Donald Trump’s Lawyers Support Obama’s DACA Work Permits for Illegals

Nicolas Wulff, right, of Colombia, and Tomas Pendola, left, of Argentina, talk after a news conference of illegal immigrants seeking temporary relief from deportation in Miami, Tuesday, Aug. 15, 2012. Hundreds of thousands of young illegal immigrants scrambled to get papers in order Wednesday as the U.S. started accepting applications …
AP Photo/Alan Diaz

The Department of Justice is backing President Barack Obama’s award of work permits to roughly 800,000 ‘DACA’ illegal immigrants.

The government buried its support for Obama’s DACA work permits on page 15a of the legal brief submitted to the Supreme Court last November by Solicitor General Noel Francisco.

The plea says that work permits for DACA migrants are allowed under “Section 1324a” of the federal law. The administration’s August 19, almost final, submission to the court, echoes that claim by ignoring the issue.

Some anti-DACA legal pleas are spotlighting the government’s low profile support of the 1324a claim. “The Government has never said which benefits it does not believe it may lawfully confer [to DACA recipients] … Nor has the Government explained whether or to what extent it now believes the DHS work-authorization regulation is unlawful,” said a legal brief from several unions.

The near silence about DACA work permits shows that government lawyers are ignoring the best argument against Obama’s DACA, said John Miano, a lawyer with the Immigration Reform Law Institute.

But the work permit issue hides a massive economic landmine: The government awards more than one million work permits each year using the same legal 1324a claim that Obama used in the DACA case. If the court rejects 1324a work-permit claim, investors could lose millions of migrant workers — and so face even more pressure to raise Americans’ wages.

“Clearly, the parties do not want to discuss the question of how 1324a conferred on DHS [Department of Homeland Security] unlimited power to grant alien employment,” said Miano. He continued:

Both the government and the [pro-DACA] plaintiffs simply claim it is exists … Few amici [pleas] supporting the [DACA migrants] raised the issue and those that did claimed 1324a created or ratified this unlimited power with no explanation.

The Obama administration took two steps during the 2012 DACA amnesty.

It provided a controversial blanket get-out-0f-deportation card for 800,000 younger migrants — and it also quietly provided official, legal work permits for those migrants.

The Obama administration said the blanket no deportation policy was justified by “prosecutorial discretion.”

Obama’s deputies claimed the award of work-permits for foreign migrants was legal because of an obscure corner of federal code, called Section 1324a.

Obama’s deputies argued that the first and last paragraphs of Section 1324a say presidents can award as many work permits as they wish:

It is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) … [which says] As used in this section, the term “unauthorized alien” means, with respect to the employment 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 chapter or by the Attorney General.

Before Obama, President George W. Bush used the same 1324a claim to justify the “Optional Practical Training” program. The OPT program has been used by Microsoft, Intel, Cisco, and many other companies to hire foreign graduates instead of American graduates.

The administration has repeatedly refused to discuss the 1324a claim with Breitbart News. But the DACA case has forced officials to respond.

In November 2018, Trump’s Solicitor General wrote in a plea to the court:

pre-existing DHS regulations allow all deferred-action recipients to apply for employment authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that “[a]n alien who has been granted deferred action” is eligible for work authorization upon a showing of “economic necessity for employment”). Indeed, “DACA recipients are required to apply for employment authorization, in keeping with the Executive’s intention that DACA recipients remain ‘productive’ members of society.”

The administration’s August 19, 2019 plea includes this supporting claim:

Under DHS regulations, aliens granted deferred action may receive certain benefits, including work authorization for the same period if they establish economic necessity, 8 C.F.R. 274a.12(c)(14).

But a Texas appeals court has already struck down the 1324a work-permit claim when it blocked Obama’s follow-on amnesty — the 2014 DAPA amnesty for the illegal immigrant parents of U.S.-born children. The Texas court said:

For the authority to implement DAPA, the government relies in part on 8 U.S.C. § 1324a(h)(3), a provision that does not mention lawful presence or deferred action, and that is listed as a “[m]iscellaneous” definitional provision expressly limited to § 1324a, a section concerning the “Unlawful employment of aliens”—an exceedingly unlikely place to find authorization for DAPA.

If the Supreme Court upholds the Texas court’s rejection of the DACA work permits, it will bar work permits for the DACA illegals and many other foreign workers, said Miano.

Immigration reform groups are trying to spotlight the issue, amid media silence. For example, Miano’s Immigration Law Reform Institute submitted a plea saying:

if § 1324a(h)(3) permitted DHS to give work authorization to DACA beneficiaries, it could only be because that provision allowed DHS to authorize work for any class of alien it chose; the provision contains no limiting language. If Congress had granted the executive branch such vast discretion, it would have done so clearly, not through “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). It is not reasonable to suppose that Congress, without any clear statement that it was doing so, granted to DHS the unrestricted power to overthrow Congress’s own grants of employment protection to American workers.

The 1324a claim is a huge economic issue because it justifies the award of work permits to many foreign migrants, students, and graduates.

For example, Bush’s OPT and pre-graduation “Curricular Practical Training” program has ballooned to 430,000 active work permits in 2017. That army includes tens of thousands of foreign graduates who were invited to take jobs at prestigious U.S. firms — so denying those jobs to the children of the U.S. professional class.

The minimal media coverage of the OPT program also helps to hide the OPT fraud, which cheats the sons and daughters of middle-class Americans.

But the OPT program is especially important to universities because it allows them to market their expensive credentials to foreign students with promises of work permit that last up to three years. In 2018, 143,000 foreign customers of U.S. post-graduate colleges received the work-permits.

The OPT program is just one corner of the huge work-permit economy created by the 1324a claim.

In 2018, at least 1.97 million work permits — mostly lasting one year  — were issued to foreigners, according to data provided by the Department of Homeland Security. The wave of work permits was issued via a diversity of mandatory and discretionary programs, including many programs justified by the 1324a claim.

The huge total provides roughly two work permit workers for every four Americans who turned 18 that year.

This gusher of foreign workers has sidelined many young and old Americans, suppressed their wages and salaries, and boosted stock-market returns by preventing a bidding war for American employees in a growing economy.

The 2018 work permit total includes 328,000 work permits for DACA migrants, 54,000 permits for the wives of Indian H-1B visa-workers, 245,000 work permits for resident foreigners who merely ask for green cards — dubbed “Adjustment of Status” —  and 345,000 permits for migrants who ask for asylum.

The work permit total does not include at least 150,000 new visa-workers each year, such as the 100,000 new H-1B workers who joined the existing population of roughly 750,000 H-1B workers.

In the 2016 election, Trump denounced the H-1B visa program, which keeps roughly 800,000 foreign graduates in U.S. jobs.

But Trump has also repeatedly said he welcomes the movement of foreign graduates into the U.S. economy. On October 11, for example, he told reporters:

We’re going to be very good to Chinese students.  Nope.  I’ve heard this question many times before, including from our own security people.  We want all the people that want to come over from China.  We have the greatest university system in the world, and we’re going to keep it that way.   And one of the reasons it’s great is we have a lot of students from China. No, we’re not going to make it tough.  We’re going to make it like for everybody else.  Okay?  We’re going to make it — I think that’s important.

I want them coming here.  We want the greatest talent in the world coming to our great universities — to Harvard, Yale, Princeton, the great Wharton School of Finance — to Stanford, all of these great schools.  We want them — we want them coming here.  And that’s what we have.  And that’s one of the reasons we have the great system. And there have been discussing about [stopping] that — not by me, because I ended them very quickly.  I want to let you know, I end those discussions very quickly.

Pro-DACA groups try to minimize media coverage of the legality of the 1324a claim. But some of the pro-DACA legal briefs briefly endorse the 1324a claim. The main plaintiff, the University of California, wrote:

Beginning with President Eisenhower, every administration has exercised this authority to grant deferred action to groups of otherwise removable immigrants. Congress has expressly recognized that the Executive Branch possesses this authority. It did so knowing that longstanding regulations confer benefits, such as work authorization, on individuals granted deferred action. See 8 U.S.C. § 1324a(h)(3).

In 2017, the University of California had more than 40,000 foreign students, and more than 10,200 OPT graduates.

The top law officers in California, Maryland, Maine, and Minnesota argued for the preservation of the work-permit claim as they wrote:

By regulation, the Attorney General (and now the Secretary) have exercised statutory authority to confer certain limited benefits on individuals who receive deferred action. Petitioners do not question these “longstanding regulations.” …  Congress confirmed the Attorney General’s authority to adopt this regulation in the Immigration Reform and Control Act of 1986, which made it unlawful for an employer to hire an “unauthorized alien,” defined as one who is not either a lawful permanent resident or “authorized to be so employed by [the INA] or by the Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis added).

The OPT program was created at the request of Microsoft and is widely used by many companies to hire foreign graduates instead of American graduates. In 2017, the company employed roughly 1,000 OPT graduates. Lawyers for Microsoft Corp. wrote:

the statute prohibiting employment of any “unauthorized alien” defines that term to exclude persons “authorized to be so employed by [the INA] or by the [DHS Secretary].” 8 U.S.C. 1324a(h)(3) (emphasis added). Since 1987, the Secretary has exercised this authority to permit employers to hire numerous categories of noncitizens—ranging from certain persons with pending asylum applications, to non-immigrant students who face unforeseen economic hardship.

New York’s top lawyers argued, “Congress has both recognized the existence of deferred action and confirmed the DHS Secretary’s authority to make deferred action recipients eligible for work authorization, see 8 U.S.C. § 1154 (deferred action); 8 U.S.C. § 1324a(h)(3) (work authorization).”

A group of 165 colleges and universities claimed “work authorization is not unique to DACA. Rather, it is a product of federal regulations that predate DACA by decades, that have been invoked by administrations of both parties since the 1970s, and that Congress has approved since 1986.”

The establishment media have ignored the huge 1324a work-permit issue amid favorable coverage of DACA illegals, the “H4EAD” wives of H-1B workers, and the Central American migrants.

“No-one wants to talk about it,” said Miano. But “if you say DACA is legal, it is legal for any president to wipe out [numerical] protections for American workers in the immigration system.”

“It is astonishing they are defending a provision that has been most abused by the [presidential] Executives … to get around the [annual] limit on immigration that Congress has created,” said Jessica Vaughan, policy director at the Center for Immigration Studies. “Defending this [claimed 1324a] authority is giving the [White House] executive branch control over the number of foreign workers in our country, and that authority should rest with Congress.”

Immigration Numbers:

Each year, roughly four million young Americans join the workforce after graduating from high school or a university. This total includes about 800,000 Americans who graduate with skilled degrees in business or health care, engineering or science, software, or statistics.

But the federal government then imports about 1.1 million legal immigrants and refreshes a resident population of about 1.5 million white-collar visa workers — including approximately one million H-1B workers and spouses — and about 500,000 blue-collar visa workers. The government also prints more than one million work permits for new foreigners and rarely punishes companies for employing illegal migrants.

This policy of inflating the labor supply boosts economic growth and stock values for investors. The stimulus happens because the extra labor ensures that employers do not have to compete for American workers by offering higher wages and better working conditions.

The federal policy of flooding the market with cheap, foreign white-collar graduates and blue-collar labor shifts wealth from young employees toward older investors. It also widens wealth gaps, reduces high-tech investment, increases state and local tax burdens, reduces marriage rates, and hurts children’s schools and college educations.

The cheap-labor economic strategy also pushes Americans away from high-tech careers, and it sidelines millions of marginalized Americans, including many who are now struggling with drug addictions.

The labor policy also moves business investment and wealth from the Heartland to the coastal cities, explodes rents and housing costs, undermines suburbia, shrivels real estate values in the Midwest, and rewards investors for creating low-tech, labor-intensive workplaces.

But President Donald Trump’s “Hire American” policy is boosting wages by capping immigration within a growing economy.

The Census Bureau said September 10 that men who work full-time and year-round got an average earnings boost of 3.4 percent in 2018, pushing their median salaries up to $55,291. Women gained 3.3 percent in wages, bringing their median salaries to $45,097 for full time, year-round work.



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