It's been a momentous, startling and exasperating two weeks. The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.
- In Arizona v. United States, the Court -- notwithstanding the ludicrous claims of victory from AZ Gov. Jan Brewer -- voided most of SB1070 on federal preemption grounds, while all but inviting suits on the lone-surviving section, the vile "show-me-your-papers" provision that many fear will release a Pandora's opened box of racial and ethnic profiling.
- In National Federation of Independent Business v. Sebelius, a SCOTUS majority in an opinion by Chief Justice John Roberts, calling balls and strikes, upheld most of the Affordable Care Act.
- In American Tradition Partnership v. Bullock, a five-Justice majority threw out a century-old Montana law banning corporate campaign contributions in light of Citizens United v. Federal Election Commission.
- In an Engagement with Director Alejandro Mayorkas and USCIS Economists, USCIS allowed practitioners of the dismal science to heap more mud into the already opaque pool of confusion that sits atop the EB-5 employment-creation immigrant-investor green card category.
Each of these events -- though some are quite positive -- carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come. Here, then, are what pleases and what remains lodged in my craw.
The Arizona Ruling
The Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state's brand, while victimizing U.S. citizens and mixed-status families.
Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):
The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.
And paraphrasing the words (bolded below) of Voltaire, Spiderman and others before them, the majority homed in on the nub of the problem, a failure of people and polity to push for comprehensive immigration reform:
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
Still, the Court's majority should never have promoted the urban legend that immigrants are more prone to criminal conduct than the population at large. Citing a much-criticized study from a partisanly wolfish think tank wearing nonpartisan sheep's garb, the majority decision observed:
[In] the State’s most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).
The Health-Care Decision
The word "immigration" came up but once in the opinion -- a comparison of Congress's comparative authority under its constitutional power to tax and to regulate commerce:
[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)
National Federation of Independent Business v. Sebelius, however, is likely to be far more important for what was left unsaid about immigration -- the scope of comparative rights to health care afforded to legal and undocumented immigrants.
Concerning health coverage for the latter group, the subject is rife with obvious controversy, typified famously by Rep. Joe Wilson's impudent "you-lie!" charge to President Obama during the 2009 State of the Union address to Congress. The President was right then when he explained that the Affordable Care Act excludes coverage for unauthorized immigrants.
In truth, however, the legislation will probably have a mixed, uncertain impact on the undocumented:
At first glance, the Affordable Care Act's implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.
The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children's Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants -- both legal and undocumented -- receive medical care even without insurance.
The Montana Slap Down
This decision -- which says nothing directly about immigration -- is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United. Immigration reform -- like every other policy decision facing post-Citizens United America -- will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.
The EB-5 Engagement with Economists
Historians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naïve or inattentive occupants of the INS general counsel's office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules.
Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.
Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists' pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government's supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge.
Truth be told, I'm no economist and I have no formal training on when a new job is "created." (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as "creative destruction" espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that "if you want to make an omelet you need to crack a few eggs.")
Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied.
Sadly, however, as commenters on the EB-5 engagement have noted, the USCIS economists' rabbit-from-the-hat proclamations have been "startling," are affected by fear and nervousness, and made it "riskier for Regional Centers to do any development type of EB-5 projects. [and] . . . [harder] for potential EB-5 investors to ascertain whether an EB-5 project complies with the EB-5 requirements."
My view, which I shared with USCIS leadership, is this:
With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going -- in my view -- will destroy the program and hurt its salutary goals of investment and job creation in the United States.
* * *
As you can see, it's been a long and exhausting two weeks. I need a vacation! Guest posts (well-written and edgy) are welcome.
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.