Administrative State Subverts Congress

For years, U.S. workers have been hoping to catch the break that would enable them to compete on equal footing with foreign-born job competitors. Instead, native-born workers have been consistently subverted. America’s immigration system is so muddled that, because of its multiple facets, among congressional representatives, immigration lawyers and advocacy agencies, none could define it. Immigration includes more than one million legal entries each year, an open border, temporary work visas for agriculture and non-ag, and visas for students, exceptional talents, fiancées, professional athletes, and many, many more. The federal government pays little attention to visa holders’ status which enables them to remain employed long after their authorized stay-period has expired.

A major contributor to the chaos is the cross purposes between the Constitution, Art. I, § 8 which grants Congress the authority to define the immigration system, and the administrative state which, without congressional authority, creates immigration regulations out of thin air.

Enabling the administrative state is the Supreme Court’s “standing” doctrine, a controversy that legal scholars have debated for years. In his 1999, 1,790-page treatise titled “Is Standing Law or Politics?” Richard J. Pierce Jr. concluded that

“Modern standing law is closer to a part of the political system than to a part of the legal system. It is characterized by numerous malleable doctrines and numerous inconsistent precedents. Judges regularly manipulate the doctrines and rely on selective citation of precedents to further their own political preferences.”

In other words, when a court wants to reach an outcome that goes contrary to existing law, the judge can simply make the political pronouncement that the plaintiff does not have standing to bring the lawsuit. Standing creates for the administrative state a defense for any action it takes, no matter how extreme. Plaintiffs’ challenges to standing last years and often take longer than arguing the case’s merits.

The administrative state has affected the employment market by granting otherwise inadmissible aliens work permits via parole, an immigration status that the Biden administration has criminally abused. A Senate report on the Immigration and Nationality Act wrote that [emphasis added]:

“Discretionary authority is vested in [DHS] to parole into the United States temporarily otherwise inadmissible aliens for emergent reasons or for reasons deemed strictly in the public interest. Such parole shall not be regarded as an admission of the alien, and when the purposes of such parole shall have been served, the alien shall forthwith return or be returned to the custody from which he was paroled and shall continue to be dealt with in the same manner as any other alien applying for admission. The committee believes that the broader discretionary authority is necessary to permit the Attorney General to parole inadmissible aliens into the United States in emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as a witness or for purposes of prosecution.”

Biden and Department of Homeland Security Secretary Alejandro Mayorkas, through the administration’s lawless CHNV Parole scheme---the initials stand for the benefiting countries, Cuba, Honduras, Nicaragua, and Venezuela--- admit via air travel up to 30,000 illegal aliens per month from the four participating nations. The promised background checks and vetting rarely if ever occur which leaves citizens at risk. Jose Antonio Ibarra, for example, is a paroled Venezuelan who entered the U.S. in 2022 and killed Georgia nursing student Laken Riley in February 2024. Through the end of February, some 79,000 Cubans, 151,000 Haitians, 64,000 Nicaraguans, and 91,000 Venezuelans have entered the U.S. through these lawless arrangements and have been paroled into the country — roughly 386,000 foreign nationals in total. That’s 31,000 new arrivals more than the current population of New Orleans, and none had a visa to enter the U.S. nor a legal right to be here. Those parolees were over and above the annual immigration limits Congress has set.

This is the administrative state operating at its most brazen. The Biden-Harris administration has paroled more than 2 million aliens into the country—nearly all of them in violation of the terms of the parole statute, section 212(d)(5)(A) of the Immigration and Nationality Act (INA). Those aliens were each paroled for at least two years and will likely remain in that status much longer than that, but the bigger issues are: (1) both CHNV parole and the CBP One app interview scheme are rife with fraud; and (2) because those aliens didn’t apply for valid visas abroad, the U.S. government knows very little about them.

The Supreme Court, despite having had several opportunities to intervene to end the administrative state’s lawless agenda, has demonstrated little interest in tackling unlegislated immigration actions that destroy national sovereignty and harms American workers.

Joe Guzzardi is an Institute for Sound Public Policy analyst. Contact him at jguzzardi@ifspp.org