Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.

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

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 authorized by Congress .................................

4

A. Section 1324a(h)(3) cannot confer on

DHS the authority to authorize alien

employment because it is a term definition, limited in scope to its own section .......................................................

5

B. Congress did not confer on DHS dual

authority to define classes of aliens eligible for employment in the agency’s

general authority to promulgate regulations ..................................................

8

C. Even if Congress had attempted to

confer on DHS the power to define

classes of aliens eligible for employment, such a delegation of power

would be unconstitutional ................... 11

II.

Whether § 1324a(h)(3) confers on DHS coequal 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 ....................... 14

CONCLUSION..................................................... 16

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 Homeland 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 Dependent Spouses, 80 Fed. Reg. 10,284 (Feb. 25,

2015) ........................................................................10

Improving and Expanding Training Opportunities for 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) .............................................................. 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 Dependent 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 Foreign College Students Staying and Working in

the U.S. After Graduation Surges, Pew Research 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 eligible for employment.

Amicus Save Jobs USA is a group of American

computer professionals who worked at Southern California 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 authorization 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 Workers 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 amicus 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 Congress to define classes of aliens eligible for employment. 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 authority 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 authority with Congress was not contested in the courts below 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 program rely on the erroneous conclusion that the program is substantively lawful.

As Amici’s cases illustrate, this question of DHS

authority over alien employment has broad implications that extend beyond DACA. DACA is just one of

several recent DHS actions that have been made pursuant to the agency’s claim that it has unlimited authority 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 unlimited authority. Should this Court take that path, DHS

can continue its use of regulations to wipe out protections for American workers that Congress has enacted

as part of the immigration system. Consequently,

Amici’s interests are aligned with the government’s interests 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 system, alien employment can be authorized either by

Congress through statute or by DHS through regulation.

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 employment authorization documents to DACA participants

4

comes from the definition of the term unauthorized alien 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 confers on DHS equal authority with Congress to extend

employment to aliens, the courts below have found an

“elephant[ ] in [a] mousehole[ ].” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

Even under the implausible assumption that Congress intended to confer on DHS the alien employment

authority necessary to implement DACA, that would

make § 1324a(h)(3) unconstitutional under the nondelegation doctrine because Congress has provided no

guidance whatsoever on how DHS is to use that alleged authority. Because a contrary reading of

§ 1324a(h)(3)—that it provides no such sweeping authority to DHS—is possible, and indeed preferable, the

doctrine of constitutional avoidance mandates its

adoption.

------------------------------------------------------------------

ARGUMENT

I.

DACA is unlawful because DHS has no authority to permit alien employment through

administrative actions not authorized by

Congress.

Petitioners assert that the DACA program is unlawful, but they focus solely on the issue of whether

such a blanket action truly represents agency discretion. 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) (observing the operation of the closely-related Deferred

Action for Parents of Americans and Lawful Permanent Residents (DAPA) program). Furthermore, “allowing for the issuance of employment authorizations

to any class of illegal aliens whom DHS declines to remove [ ] is beyond the scope of what the [Immigration

and Nationality Act] can reasonably be interpreted to

authorize. . . .” Id. at 169. Despite the glaring unlawfulness of DACA’s work authorizations, Petitioners

completely neglect to address that issue where a decision 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 employment 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. Nielsen, 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 employer 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 Permanent 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 unlawful, the U.S. Court of Appeals for the Fifth Circuit

rejected the argument that § 1324a conferred the authority 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 “ ‘miscellaneous’ definitional provision expressly limited to

§ 1324a, a section concerning the ‘Unlawful employment of aliens’ ” and that it “cannot reasonably be construed 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 employment administratively requires taking that provision 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 employers 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 “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.

That Act also contains seven provisions directing

the Attorney General to extend alien employment outside 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 permit 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 instructions 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 authority 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 permit 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 secretary such authority. Both the House and Senate reports 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. 821365 at 50–51 (identical text). If Congress had intended 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, transferred 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 Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg.

10,284, 10,294 (Feb. 25, 2015).3 Yet there is no provision that explicitly creates that authority and DHS has

been inconsistent about where the authority was created.

Worse yet, DACA and DAPA are not the only examples 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 responded 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); Improving and Expanding Training Opportunities for F-1

3

This was the very first regulation to claim alien employment 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 Entrepreneur Rule, 82 Fed. Reg. 5,238, 5,239 (Jan. 17, 2017).

The Optional Practical Training program, created entirely through regulation, is now the largest guestworker program in the entire immigration system

measured by the number of aliens entering the workforce each year. Neil G. Ruiz and Abby Budiman, Number 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 approvals for Optional Practical Training exceed initial

approvals for H-1B).

C. Even if Congress had attempted to confer on DHS the power to define classes

of aliens eligible for employment, such

a delegation of power would be unconstitutional.

Defining classes of aliens who are eligible for employment 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; Immigration 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_ForeignStudent-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 authority necessary for DACA, Congress would have created a system that runs afoul of the Constitution.

America would have a dual system of immigration lawmaking in which Congress (by statute) and DHS (by

regulation) can independently define classes of aliens

eligible for employment to cross-purposes. In fact, because 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 employment authorizations), the executive’s power to define 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 unconstitutional delegation of power to the executive branch).

Such an arrangement also runs headlong into the

non-delegation doctrine. “[The Supreme Court] repeatedly [has] said that when Congress confers decisionmaking 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 intended to confer on DHS authority to define classes of

aliens eligible for employment results in an unconstitutional reading of these provisions. Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001). Because another, constitutionally compliant reading—namely,

that Congress conferred no general power to authorize

employment in these provisions—is possible, and indeed 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 necessary to avoid an interpretation that would make that

statute unconstitutional).

14

II.

Whether § 1324a(h)(3) confers on DHS coequal 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 interpretation 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 authority 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 affirmation that DHS has unlimited authority to define

classes of aliens, because the lawfulness of this authority is a prerequisite for DACA’s substantive lawfulness.

See, § I, supra. An affirmation by this Court of such

sweeping authority would enable DHS, through regulation, 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 intricate 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 Longshoremen’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 Washington Alliance of Technology Workers to better understand 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 replaced 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 Students 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. Microsoft proposed that DHS allow aliens to work on

student visas for 29 months after graduation. Id. Microsoft presented its proposal to the DHS secretary at

a dinner party. Id. DHS then worked in secret with industry lobbyists to prepare regulations implementing

Microsoft’s scheme. A.R. 124–27, 130–34. The first notice 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 responsive 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 guestworker programs by Washington insiders at dinner

parties, and their enactment in secret rulemaking processes from which the public is excluded. As Amici’s

cases demonstrate, this dark scenario is fact, not hyperbole.

------------------------------------------------------------------

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