Solicitor General Tells SCOTUS: Federal Law Does Not Allow DACA Work Permits

The nation’s immigration law does not allow the large-scale award of work permits to the huge class of Deferred Action for Childhood Arrivals (DACA) migrants, the nation’s solicitor general told the Supreme Court on Tuesday.

“My final and critical point is that there’s no limiting principle” in the award of benefits — including work permits — to DACA enrollees, Solicitor General Leon Francisco told the court. He continued:

The theory on which DACA rests effectively allows the government to create a shadow [Immigration and Nationality Act] INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA. And you, at the very least, need to locate something in the INA that confers that kind of broad and unfettered discretion. And there is simply nothing there.

This admission creates a problem for technology investors because it may lead to a rollback of several huge, wage-lowering visa-worker programs, including the Optional Practical Training (OPT) program used by Microsoft and many other corporations.

The statements “open the door for a major reassessment of all these [work permit] programs that have been shooting up over the last couple of decades,” said John Miano, a lawyer with the Immigration Law Reform Institute who is seeking to end two of the work-permit programs. “It means [business groups] are not going to be able to go lobbying [agencies] for guest workers .”

Ted Olson, the chief lawyer for the DACA migrants, told Breitbart News that the work-permit laws were not challenged by the administration.

“The Congress of the United States has passed a state that says that if a person is in a deferred action category, that person may be given — and there is federal regulations and federal statutes — that person may be given [work] authorization, if they apply for it, if they meet all of the standards,” Olson said.

He added, “Those are laws which the government hasn’t even challenged. … Believe me; no one challenged that in there. It is a law of the United States, and the government doesn’t dispute that.

But Francisco challenged the relevance of the work-permit laws cited by Olson at least twice. For example, he also said:

My second point is that DACA goes far beyond simply diverting resources to higher priority targets — which you are absolutely right, every law enforcement agency has to divert resources to higher priority targets. DACA goes materially further than that because it actively facilitates violations of the law by providing advance forbearance, coupling it with affirmative benefits like work authorization and Social Security benefits, doing it on a categorical basis. And, significantly — and this was my third point — it has no limiting principle.

Francis’s “no limiting principle” statement reflects the last-minute change in the administration’s legal claims. In November 2018, for example, the administration argued that Section 1324a of federal law allows it to provide work permits to an unlimited number of people. On October 28, however, it sent a brief to the court saying:

Section 1324a may have ratified extending work authorization to aliens who received deferred action on an individualized basis or pursuant to interstitial class-based deferred-action policies.

…

But it cannot reasonably be interpreted to have “br[ought] about [the] enormous and transformative expansion” in the Secretary’s authority that would be required to support conferring work authorization in conjunction with a deferred-action policy like DACA.

Chief Justice John Roberts also challenged Olson about the work permits.

In response, Olson dodged by telling Roberts that the administration did not directly challenge the relevant statute — even though Francisco directly challenged the applicability of the statute to the huge DACA amnesty:

CHIEF JUSTICE ROBERTS: But, Mr. Olson, the whole thing was about work authorization and these other benefits. Both administrations have said they’re not going to deport the people. So the deferred prosecution or deferred deportation, that’s not what the focus of the policy was. Yes, the other statutes provided that, but it was triggered by — by the memo.

MR. OLSON: Yeah.

CHIEF JUSTICE ROBERTS: So I don’t understand sort of putting what the policy really was about, which is the work authorization and the other things, off to one side is very helpful.

MR. OLSON: Well, I think that it — you — one has to focus on the fact that this was — Congress authorized … the Department of Homeland Security to identify enforcement priorities  … Once it did so … Other statutes provided that [work permit] benefit [to the DACA migrants]. You’re correct that [DACA] triggers that … If the government is opposed to those benefits given to individuals who are not in an enforcement priority category to support themselves … the government should be challenging those.

President Donald Trump’s administration did not directly challenge the long-standing claim that 1324a allows an unlimited award of work permits, Miano said. “No bureaucracy wants to give up the power it claims,” he said.

But the administration is pressuring the court to set limits on the Section 1324a legal claim because DACA has pushed the legal claim into overdrive, he said.

In the past, he said, no one bothered to sue or review the work-permit programs because officials were handing out work permits on a small scale. But “when they turn OPT into the largest guest-worker program … it raises the question; ‘Was it legal to begin with?’’ he said

In this DACA case, Olson and the pro-DACA lawyers are claiming that the prior use of the law to provide work permits to a small number of  “Deferred Action” migrants proves that it can be used to provide up to 800,000 work permits to the almost 800,000 migrants who were given “Deferred Action” by former President Barack Obama’s deputies.

Olson’s claim “is the best argument you can make on this, but the problem is that the previous [awards of work permits] were unlawful too,” said Miano.

This legal fight matters because those business groups gain from work-permit programs that are supposedly allowed by Section 1324a.

The work-permit programs include the OPT, Curricular Practical Training (CPT), and H4 EAD work-permit programs that were expanded or created by the two prior administrations — but not by Congress.

The programs keep roughly 350,000 foreign workers in the labor market, including at least 100,000 people in the technology jobs sought by new American graduates. The imported workers help suppress Americans’ wages — and they also serve investors as renters and consumers.

The DACA program serves the same purpose — it provides work permits to a large population of illegal migrants.

The population includes a small number of skilled workers and a large body of renters, consumers, and unskilled workers, such as drivers and food preparation workers.

The main advocacy group formed by the tech investors — FWD.us — is championing the DACA migrants in public while it fights in private to protect the OPT, CPT, and H4 EAD cheap-labor programs. For example, FWD.us provided staff who helped to organize the rally outside the Supreme Court.

The OPT program and the companion CPT program offer work permits to foreign students who pay for places in American universities, regardless of the quality of education. The programs ballooned to 430,000 active work permits in 2017. That army includes tens of thousands of foreign graduates who were invited by Indians managers to take jobs at prestigious U.S. firms — so cheating children of the U.S. professional class. The minimal coverage of the OPT labor inflow by the established media program also helps to hide the massive scale of OPT fraud.

The OPT program was expanded by deputies working for President Goerge W. Bush in 2008 at the request of current Microsoft President Brad Smith.

Obama expanded the CPT program and also created the H4 EAD program. Nearly all of the roughly 100,000 H4 EAD work permits have been given to Indian spouses of H-1B visa workers. The work permits them to be hired for U.S. jobs by Indian managers — even when Americans are seeking the same jobs. The H4 EAD program worsens job competition for U.S. tech professionals, a federal court decided November 8.

Microsoft president Brad Smith dodged a question from Breitbart News about the huge OPT work-permit program for foreign graduates of Americans’ colleges.

“I don’t know there have been 800,000 work permits,” Smith said. “I’ll simply say that we at Microsoft employ 66 of these dreamers. … I can assure you there is a lawful work permit for each and every one of them. … I’m not here today to be an expert on that program.”

In 2008, Smith worked to create the OPT program with officials of Bush’s Department of Homeland Security.

Neil Munro / Breitbart News

But the established media is determined to ignore the impact of the work-permit programs on Americans, said Miano. “No one in the media talks about it — it is simply amazing to me,” he said, adding, “They don’t seem to care about the elite [actions] that the public is just sick of.”