For yet another example of how out-of-control federal bureaucrats think they can stretch the law beyond recognition to meet their policy preferences, look no further than a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit.
The F-1 student visa program that allows foreigners to enter the country and study at American universities is the center of the case, Washington Alliance of Technology Workers v. Department of Homeland Security.
The Immigration and Naturalization Act, 8 U.S.C. § 1101, is the law governing student visas and it’s very specific. It stipulates that the Department of Homeland Security can issue student visas to a “bona fide student qualified to pursue a full course of study” who “seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study” (emphasis added).
Yet despite the clear language of this provision that permits foreign students only to study in the U.S., DHS promulgated a new regulation in 2016. It amended similar, existing regulations first issued in 1992 to allow foreign students to remain and work in the country for up to a year after their studies end. DHS also allows students in science, technology, or engineering to work while remaining in the U.S. for an additional 24 months.
Thus, those foreign students may remain working in the U.S.—and taking jobs away from American graduates—for up to 36 months after they complete their university degrees. The Washington Alliance of Technology Workers sued unsuccessfully to protect America’s own tech workforce.
Keep in mind: Not only does such an extension of time for foreign students directly violate the explicit language of the applicable statute on student visas, it also violates the applicable statute under which aliens can be granted permission to work. That statute provides a specific list of aliens who may be issued work permits, and these students are not on that list.
Yet the majority of judges on the D.C. Circuit decided to allow DHS to continue this flawed visa program, created out of whole cloth by the administrative state rather than Congress, through a fundamentally unreasonable misinterpretation of applicable immigration law. A misinterpretation that benefits aliens at the expense of U.S. citizens.
As the two dissenting judges, Neomi Rao and Karen Henderson, point out, Congress passed “detailed statutory requirements for work visas” that “reflect political judgments balancing the competing interests of employers and American workers.” Furthermore, they note, the Department of Homeland Security now has been given “virtually unchecked authority to extend the terms of an alien’s stay in the United States,” an authority Congress never granted the agency.
In essence, the appeals court is affirming DHS’ defiance of federal immigration law and approving its violation of the law that Congress intended to constrain the agency.
Rao and Henderson dissented from the D.C. Circuit’s refusal to grant en banc review by all of the circuit’s judges of the erroneous decision by a three-judge panel in favor of DHS’ misinterpretation of the law. Henderson authored a dissent in that panel decision, too.
Those detailed statutory requirements are “incompatible with assuming a broad delegation to DHS” to give work visas to any aliens its bureaucrats decide should get to work in the U.S. As Henderson points out in her dissent in the panel decision, no “plausible textual basis” exists for the agency to assert it has the power “to allow student visa holders to remain in the country and work long after their student status has lapsed.”
Rao and Henderson get it exactly right when they say that regardless of whether the Department of Homeland Security’s action is a “good policy for retaining high-skilled graduates who will further innovation and economic development … neither [DHS] nor this court is authorized to rewrite the immigration laws established by Congress.”
The “good policy” argument doesn’t fly anyway, because the only thing that three additional years of allowing aliens to work in the U.S. after completing university studies does is 1) take jobs away from American graduates, particularly in science and technology and 2) give those aliens even more experience with technology that they can take home to hostile nations such as Communist China to be used to compete with and undercut American industry.
The court decision upholding the DHS regulation, Rao and Henderson write, is “inconsistent with the detailed nonimmigrant visa program which precisely specifies who may enter and for what purposes.”
What makes this decision even worse, the two judges write, is that the flawed reasoning of the D.C. Circuit can apply not just to the student visas that were the subject of the litigation, but “extends DHS authority to confer valuable benefits to all nonimmigrant holders.”
In other words, the Department of Homeland Security will be able to wipe out, bureaucratically, all of the restrictions that Congress has placed on all other visas in federal immigration law.
Hopefully, the Washington Alliance of Technology Workers will appeal this case to the Supreme Court. The immigration statutes involved aren’t ambiguous; they are clear and straightforward.
It is obvious that DHS is violating the plain language of those statutes by allowing foreign students to stay and work here after they complete their studies. Well, obvious to everyone except the bureaucrats at DHS and a majority of judges on the D.C. Circuit.
That appeal also could be an opportunity for the Supreme Court to kill or substantially limit the so-called Chevron Doctrine. Under that principle, established by the high court in the 1984 case Chevron USA v. Natural Resources Defense Council, courts should give “deference” to a federal agency’s interpretation of statutes it administers.
Federal agencies, just like the Department of Homeland Security in this case, have used this deference to engage in activities and to issue regulations that go far beyond the statutory authority they were granted by Congress. That deference—unchecked by the courts—gives unelected bureaucrats virtual lawmaking power through the regulatory process. It poses a threat to our constitutional form of government.
It’s time for the Supreme Court finally to do something about this threat.
This piece originally appeared in The Daily Signal