`
`Nos. 18-587, 18-588, 18-589
`================================================================================================================
`In The
`Supreme Court of the United States
`--------------------------------- ---------------------------------
`DEPARTMENT OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`--------------------------------- ---------------------------------
`DONALD J. TRUMP, PRESIDENT
`OF THE UNITED STATES, et al.,
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE, et al.,
`Respondents.
`
`--------------------------------- ---------------------------------
`KEVIN K. McALEENAN, ACTING
`SECRETARY OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al.,
`Respondents.
`
`--------------------------------- ---------------------------------
`On Writs Of Certiorari To The United States
`Courts Of Appeals For The Ninth Circuit, District
`Of Columbia Circuit, And Second Circuit
`--------------------------------- ---------------------------------
`AMICUS BRIEF OF SAVE JOBS USA AND THE
`WASHINGTON ALLIANCE OF TECHNOLOGY
`WORKERS IN SUPPORT OF PETITIONERS
`--------------------------------- ---------------------------------
`
`JOHN M. MIANO
`Counsel of Record
`IMMIGRATION REFORM LAW INSTITUTE
`25 Massachusetts Ave., NW, Suite 315
`Washington DC 20001
`(202) 232-5590
`miano@colosseumbuilders.com
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`4
`
`Page
`INTEREST OF AMICI CURIAE .........................
`1
`SUMMARY OF THE ARGUMENT .....................
`3
`ARGUMENT ........................................................
`4
`
`I. DACA is unlawful because DHS has no
`authority to permit alien employment
`through administrative actions not au-
`thorized by Congress .................................
`A. Section 1324a(h)(3) cannot confer on
`DHS the authority to authorize alien
`employment because it is a term defi-
`nition, limited in scope to its own sec-
`tion .......................................................
`B. Congress did not confer on DHS dual
`authority to define classes of aliens el-
`igible for employment in the agency’s
`general authority to promulgate regu-
`lations ..................................................
`C. Even if Congress had attempted to
`confer on DHS the power to define
`classes of aliens eligible for employ-
`ment, such a delegation of power
`would be unconstitutional ................... 11
` II. Whether § 1324a(h)(3) confers on DHS co-
`equal authority with Congress to author-
`ize any class of aliens it chooses to work
`will have major implications throughout
`the immigration system and is not an is-
`sue to be lightly considered ....................... 14
`CONCLUSION ..................................................... 16
`
`5
`
`8
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASE LAW:
`Arizona Dream Act Coal. v. Brewer, 757 F.3d
`1053 (9th Cir. 2014) ................................................... 6
`Arizona v. Inter Tribal Council of Ariz., Inc., 133
`S. Ct. 2247 (2013) .................................................... 13
`Clinton v. City of N.Y., 524 U.S. 417 (1998) ................ 12
`Guevara v. Holder, 649 F.3d 1086 (9th Cir. 2011) ......... 6
`J. W. Hampton, Jr., & Co. v. United States, 276
`U.S. 394 (1928) ........................................................ 12
`Indus. Union Dep’t, AFL-CIO v. Am. Petroleum
`Inst., 448 U.S. 607 (1980) ........................................ 16
`Int’l Longshoremen’s & Warehousemen’s Union
`v. Meese, 891 F.2d 1374 (9th Cir. 1989) ................... 14
`Int’l Union of Bricklayers & Allied Craftsmen v.
`Meese, 761 F.2d 798 (D.C. Cir. 1985) ....................... 14
`Loving v. United States, 517 U.S. 748 (1996) ............. 12
`NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C.
`2018) .......................................................................... 5
`Regents of the Univ. of Cal. v. U.S. Dep’t of Home-
`land Sec., 279 F. Supp. 3d 1011 (N.D. Cal.
`2018) .................................................................. 2, 6, 8
`Texas v. United States, 809 F.3d 134 (5th Cir.
`2015) .................................................................. 5, 6, 8
`United States v. Texas, 136 S. Ct. 2271 (2015) ............. 6
`
`
`
`iii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Util. Air Regulatory Grp. v. Envtl. Prot. Agency,
`573 U.S. 302 (2014) ................................................... 7
`Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y.
`2018) ...................................................................... 5, 8
`Whitman v. Am. Trucking Ass’ns, 531 U.S. 457
`(2001) ................................................... 4, 8, 10, 12, 13
`
`
`CONSTITUTION:
`U.S. Const., Art. I, § 7 ................................................. 12
`
`STATUTES:
`Immigration and Nationality Act of 1952, Pub.
`L. No. 82-414, 66 Stat. 163 .................................. 9, 11
`Immigration and Nationality Act of 1965, Pub.
`L. No. 89-236, 79 Stat. 911 ...................................... 11
`Immigration Reform and Control Act of 1986,
`Pub. L. No. 99-603, 100 Stat. 3445 ........................... 8
`Immigration Act of 1990, Pub. L. No. 101-649,
`104 Stat. 4978 ......................................................... 11
`Consolidated Appropriations Resolution, 2003,
`Pub. L. No. 108-7, 117 Stat. 11 ................................. 9
`8 U.S.C. § 1103 ........................................................ 9, 13
`8 U.S.C. § 1324a(h)(3) ......................................... passim
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`REGULATIONS:
`Employment Authorization for Certain H-4 De-
`pendent Spouses, 80 Fed. Reg. 10,284 (Feb. 25,
`2015) ........................................................................ 10
`Improving and Expanding Training Opportuni-
`ties for F-1 Nonimmigrant Students With
`STEM Degrees and Cap-Gap Relief for All El-
`igible F-1 Students, 81 Fed. Reg. 13,040 (Mar.
`11, 2016) .............................................................. 2, 11
`Extending Period of Optional Practical Training
`by 17 Months for F-1 Nonimmigrant Students
`With STEM Degrees and Expanding Cap-Gap
`Relief for All F-1 Students, 73 Fed. Reg. 18,944
`(Apr. 8, 2008) ........................................................... 15
`Employment Authorization for Certain H-4 De-
`pendent Spouses, 80 Fed. Reg. 10,284 (Feb. 25,
`2015) .................................................................... 1, 10
`Enhancing Opportunities for H-1B1, CW-1, and
`E-3 Nonimmigrants and EB-1 Immigrants, 81
`Fed. Reg. 2,068 (Jan. 15, 2016) ............................... 10
`International Entrepreneur Rule, 82 Fed. Reg.
`5,238 (Jan. 17, 2017) ............................................... 11
`
`
`CONGRESSIONAL REPORTS:
`S. Rep. No. 82-1072 (1952) ............................................ 9
`S. Rep. No. 82-1137 (1952) ............................................ 9
`H.R. Rep. No. 82-1365 ................................................... 9
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`OTHER AUTHORITIES:
`Julia Preston, Pink Slips at Disney. But First,
`Training Foreign Replacements, New York
`Times, June 3, 2015 ................................................. 15
`Neil G. Ruiz and Abby Budiman, Number of For-
`eign College Students Staying and Working in
`the U.S. After Graduation Surges, Pew Re-
`search Center, May 10, 2018 ................................... 11
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`Amici submits this brief in support of their own
`
`interests as plaintiffs in ongoing federal court cases.
`The central issue in Amici’s cases is whether the U.S.
`Department of Homeland Security (DHS) shares dual
`authority with Congress to define classes of aliens eli-
`gible for employment.
`
`Amicus Save Jobs USA is a group of American
`
`computer professionals who worked at Southern Cali-
`fornia Edison until they were replaced by foreign
`guestworkers possessing H-1B visas. Save Jobs USA v.
`United States Dep’t of Homeland Security, No. 16-5287
`(D.C. Cir.) is an Administrative Procedure Act (APA)
`challenge to DHS regulations granting work authori-
`zation to the spouses of certain H-1B guestworkers.
`Employment Authorization for Certain H-4 Dependent
`Spouses, 80 Fed. Reg. 10,284 (Feb. 25, 2015).
`
`Amicus the Washington Alliance of Technology
`
`Workers, Local 37083 of the Communication Workers
`of America, the AFL-CIO (Washtech), is a union that
`represents American technology workers throughout
`the United States. Wash. Alliance of Technology Work-
`ers v. United States Dep’t of Homeland Security, No.
`16-1170 (D.D.C) is an APA challenge to the regulation
`Improving and Expanding Training Opportunities for
`
`1 The parties have given blanket consent to the filing of ami-
`
`cus curiae briefs in this case. No counsel for any party in this case
`authored this brief in whole or in part. No person or entity aside
`from Amici, their respective members, or their respective counsel
`made a monetary contribution to the preparation or submission
`of this brief. Amici do not have parent corporations or issue stock.
`
`
`
`2
`
`F-1 Nonimmigrant Students With STEM Degrees and
`Cap-Gap Relief for All Eligible F-1 Students, 81 Fed.
`Reg. 13,040 (Mar. 11, 2016). This regulation authorizes
`aliens holding F-1 student visas to work in the United
`States for over three years after the aliens graduate.
`
`Amici’s cases share a key common issue with this
`
`case: whether DHS shares dual authority with Con-
`gress to define classes of aliens eligible for employ-
`ment. This is because the Deferred Action for
`Childhood Arrivals (DACA) program at issue here is
`yet another example of DHS using its claim of dual au-
`thority to permit alien employment administratively.
`E.g., Regents of the Univ. of Cal. v. United States Dep’t
`of Homeland Sec., 908 F.3d 476, 490 (9th Cir. 2018).
`
`The question of whether DHS shares dual author-
`
`ity with Congress was not contested in the courts be-
`low in this case because no party had any incentive to
`raise this key issue regarding the lawfulness of DACA.
`Because no party raised the issue, courts below that
`have blocked the DHS from rescinding the DACA pro-
`gram rely on the erroneous conclusion that the pro-
`gram is substantively lawful.
`
`As Amici’s cases illustrate, this question of DHS
`
`authority over alien employment has broad implica-
`tions that extend beyond DACA. DACA is just one of
`several recent DHS actions that have been made pur-
`suant to the agency’s claim that it has unlimited au-
`thority to grant alien employment. This Court cannot
`find that the DACA program is substantively lawful
`
`
`
`
`3
`
`without validating DHS’s claim that it has such unlim-
`ited authority. Should this Court take that path, DHS
`can continue its use of regulations to wipe out protec-
`tions for American workers that Congress has enacted
`as part of the immigration system. Consequently,
`Amici’s interests are aligned with the government’s in-
`terests in this case in regard to outcome but diverge
`from the government’s interests on the important
`question of whether DHS has the general authority to
`issue work authorizations to aliens.
`
`--------------------------------- ---------------------------------
`
`SUMMARY OF THE ARGUMENT
`The Deferred Action for Childhood Arrivals
`
`(DACA) program is substantively unlawful because
`the Department of Homeland Security (DHS) has no
`authority to permit illegal aliens to be employed
`through regulation. In recent years, DHS has claimed
`that Congress implicitly established dual authority to
`extend employment to aliens. Under this claimed sys-
`tem, alien employment can be authorized either by
`Congress through statute or by DHS through regula-
`tion.
`
`Congress has never attempted to create such a
`
`system. Because neither Petitioners nor Respondents
`had any incentive to question whether DHS had the
`vast power over alien employment that it claims, the
`issue was uncontested in the courts below. The courts
`below stated that DHS’s authority to issue employ-
`ment authorization documents to DACA participants
`
`
`
`4
`
`comes from the definition of the term unauthorized al-
`ien in 8 U.S.C. § 1324a(h)(3), a definition that is limited
`in scope to its own section and does not authorize DHS
`to do anything. By concluding that this provision con-
`fers on DHS equal authority with Congress to extend
`employment to aliens, the courts below have found an
`“elephant[ ] in [a] mousehole[ ].” Whitman v. Am. Truck-
`ing Ass’ns, 531 U.S. 457, 468 (2001).
`
`Even under the implausible assumption that Con-
`
`gress intended to confer on DHS the alien employment
`authority necessary to implement DACA, that would
`make § 1324a(h)(3) unconstitutional under the non-
`delegation doctrine because Congress has provided no
`guidance whatsoever on how DHS is to use that al-
`leged authority. Because a contrary reading of
`§ 1324a(h)(3)—that it provides no such sweeping au-
`thority to DHS—is possible, and indeed preferable, the
`doctrine of constitutional avoidance mandates its
`adoption.
`
`--------------------------------- ---------------------------------
`
`ARGUMENT
`I. DACA is unlawful because DHS has no au-
`thority to permit alien employment through
`administrative actions not authorized by
`Congress.
`Petitioners assert that the DACA program is un-
`
`lawful, but they focus solely on the issue of whether
`such a blanket action truly represents agency discre-
`tion. Pet. Br. 43–50. The question of whether DACA is
`
`
`
`5
`
`substantively lawful, however, goes beyond whether it
`is a valid exercise of discretion not to prosecute; DACA
`also incorporates the “affirmative agency action” of
`“issu[ing] . . . employment authorization.” Texas v.
`United States, 809 F.3d 134, 168 (5th Cir. 2015) (ob-
`serving the operation of the closely-related Deferred
`Action for Parents of Americans and Lawful Perma-
`nent Residents (DAPA) program). Furthermore, “al-
`lowing for the issuance of employment authorizations
`to any class of illegal aliens whom DHS declines to re-
`move [ ] is beyond the scope of what the [Immigration
`and Nationality Act] can reasonably be interpreted to
`authorize. . . .” Id. at 169. Despite the glaring unlaw-
`fulness of DACA’s work authorizations, Petitioners
`completely neglect to address that issue where a deci-
`sion by this Court would impact labor protections in
`the entire immigration system. Pet. Br. 43–50, Pet. 27–
`30 (No. 18-587), Pet. 14–15 (No. 18-588).
`
`
`
`A. Section 1324a(h)(3) cannot confer on
`DHS the authority to authorize alien em-
`ployment because it is a term definition,
`limited in scope to its own section.
`The courts below brushed off the question of where
`
`Congress has authorized DHS to grant employment to
`DACA participants. In NAACP v. Trump, the district
`court made no mention at all of the employment issue
`in its analysis of whether DACA was lawful. 298
`F. Supp. 3d 209, 238–40 (D.D.C. 2018). In Vidal v. Niel-
`sen, the district court simply stated in dicta within
`a parenthetical that 8 U.S.C. § 1324a(h)(3) conferred
`
`
`
`6
`
`that authority. 279 F. Supp. 3d 401, 412 (E.D.N.Y.
`2018). In Regents of the Univ. of Cal. v. U.S. Dep’t of
`Homeland Sec., the district court also stated § 1324a
`was the source of the employment authority. 279
`F. Supp. 3d 1011, 1020 (N.D. Cal. 2018) (citing Arizona
`Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th
`Cir. 2014)); but see Guevara v. Holder, 649 F.3d 1086
`(9th Cir. 2011) (holding that there was “nothing in the
`statute [8 U.S.C. § 1324a] or administrative regulation
`to provide for more” than “merely allow[ing] an em-
`ployer to legally hire an alien (whether admitted or
`not) while his [adjustment of status] application is
`pending.”).
`
`In the earlier litigation over the similar Deferred
`
`Action for Parents of Americans and Lawful Perma-
`nent Residents (DAPA) program, the employment
`question was addressed in an adversarial context. See
`Texas v. United States, No. 15-40238, Reply Brief (5th
`Cir. May 18, 2016). In finding the DAPA program un-
`lawful, the U.S. Court of Appeals for the Fifth Circuit
`rejected the argument that § 1324a conferred the au-
`thority to authorize alien employment. Texas v. United
`States, 809 F.3d 134, 182–83 (5th Cir. 2015), aff ’d by an
`equally divided court, 136 S. Ct. 2271 (2015). The Fifth
`Circuit observed that 8 U.S.C. § 1324a(h)(3) is a “ ‘mis-
`cellaneous’ definitional provision expressly limited to
`§ 1324a, a section concerning the ‘Unlawful employ-
`ment of aliens’ ” and that it “cannot reasonably be con-
`strued as assigning ‘decisions of vast economic and
`political significance.’ ” Id. at 183 (quoting Util. Air
`
`
`
`7
`
`Regulatory Grp. v. Envtl. Prot. Agency, 573 U.S. 302,
`323–24 (2014)).
`
`Claiming 8 U.S.C. § 1324a(h)(3) confers on DHS
`
`the authority to define classes of aliens eligible for em-
`ployment administratively requires taking that provi-
`sion out of context. Congress created § 1324a in the
`Immigration Reform and Control Act of 1986, Pub. L.
`No. 99-603, § 101, 100 Stat. 3445. This Act, for the first
`time, imposed civil and criminal sanctions on employ-
`ers who employed aliens that were not authorized to
`work under the immigration system. Id. Section
`1324a(h)(3) defined such aliens as:
`(3) Definition of unauthorized alien
`
`As used in this section, the term “unau-
`thorized alien” means, with respect to the em-
`ployment of an alien at a particular time, that
`the alien is not at that time either (A) an alien
`lawfully admitted for permanent residence, or
`(B) authorized to be so employed by this chap-
`ter or by the Attorney General.
`
`
`
`That Act also contains seven provisions directing
`
`the Attorney General to extend alien employment out-
`side of the scheme of the Immigration and Nationality
`Act. § 101, 100 Stat. at 3368; § 201 (“Legalization”) 100
`Stat. at 3397 & 3399 (two), § 301 (“Lawful Residence
`for Certain Special Agriculture Workers”) 100 Stat. at
`3418 & 3421 (two), 3428. Had Congress omitted the
`clause “or by the Attorney General” in § 1324a(h)(3)(B),
`it would have created the absurd situation in which the
`
`
`
`8
`
`Act authorized certain aliens be employed, but at the
`same time made hiring these aliens unlawful.
`
`Yet, because this issue was uncontested, the courts
`
`below allowed an innocuous clause in a term definition,
`limited in scope to its own section, and necessary for
`other provisions of the Act to function properly, to be
`transformed into unlimited authority for DHS to per-
`mit alien employment. See Vidal, 279 F. Supp. 3d at
`412; Regents of the Univ. of Cal., 279 F. Supp. 3d at
`1020; but see Texas v. United States, 809 F.3d 134, 183
`(5th Cir. 2015) (holding § 1324a(h)(3) did not confer
`such authority). Such an interpretation flouts the in-
`structions of this Court: “Congress . . . does not alter
`the fundamental details of a regulatory scheme in
`vague terms or ancillary provisions—it does not, one
`might say, hide elephants in mouseholes.” Whitman v.
`Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
`
`
`
`B. Congress did not confer on DHS dual au-
`thority to define classes of aliens eligible
`for employment in the agency’s general
`authority to promulgate regulations.
`Given the obvious problem with the claim that
`
`§ 1324a(h)(3)—a definition, limited in scope to its own
`section—conferred on DHS unlimited authority to per-
`mit alien employment, DHS had a brand new theory
`when the employment issue was raised before this
`Court in Texas: “Section 1324a(h)(3) did not create the
`Secretary’s authority to authorize work; that authority
`already existed in Section 1103(a). . . .” United States
`
`
`
`9
`
`v. Texas, No. 15-674, Br. for the Pet’rs at 63 (U.S. Mar.
`1, 2016). Nonetheless, that line of reasoning is just as
`problematic as asserting such authority comes from a
`term definition.
`
`Section 1103(a) defines the general powers of the
`
`Secretary of Homeland Security. This provision was
`created in the Immigration and Nationality Act of
`1952, Pub. L. No. 82-414, 66 Stat. 163 (INA).2 That act
`was a “complete revision” of our immigration laws. S.
`Rep. No. 82-1072, at 2 (1952). Yet there is no provision
`anywhere in the act that authorizes the secretary to
`permit alien employment through regulation. INA,
`passim. Furthermore, the legislative history of the act
`shows there was no implicit intent to confer on the sec-
`retary such authority. Both the House and Senate re-
`ports on the INA state that it “provides strong
`safeguards for American labor” and that all aliens
`(with three exceptions not applicable here) seeking to
`perform labor are excluded if the Secretary of Labor
`determines that American workers are available or
`that the foreign labor would adversely affect American
`workers. S. Rep. No. 82-1137 at 11; H.R. Rep. No. 82-
`1365 at 50–51 (identical text). If Congress had in-
`tended to confer on an agency the ability to authorize
`alien employment outside the statutory scheme, surely
`this would have been listed as one of the exceptions to
`the labor protections of the act—but it was not. Id. In
`
`
`2 The Consolidated Appropriations Resolution, 2003, trans-
`
`ferred to the Secretary of Homeland Security authority originally
`granted to the attorney general. Pub. L. No. 108-7, Div. L, § 105,
`117 Stat. 11, 531.
`
`
`
`10
`
`any event, the claim that DHS’s general authority
`gives it authority equal to that of Congress to define
`classes of aliens eligible for employment runs into the
`same problem as before: “Congress [ ] does not alter the
`fundamental details of a regulatory scheme in vague
`terms or ancillary provisions—it does not, one might
`say, hide elephants in mouseholes.” Whitman v. Am.
`Trucking Ass’ns, 531 U.S. 457, 468 (2001).
`
`There now exists the absurd situation where DHS
`
`claims that alien “employment may be authorized by
`statute or by the Secretary.” Employment Authoriza-
`tion for Certain H-4 Dependent Spouses, 80 Fed. Reg.
`10,284, 10,294 (Feb. 25, 2015).3 Yet there is no provi-
`sion that explicitly creates that authority and DHS has
`been inconsistent about where the authority was cre-
`ated.
`
` Worse yet, DACA and DAPA are not the only ex-
`amples where DHS has authorized large amounts of
`foreign labor to enter the U.S. job market. In recent
`years DHS has authorized massive increases in foreign
`labor through administrative action as it has re-
`sponded to business interests seeking to undermine
`the protections for American workers that Congress
`has enacted in the immigration system. E.g., 80
`Fed. Reg. at 10,294; Enhancing Opportunities for
`H-1B1, CW-1, and E-3 Nonimmigrants and EB-1
`Immigrants, 81 Fed. Reg. 2,068 (Jan. 15, 2016); Improv-
`ing and Expanding Training Opportunities for F-1
`
`
`3 This was the very first regulation to claim alien employ-
`
`ment could be authorized either by statute or by regulation.
`
`
`
`11
`
`Nonimmigrant Students With STEM Degrees and
`Cap-Gap Relief for All Eligible F-1 Students, 81 Fed.
`Reg. 13,040 (Mar. 11, 2016); International Entrepre-
`neur Rule, 82 Fed. Reg. 5,238, 5,239 (Jan. 17, 2017).
`The Optional Practical Training program, created en-
`tirely through regulation, is now the largest guest-
`worker program in the entire immigration system
`measured by the number of aliens entering the work-
`force each year. Neil G. Ruiz and Abby Budiman, Num-
`ber of Foreign College Students Staying and Working
`in the U.S. After Graduation Surges, Pew Research
`Center, May 10, 20184 at 4 (stating the number of ap-
`provals for Optional Practical Training exceed initial
`approvals for H-1B).
`
`
`
`C. Even if Congress had attempted to con-
`fer on DHS the power to define classes
`of aliens eligible for employment, such
`a delegation of power would be uncon-
`stitutional.
`Defining classes of aliens who are eligible for em-
`
`ployment is a basic lawmaking function in the field of
`immigration, and Congress has defined such classes of
`aliens in every major immigration act. E.g., INA, § 101,
`66 Stat. at 166–69; Immigration and Nationality Act
`of 1965, Pub. L. No. 89-236, § 9, 79 Stat. 911, 917; Im-
`migration Act of 1990, Pub. L. No. 101-649, §§ 204–21,
`104 Stat. 4978, 5019–28. If one makes the baseless
`
`4 Available at https://assets.pewresearch.org/wp-content/
`
`uploads/sites/2/2018/05/10110621/Pew-Research-Center_Foreign-
`Student-Graduate-Workers-on-OPT_2018.05.10.pdf
`
`
`
`12
`
`assumption that Congress intended to confer on DHS
`(in either § 1103 or § 1324a) the alien employment au-
`thority necessary for DACA, Congress would have cre-
`ated a system that runs afoul of the Constitution.
`America would have a dual system of immigration law-
`making in which Congress (by statute) and DHS (by
`regulation) can independently define classes of aliens
`eligible for employment to cross-purposes. In fact, be-
`cause any subsequent restriction Congress may enact
`to restrict this otherwise unlimited power conferred on
`DHS is subject to a veto (as are Congress’s own em-
`ployment authorizations), the executive’s power to de-
`fine alien employment in the immigration system
`would be greater than that of Congress. U.S. Const.,
`Art. I, § 7. Such a system of dual lawmaking authority
`would be unconstitutional. “The lawmaking function
`belongs to Congress, U.S. Const., Art. I, § 1, and may
`not be conveyed to another branch or entity.” Loving v.
`United States, 517 U.S. 748, 758 (1996); see also Clinton
`v. City of N.Y., 524 U.S. 417, 481 (1998) (holding the
`statutory creation of a line-item veto was an unconsti-
`tutional delegation of power to the executive branch).
`
`Such an arrangement also runs headlong into the
`
`non-delegation doctrine. “[The Supreme Court] repeat-
`edly [has] said that when Congress confers deci-
`sionmaking authority upon agencies Congress must
`‘lay down by legislative act an intelligible principle to
`which the person or body authorized to act’ is directed
`to conform.” Whitman v. Am. Trucking Ass’ns, 531 U.S.
`457, 472 (2001) (quoting J. W. Hampton, Jr., & Co. v.
`United States, 276 U.S. 394, 409 (1928).
`
`
`
`13
`
`Assuming that Congress implicitly intended to
`
`confer on the executive “dual authority” to define
`classes of aliens eligible for employment in 1952 in
`§ 1103 or in 1990 in § 1324a(h)(3), it was not through
`a legislative act that provides an “intelligible principle”
`to which the executive must conform. Section 1103
`makes no mention of alien employment at all and
`§ 1324a(h)(3) is a term definition that does not direct
`DHS to do anything. Neither provision includes any
`parameters whatsoever on how the claimed delegated
`authority is supposed to be used. Id. Thus, making the
`completely unsupported assumption that Congress in-
`tended to confer on DHS authority to define classes of
`aliens eligible for employment results in an unconsti-
`tutional reading of these provisions. Whitman v. Am.
`Trucking Ass’ns, 531 U.S. 457, 472 (2001). Because an-
`other, constitutionally compliant reading—namely,
`that Congress conferred no general power to authorize
`employment in these provisions—is possible, and in-
`deed far preferable, the doctrine of constitutional
`avoidance requires that it be adopted. Arizona v. Inter
`Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2258–59
`(2013) (explaining that this Court must adopt a fairly
`possible interpretation of a statute if doing so is neces-
`sary to avoid an interpretation that would make that
`statute unconstitutional).
`
`
`
`
`
`
`
`
`14
`
`II. Whether § 1324a(h)(3) confers on DHS co-
`equal authority with Congress to authorize
`any class of aliens it chooses to work will
`have major implications throughout the
`immigration system and is not an issue to
`be lightly considered.
`Should this Court adopt DHS’s novel interpreta-
`
`tion that the definition of the term unauthorized alien
`in § 1324a(h)(3) (and limited in scope to that section)
`is a legislative grant to the agency of co-equal author-
`ity with Congress to permit any alien it chooses to
`work in the United States, the decision would have
`widespread ramifications throughout the immigration
`system. To affirm the courts below would be an affir-
`mation that DHS has unlimited authority to define
`classes of aliens, because the lawfulness of this author-
`ity is a prerequisite for DACA’s substantive lawfulness.
`See, § I, supra. An affirmation by this Court of such
`sweeping authority would enable DHS, through regu-
`lation, to continue to dismantle administratively the
`protections for American workers that Congress has
`enacted in the INA since 1952.
`
`Such concern is not based on mere speculation or
`
`unsubstantiated fears. History demonstrates that
`Amici’s concerns are well founded. DHS’s predecessor
`has previously attempted to subvert Congress’s intri-
`cate statutory protections for American workers. See,
`e.g., Int’l Union of Bricklayers & Allied Craftsmen v.
`Meese, 761 F.2d 798 (D.C. Cir. 1985); Int’l Longshore-
`men’s & Warehousemen’s Union v. Meese, 891 F.2d 1374
`(9th Cir. 1989). When challenges could be mounted
`
`
`
`15
`
`against such agency abuse, the courts could be counted
`on to intervene. Id.
`
`This Court should take note of the facts of Wash-
`
`ington Alliance of Technology Workers to better under-
`stand the consequences
`for American workers,
`including Amici, should this Court adopt the lower
`courts’ overbroad gloss on § 1324a(h)(3). The H-1B visa
`program is routinely used to replace American workers
`in technology fields with lower-paid foreign workers.
`E.g., Julia Preston, Pink Slips at Disney. But First,
`Training Foreign Replacements, New York Times, June
`3, 2015. To protect American workers, Congress has
`put in place limits on the number of H-1B visas that in
`turn limit the number of Americans that can be re-
`placed by such workers. § 1184(g).
`
`In 2007 Microsoft Corporation concocted a scheme
`
`to get around the H-1B quota by using student visas
`as a substitute. Extending Period of Optional Practical
`Training by 17 Months for F-1 Nonimmigrant Stu-
`dents With STEM Degrees and Expanding Cap-Gap
`Relief for All F-1 Students, 73 Fed. Reg. 18,944 (Apr. 8,
`2008), Administrative Record (A.R.) at 120–23. Mi-
`crosoft proposed that DHS allow aliens to work on
`student visas for 29 months after graduation. Id. Mi-
`crosoft presented its proposal to the DHS secretary at
`a dinner party. Id. DHS then worked in secret with in-
`dustry lobbyists to prepare regulations implementing
`Microsoft’s scheme. A.R. 124–27, 130–34. The first no-
`tice to the public that such regulations were even being
`considered was when DHS put them in place as a fait
`
`
`
`16
`
`accompli, without notice and comment. 73 Fed. Reg.
`18,950.
`
`The nondelegation doctrine is supposed to ensure
`
`“that important choices of social policy are made by
`Congress, the branch of our Government most respon-
`sive to the popular will.” Indus. Union Dep’t, AFL-CIO
`v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980)
`(Rehnquist, J., concurring). Affirming the holdings of
`the courts below that DACA is substantively lawful
`would keep open the door to the creation of guest-
`worker programs by Washington insiders at dinner
`parties, and their enactment in secret rulemaking pro-
`cesses from which the public is excluded. As Amici’s
`cases demonstrate, this dark scenario is fact, not hy-
`perbole.
`
`--------------------------------- ---------------------------------
`
`CONCLUSION
`For the foregoing reasons, this Court should rule
`
`in favor of petitioners, and hold that DACA is unlawful
`because DHS has no general authority to define classes
`of aliens eligible for employment.
`
`Respectfully submitted,
`JOHN M. MIANO
`Counsel of Record
`IMMIGRATION REFORM LAW INSTITUTE
`25 Massachusetts Ave., NW, Suite 315
`Washington DC 20001
`(202) 232-5590
`miano@colosseumbuilders.com
`
`