01 February 2017

A Facebook friend posted the following:

This morning I heard a commentator say something like this, “The new administration wants to get rid of existing regulations and make it almost impossible to enact new ones. What they don’t understand is that regulations are what make the government function.”

I don’t have one word for my reaction to that. I’m astounded. I’m baffled. I’m horrified. I’m dismayed.

Isn’t our government supposed to function through legislation, passed by the congress, signed into law by the president, and tested (if necessary) by the courts?

And just because it isn’t, does that mean it shouldn’t be? If everything is regulation by administrative fiat, haven’t we abrogated our liberty to an unaccountable government?

And you know what, I totally get the sentiment. Where do those blankety-blank bureaucrats get off on sticking their noses into everything. Nobody elected them…

It’s the perfect feel-good, low risk, anti-government rant.

But, it turns out, I personally have a bit of experience with a very small, very narrow part of federal law, and the regulations that surround it. So, here is an explanation

(By the way, the TL,DR is this… the “LAW” as passed by Congress rarely specifies implementation details so those are set by administrative rulemaking in the Executive branch.)

U.S. Law regarding employment based immigration is set in chapter 8 U.S. Code section 1182 – Inadmissible Aliens. 8 USC 1182 (a)(5)(A) Labor Certification says in subsection (i)

In general - Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

So – If I, as an employer, want to hire a worker from overseas, I have to prove two things to the Secretary of Labor. First, there is a shortage of workers in that field. Second, my employing a chef from France for example, will not adversely impact the wages and working conditions of chefs that are already here. How on earth am I as the employer supposed to prove that, or the Secretary of Labor supposed to evaluate my proof?

This is where LAW meets REGULATION.

Let’s just take the last thing that an employer is supposed to prove and the Secretary of Labor is supposed to certify. “Employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.”

  • What does it mean to be “similarly employed”?

  • What does it mean to “not adversely affect the wages”?

  • What things are part of the “working conditions”?

  • And what proof would be required to show any of those three?

The law itself doesn’t set any of that. Congress could have defined those terms and set cutoffs, but they didn’t and they hardly ever do.

So, what is the Secretary of Labor supposed to do? Well, first, the Secretary of Labor is responsible for a whole bunch of other laws besides this one, and there are literally hundreds of thousands of these cases every year. So, the Secretary creates an Office of Foreign Labor Certification, and staffs it. That staff still can’t answer the questions above, so they convene a committee made up of economists, statisticians and legal experts. That committee meets for over a year to come up with definitions and cutoffs and valid sources of documentation. They set an appeal process for when an employer thinks they have provided proof and the Department of Labor says “Nope – you hire one more Indian IT worker and it’s going to screw the America workers.”

That committee writes all of this down, and the lawyers on the committee fight with general counsel over whether the guidelines are clear enough, specific enough and enforceable. When all of those lawyers are happy, some poor clerk has to type everything up and submit it to the Federal Register.

These proposed regulations are then vetted by the public. And by the way, if you’ve never held a copy of the federal register, well, you have missed out on some light bedtime reading… But I digress. There will be a specific review and comment period for the proposed regulations. If nobody feels strongly and leaves comments, then we are all done and the regulations go into effect. Far more frequently, various individuals and especially special interest groups get involved (like immigration lawyers) and they leave a TON of feedback. This has to be reviewed by the committee and analyzed by the lawyers again. Often, there has to be specific answers made public to the concerns raised in the comment period.

Eventually, the internal lawyers are satisfied that the regulations meet the intent of the law, and they go into effect. Frequently, the special interest groups will immediately sue to stop the regulation. So at this point we have all three branches of government involved – Congress who wrote the law; The Executive that wrote the regulations so they can implement the law; and the Judiciary who gets to rule whether the regulations are appropriate, or in rare cases, whether the law itself is constitutional. Sometimes the regulations are upheld and stay in effect. Sometimes the regulations are thrown out. Sometimes they are modified in a way that makes no one happy.

But, rest assured, the regulations never stay static, because next year some freshman congressperson gets a letter from a mad constituent about some law, and a bill amending the law, or specifying some other principle in a competing law gets introduced. Sometimes they will propose a bill that changes the actual wording of the regulation itself. Eventually the bill passes, and pretty soon someone is calling me (one of those economist/statistician types on the original committee) asking “why did we set the wage cutoffs like X when we could have done Y? I guess we ought to change the regulation…” You really don’t want to hear my answer…

And that is how you end up with 20 CFR 656.40 - Determination of prevailing wage for labor certification purposes. which, just to be clear, has been revised about 6 times since I was involved in writing a major revision in 1998.

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