Tuesday, February 6, 2018

Is an Executive Order that Creates White Racial Preference Constitutional?

What if President Trump literally stated that as a matter of immigration policy, his executive orders would allow more whites but not people of other races? Of course, that was the gist of his “shithole country” comment. Haiti is 95% black.  Norway’s population is more than 92% white.
His constitutional powers are plenary (unquestionable; absolute); but could he use this power constitutionally to favor whites over other races? I pose that question in my research article, Whites Versus Indians: Is the “Hire American” Preference in Executive Order 13788 Constitutional?
To answer that question, I explore President Trump’s “Buy American and Hire American” edict in Executive Order 13788. The order (see the U.S. official logo, above) states that the current immigration laws for H-1B visas (high tech workers) will be subject to “rigorous enforcement.” That’s the workplace version of extreme vetting. I believe it means that Indian workers will be targeted for special enforcement; and if their paperwork isn't on them or has a problem, they'll be detained and sent back to India (without trying to fix the problem here).
I have assembled some data tables to answer this research question.
The first table shows that half the H-1B workers come from India.
The second table shows that 62% of H-1B workers come from Asia:
The third table shows that if Asians are taken out of the U.S. science and engineering workforce, the high tech industry would be 90% white. The Asian category includes many Asians who were born in the U.S., or are naturalized citizens, or green card holders. But it’s also true that H-1B workers make up a significant (but unknown) percentage of the Asian-worker category. My point? If the administration deports large numbers of H-1B workers as the order implies, the workforce in Silicon Valley and similar will be something like 80-85% white. That's what "Hire Americans" means in the order.


Returning to my question— is an executive order that creates white racial preference constitutional?—the answer is that we have never had this exact court case. I’ll offer this assessment. Most judges and Supreme Court Justices have decided these types of questions on grounds of the president’s plenary powers. That’s where I think most courts, including the Supreme Court, would land. But if that is true, it also means that our Constitution allows a president unchecked power to impose racist immigration rules.

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