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.
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?
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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