For yet another example of how out-of-control federal bureaucrats think they can stretch the law beyond recognition to meet their policy preferences, look no further than a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit.
in 2016. It amended similar, existing regulations first issued in 1992 to allow foreign students to remain and work in the country for up to a year after their studies end. DHS also allows students in science, technology, or engineering to work while remaining in the U.S. for an additional 24 months.
Yet the majority of judges on the D.C. Circuit decided to allow DHS to continue this flawed visa program, created out of whole cloth by the administrative state rather than Congress, through a fundamentally unreasonable misinterpretation of applicable immigration law. A misinterpretation that benefits aliens at the expense of U.S. citizens.
Rao and Henderson dissented from the D.C. Circuit’s refusal to grant en banc review by all of the circuit’s judges of the erroneous decision by a three-judge panel in favor of DHS’ misinterpretation of the law. Henderson authored a dissent in that panel decision, too. The “good policy” argument doesn’t fly anyway, because the only thing that three additional years of allowing aliens to work in the U.S. after completing university studies does is 1) take jobs away from American graduates, particularly in science and technology and 2) give those aliens even more experience with technology that they can take home to hostile nations such as Communist China to be used to compete with and undercut American industry.
In other words, the Department of Homeland Security will be able to wipe out, bureaucratically, all of the restrictions that Congress has placed on all other visas in federal immigration law.
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