Legislative Update: 3/21/2017
Judges Block Trump’s Travel Freeze AGAIN
By: Robert Law
The federal judiciary continued to thwart President Trump’s legitimate executive power last week when two separate district judges blocked key provisions of his revised national security executive order from going into effect. In separate cases, Judge Derrick Watson from Hawaii and Judge Theodore Chuang—both Obama appointees—abandoned their responsibility of interpreting the law and instead chose to make policy from the bench, jeopardizing national security in the process.
Democratic attorneys general from a handful of states sued after President Trump issued a revised executive order to ensure that foreign nationals are properly vetted before they gain entry to the country. (See FAIR Legislative Update, Mar. 14, 2017) Both lawsuits challenged Section 2 of the executive order that suspends the entry into the U.S. for 90 days aliens from the following countries: Iran, Syria, Libya, Somalia, Yemen, and Sudan. (See FAIR Legislative Update, Mar. 7, 2017) Importantly, both Congress and the Obama administration consider these six countries hotbeds for terrorism. (See FAIR Legislative Update, Jan. 31, 2017) The Hawaii lawsuit also challenged Section 6 of the executive order that temporarily suspends for 120 days the U.S. Refugee Admissions Program and reduces the Fiscal Year 2017 refugee resettlement cap from 110,000 (Obama’s level) to 50,000 (historical level). (See FAIR Legislative Update, Mar. 7, 2017)
In another blatant practice of judicial activism, both judges ignored the letter of the law and ruled in favor of the states on the meritless claim that the executive order is motivated by anti-Muslim animus. The clearest example is Judge Watson’s ruling that attacked the Trump administration under the guise of judicial analysis. “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed,” Watson wrote. (Hawaii v. Trump) “Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries,” he continued. (Id.) “When considered alongside the constitutional injuries and harms [sic]… and the questionable evidence supporting the Government’s national security motivations, the balance of equites and public interests justify granting the Plaintiffs’ [request to block the new order.]” (Id.) Judge Watson then went on to impose a nationwide temporary restraining order (TRO) against all of Section 2 and Section 6 just hours before the new executive order was set to go into effect. (Id.) The next day Judge Chuang issued a nationwide TRO against Section 2. (See The Hill, Mar. 16, 2017)
The willingness of these liberal judges to continue to overstep their authority and risk national security simply because they disagree with President Trump’s policies is alarming. Section 212(f) of the Immigration and Nationality Act (INA) clearly grants the president the authority to implement the executive order. According to the law, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.” (INA § 212(f); 8 U.S.C. § 1182(f)) Judge Watson went even further than any other activist judge by blocking the reduction in refugee resettlement numbers—essentially arguing that President Trump is required to admit the numbers set by President Obama at the beginning of the fiscal year. This part of the ruling is particularly remarkable because Congress clearly delegated this authority to the president in INA Section 207 and was so obvious within Trump’s power that the original lawsuit against the first national security executive order did not even challenge this provision. (See INA § 207; 8 U.S.C. § 1157; FAIR Legislative Update, Feb. 7, 2017)
The Trump administration blasted the decision as politically motivated. “The Department of Justice strongly disagrees with the federal district court’s ruling, which is flawed both in reasoning and in scope,” DOJ said in a statement. (See CNN, Mar. 16, 2017) “The President’s Executive Order falls squarely within his lawful authority in seeking to protect our Nation’s security, and the Department will continue to defend this Executive Order in the courts.” (Id.) Similarly, FAIR criticized the ruling with Dan Stein, FAIR’s president, calling it a “case of judicial overreach that endangers national security.” (FAIR Press Release, Mar. 15, 2017) “Today, once again, an unelected judge has stepped in and usurped the power and responsibility that our Constitution gives to the president.” (Id.)
Stay tuned to FAIR as details emerge…
By Shari Rendall
Last week, President Trump released his budget blueprint for Fiscal Year (FY) 2018 detailing to Congress how he intends to keep his campaign promises to the American people by securing our border and enforcing our immigration laws. (SeeTrump Budget Blueprint, March 2017) It is important to note that President Trump’s proposal does not have the force of law since Congress has the power of the purse. However, it is designed to provide lawmakers with his vision for fiscal policy priorities as they work on the FY 2018 appropriations bill to fund the government.
The budget proposal shows President Trump is willing to make the critical investments necessary to strengthen border security and enhance immigration enforcement. It makes a significant down payment on one of the president’s key commitments to the American people – calling on Congress to spend $2.6 billion “in high priority tactical infrastructure and border security technology” to “plan, design, and construct a physical wall along the southern border.” (Id. at page 23) This funding is needed to finally fulfill the requirements of the Secure Fence Act that Congress passed in 2006. Additionally, the border wall will help implement President Trump’s executive order to obtain “operational control of the border” by preventing all unlawful entries into the United States including terrorists, narcotics and other contraband. (See FAIR Legislative Update, Jan. 31, 2017) President Trump’s blueprint also supports adding 20 attorneys to the Department of Justice to obtain the privately-held land on the southwest border that will be needed to construct the wall and another 20 attorneys for litigation assistance. (See Trump Budget Blueprint, March 2017 at 30)
In addition to construction of a physical barrier, President Trump’s budget plan allocates money to prevent illegal aliens from crossing the border and disappearing into the interior of the United States. It earmarks $314 million to recruit, hire, and train 500 new Border Patrol agents and 1,000 new Immigration and Customs Enforcement law enforcement personnel. (Id. at 23) There is also $1.5 billion more designated for the deportation, transportation and removal of illegal aliens than in the last fiscal year and $171 million over Fiscal Year 2017 for short-term detention space. (Id. at 23, 30) President Trump’s budget plan also provides robust funding for enforcement activities with heavy emphasis on expediting deportations. It provides an additional $80 million (19 percent above FY 2017 level) to hire an additional 75 immigration judge teams to “more efficiently adjudicate removal proceedings.” (Id. at 30)
Lastly, President Trump’s budget includes key proposals to protect American jobs. Specifically, his budget blueprint earmarks $15 million to implement a mandatory E-Verify program to determine whether new employees are eligible to work in the United States. Passed by Congress in 1996, E-Verify is a free, web-based program maintained by the federal government that allows employers to verify work authorization status nearly instantly by comparing identity documents with the federal government database. (See USCIS E-Verify Page) Despite being more effective than the standard I-9 form protocol, the program is currently voluntary for most employers. As a result, illegal aliens have been able to steal American jobs by either lying on their I-9 forms or gaining employment by employers who refuse to check the work status of their employees.
President Trump’s budget proposal is a marked difference in priorities compared to the Obama administrations’. President Obama’s last budget actually requested even fewer detention beds than the 34,000 minimum mandated by Congress. Instead, his budget focused on alternatives to detention (ATD) in order to place “low risk” individuals under detention. The Obama administration repeatedly preferred ATD even though then-ICE Director John Morton testified that it is more costly and increases flight risk compared to utilizing detention facilities. Additionally, President Obama’s budget focused on spending money to care and transport the surge of unaccompanied alien minors (UAMs) from Central America rather than addressing the underlying pull factors. (See FAIR Legislative Update, Dec. 20, 2016)
In the next few months, Members will decide which portions of President Trump’s recommendations for Fiscal Year 2018 to adopt or reject through the passage of spending (appropriations) bills. However, before Congress can begin to pass the spending bills for 2018, it needs to wrap up 2017. Last week, President Trump also sent a supplemental spending request to Congress for the remainder of Fiscal Year 2017 to bolster America’s national security. The supplemental included an additional $3 billion for the Department of Homeland Security to implement President Trump’s executive orders to secure the border and enforce our immigration laws. (See Trump Supplemental, March 2017 at 3) Included in this are the following amounts:
- $11 million to establish a real-time data integration system to support immigration enforcement operations.
- $286 million for CBP Operations and Support (these includes $95 million for border surge operations, $65 million to recruit and hire 5,000 border patrol agents, $43 for situational awareness at the border, and $64 million for border technology and equipment.)
- $1.4 billion for the wall.
- $1.2 billion for ICE operations and support.
H-1B Visas Harm American Tech Workers: Fewer Jobs, Lower Wages
By: RJ Hauman
A new research paper published by the nonpartisan National Bureau of Economic Research found that the influx of foreign workers on H-1B visas has led to lower wages and employment for American tech workers. (NBER, Understanding the Economic Impact of the H-1B Program on the U.S., February 2017) The paper, authored by economists from the University of Michigan and the University of California, San Diego, was based on analysis of employment, wages, and other factors over an eight-year period from 1994-2001. (Id.) Specifically, it found that the wages of American tech workers would have been as much as 5.1 percent higher if the H-1B program did not exist and employment of American workers in the field would have increased by 10.8 percent under the same scenario. (Id.)
Overall, the findings of the report prove what critics of the H-1B program have been saying for years—employers rely on it for cheap foreign labor, not to fill shortages in the tech workforce. John Bound, one of the paper’s authors, said he and his fellow economists focused their research on the 1994-2001 period because it was the longest stretch of time during which employers claimed every available visa allocated under the H-1B program. (Wall Street Journal, Mar. 14, 2017) However, Bound believes the paper’s findings accurately reflect the impact of the H-1B program on American tech workers today. (Id.) “There is little reason to believe the overall impact of high-skilled immigrants on the U.S. economy has changed dramatically since 2001,” he said. (Id.)
Congress created the H-1B visa program in 1990 to allow U.S. employers to hire foreign workers, purported on a "temporary" basis, for "specialty occupations." The H-1B visa is most commonly associated with "high-skilled" jobs, including those in the science, technology, engineering, and mathematics (STEM) fields. (Immigration and Nationality Act (INA) § 101(a)(H)(15)) Yet, most of the jobs performed by H-1B foreign workers are basic, entry level STEM positions. Currently, there is a statutory "cap" of 65,000 H-1B visas each fiscal year. (INA § 214(g)(1)(A) Additionally, there is another 20,000 H-1B visas reserved for foreign workers with a U.S. master’s degree or higher. (INA § 214(g)(5)(C)) Importantly, the total number of H-1B visas issued during any given fiscal year is significantly higher than the 85,000 “cap.” Foreign workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this statutory cap. (INA § 214(g)(5)(A)-(B)) H-1B workers are admitted for a period of up to three years, which can be extended, but generally cannot go beyond a total of six years. (INA § 214(g)(4))
The statutory provisions governing the H-1B program appear to provide protections for American workers by requiring companies to pay H-1B workers the "prevailing wage" for their job and not adversely affect the working conditions of American workers "similarly employed." (See INA § 212(n)(1) (emphasis added)) However, these protections are misleading because of the way Congress defined the "prevailing wage." According to the statute, the "prevailing wage" is calculated using a governmental survey that provides "at least four levels of wages commensurate with experience, education, and the level of supervision." (INA § 212(p)(4)) This language allows the employer to determine the prevailing wage based on the position description, rather than the H-1B worker's actual skill level. Therefore, employers can legally replace Americans with cheaper foreign workers by claiming that the H-1B position is different than that of the displaced American worker's (regardless of actual job responsibilities) and not in violation of the "similarly employed" provision. (See FAIR Legislative Update, Sept. 13, 2016) It is estimated that there are currently between 900,000 and 1 million H-1B visa holding foreign workers at various points in their stay currently working in the U.S., often at lower pay than American workers with similar skills and abilities. (Fox News, Mar. 16, 2017)
Keystone Lawmakers Put America First, Again
By State & Local Government Relations
Last week, Pennsylvania lawmakers held a press conference to unveil a legislative package aimed at curtailing the harmful effects of illegal immigration in the Commonwealth. (Lifezette, Mar. 13, 2017)
Led by Pennsylvania State Representative Daryl Metcalfe, the March 13 “National Security Begins at Home” press conference served as an opportunity for true immigration reformers in the Pennsylvania House of Representatives to discuss ways to reduce and discourage illegal immigration. (witf news, Mar. 16, 2017)
The legislative package revealed at the event includes six measures. While not all of the bills have been formally introduced this session, the majority are based on previously introduced legislation. The package includes:
- House Bill 856, by Representative Daryl Metcalfe, which would prohibit private employers from hiring unauthorized aliens and would require them to enroll in E-Verify;
- House Bill 14, by Representative Jerry Knowles, which would prohibit campuses from instituting sanctuary policies;
- Soon to be reintroduced legislation by Representative Doyle Heffley, which would require benefits administering agencies to use the federal Systematic Alien Verification for Entitlements (SAVE) program to prevent illegal aliens from obtaining public benefits;
- Soon to be reintroduced legislation by Representative Ryan Warner, which would require state and local law enforcement agencies to comply with U.S. Immigration and Customs Enforcement detainers;
- Soon to be reintroduced legislation by Representative Rob Kauffman, which would revoke licenses from licensed professionals who knowingly employ or permit employment of unauthorized aliens; and
- Soon to be reintroduced legislation to prohibit sanctuary cities.
Five of the members spoke about their bills during the press conference. “Our public resources are not limitless, and my legislation would ensure that our hard-earned tax dollars are spent helping our legal residents,” said Representative Heffley of his legislation to prevent illegal aliens from obtaining public benefits. (witf news, Mar. 16, 2017) “We are morally obligated to provide assistance to those who are legally residing in Pennsylvania, not illegal immigrants,” he continued. (Id.)
Representative Kauffman referred to the concept behind his proposal to revoke professional licenses from employers that refuse to follow the law as “simple.” “It’s not rocket science,” he exclaimed. (Id.) “This is just attempting to make sure that our employers in the Commonwealth...are putting a good faith effort into being certain that those who are working for them are authorized to be working here in the Commonwealth of Pennsylvania.” (Id.)
The press conference underscored the new hope that many real immigration reform advocates have that U.S. immigration laws will finally be enforced and the disparate impact of illegal immigration on the states reduced under the Trump Administration. “There’s kind of a new sheriff in town in the White House,” commented Representative Daryl Metcalfe. (Penn Live, Mar. 13, 2017) “Donald Trump has certainly stood strong in standing up for the rights of Americans, first ensuring American citizens’ rights are protected, ensuring those immigrating legally are protected, and ensuring the rule of law and the Constitution are upheld and defended.” (Id.)
The Pennsylvania State Senate already passed, SB 10, legislation to prohibit dangerous sanctuary policies last month. The legislation now awaits action in the Pennsylvania House Judiciary Committee.
Dangerous Sanctuary Legislation Progresses in State Legislatures
By State & Local Government Relations
While many legislatures around the country are focusing their efforts to prohibit dangerous sanctuary policies from limiting immigration enforcement in their states, a handful of state and local lawmakers are considering legislation of the exact opposite nature. By prioritizing the interests of criminal aliens, these politicians advanced legislation this month to ensure greater interference between state and local law enforcement and federal immigration officials to allow criminal aliens to remain in the United States.
The California Senate Committee on Appropriations passed Senate Bill (SB) 54 last week, making the bill eligible for a floor vote in the Senate. (Mercury News, Mar. 13, 2107) SB 54 expands the state’s existing sanctuary law by prohibiting state and local law enforcement from using any resources to investigate, detain, detect, report, or arrest any person for any immigration enforcement purpose. (SB 54) Currently, California law only prohibits law enforcement from complying with detainer requests by federal officials in almost all cases except for the most serious offenders. (AB 4, 2013) SB 54, however, expands the state’s sanctuary policy by requiring all public entities to implement policies that limit assistance with immigration enforcement to the fullest extent possible. (SB 54)
The New Jersey Senate passed SB 3006 late last month to prohibit any employee of the Port Authority of New York and New Jersey from cooperating with federal officials in the enforcement of President Trump’s executive order regarding protecting the nation from foreign terrorist entry. (New Jersey Law Journal, Mar. 6, 2017) The measure also prohibits any of the Port Authority’s resources from being used to facilitate the execution of the order. SB 3006 dangerously threatens national security, as the Port Authority manages the bridges, tunnels, airports, and transit systems connecting the New York and New Jersey. (Port Authority of NY and NJ)
The Vermont House of Representatives voted 110-24 last week to pass SB 79, which prohibits Vermont law enforcement from communicating immigration status information to federal immigration officials. (Washington Times, Mar. 14, 2017) The Senate passed the bill unanimously last month. (VPR, Feb. 23, 2017) The Vermont General Assembly must send SB 79 to Governor Phil Scott’s (R) to approve the bill before it can become law.
Fair encourages its members to call their lawmakers to oppose sanctuary policies and stress the importance of enacting legislation to state and local law enforcement are able to effectively cooperate with federal officials. State and local law enforcement are often on the front lines when dealing with crime associated with illegal immigration. Tying their hands by prohibiting them from assisting federal immigration officials accomplishes little except put public safety at risk.