WASHINGTON—On Tuesday, the Immigration Reform Law Institute (IRLI) filed a reply to the Biden administration’s response to IRLI’s petition for Supreme Court review, filed in May, seeking reversal of a DC Circuit Court of Appeals decision that vastly expands the power of the Department of Homeland Security (DHS) to authorize aliens to take American jobs. In that decision, the DC Circuit approved a massive program DHS created to allow former foreign students to stay in the country for years after graduation and work in the tech industry.
IRLI’s petition, filed on behalf its of labor-union client Washington Alliance of Technology Workers (Washtech), has created a stir, garnering seven amicus briefs in its support from members of the U.S. Senate (led by Senator Ted Cruz), thirty-one members of the U.S. House of Representatives, ten states (led by Kansas), and influential legal groups, and being featured as a “petition to watch” on Scotusblog. Reportedly, the White House is worried that the case will spell an end to big plans DHS has to give work authorization to any groups of aliens it—and big business—may choose.
In its petition, IRLI showed in detail how the DC Circuit decision makes an illogical mess out of the nonimmigrant visa statute. Crucially, IRLI also showed that the decision authorizes DHS to allow aliens to work through regulations that exceed the agency’s power under the Constitution because they do not implement any statute passed by Congress, but merely follow a standard created by the DC Circuit. The Supreme Court ruling IRLI seeks, based on this latter argument, would cripple DHS’s ability to shunt a projected half of new American jobs to aliens rather than Americans who need work.
Remarkably, the administration had nothing to say about these arguments in its response. Instead, it tried to pretend that there is nothing unusual about the DC Circuit’s radical decision, and raised two arguments of its own, claiming that Congress implicitly ratified the work program at issue in 1952, and that IRLI’s client lacks standing to bring the case.
In its reply, IRLI makes short work of these arguments, showing that no post-graduation alien work program existed to be ratified by Congress’s passage of the Immigration and Nationality Act in 1952, and that Washtech’s tech-worker members clearly have standing to challenge the present program because it injures them by steeply increasing their competition for jobs.
“It’s fundamental: agencies only have the power to implement statutes,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The administration cannot contest this point, and cannot show how DHS implemented any statute when it created this program. So it said nothing. Clearly, DHS wishes it had been given carte blanche authority to allow aliens to work as it sees fit, but Congress did not grant it this authority, and could not do so under the Constitution. We hope the Supreme Court sees this case as necessary to keep DHS within the bounds of its legitimate authority, and grants review.”
The case is Wash. All. of Tech. Workers v. DHS, No. 22-1071 (Supreme Court).
