigration, America now has a dual system of alien employment. There is the system authorized by Congress pursuant to the Constitution and there is now the system created entirely through regulation. Under the Obama administration, the bureaucracy claimed that it has the authority to allow any alien to work in the United States through regulation. Now, the system of alien employment through regulation is larger than the system authorized by Congress.
Hopefully, that system of employment through regulation is about to be shaken up. We are waiting for a decision from the D.C. Circuit in Washington Alliance of Technology Workers v. DHS. The facts of the case are among the most outlandish one can find in regards to regulation.
In 2007, the tech industry threw a dinner party for DHS Secretary Chertoff where they pitched the idea of allowing, through regulation, aliens to work on student visas for years after graduation as a means to circumvent the statutory quotas on H-1B guestworker visas. After the dinner, DHS worked with lobbyists in secrecy to craft regulations. The first word that the public received that such regulations were even being considered was when DHS published them without the required notice and comment.
This lawmaking-by-dinner-party has resulted in 15 years of litigation. Over that time, the “post-Completion Optional Practical Training program” (OPT) has grown to become the largest guestworker program in the immigration system. That’s right. Student visas are now the largest guestworker visa, with aliens able to work for up to 42 months after graduation.
The student visa is defined as:
an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 1184(l) of this title at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution [that will report termination of attendance].
The plain text of the student visa statute (“solely”) precludes work (or even remaining in the country) after graduation.
But then comes judicial deference to agency interpretation. The district court held that the student visa definition could be interpreted as just an entry requirement that DHS is free to ignore once the alien enters.
Of course, interpreting the statute as a mere entry requirement means the visa requirements are never applied. DHS is telling the world to come to the United States, go to school, then work for years after graduation, because it is never excluding from admission those who apply for the student visas with the intention to work after graduation.
What about allowing work after graduation on student visas? The statute never mentions work. Because the statute is silent on work, DHS can permit work after graduation.
Under the district court’s interpretation of the statute, DHS can ignore every restriction Congress has imposed on student visas and can permit any activity Congress did not mention. The statutes Congress has enacted became a nullity through judicial interpretation so, once again, bureaucracy trumps democracy.
A decision reviewing the district court’s opinion could come any day from the D.C. Circuit. That court faces hard choices. Affirming the District Court’s opinion would mean that DHS can continue to wipe out the protections for American workers in the immigration system through regulation. Reversing the District Court’s opinion would be a major victory for restoring democracy to America. However, that would require ending the largest guestworker program in the immigration system. That will result in howls of outrage from lobbyists and critical stories planted in news outlets across the country.