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A Laudably Discriminatory Congress


An industry group claims that the new H-1B fee increases are discriminatory against Indians (from the Indian subcontinent, not Native-Americans). Are they correct? Yes. Should we care? No.

One important thing to remember is that Congress’s power over Immigration and visas is plenary. That means there are no restraints on what they can do. Even if a majority of Congress thought to themselves “we don’t like Hindus, or any people from India for that matter, so let’s pass this law,” they could limit immigration from India without the limitation of the 1st or 14th Amendments.

But that is just an explanation of how much discretion they have. We would be right to be concerned. Even if Congress is within its discretion, it could still do something wrong. For example, Congress also has the discretion to cut down every redwood tree in Sequoia National Park without an explanation. Even though nothing in the Constitution stops them from doing that, we should be concerned if they did so.

The key here is that this is not discriminatory against Indian-Americans versus other Americans. It is merely discriminatory against Indians in favor of Americans. Congress SHOULD favor Americans over foreign workers. It might also hit certain American corporations that hire foreign workers. But Congress should also favor American workers’ interests over American corporations’ interests when those interests differ. (But sorry, Bernie, they don’t diffe’r as much as you think.)

Discrimination is just choosing one over another. It doesn’t matter that someone merely discriminated. It only matters why they discriminated. Some discrimination is invidious. Some discrimination stinks, but its just the general unfairness of life. Some discrimination is harmless. Some discrimination is even laudable. This is one of those laudable times.


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