WASHINGTON—On Monday, the Immigration Reform Law Institute (IRLI), on behalf of its client Save Jobs USA, an association of technology workers, petitioned the Supreme Court to accept a case that challenges the Department of Homeland Security’s (DHS) authority to allow aliens to take half of the new jobs the American economy creates each year.
IRLI shows the Court that DHS, like any agency, only has the authority to implement statutes passed by Congress, and that DHS is not implementing any statutes here, but acting on its own alleged authority.
The petition is a follow-on to IRLI’s petition to the Court in Washtech v. DHS, which garnered seven amicus briefs in its support from lawmakers (led by Senator Ted Cruz), states (led by Kansas), and influential legal groups, and is featured as a “petition to watch” on Scotusblog. In Washtech, the issue is whether DHS may violate the student-visa statute by letting former foreign students work in technology jobs for over three years after graduation.
In this petition, the issue is whether DHS can allow the accompanying spouses of certain H1-B workers to work in the United States, even though the visa that allows them to be in the country says nothing about whether or not they can work.
It is basic to administrative law, IRLI shows, that agencies only have the authority to implement or carry out some principle of action laid down by Congress in a statute. Here, Congress provided no principle in the operative visa statute that DHS could implement to let accompanying spouses work.
What’s more, IRLI shows, if this program and the program challenged in Washtech are combined with still other work programs DHS has created without implementing any part of the Immigration and Nationality Act, it turns out that DHS, without any congressional authorization, is slating half of the new jobs our economy creates in an average year to aliens—with devastating effect on Americans, including long-term unemployed Americans.
“If the Court is serious about reigning in the unconstitutional power of administrative agencies, it should take this case,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The Court needs to make clear a simple principle that has apparently not been clear to the lower courts: when an agency regulates, it has to be implementing a statute. If not, it is violating the Constitution. And the practical ramifications here are enormous for Americans in need of new jobs. We hope the Court takes up this case with Washtech, and confines DHS to the limits set by Congress and the Constitution.”
The case is Save Jobs USA v. DHS, No. ____ (Supreme Court).
