Bureaucrats have issued work permits through regulation without any directives from Congress

By  John Miano on December 2, 2024

America’s immigration system is in a state of chaos. The situation has become so bad that the consequences of border chaos have been brought to large segments of the public.

A major reason for the chaos is that America now has two immigration systems operating at cross purposes. The first is the one Congress created and the second was created by the administrative state through regulation.

Under the Constitution, Art. I, § 8, Congress is supposed to have the power to define the immigration system.

A combination of congressional laziness, bureaucratic overreach, and judicial indifference has allowed the creation of the second immigration system.

One of the issues is the Supreme Court’s invention of the doctrine of “standing”. I will not go into standing into much detail here because there is so much to cover. Standing is an entirely political system, where the courts determine whether a particular plaintiff is worthy to bring a lawsuit.

When a court wants to reach an outcome that goes contrary to law, the court can simply make the political pronouncement that the plaintiff does not have standing to bring the lawsuit. Standing creates for the administrative state a defense for any action it takes, no matter how outrageous. The first response of the administrative state to legal challenge is to argue the plaintiff lacks standing. In fact, litigating standing alone can take years and can also take longer than litigating the merits of a case. The rules of standing create many situations where flagrantly unlawful agency actions have no one who can challenge them. (More on that below.) Whenever you hear a federal court talking about standing, it is functioning as a court of politics and not a court of law.

Work Permits

The immigration system has three major functions. It defines who can become a citizen; it defines who can be in the United States; and it defines who can work in the United States.

The power to define who can work is frequently overlooked, but it has a tremendous impact on the system. As long as someone can work in the United States, he can finance a stay in the United States.

Since the immigration system was created in 1952, bureaucrats have authorized alien employment through regulation without any directives from Congress. Because of standing, these regulations frequently could not be challenged. When they were challenged, such regulations were evaluated under the terms of the statute that an alien was present in the United States.

That changed in 2015 when the Obama administration proclaimed that the administrative state shared authority with Congress to define which aliens could work and, therefore, the administrative state could create its own immigration system through regulation.

So let us look at an example of how the administrative state has used regulations to undermine the system put in place by Congress.

The immigration system has the concept of parole, where the executive branch can allow an inadmissible alien to come into the United States but under the legal fiction that the alien has not formally been admitted to the United States. This is how the Senate report on the Immigration and Nationality Act described the purpose of parole:

Discretionary authority is vested in [DHS] to parole into the United States temporarily otherwise inadmissible aliens for emergent reasons or for reasons deemed strictly in the public interest. Such parole shall not be regarded as an admission of the alien, and when the purposes of such parole shall have been served, the alien shall forthwith return or be returned to the custody from which he was paroled and shall continue to be dealt with in the same manner as any other alien applying for admission. … The committee believes that the broader discretionary authority is necessary to permit the Attorney General to parole inadmissible aliens into the United States in emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as a witness or for purposes of prosecution.

Entrepreneur Rule

Among the rampant abuses of the Obama administration, one finds the 2017 International Entrepreneur Rule.

This regulation allows DHS to give entrepreneurs parole to start companies. Clearly, this regulation is contrary to the spirit, if not the letter, of the law. Furthermore, no serious entrepreneur would ever use such a program because of the limbo status of parole.

Because of the Supreme Court’s political standing requirement, this regulation was unchallengeable by anyone because standing required showing an injury from entrepreneurs and few, if any, people were actually receiving such parole.

Within the International Entrepreneur Rule one finds:

§ 274a.12 Classes of aliens authorized to accept employment.

. . .

(11) Except as provided in paragraphs (b)(37) and (c)(34) of this section and § 212.19(h)(4) of this chapter, an alien paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the Act.

This allows aliens on parole to work in the United States, but has no authorization from Congress.

A few days before the six-year statute of limitations to challenge the International Entrepreneur Rule expired, the Biden administration announced it was going to put in place its Humanitarian Parole Program, under which it was bringing 30,000 aliens a month into the U.S., giving them parole and work permits.

The immigration system was designed with enormous discretion for the executive with the expectation that this discretion would be used to secure the border. It was never expected that the country would have people like Biden and Mayorkas using that discretion to stab America in the back.

Also, notice the long game being played by the administrative state. Clearly, the folks who drafted the International Entrepreneur Rule intended that it would be a Trojan Horse to open the door to parole being part of its own, separate immigration system operating outside the bounds set by Congress.

One might ask, “Where is the Supreme Court?” Since the Obama administration divined it had the power, the Court has had repeated opportunities to address the question of whether DHS can independently authorize alien employment and there have been repeated calls from members of Congress to do so, but it has punted every time. While the Supreme Court has fiddled, the immigration system has burned into the chaos the public sees all around it.

Link to article here:

https://cis.org/Miano/Executive-Branch-Has-Created-Its-Own-Separate-Immigration-System