Washington Alliance of Tech Workers v. USDHS - CCJ Brief

8/18/2019 Washington Alliance of Tech Workers v. USDHS - CCJ Brief

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Oral Argument Not Yet Scheduled No. 15-5239

In the

United States Court of Appealsfor the

District of Columbia Circuit

Washington Alliance of Technology Workers,

Appellant ,

v.

United States Department of Homeland Security,

Appellee.

On appeal from an order entered in theUnited States District Court for the District of Columbia

No. 1:14-cv-529The Hon. Ellen Segal Huvell

BRIEF OF AM ICUS CURIAE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF APPELLANTS AND REVERSAL

JOHN C. EASTMAN, Counsel of Record

A NTHONY T. CASO CRISTEN WOHLGEMUTH Center for Constitutional

Jurisprudencec/o Chapman University

Fowler School of Law

One University DriveOrange, CA 92886(877) 855-3330

[email protected]

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence


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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici

All parties, intervenors, and amici appearing before the district court and inthis Court are listed in the Brief for Appellant.

B. Rulings Under Review

References to the rulings at issue appear in the Brief for Appellant.

C. Related Cases

References to related cases appear in the Brief for Appellant.

/s/ John C. Eastman

John C. Eastman

Center for Constitutional Jurisprudence c/o Chapman UniversityDale E. Fowler School of LawOne University DriveOrange, CA 92866(877) 855-3330

[email protected]


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and

D.C. Circuit Rule 26.1, amicus curiae Center for Constitutional Jurisprudence is a

project of the Claremont Institute, a non-profit public policy organization devoted to

restoring the principles of the American founding to our national life. The amicus

hereby states that it has no parent companies, trusts, subsidiaries, and/or affiliates

that have issued shares or debt securities to the public.

/s/ John C. Eastman

John C. EastmanCenter for Constitutional Jurisprudence c/o Chapman University

Dale E. Fowler School of LawOne University DriveOrange, CA 92866(714) 628-2687

[email protected]


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CERTIFICATIONS

Pursuant to Federal Rule of Appellate Procedure 29, amicus curiae certifies

that this brief was not written in whole or in part by counsel for any party, and that

no person or entity other than amicus, its members, and its counsel has made a mon-

etary contribution to the preparation and submission of this brief. Plaintiff-Appel-

lant has consented to the filing of this brief; Defendant-Appellee takes no position.

Additionally, pursuant to Circuit Rule 29(d), amicus curiae certifies that, hav-

ing inquired of counsel for Plaintiff-Appellant, it is not aware of any other individual

or organization planning to file an amicus brief in this case.

/s/ John C. EastmanJohn C. EastmanCenter for Constitutional Jurisprudence c/o Chapman UniversityDale E. Fowler School of LawOne University DriveOrange, CA 92866(714) 628-2687

[email protected]


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STATUTES AND REGULATIONS

All applicable statutes, etc., are contained in the Brief for Appellant.

GLOSSARY OF ABBREVIATIONS

DHS – Department of Homeland Security

EPA – Environmental Protection Agency

F-1 Visa – the visa issued under authority of 8 U.S.C. § 1101(a)(15)(F)(i)

FCC – Federal Communications Commission

FDA – Food and Drug Administration

H-1B Visa – the visa issued under authority of 8 U.S.C. § 1101(a)(15)(H)(i)(b)

INS – Immigration and Naturalization Service

IRS – Internal Revenue Service

NLRB – National Labor Relations Board

OPT – Optional Practical Training

STEM – Science, Technology, Engineering and Math


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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i

CORPORATE DISCLOSURE STATEMENT ...................................................... ii

CERTIFICATIONS .............................................................................................. iii

STATUTES AND REGULATIONS......................................................................iv

GLOSSARY OF ABBREVIATIONS ....................................................................iv

TABLE OF AUTHORITIES ............................................................................... viiINTEREST OF AMICUS CURIAE ........................................................................ 1

SUMMARY OF ARGUMENT .............................................................................. 2

ARGUMENT.......................................................................................................... 3

I. The Executive Branch’s Student Visa Work Authorizations Have BecomeCompletely Unmoored From Statutory Authority............................................ 3

A. The Executive Branch’s ever -expanding “interpretation” of the F-1

visa program is classic mission creep. ............................................. 3

B. The actual statute authorizing temporary visas for bona fidestudents does not allow for work at all, or at most only allows astudent to engage in work that is directly part of the academiccourse of study. ............................................................................. 11

II. As An Original Matter, Congress, Not the Executive, Has Plenary Power toSet Immigration Policy. ................................................................................. 15

III. Even Applying the Modern Court’s Chevron 2-Step Analysis, DHS’sUnilateral Guest-Worker Program Is Ultra Vires........................................... 16

A. For Chevron Step 1 to remain consistent with the Constitution’sseparation of powers, courts cannot manufacture ambiguity wherenone exists. ................................................................................... 16


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B. Even if the F-1 visa subsection can be read as ambiguous, it ishighly unlikely that, in the face of the long-standing statutory capson H-1B visas, Congress intended to delegate to the executive

branch the authority to circumvent those caps through a creativeinterpretation of the F-1 visa program. .......................................... 22

IV. DHS’s Broad Assertion of Power Is Inconsistent With the System of Checksand Balances Adopted by the Framers. .......................................................... 25

CONCLUSION .................................................................................................... 33

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ..................................... 35


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TABLE OF AUTHORITIES1

Cases

Brown v. Gardner ,513 U.S. 115 (1994) ..........................................................................................26

Chae Chan Ping v. United States,130 U.S. 581, 603 (1889)...................................................................................18

* Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842-843 (1984) .................................... 3, 20, 21, 26, 27, 28, 32, 36

Crane v. Commissioner of Internal Revenue,331 U.S. 1 (1947) ..............................................................................................20

FDA v. Brown & Williamson Tobacco Corp.,529 U.S. 120, 159 (2000)...................................................................................29

Fiallo v. Bell ,430 U.S. 787, 792 (1977)...................................................................................19

Galvin v. Press,347 U.S. 522, 531 (1954)...................................................................................19

Gonzales v. Oregon,

546 U.S. 243, 266-267 (2006) ...........................................................................30

* King v. Burwell ,135 S.Ct. 2480, 2488 (2015) ............................................................ 28, 29, 30, 31

Kleindienst v. Mandel ,408 U.S. 753, 766 (1972)...................................................................................19

Mallard v. United States Dist. Court for Southern Dist. of Iowa,490 U.S. 296, 301 (1989)...................................................................................21

* MCI Telecommunications Corp. v. American Telephone & Telegraph Co.,512 U.S. 218 (1994) .............................................................................. 27, 28, 30

1 Authorities upon which we chiefly rely are marked with asterisks.


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* Michigan v. EPA,135 S.Ct. 2699 (2015).................................................................................. 31, 32

N.L.R.B. v. Noel Canning ,134 S.Ct. 2550 (2014)......................................................................................... 1

National Federation of Independent Business v. Sebelius,

132 S.Ct. 2566 (2012)......................................................................................... 1

Oceanic Steam Navigation Co. v. Stranahan,214 U.S. 320, 339 (1909)...................................................................................19

Perez v. Mortgage Bankers Ass’n,135 S.Ct. 1199 (2015)......................................................................................... 1

Taniguchi v. Kan Pac. Saipan, Ltd.,132 S.Ct. 1997, 2003 (2012) ..............................................................................21

Utility Air Regulatory Group v. EPA,134 S.Ct. 2427, 2444 (2014) ..............................................................................29

Statutes

* 8 U.S.C. § 101(a)(15)(F), 66 Stat. 163, 168 (1952)....................................................2, 3, 5, 7, 8, 9, 11, 12, 14, 19, 20, 21, 22, 24, 33

8 U.S.C. § 1101(a)(15)(H) ....................................................................................21

* 8 U.S.C. § 1101(a)(15)(H)(i)(b) .......................................... 9, 12, 13, 14, 21, 22, 24

8 U.S.C. § 1184(a)(1) ...................................................................................... 20, 25

8 U.S.C. § 1184(g)(1)(A)(vii) ......................................................................... 12, 21

8 U.S.C. § 1184(g)(4) ...........................................................................................21

8 U.S.C. § 1184(i)(1) ............................................................................................2126 U.S.C. § 3121(b)(19)........................................................................................12

26 U.S.C. § 3306(c)(19) ........................................................................................12

26 U.S.C.§ 3121(b)(19)........................................................................................14

42 U.S.C. § 410(a)(19) ..........................................................................................12


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The Federalist No. 78, at 471 (C. Rossiter ed. 1961) (A. Hamilton) .......... 30, 31, 33

The Federalist No. 79, at 472 (C. Rossiter ed. 1961) (A. Hamilton) ......................32

Thurston, John L., Acting Administrator, Federal Security Agency, Letter to HouseJudiciary Committee Chairman Emanuel Celler (Dec. 27, 1951), reprinted inH.R. Rep. 82-1365, p. 40 (1952) .................................................................... 4, 10

Regulations

* 12 Fed. Reg. 5355 (1947) ....................................................................... 4, 6, 11, 19

38 Fed. Reg. 35425, 35426 (Dec. 28, 1973) ........................................................ 6, 7

42 Fed. Reg. 26411-13 (May 19, 1977).................................................................. 8

48 Fed. Reg. 14575, 14586 (Apr. 5, 1983) ............................................................. 7

56 Fed. Reg. 55608, 55610 (Oct. 29, 1991) (codified at 8 C.F.R. §§ 214, 274a) .... 9

67 Fed. Reg. 76256, 76274 (Dec. 11, 2002) ........................................................... 8

* 73 Fed. Reg. 18944-18956 (Apr. 8, 2008) ................................................... 9, 13, 14

80 Fed. Reg. 63376, 63378 (proposed Oct. 19, 2015) ...........................................10

8 C.F.R. § 125.1 ..................................................................................................... 4

8 C.F.R. § 125.2 ..................................................................................................... 4

8 C.F.R. § 125.3 ..................................................................................................... 4

8 C.F.R. § 125.5 ..................................................................................................... 4

8 C.F.R. § 125.15(a) .............................................................................................. 6

8 C.F.R. § 21 .......................................................................................................... 9

8 C.F.R. § 214.2(f)(10) (1981) ............................................................................... 8

8 C.F.R. § 214.2(f)(10) (1989) ............................................................................... 8

8 C.F.R. § 214.2(f)(10)(ii)(E) ................................................................................. 9

8 C.F.R. § 214.2(f)(5)(vi) ....................................................................................... 9

8 C.F.R. § 214.2(f)(6) (Dec. 20, 1973) ................................................................... 6


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8 C.F.R. § 274a.12 ................................................................................................. 9

Constitutional Provisions

* U.S. Const. Art. I, § 1 ...........................................................................................15

U.S. Const. Art. I, § 2, cl. 1 ...................................................................................32

U.S. Const. Art. I, § 3, cl. 1 ...................................................................................32

U.S. Const. Art. I, § 7, cls. 2, 3 .............................................................................28U.S. Const. Art. I, § 8 ...........................................................................................28

U.S. Const. Art. I, § 8, cl. 4 ...................................................................................15

U.S. Const. Art. II, § 1, cl. 1 .................................................................................32

U.S. Const. Art. III, § 1 .........................................................................................32


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INTEREST OF AMICUS CURIAE

The Center for Constitutional Jurisprudence is the public-interest law arm of

The Claremont Institute, the mission of which is to restore the principles of the

American Founding to their rightful and preeminent authority in our national life.

The Center pursues that mission through strategic litigation and the filing of amicus

curiae briefs in cases such as this, which involve core structural components of our

constitutional system of government.

The Center’s attorneys and affiliated scholars are recognized as among the

nation’s leading experts on the structural Constitution. The Center has participated

as amicus curiae in several cases addressing core separation of powers issues such

as those presented by this case, including Perez v. Mortgage Bankers Ass’n, 135

S.Ct. 1199 (2015); N.L.R.B. v. Noel Canning , 134 S.Ct. 2550 (2014); Util. Air Reg-

ulatory Grp. v. E.P.A., 134 S.Ct. 2427 (2014); and National Federation of Inde-

pendent Business v. Sebelius, 132 S.Ct. 2566 (2012). The Center believes the issue

before the Court in this matter is one of special importance to the principle of sepa-

ration of powers and the requirement in Article I of the Constitution that the law-

making power is vested in Congress, not in unelected executive agencies.


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that Congress intended to delegate such authority to it, have called into question the

level of deference given by the lower court here.

Greater limits on finding ambiguity under Chevron Step 1, and a more limited

range of cases in which Chevron Step 2 is appropriate even in the face of ambiguity,

is required lest the carefully wrought system designed by our Founders blending

separation of powers with checks and balances be undermined.

ARGUMENT

I. The Executive Branch’s Student Visa Work Authorizations Have Be-

come Completely Unmoored From Statutory Authority.

A. The Executive Branch’s ever-expanding “interpretation” of the F-1

visa program is classic mission creep.

This case presents a classic example of “mission creep.” When Congress

imposed quotas and other restrictions on immigration in 1924, it permitted “bona

fide” students “to enter the United States solely for the purpose of study at an ac-

credited [academic institution] . . . approved by the Secretary of Labor, which shall

have agreed to report to the Secretary of Labor the termination of attendance of

each immigrant student.” The Immigration Act of 1924 § 4(e), Pub. L. No. 68-139,

43 Stat. 153, 155 (1924). As implementing regulations made clear, such admission

was only “temporar[y],” “for a period of time not to exceed one year” (although


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that could be extended in one-year increments up to four years), and the student

had to maintain a full course load of at least 12 credit hours per semester and also

establish that he intended to leave the United States “at the expiration of the period

of admission [or any approved extensions] or upon cessation of the status under

which admitted [i.e., his student status], whichever occur[red] first.” 12 Fed. Reg.

5355 (1947); 8 C.F.R. §§ 125.1-.3. “Students [were] not permitted to stay beyond

the completion of their studies.” Letter from John L. Thurston, Acting Administra-

tor, Federal Security Agency, to House Judiciary Committee Chairman Emanuel

Celler (Dec. 27, 1951), reprinted in H.R. Rep. 82-1365, p. 40 (1952). Failure to

maintain full-time student status subjected the student to deportation. Immigration

Act of 1924 § 14, 43 Stat. at 163; see also 8 C.F.R. § 125.5; 12 Fed. Reg. at 5356.

Congress amended the statute a decade later to authorize the Attorney General to

impose conditions and set time limits on the admission in order “to insure that, at

the expiration of such time [for which admission was granted] or upon failure to

maintain the [full-time student] status under which admitted, [the student] will de-

part from the United States.” An Act to Secure the Departure of Certain Aliens

from the United States, Pub. L. 72-234, 47 Stat. 524, 524-25 (July 1, 1932).


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When Congress enacted a new, comprehensive immigration law in 1952, the

language from the 1924 Act relating to students was, with a few modest changes,

re-enacted as Section 101(a)(15)(F), the provision that came to be known as the F-

1 Visa because it was contained in subsection F (later subsection F(i)). Immigra-

tion and Nationality Act of 1952, Pub. L. No. 82-414, § 101(a)(15)(F), 66 Stat.

163, 168 (1952). That provision, like its predecessor, allows “ bona fide students”

to enter the United States “temporarily and solely for the purpose of pursuing such

a course of study . . . at an established . . . academic institution or in an accredited

language training program in the United States.” Id.2

Correctly recognizing that some courses of academic study, such as medi-

cine, typically require a practical training component as part of the course of study,

the INS adopted regulations interpreting the statutory language, “pursuing a course

of study,” from the 1924 Act to include employment in furtherance of that practical

training. As long as the practical training employment was under the supervision

2 The word “temporarily,” which had been included in the implementing regula-tions since at least 1947, was added to the statute by the 1952 Act.


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of the academic institution and necessary to the completion of the academic de-

gree, the regulatory expansion met, at least arguably, the statutory requirement that

the student be admitted “solely” to pursue his course of study “at” an academic in-

stitution. See 12 Fed. Reg. at 5357 (“In cases where employment for practical

training is required or recommended by the school, the district director may permit

the student to engage in such employment for a six-month period subject to exten-

sion for not over two additional six-month periods”).3

The INS next allowed the practical training employment to extend for a pe-

riod of six months beyond the “course of study at ” the academic institution (as the

statute required), as long as it was related to the field of academic study. See. S.

3 The INS also allowed part-time work during the school year or full-time workduring school vacations for financial necessity, but only upon certification that thework would not interfere with the student’s academic studies. 12 Fed. Reg. at

5355, 8 C.F.R. § 125.15(a). The INS later clarified that the financial necessity hadto be “due to unforeseen circumstances arising subsequent to entry, or subsequent

to change to student classification.” 8 C.F.R. § 214.2(f)(6) , 38 Fed. Reg. 35425,35426 (Dec. 20, 1973) (“If a student requests permission to accept part-time em-

ployment because of economic necessity, he must establish that the necessity is,and an authorized school official must certify that part-time employment will notinterfere with the student’s ability to carry successfully a full course of study.”).


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way. See Improving and Expanding Training Opportunities for F-1 Nonimmigrant

Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,

80 Fed. Reg. 63376, 63378 (proposed Oct. 19, 2015). According to the DHS, the

additional employment “which will better ensure that students gain valuable practi-

cal STEM experience that supplements knowledge gained through their academic

studies.” 80 Fed. Reg. at 63376. None of these extensions are authorized by the

statute, and no relevant changes to the statute have occurred since the top adminis-

trator of the old Federal Security Agency acknowledged in 1951 that “Students are

not permitted to stay beyond the completion of their studies.” Thurston Letter, su-

pra, at 4.

The 2008 regulatory expansions of the post-graduation “student” work au-

thorization (and the pending 2015 further regulatory expansion) are therefore but

the latest in a series of regulatory expansions that have moved increasingly further

from the text of the statute authorizing the admission of “bona fide students” into

the United States. Rather than continue the slow boil, it is time for this Court to re-

visit and apply the statutory text.


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B. The actual statute authorizing temporary visas for bona fide stu-

dents does not allow for work at all, or at most only allows a stu-

dent to engage in work that is directly part of the academic course

of study.

The statute defining who qualifies for admission as a nonimmigrant alien on

an F-1 student visa reads as follows:

(F) (i) an alien having a residence in a foreign country which he has no in-tention of abandoning, who is a bona fide student qualified to pursue a fullcourse of study and who seeks to enter the United States temporarily andsolely for the purpose of pursuing such a course of study consistent with sec-tion 1184(l) of this title at an established college, university, seminary, con-servatory, academic high school, elementary school, or other academic insti-tution or in an accredited language training program in the United States…

8 U.S.C. § 1101(a)(15)(F)(i). In other words, F-1 visas allow foreign nationals to

enter and remain in the United States “temporarily” and “solely” for the purpose of

pursuing a full course of study at an approved academic institution or language

program.

At most, this statutory provision might be read to allow the student to work

if the work was itself part of the course of study in which the student was enrolled,

as the original implementing regulations recognized. See 12 Fed. Reg. at 5357 (“In

cases where employment for practical training is required or recommended by the

school, the district director may permit the student to engage in such employment


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for a six-month period subject to extension for not over two additional six-month

periods”). There is no authority for students on F-1 visas to work beyond that.

It is not as though Congress has not provided for admission to the United

States for work purposes. It has, in several other subsections of Section

1101(a)(15). Subsection H-1B, for example, allows U.S. employers to hire foreign

nationals with “specialized knowledge” requiring at least a bachelor’s degree for a

period of six years (an initial three years, plus a three-year extension), or ten years

in certain defense-related positions. 8 U.S.C. § 1101(a)(15)(H)(i)(b). But unlike

the F-1 visa program for students, the H-1B visa program is capped, currently at

65,000 such visas per year. 8 U.S.C. § 1184(g)(1)(A)(vii). This reflects a very de-

liberate policy judgment by Congress that a larger number of guest workers would

have a detrimental effect on U.S. labor markets. And workers on H-1B visas are

also subject to taxes that “student” workers on F-1 visas are not. See 26 U.S.C. §§

3121(b)(19), 3306(c)(19); 42 U.S.C. § 410(a)(19). The tax exemptions further ex-

acerbate the threat to domestic workers and provides a significant additional incen-

tive to U.S. employers to use the F-1 Visa work permissions provided unilaterally


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by the Department of Homeland Security without statutory authority as a way to

get around the H-1B statutory caps.

DHS does not hide this purpose. Indeed, allowing U.S. employers to recruit

STEM-skilled employees who would otherwise find employment outside of the

United States due to the difficulty in obtaining H-1B visas was the explicit purpose

of the 2008 regulatory amendments. See 73 Fed. Reg. at 18946-18947 (noting that

because of the congressionally-mandated cap, “the H-1B category is greatly over-

subscribed,” and that “Representatives of high-tech industries in particular have

raised significant concerns” that the cap “continues to result in the loss of skilled

technical workers to countries with more lenient employment visa regimes.”).

As part of its 2008 rulemaking, DHS also cited a National Science Founda-

tion report that found foreign nationals comprised a significant number of STEM

students pursuing higher education in the United States, but that other countries are

providing more career opportunities for foreign nationals trained in STEM fields.

73 Fed. Reg. at 18946 (citing National Science Foundation, Science and Engineer-

ing Indicators (2008)). This trend was creating intense international competition

for highly-valued STEM employees, the report found. Id. The seventeen-month


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extension was designed to allow U.S. employers to more effectively compete for

U.S.-educated, STEM-trained foreign nationals by allowing more time for these in-

dividuals to work in the country on an F-1 visa while they try to obtain an H-1B

visa. Id. DHS estimated that 30,205 F-1 students would complete their post-grad-

uation Optional Practical Training between April 1 and July 31, 2008, and approxi-

mately one third of these students had obtained a degree in a STEM field. Id. at

18950. Therefore, this regulation had “the potential to add tens of thousands of

OPT workers to the total population of OPT workers in STEM occupations in the

U.S. economy.” Id.

DHS noted that the seventeen-month extension for STEM students was initi-

ated without notice and public comment “[t]o avoid a loss of skilled students

through the next round of H-1B filings in April 2008.” Id. And, as previously

noted, such workers are particularly attractive to U.S. companies because employ-

ers of F-1 visa holders are not required to pay Medicare and Social Security taxes

for these nonresident foreign nationals. See 26 U.S.C. § 3121(b)(19). But neither

the employers’ desire to avoid taxes nor the congressionally-mandated scarcity of

H1-B visas are adequate justifications for DHS to authorize such work unilaterally.


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II. As An Original Matter, Congress, Not the Executive, Has Plenary Power

to Set Immigration Policy.

It is important to recall that all of the lawmaking power granted in the Con-

stitution to the national government is vested in the Congress. U.S. Const. art. I,

§ 1. This is particularly true in the field of immigration. Congress alone is vested

with the power to “establish [a] uniform Rule of Naturalization.” U.S. Const. art.

I, § 8, cl. 4. Moreover, the Supreme Court has recognized that the power of exclu-

sion of foreigners is an incident of sovereignty delegated by the Constitution to

“the government of the United States, through the action of the legislative depart-

ment .” Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889) (emphasis

added). As a result, the Supreme Court has consistently held that the Constitution

assigns “ plenary” power over immigration policy to Congress, not the President.

See, e.g., Kleindienst v. Mandel , 408 U.S. 753, 766 (1972). Indeed, the Court de-

clared over a century ago that “over no conceivable subject is the legislative power

of Congress more complete” than immigration. Oceanic Steam Navigation Co. v.

Stranahan, 214 U.S. 320, 339 (1909) (emphasis added); Fiallo v. Bell , 430 U.S.

787, 792 (1977); see also Galvin v. Press, 347 U.S. 522, 531 (1954) (“that the for-


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mulation of [immigration] policies is entrusted exclusively to Congress has be-

come about as firmly embedded in the legislative and judicial tissues of our body

politic as any aspect of our government.” (emphasis added)).

In light of that plenary power, it is simply illegitimate for the executive

branch to radically and unilaterally alter Congress’s policy judgment about the

availability of visas for what has essentially become a new guest worker program,

as it has done with the work authorization programs at issue here that DHS created

by regulatory fiat.

III. Even Applying the Modern Court’s Chevron 2-Step Analysis, DHS’s Uni-

lateral Guest-Worker Program Is Ul tra Vires .

A.

For Chevron Step 1 to remain consistent with the Constitution’sseparation of powers, courts cannot manufacture ambiguity where

none exists.

The interpretive analysis in step 1 of the framework announced in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843

(1984), namely, that “the court, as well as the agency, must give effect to the un-

ambiguously expressed intent of Congress,” is fully consistent with the Constitu-

tion’s requirement that the legislative power is vested in— and must be exercised

by — Congress. Fully consistent, that is, unless the courts strain to find ambiguity

where none exists, as the lower court did in this case below.


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“The words of statutes . . . should be interpreted where possible in their ordi-

nary, everyday senses.” Crane v. Commissioner of Internal Revenue, 331 U.S. 1, 6

(1947). The word “student” (much less the phrase “bona fide student”) is not am-

biguous in ordinary meaning. It means someone in school, even if the word can

sometimes be used euphemistically in a non-academic setting (a “student” in the

school of hard knocks, for example). Under Chevron Step 1, that should end the

matter. “That a definition is broad enough to encompass one sense of a word does

not establish that the word is ordinarily understood in that sense.” Taniguchi v.

Kan Pac. Saipan, Ltd., 132 S.Ct. 1997, 2003 (2012) (citing Mallard v. United

States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 301 (1989)). The dis-

trict court’s claim that the word “student” is ambiguous because some dictionaries

include “an attentive and systematic observer ” as a sub-meaning is therefore not a

faithful application of Chevron’s Step 1. D.Ct. Op. at 21-22 (quoting “Student,”

Merriam Webster’s Collegiate Dictionary (10th ed. 1997)). Moreover, even if the

euphemistic use of the word “student” could somehow qualify as “ordinary mean-

ing,” Congress’s adoption of the Immigration and Naturalization Act Amendments


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of 1981 should have removed any doubt that the academic, rather than the euphe-

mistic, meaning was intended. In that Act, Congress changed the statutory lan-

guage “ by striking out ‘institution of learning or other recognized place of study’ in

subparagraph (F) and inserting in lieu thereof ‘college, university, seminary, con-

servatory, academic high school, elementary school, or other academic institution

or in a language training program.’” Pub. L No. 97-116, §§ (b)(1), 95 Stat. 1611

(1981). As the Senate report on the bill stated, the Act “amend[ed] subparagraph

(F) of section 101(a)(15) of the Immigration and Nationality Act relating to nonim-

migrant students, to specifically limit it to academic students….” S. Rep. No. 96-

859, p. 7 (1980).

Neither is the phrase “solely for the purpose of pursuing … a course of

study” ambiguous —at least, not in the context of the Immigration Act. A “stu-

dent” admitted to the United States “solely” to pursue a course of study is not ad-

mitted to pursue work opportunities; those are governed by other provisions of the

rather comprehensive Immigration and Naturalization Act. Externships for credit

and other practical training in an employment situation that are required parts of

the course of study may well qualify as part of the course of study, and hence fall


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under the F-1 umbrella, as the immigration services have recognized since at least

1947. See 12 Fed. Reg. at 5357. Post-graduation employment that leads to a nec-

essary certification to complete the course of study might well qualify as well, alt-

hough that would be starting to push the envelope. But post-graduate employment

merely to “practice” the skills one learned in school cannot plausibly fall within the

“course of study” language unless one is to slide over into the euphemistic rather

than ordinary meaning of the word “student.”

Apparently recognizing the absurdity of treating either the word “student” or

the phrase “solely for the purpose of pursuing . . . a course of study” as ambiguous,

as the Department of Homeland Security had argued, the court below went on to

claim that the entire section might be read as merely an entry requirement rather

than an ongoing status requirement. But this manufactured ambiguity is no more

plausible than treating either the word “student” or the phrase “solely to pursue a

course of study” as ambiguous would have been, particularly when read in context.

In addition to the statutory language quoted above, the F-1 visa provision re-

quires that the academic institution for which the student was admitted to attend

“shall have agreed to report to the Attorney General the termination of attendance


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20

of each nonimmigrant student,” and that institutions failing to make such reports

promptly shall lose their status as an institution approved to receive F-1 visa hold-

ers. 8 U.S.C. § 1101(a)(15)(F)(i). Those requirements are nonsensical if the entire

provision operates only as an entry requirement rather than as an ongoing status re-

quirement.

The district court purported to find support for its “entry requirement” inter-

pretation in another provision of the statute, 8 U.S.C. § 1184(a)(1), which accord-

ing to the court gives apparently unfettered discretion to the Attorney General to

set any time limit (or no time limit) on the admission of F-1 visa holders. But that

provisions has an express purpose that the district court did not address: “to insure

that at the expiration of such time or upon failure to maintain the status under

which he was admitted, … such alien will depart from the United States.” It

simply stretches the statutory language beyond the breaking point to claim, as the

district court did, that a statutory delegation of power to the Attorney General to set

time limits in order “to insure” that the student will depart from the United States


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21

once he fails to maintain his status as a student can be treated as a grant of author-

ity to allow the student to stay (and work) well past his status as a student has

ceased.

Moreover, Congress has already created a visa for nonimmigrant workers in

specialty occupations, defined inter alia as those requiring a bachelor’s degree.

Aliens engaged in such specialty occupations may enter the U.S. under an H-1B

visa. See 8 U.S.C. §§ 1101(a)(15)(H); 1184(i)(1). Persons obtaining an H-lB visa

are authorized to remain in the U.S. for no more than six years, and no provision

has been made for extension of the visa in exigent circumstance. 8 U.S.C.

§ 1184(g)(4). Congress has also intentionally set an annual cap on H-1B visas at

65,000 in order to protect domestic workers. 8 U.S.C. § 1184(g)(1)(A)(vii).

Congress had good reason to cap H-1B visas, and consequently, good reason

not to authorize F-1 visa holders to circumvent the H-1B visa program. “Ambigu-

ity is a creature not of definitional possibilities but of statutory context.” Brown v.

Gardner , 513 U.S. 115, 118 (1994). The statutory context (including the availabil-

ity of the H-1B visa and its cap of 65,000, which has not been changed since 1998)

makes clear that no ambiguity as to what F-1 visa holders can do exists here.


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22

In short, there is no ambiguity here, and permitting the lower courts to man-

ufacture ambiguity in circumstances such as this in order to get beyond Chevron

Step 1 simply cannot be squared with the Constitution’s separation of powers man-

date.

B. Even if the F-1 visa subsection can be read as ambiguous, it is

highly unlikely that, in the face of the long-standing statutory caps

on H-1B visas, Congress intended to delegate to the executive

branch the authority to circumvent those caps through a creative

interpretation of the F-1 visa program.

Even if there is ambiguity in a statute preventing resolution of a statutory in-

terpretation case at Step 1 of Chevron, the deference to an administrative agency’s

interpretation that the Supreme Court has given in Chevron Step 2 only applies in

cases where it can be fairly implied that Congress intended to give such ambiguity-

resolving power to the agency. That inference cannot be made here.

The Supreme Court’s decision in MCI Telecommunications Corp. v. Ameri-

can Telephone & Telegraph Co., 512 U.S. 218 (1994), is instructive. That case in-

volved the proper construction of the term “modify” in section 203(b) of the Com-

munications Act of 1934. The FCC contended that, because the Act gave it the

discretion to “modify any requirement” imposed under the statute, it therefore pos-

sessed the authority to render voluntary the otherwise mandatory requirement that


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23

long distance carriers file their rates. Id. at 225. The Court rejected the FCC's con-

struction, finding “not the slightest doubt” that Congress had directly spoken to the

question. Id. at 228. But the Court also concluded that “[i]t is highly unlikely that

Congress would leave the determination of whether an industry will be entirely, or

even substantially, rate-regulated to agency discretion — and even more unlikely

that it would achieve that through such a subtle device as permission to ‘modify’

rate-filing requirements.” Id. at 231.

The high Court’s latest Chevron Step-2 decision reiterated this precondition

for affording Step-2 deference to the executive agencies. In King v. Burwell , the

Court noted that Chevron Step Two “‘is premised on the theory that a statute’s am-

biguity constitutes an implicit delegation from Congress to the agency to fill in the

statutory gaps.’” 135 S.Ct. 2480, 2488 (2015) (quoting FDA v. Brown & William-

son Tobacco Corp., 529 U.S. 120, 159 (2000)). But it added that “[i]n extraordi-

nary cases, however, there may be reason to hesitate before concluding that Con-

gress has intended such an implicit delegation.” Id. at 2488-89. It found that the

issue whether Congress had, in the Affordable Care Act, intended to allow the IRS

to determine whether billions of dollars in tax credits Congress authorized for


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24

health insurance purchased on an “exchange established by the State” could also be

used for exchanges established by the federal government was just such a case.

The question was one “of deep ‘economic and political significance’ that [was]

central to this statutory scheme,” the Court noted, concluding that “had Congress

wished to assign that question to an agency, it surely would have done so ex-

pressly.” Id. (quoting Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2444

(2014)). The Court also found it “especially unlikely that Congress would have

delegated this decision to the IRS, which has no expertise in crafting health insur-

ance policy of this sort.” Id. (citing Gonzales v. Oregon, 546 U.S. 243, 266-267

(2006)).

Given the existence of the long-standing caps Congress has mandated on H-

1B visas, the billions of dollars in economic activity involved, and the tens or hun-

dreds of thousands of U.S. workers who may be displaced from employment with-

out such statutory caps, it is also highly unlikely that Congress would have dele-

gated to immigration officials the authority to circumvent the statutory cap on H-

1B visas by the mere expedient of creative regulatory interpretation of the F-1 visa

program. As in MCI , this court should be confident that Congress could not have


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intended to delegate a decision of such economic and political significance to an

agency in so cryptic a fashion. And as with Burwell ’s recognition that the IRS has

no expertise in setting health policy, the executive branch entity at issue here — the

Department of Homeland Security — has no expertise in setting economic policy.

IV. DHS’s Broad Assertion of Power Is Inconsistent With the System of

Checks and Balances Adopted by the Framers.

The district court’s decision below, based as it was on acceptance on the

government’s claim that Section 1184 gave it largely unfettered discretion to ex-

tend an alien’s status as a non-immigrant “student” well beyond the alien’s actual

status as a student, raises the same concern that Justice Thomas recently raised in

his concurring opinion in Michigan v. EPA, 135 S.Ct. 2699 (2015). In that case,

the EPA had determined to impose about $10 billion in annual regulatory costs for

emissions control systems on power plants that would yield benefits of between $4

and $6 million per year, based on discretion it claimed it had under the statutory

language authorizing it to make regulations that were “necessary and appropriate.”

The Court held that the EPA had exceeded its statutory authority by failing to con-

sider the economic costs of its regulations, but Justice Thomas wrote a separate

concurrence to sound an important alarm also relevant to the claims at issue here.


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“[W]e should be alarmed,” he wrote, that the EPA “felt sufficiently emboldened by

[the Court’s Chevron deference] precedents to make the bid for deference that it

did here.” Id. at 2713. “[W]e seem to be straying further and further from the

Constitution without so much as pausing to ask why,” he added, suggesting to his

colleagues that they all “should stop to consider that document before blithely giv-

ing the force of law to any other agency ‘interpretations’ of federal statutes.” Id. at

2714.

One of the key structural components of “that document” is the separation of

powers. DHS’ interpretation is untenable because it impermissibly treads on the

exclusive territory of the legislature, taking upon itself the decision to make a ma-

jor policy step that Congress itself has deliberately declined to make.

But the Constitution does not leave its separation of powers structure to

parchment protection. It is blended with a system of checks and balances, and the

mixture of the two was informed by centuries of political thought and experiences.

John Locke and Baron de Montesquieu endorsed the concept of separation of pow-

ers as a means of protecting individual liberty. J. Locke, Second Treatise of Civil

Government §§ 143 – 144, p. 72 (J. Gough ed. 1947) (1689); Montesquieu, Spirit of


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27

the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transl. 1949) (1748).

But they also advocated a system of checks and balances to reinforce that separa-

tion. For instance, they agreed that the executive should have the power to assem-

ble and dismiss the legislature and to consent to laws passed by it. See Locke, su-

pra, §§ 151, 156, at 75, 77-78; Montesquieu, at 157, 159. Montesquieu warned

that “power should be a check to power” lest the legislature “arrogate to itself what

authority it pleased ... [and] soon destroy all the other powers.” Id ., at 150, 157.

The experience of the States during the period between the Declaration of

Independence and the ratification of the Constitution confirmed the wisdom of

combining separation with checks and balances. Although many State constitu-

tions of the time included language unequivocally endorsing the separation of pow-

ers, they did not secure that separation with checks and balances, and instead ac-

tively placed traditional executive and judicial functions in the legislature. Gordon

Wood, The Creation of the American Republic 1776-1787, pp. 155-156 (1969).

Under these arrangements, state legislatures arrogated power to themselves and be-

gan to confiscate property, approve the printing of paper money, and suspend the

ordinary means for the recovery of debts. Id., at 403-409.


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When the Framers met for the constitutional convention, they understood the

need for greater checks and balances to reinforce the separation of powers. As

James Madison remarked, “experience has taught us a distrust” of the separation of

powers alone as “a sufficient security to each [branch] [against] encroachments of

the others.” Records of the Federal Convention of 1787, vol. 2, p. 77 (M. Farrand,

ed., 1966). “[I]t is necessary to introduce such a balance of powers and interests, as

will guarantee the provisions on paper.” Id .

The Framers thus separated the three main powers of Government — legisla-

tive, executive, and judicial — into the three branches created by Articles I, II, and

III. But they also created checks and balances to reinforce that separation. For ex-

ample, they gave Congress specific enumerated powers to enact legislation, U.S.

Const. Art. I, § 8, but gave the President the power to veto that legislation, subject

to congressional override by a supermajority vote, U.S. Const. Art. I, § 7, cls. 2, 3.

And they created a judiciary that was sufficiently independent of the political

branches as to be able to enforce the limits on their powers. During the ratification

debates, James Madison argued that this structure represented “the great security”


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for liberty in the Constitution. The Federalist No. 51, p. 321 (C. Rossiter ed. 1961)

(J. Madison).

The Judiciary therefore has an obligation to guard against deviations from

the Constitution’s structural design. Chevron Step 1, properly applied so as not to

manufacture ambiguity where none exists, is an example of the judiciary guarding

against such deviations. And as the Supreme Court has recently begun to recog-

nize, a more circumscribed Chevron Step 2 even in the face of some ambiguity

may also be necessary lest the executive power be allowed to engulf the legislative.

Those who ratified the Constitution knew that legal texts would often con-

tain ambiguities (and that is even more the case with the kind of search-for-ambi-

guity methodology employed by the court below). See generally Jonathan T.

Molot, “The Judicial Perspective in the Administrative State: Reconciling Modern

Doctrines of Deference with the Judiciary’s Structural Role,” 53 Stan. L. Rev. 1,

20-21, and n.66 (2000); Caleb Nelson, “Originalism and Interpretive Conven-

tions,” 70 U. Chi. L. Rev. 519, 525-526 (2003). As James Madison explained, “All

new laws, though penned with the greatest technical skill and passed on the fullest


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30

and most mature deliberation, are considered as more or less obscure and equivo-

cal....” The Federalist No. 37, at 229.

Allowing the executive free reign to resolve such inevitable ambiguities

would destroy the fundamental separation between the legislative and executive

powers. That is why the Founders envisioned that interpretive authority would be

placed in the judiciary, not the executive. See The Federalist No. 78, at 467 (Ham-

ilton) (“The interpretation of the laws is the proper and peculiar province of the

courts”).

Although the Federalists and Anti-Federalists engaged in a public debate

about this interpretive power, that debate centered on the dangers inherent in the

power, not on its allocation under the Constitution to the Judiciary. See, e.g., Let-

ters from The Federal Farmer XV (Jan. 18, 1788), in 2. The Complete Anti – Feder-

alist 315 – 316 (H. Storing ed. 1981) (arguing that the interpretive power made the

Judiciary the most dangerous branch). The Federalists rejected these arguments,

assuring the public that judges would be guided “by strict rules and precedents

which serve to define and point out their duty in every particular case that comes


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before them.” The Federalist No. 78, at 471. Those rules included principles of in-

terpretation that had been set out by jurists for centuries. See, e.g., S. von Pufen-

dorf, 2 De Officio Hominis Et Civis Juxta Legem Naturalem Libri Duo 83-86

(1682) (F. Moore transl. 1927); see also William Blackstone, 1 Commentaries on

the Laws of England 59-61 (1765).

One of the key elements of the Federalists’ argument in support of the inter-

pretive power to the Judiciary was that Article III judges would exercise independ-

ent judgment. Although “judicial independence” is often discussed in terms of in-

dependence from external threats, the Framers understood the concept to also re-

quire independence from the “internal threat” of “human will.” Philip Hamburger,

Law and Judicial Duty 507, 508 (2008); see also The Federalist No. 78, at 465

(“The judiciary ... may truly be said to have neither FORCE nor WILL but merely

judgment”). Independent judgment required judges to decide cases in accordance

with the law of the land, not in accordance with pressures placed upon them

through either internal or external sources. Internal sources might include personal

biases, while external sources might include pressure from the political branches,

the public, or other interested parties.


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course of studies, to remain in the United States on that student visa. The Depart-

ment of Homeland Security’s increasingly expansive interpretation to the contrary

must be rejected, and the decision of the lower court deferring to that expansive

interpretation must be reversed.

DATED: December 28, 2015. Respectfully submitted,

/s/ John C. EastmanJOHN C. EASTMAN

Counsel of Record

A NTHONY T. CASO CRISTEN WOHLGEMUTH Center for Constitutional

Jurisprudencec/o Chapman University

Fowler School of LawOne University DriveOrange, CA 92886(877) 855-3330

[email protected]

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence


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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,995 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the

typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements

of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally

spaced typeface using Miscrosoft Word 2013 in 14-point Times New Roman font.

.

/s/ John C. Eastman

John C. Eastman

Center for Constitutional Jurisprudence c/o Chapman UniversityDale E. Fowler School of LawOne University DriveOrange, CA 92866(877) 855-3330

[email protected]

Counsel for Amicus Curiae Center for Constitutional Jurisprudence


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CERTIFICATE OF SERVICE

I hereby certify that, on this 28th day of December, 2015, the foregoing

Motion for Leave to File Amicus Curiae Brief and accompanying proposed brief of

Amicus Curiae was filed and served upon all counsel of record electronically by

filing a copy of the document with the Clerk through the Court’s ECF system.

/s/ John C. Eastman

John C. Eastman Center for Constitutional Jurisprudence

c/o Chapman University

Dale E. Fowler School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

[email protected]

Washington Alliance of Tech Workers v. USDHS - CCJ Brief

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