Silicon Valley vs. Donald Trump



10, Feb 2017

Several Silicon Valley companies have joined forces to legally take steps against Trump administration’s sudden restrictions on immigrants. The Valley’s uniqueness as an innovation hub is directly due to the tremendous diversity of ideas that find it a fertile ground. The Valley’s leaders are aware of the threats of implementing and making way to extend Trump’s executive order – its uniqueness will suffer a direct blow.

What has angered several companies of Silicon Valley?

An executive order by the Trump administration has barred the entry of foreign citizens from seven mainly-Muslim countries. Several Silicon Valley companies have legally applied as a combined force to annul this order.

  • They have filed an amicus brief in support of Washington State Attorney General Bob Ferguson’s lawsuit which opposes Trump’s immigration orders.

Note: Amicus briefs are filed by amici curiae, entities that are not involved in an appellate court case but have a strong interest in it. They serve to furnish the court with further information concerning the case – amici curiae meaning friends of the court.

The 20-page brief points out that the order would be greatly detrimental to Silicon Valley and violates the principals enshrined in the US Constitution.

  • It highlights the features of the order – seven-nation entry bar, potential expansion of entry bar, waivers based on unconstrained discretion, refugee suspension – and argues that these make significant changes to the immigration policy, and the consequence would be an environment which unreasonably – even whimsically – hurts those coming to US and aggressively undermines the well-being of US companies and in turn American citizens.
  • The short and simple conclusion of the brief: The Court should deny Appellants’ motion (here DONALD J. TRUMP et al. are the appellants).

More than 125 companies have so far united to make their case against Trump’s executive order.

What is the executive order about

  • Trump ordered: a four-month suspension of the refugee program; halt of issuing visas to Syrian nationals; reduction of acceptable refugee count to 50,000; three-month ban on immigration from countries with “terrorism concerns” – reportedly Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. Another draft executive order hints at changes to the H-1B visa program.

Why is this being deemed a “battle for survival”?

Silicon Valley leaders are well-aware of the worth and need of immigrants.

  • According to the National Foundation for American Policy, more than 50 percent of $1 billion plus startup companies in America have founders who are or were immigrants and 71 percent of them had immigrants in key executive positions. This is a repeated trend – Sergey Brin who co-founded Google, Jerry Yang who co-founded Yahoo and Pierre Omidyar who founded eBay were all immigrants.
  • It is not just about the top layer. Trump has said he is looking at changes to the H1-B program, and his administration is making attempts to increasingly restrict other types of legal immigration. The vital supply of high-skilled specialty workers made possible by H-1B visas is something the tech industry cannot afford to lose.Computer systems analysts, developers of application software and computer programmers make up half of H-1B workers. Cheap labor and steadily-low wages undoubtedly play a role – an important one, and some companies have manipulated the system to maximize this advantage, but it is undeniable that companies need the program to incentivize much-needed skills present abroad.
  • An article in Inc. highlights that professionals produced in the United States simply cannot meet the demand of open high-tech jobs there: By 2020, it is expected that there will be about 1.4 million computer specialist job openings, but U.S. universities will only be able to produce enough graduates to fill 29 percent of those jobs, estimates the U.S. Department of Labor."High-technology companies need the caliber and volume of engineers countries like India and China produce because unfortunately the United States' output alone does not meet the demand of employers here," explained Daniela Perdomo, CEO and co-founder of goTenna, a Brooklyn-based hardware startup.
  • The above forecast has been contradicted by researchers who have found an over-supply of American college graduates against the demand created by tech-jobs. But at the core, the need for immigrant talent remains and for the same reason – Silicon Valley is a hotbed of innovation thanks to the diversity of people and thereby ideas it houses.

Defending Silicon Valley’s business model is therefore a battle for survival, especially for the tech industries.

Since when have immigrants contributed to the Valley?

Silicon Valley initially got its name from the plethora of silicon chip innovators and manufacturers set-up in the region containing the Santa Clara Valley. A skilled Science, Technology, Engineering and Mathematics (STEM) research base, abundance of venture capital, reliable funding from the Department of Defence (D.O.D.) and Stanford University’s able leadership are said to be instrumental in the valley’s initial development.

  • Immigrants had become a significant portion of Silicon Valley’s population during its early history. The Immigration Reform Act of 1965 and environments in other parts of the world facilitated increased immigration, especially by Asians, Latinos, and Portuguese. They were part of the Valley’s high-tech and production workforce.
  • Immigrants established over 25 percent of new US businesses between 2006 and 2010.
  • In 2011, the Partnership for a New American Economy, an immigration reform group, found over 40 percent of Fortune 500 companies had founders who were immigrants or children of immigrants.
  • As the term Silicon Valley broadened in scope to refer to America’s high-technology economic sector, the contribution of immigrant inventors, scientists and economists also counts. United States leads other countries in terms of number of immigrants awarded patents.All of United States’ 2016 Nobel winners in the sciences and economics are immigrants.
  • A survey of the 87 privately-held unicorns last year by the National Foundation for American Policy revealed that immigrants from India, Canada, UK, Israel, Germany, China and several other places had, through their entrepreneurial ventures, created thousands of jobs and pumped billions of dollars into the American economy.
  • Immigrant workers also form part of the invisible workforce that performs the jobs of cleaning and safeguarding the tech campuses, feeding and transporting the employees (in cafeterias and shuttles where often contract workers have no place), administrative and data entry operations, among others.

Note: The employees in the tech companies and the general public have been the driving force in shaping this battle.

Where has criticism of this battle been directed to?

Silicon Valley’s motivation

Irrespective of the concrete arguments Silicon Valley has come up with, one cannot back away from the criticisms it has faced for its own diversity problem.The top echelons of tech giants continue to be largely white and male.

  • "We hope tech will continue to resist attacks on all immigrant workers, including the largely Latino army of service workers who cook, clean and protect their campuses", Derecka Mehrens, co-founder of Silicon Valley Rising, a coalition of community, faith-based and labor organizations that takes up the cause of service workers of the tech industry. Even before tech titans met Trump last year to resolve the differences between his administration and Silicon Valley “amicably”, the coalition called on them “to play a leadership role in resisting unjust policies if they are put forward by the Trump Administration.” These unjust policies “present a dire threat to the lives and well-being of workers and contractors across the tech sector … be they immigrants, women, workers or Muslim Americans,” the coalition warned.
  • But for Silicon Valley, the focus seems to be solely on capturing and expanding its tech pool. With profit as its primary and only motivator, Silicon Valley’s “stand against discrimination” becomes mere rhetoric.

The H-1B program

  • Repeated lawsuits were filed by laid off Disney’s IT workers last year, based on the allegation that they had been victims of national origin discrimination and replaced unfairly by workers of Indian origin. The lawsuits made news and became an example critics of the H1-B program highlighted.
  • Firms such as Infosys and TCS have been criticized for manipulating the provision to employ cheaper contractors that critics say do not get green cards most of the time. In 2013, Infosys shelled out $34 million in a visa fraud case.
  • There is also discontent over the lottery system employed to assign H-1B visas.

The counter-argument is that while acknowledging the flaws of the H-1B system, it is reform not abandonment or punitive control that is needed.

Where else is criticism from

Economist Rob Atkinson, president of tech policy think tank Information Technology and Innovation Foundation says, “It’s really hard to become a software engineer. You’ve got be, first of all, smart. You’ve got to know a lot about math. That eliminates a lot of people in this country.”He adds, “Tech is a global market for skills.” Those that find this argument unconvincing have criticized Silicon Valley’s battle.

Who exemplifies the case for diversity in innovation?

  • Mike Krieger, co-founder of Instagram, is an immigrant from Brazil. He said his conscious decision to make the app mostly text-free made the app an international success. A native of Brazil where he grew up, Krieger understood the language barrier and designed an app to transcend it. The drive to create an app with international appeal and the manner he approached it is just one example of how crucial an outsider perspective is for innovations that sustain the tech industry.
  • Anurag Jain, born in India, is an example of using an innovative approach to address a need of immigrants in US. His company Prepay Nation enables immigrants to transfer sums as small as $2 at a time to family members. The amount – it can be small or large – is transferred through cell-phone minutes and neither the sender nor the receiver is charged. Prepay earns its money from commissions on sales of foreign cellular network operators. Apart from avoiding exorbitant fees involved in traditional money transfer, the senders have more control over the money, said Jain.

In the list of famous immigrant entrepreneurs are names such as Sundar Pichai, Sergey Brin, Elon Musk, Safra Gatz, and Pierre Omidyar among others.

How has the issue played out in Court?

  • Nearly 50 cases were filed in federal courts in objection to the order from January 28 to 31.
  • Last Friday night, James Robart, a federal judge temporarily suspended implementation of the ban from 7 countries and the ban on refugees through a nationwide temporary restraining order.
  • On Saturday night, a number of federal judges declared that part of Trump’s immigration ban, targeted at refugees from mainly-Muslim countries violated the US Constitution. In practice, the actions by the federal judges could only bring relief to immigrants who had already reached US or those on their way when Trump signed the order, on the ground that it violated their right to liberty without due process.
  • The Federal Government moved to the Ninth Circuit and sought lifting of the suspension at the earliest.Three judges, having heard the case on Tuesday, the Ninth Circuit, on February 9, upheld Judge Robart’s ruling. In response, Donald Trump’s tweeted, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” The government has two options – request the entire court (instead of just a panel of judges) to review the ruling or go to Supreme Court.

As to the legality of Donald Trump’s order, there are different explanations.

It cannot be legally permitted.

Ian Samuel, a lecturer at Harvard Law School, explained to Al Jazeera why the order was not legally permissible.

  • It is a violation of the immigration statute and the Constitution. For five decades, the statute has prohibited the kind of discrimination the ban applies. Further, the US Constitution forbids religious discrimination, a characteristic the ban barely conceals.
  • No civil servant under the protection of the meritorious protection board is obligated to perform illegal duties, and the travel ban is imposing them to perform illegal actions. Federal civil servants therefore have the authority to refuse to comply with the ban.

In response to whether the executive order could go to the Supreme Court Samuel said, “I wouldn't be surprised. This is the kind of controversy that could make it to the Supreme Court, and it could make it there fairly quickly. This is a rule of law issue. I could see [this] being the Trump's administration first major defeat in the Supreme Court, where they find out that, actually, this is a country of laws.

Mark Joseph Stern argues in Slate that Trump’s Muslim ban is a violation of the First Amendment’s Establishment Clause which prohibits the government from making any law “respecting an establishment of religion”

  • The Supreme Court used the Establishment clause in the 1982 case Larson vs. Valente. It ruled that favoring of one religion over another is not permitted officially as doing so violates the Free Exercise Clause, which guarantees religious liberty for everyone by barring “favoritism among sects”.
  • Trump’s executive order clearly underlines the preference for Christians and Christianity over Muslims and Islam officially. The order’s directions to the secretary of state on how to proceed after the time period mentioned in the ban elapses is a further indication of this favoritism – the order permits changes to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.
  • Stern highlights the condition included in the order to make his argument – a Christian from a Muslim-dominated country can be given preference over a Muslim from the same country if both apply for asylum. Trump’s order, when applied to the Muslim-dominated countries targeted by him, glaringly highlights this preference and is therefore a violation of the establishment clause.
  • Thanks to Trump’s volley of anti-Muslim comments and an interview his adviser Rudy Giuliani gave to Fox News in which he as good as admitted to have “tweaked” the Muslim ban to make it look legal, there is no want of evidence.
  • Other legal approaches for objection include that the order violates a federal law that prohibits discrimination based on national origin in the immigration system; the order is a violation of the Fifth Amendment’s Due Process clause, which contains an equal protection component (which was used by the federal judges who initially resisted the order).

The Ninth Court’s verdict

The court reportedly rejected the government’s case in a point-by-point ruling.

  • Justice department lawyers arguing on behalf of Trump said the president was vested with the constitutional power to determine who enters the US and the courts are not permitted to determine if his action is motivated in the interest of thwarting terrorism.
  • The states argued that the ban, apart from harming individuals, businesses and universities, was unconstitutional as it discriminated based on religion.
  • The court dismissed the administration’s claim that it had no authority to review the executive order."There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," it said.
  • After the ruling the State Department was quick to announce that people from the seven countries could travel to the US if they had valid visas.

It’s still not over

  • The US government still has options: a direct appeal to the Supreme Court – time consuming; appeal to all 11 judges of the Ninth Court to rehear the case and issue a new ruling – the administration has two weeks to do so and the court is considered the most liberal in the country; Judge Robart had given the Government and the states – Washington and Minnesota – till February 17 to file their requests upon which he would decide a further course of action – this can also lead to a back-and-forth process before ending up in Supreme Court; change the executive order.
  • The executive branch does have broad powers when it comes to immigration. The Courts, if they reject the executive order, will have to do it on the basis that it puts forth “alternative facts”, “something no court (to my knowledge at least) seems to have done”, writes law professor Josh Blackman. Dara Lind in Vox quotes law professor Jack Goldsmith:Judges in the short term will be influenced by the reaction to the EO Immigration order, and by doubts about executive process, integrity, truthfulness, and motivation that the manner of its issuance implies. They will also worry a lot about being perceived to cave to executive pressure. The pressure from Trump, and related events, thus make it more likely—much more likely, in my view—that the Ninth Circuit and, if it comes to it, the Supreme Court will invalidate the EO in some fashion.

Lind points out that Trump therefore might end up being his own worst enemy.

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Tags | Immigrants