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Excerpted From: Michael H. LeRoy, Is the "Hire American" Executive Order a Suspect Classification?, 28 William & Mary Bill of Rights Journal 97 (October 2019) (434 Footnotes) (Full Document)

MichaelHLeRoyWhat if President Trump literally said that his executive orders on immigration would protect white Americans by restricting lawful entry and residence of dark-skinned aliens? That was the gist of his "shithole countries" comment when he blocked a bipartisan agreement for immigration reform in 2018. At the time, he referred to Haiti, a nation that is 95% black. Norway's population, his preferred immigration source, is 92% white. His noxious scale of racial preferences motivates Executive Order 13,788, particularly the "Hire American" element. This order pertains to the H-1B visa. Workers can be hired under an H-1B visa only after meeting specialty occupation standards and petitioning companies certify labor market protections for Americans. U.S. employers--especially those with a strong presence in Silicon Valley--have long maintained that too few Americans are educated and trained to meet their hiring needs. Critics of the H-1B visa point to fraud in the program. More fundamentally, they contend that there is an ample supply of American workers but the H-1B visa program offers cheaper migrant labor. Regardless of one's viewpoint, 62% of these temporarily admitted employees come from Asian countries--and 50% alone come from India. A president has plenary powers over immigration. However, does a president have constitutional authority to favor white American workers at the expense of Asian-born Indians)? My study poses this research question. More specifically, I ask whether the "Hire American" preference in Executive Order 13,788 is a suspect classification. I answer in the affirmative.

My conclusion is based on comprehensive evidence:

(1) The U.S. has had a history of discriminating against [Asian] Indian workers who are perceived as a labor market threat to white Americans.
(2) Discrimination against [Asian] Indians has not only been due to alienage but their race and religions.
(3) The H-1B "Hire American" order relied on a 60 Minutes show in March 2017 that blamed the hiring of [Asian] Indians in the H-1B program for taking jobs from American technology workers.
(4) The H-1B visa is predominantly assigned to Asians, and within this group most are from India.
(5) The technology labor market has 537,450 H-1B visa workers--only 12% of the 4.6 million people employed in technology jobs, where 85% of workers are white.
(6) In the short time following the "Hire American" order, USCIS has sharply increased the denial rate for H-1B petitions for [Asian] Indian workers while decreasing the denial rate for all other nationality groups.
(7) The "Hire American" order is like other President Trump's other work-related immigration orders that courts have enjoined due to discriminatory intent. The "Hire American" order thinly veils race discrimination aimed at [Asian] Indians. For this reason,

I conclude a court would subject it to strict scrutiny under the Fifth Amendment's Due Process Clause, if presented with this evidence. Section I.A sets the context for my analysis by reviewing the racial restrictions in the Constitution, early federal statutes, and the Supreme Court's Dred Scott decision. Although Reconstruction laws secured broad citizenship rights, judges often denied naturalization to [Asian] Indians on racial grounds. Public antipathy for Asians began with Chinese workers. Section I.B explains how this prejudice translated into immigration restrictions, starting in 1862. By the early 1900s the public feared [Asian] Indian workers, too. In response, as Section I.C explains, Congress legislated extreme restrictions against [Asian] Indians. The Supreme Court improvised a racial test to deny naturalization to an [Asian] Indian. These laws remained until 1965, even though Harry Truman and Dwight Eisenhower urged Congress to end racial discrimination against immigrants.

Section II.A explains the H-1B visa and its regulatory framework. Table 1 and Table 2 show the nationality and race of H-1B visa holders. Section II.B analyzes the "Hire American" element of Executive Order 13,788. A 60 Minutes program, aired one month before the order was issued, blamed H-1B [Asian] Indians for taking jobs from American workers. The show's message echoed the president's campaign promises. Part III explores whether the "Hire American" order is a suspect classification.

Section III.A demonstrates that the "Hire American" order racially targets [Asian] Indian workers. Table 3 and Table 4 substantiate my assertion. In contrast to the first set of tables for H-1B workers, Table 3 and Table 4 depict the race of workers in a broadly defined technology labor force. This evidence suggests that the order discriminates in a zero-sum trade-off by reducing employment for [Asian] Indian workers to benefit white workers. Next, I present Table 5. This shows that the USCIS has been selecting [Asian] Indians in increasing numbers for adverse treatment in administering the H-1B. This is discrimination on its face: even more, this means that the H-1B workers who are denied an extension must leave or face deportation, along with their spouses and children. In time, this will advance the president's desire to make America white again.

Section III.B turns to constitutional considerations. I contend that strict scrutiny under the Fifth Amendment Due Process Clause applies to Executive Order 13,788. I demonstrate that this order is a suspect classification in Section III.B.1 by applying an analogous Supreme Court and appellate court precedent involving state discrimination against resident aliens. Section III.B.2 shows that President Trump's immigration orders based on religion and alienage have triggered strict scrutiny for resident foreign nationals. The Conclusion ties together these mosaic elements. First, "Hire American" is connected to a history of racial discrimination against [Asian] Indian immigrant workers. Second, "Hire American" seeks to preserve a white majority in the United States by cutting off the path for H-1B visa workers and their families to become Lawful Permanent Residents--and eventually, naturalized citizens. Third, the "Hire American" slogan evinces discriminatory intent. Fourth, and finally, I show that American workers and their wages can be protected by less discriminatory means, such as setting a higher wage floor for employing H-1B visa workers

[. . .]

In sum, the "Hire American" order has broad ramifications for the American economy. America's IT workforce has 4.6 million jobs--larger than the population of twenty-five states. Most of this workforce employs U.S.-born workers. H-1B visas are mostly held by [Asian] Indians, but most IT jobs are held by white Americans. Executive Order 13,877 traffics in an immigration conspiracy theory: [Asian] Indians are stealing lots of jobs from white Americans. Faceless government bureaucrats, cranking out work visas in an overly permissive immigration system, have hurt American workers. Neither proposition stands up to scrutiny: they are based on anecdote, supposition, and a misguided 60 Minutes show--but not data or analysis.

To deny that this order is a suspect classification ignores the White House press conference announcing it; disregards the "[Asian] Indians hurt Americans" 60 Minutes program that supports it; overlooks labor market data in recent Census Bureau and USCIS reports; denies first-hand accounts of America's racially stratified IT workplace, where [Asian] Indians sit at the bottom of a corporate caste system; and whitewashes President Trump's equivalence of skin color and country of origin as a basis for his immigration preferences. "Hire American" is a suspect classification under the Fifth Amendment. As such, the order is subject to strict scrutiny.

Professor, School of Labor and Employment Relations, and College of Law, at the University of Illinois at Urbana-Champaign.

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