Sunday, February 18, 2018

Is President Trump’s “Hire American” Executive Order Racist (and Therefore Unconstitutional)?


What if President Trump literally said that his executive orders would allow more whites to enter the U.S. but not people of other races? Of course, that was the gist of his “shithole country” comment when he fulminated over a bipartisan agreement for immigration reform.  Haiti, the nation to which he referred, is 95% black.  Norway’s population, the better immigration alternative in his view, is 92% white.  A president’s constitutional powers over immigration are plenary; but does this legal doctrine mean that President Trump can favor whites over other races?

I pose this as my research question. More specifically, I ask whether the “Hire American” preference in Executive Order 13,788 is constitutional. 

I conclude that this order is a thin veil of race discrimination aimed at Asian Indians. For this reason, I believe it would not survive a court’s heightened scrutiny under the Fifth Amendment’s Due Process Clause.

Why do I think the order is a racial classification?

In a paper I’ll present next week at a conference at NYU Law School, I end by stating:

This order has broad ramifications for the American economy. 

Each year, Congress allows for 60,000 H-1B visas and 20,000 related "STEM" field visas.


The "Hire American" order seeks to choke that number down to only the best and most highly paid foreign workers. That's close to zero.

America’s IT workforce has 4.6 million jobs— ten times the size of the mining sector that President Trump seeks to protect,  and larger than the population of 25 states. 

Most of this large workforce employs U.S.-born workers. There are only 525,000 H-1B visa-holders, compared to 4.6 million IT workers.

Among U.S.-born workers, 85% are white but only 3% are Asian.

In the much smaller group of foreign-born IT workers, Asians make up 66% of that group, with Indians dominating all other Asian countries of origin, while whites comprise just 25%.

In short, the visa-jobs in this labor market are mostly held by Indians, but the regular jobs are mostly held by white Americans.

Executive Order 13,877 turns this fact-based reality on its head, and traffics in another Trumpian conspiracy theory— Indians are stealing lots of jobs from white Americans.
To deny that this orders is racial discrimination ignores the White House press conference announcing the order; disregards the Indians-hurt-Americans 60 Minutes program that inspired it; overlooks labor market data in recent Census Bureau and USCIS reports; denies first-hand accounts of America’s racially-stratified IT workplace, where Indians sit at the bottom of a corporate caste system; and whitewashes President Trump’s overt equivalence of skin color and country of origin to justify his racist immigration regulations. Like his travel bans, transgender ban, and DACA termination, his “Hire American” order is likely to be enjoined by a federal court. 

***
Whites Versus Indians:
Is the “Hire American” Preference in Executive Order 13,788 Constitutional?
 Michael H. LeRoy
Professor
School of Labor and Employment Relations, and College of Law
University of Illinois at Urbana-Champaign
 ***
New York University School of Law
NYU Journal of Law & Liberty Symposium
Freedom versus Fairness:
The Tension Between Free Market and Populist Ideals in Labor
February 27, 2018 

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