TPP is NAFTA On Steroids

Trade Deal Opens Immigration Floodgates

Daniel Halper May 3, 2015 WeeklyStandard.com

In a memo raising concerns about the Trade Promotion Authority (TPA), Alabama senator Jeff Sessions worries that the trade deal would open immigration floodgates.

"There are numerous ways TPA could facilitate immigration increases above current law—and precious few ways anyone in Congress could stop its happening. For instance: language could be included or added into the TPP, as well as any future trade deal submitted for fast-track consideration in the next 6 years, with the clear intent to facilitate or enable the movement of foreign workers and employees into the United States (including intracompany transfers), and there would be no capacity for lawmakers to strike the offending provision. 

The Administration could also simply act on its own to negotiate foreign worker increases with foreign trading partners without ever advertising those plans to Congress. In 2011, the United States entered into an agreement with South Korea—never brought before Congress—to increase the duration of L-1 visas (a visa that affords no protections for U.S. workers)," reads part of the memo from Sessions's office.

"Every year, tens of thousands of foreign guest workers come to the U.S. as part of past trade deals. However, because there is little transparency, estimating an exact figure is difficult. The plain language of TPA provides avenues for the Administration and its trading partners to facilitate the expanded movement of foreign workers into the U.S.— including visitor visas that are used as worker visas. The TPA reads:

“The principal negotiating objective of the United States regarding trade in services is to expand competitive market opportunities for United States services and to obtain fairer and more open conditions of trade, including through utilization of global value chains, by reducing or eliminating barriers to international trade in services... Recognizing that expansion of trade in services generates benefits for all sectors of the economy and facilitates trade."

"This language, and other language in TPA, offers an obvious way for the Administration to expand the number and duration of foreign worker entries under the concept that the movement of foreign workers into U.S. jobs constitutes 'trade in services.'

"Stating that 'TPP contains no change to immigration law' is a semantic rather than a factual argument. Language already present in both TPA and TPP provide the basis for admitting more foreign workers, and for longer periods of time, and language could later be added to TPP or any future trade deal to further increase such admissions.

"The President has already subjected American workers to profound wage loss through executive-ordered foreign worker increases on top of existing record immigration levels. Yet, despite these extraordinary actions, the Administration will casually assert that is has merely modernized, clarified, improved, streamlined, and updated immigration rules. Thus, at any point during the 6-year life of TPA, the Administration could send Congress a trade deal—or issue an executive action subsequent to a trade deal as part of its implementation—that increased foreign worker entry into the U.S., all while claiming it has never changed immigration law.

"The President has circumvented Congress on immigration with serial regularity. But the TPA would yield new power to the executive to alter admissions while subtracting congressional checks against those actions. This runs contrary to our Founders’ belief, as stated in the Constitution, that immigration should be in the hands of Congress. The Supreme Court has consistently held that the Constitution grants Congress plenary authority over immigration policy. 

For instance, the Court ruled in Galvan v. Press, 347 U.S. 522, 531 (1954), that 'the formulation of policies [pertaining to the entry of immigrants and their right to remain here] is entrusted exclusively to Congress... [This principle] has become about as firmly imbedded in the legislative and judicial issues of our body politic as any aspect of our government.' Granting the President TPA could enable controversial changes or increases to a wide variety of visas—such as the H-1B, B-1, E-1, and L-1—including visas that confer foreign nationals with a pathway to a green card and thus citizenship.

"Future trade deals could also have the possible effect of preventing Congress from reforming abuses in our guest worker programs, as countries could complain that limitations on foreign worker travel constituted a trade barrier requiring adjudication by an international body.

"The TPP also includes an entire chapter on 'Temporary Entry' that applies to all parties and that affects U.S. immigration law. Additionally, the Temporary Entry chapter creates a separate negotiating group, explicitly contemplating that the parties to the TPP will revisit temporary entry at some point in the future for the specific purpose of making changes to this chapter—after Congress would have already approved the TPP. This possibility grows more acute given that TPP is a 'living agreement' that can be altered without Congress.

"Proponents of TPA should be required to answer this question: if you are confident that TPA would not enable any immigration actions between now and its 2021 expiration, why not include ironclad enforcement language to reverse any such presidential action?"