Sensenbrenner, Conyers Push for Portman Commitment on Visas

The chairman and ranking member of the House Judiciary Committee this week demanded that the new U.S. Trade Representative renew a vow made by his predecessor that the Bush Administration will not agree to additional changes to U.S. immigration or antitrust laws in bilateral or multilateral trade agreements.

In a May 19 letter, Chairman James Sensenbrenner (R-WI) and Ranking Member John Conyers (D-MI) called on USTR Rob Portman to confirm that 'the Administration will abide by the broad commitment' made by Portman's predecessor, Deputy Secretary of State Robert Zoellick, not to negotiate additional immigration or antitrust provisions in bilateral and multilateral trade talks that require changes to the U.S. law.

The letter said Sensenbrenner had sought similar confirmation from acting USTR Peter Allgeier in March, but Allgeier 'failed to provide specific assurances that USTR would maintain this commitment' in his April 19 response to Sensenbrenner.

Instead, the letter said Allgeier stated that provisions on the supply of services through the entry of business personnel, known as mode 4 delivery of services, was a 'critical pillar' for successful negotiations in the World Trade Organization's Doha round. Allgeier said virtually all U.S. WTO trading partners had made it clear that addressing the temporary entry of service providers is critical in the successful conclusion of the negotiations.

Allgeier's response was 'deeply troublesome,' according to the letter from Sensenbrenner and Conyers.

'We are writing to seek your personal assurance that Mr. Allgeier's remarks do not reflect the policy of USTR under your leadership, and to seek confirmation from you that the administration will abide by the broad commitment made by Ambassador Zoellick not to negotiate immigration or antitrust provisions in bilateral or multilateral trade agreements that require changes to United States law,' the letter said.

Mode 4 is a key issue for developing countries, including India. They have indicated their willingness to agree to commitments in services sectors of importance to the U.S., but have linked it to a U.S.commitment on the movement of natural persons. But Sensenbrenner and Conyers said they are opposed to the administration making any commitments on mode 4 in the WTO talks or in other trade negotiations because this would undermine the ability of Congress to exercise what they said is Congress' exclusive authority over immigration.

Specifically, the letter said the inclusion of immigration and antitrust matters in bilateral and multilateral agreements 'strips Congress' of those abilities since under fast track authority, which does not expire until June 2007, Congress cannot amend any trade agreements it considers. In addition, the letter said trade agreements lock in U.S. commitments that could not be altered in the future if warranted.

Sensenbrenner has previously stressed these points in letters to Zoellick and Allgeier, but this is the first time Conyers has joined him.

The letter's message was echoed by George Fishman, chief counsel for the Judiciary Subcommittee on Immigration and Border Security, during a Washington International Trade Association (WITA) event on May 25.

'Nothing disturbs the legislators more than being told they don't have the right to craft legislation they feel is in the best interest of the country,' Fishman said.

Fishman said Congress 'might be amenable to a new visa program' if industry groups could make the case as to why the current U.S. visa programs do not take care of all the industry's personnel needs.Industry groups such as the Coalition of Service Industries and the National Foreign Trade Council have pushed for better mode 4 offers from the U.S., and have recommended offering a new visa category for temporary entry of business personnel with specialized skills (Inside U.S. Trade, March 4, p. 1).

However, Fishman said such a new visa category would have to be introduced not as part of a future WTO agreement, but as part of broader immigration policy legislation such as the guest worker program that President Bush first proposed in January 2004, which has yet to be introduced in Congress.

However, an Indian official at the same WITA event signaled his country would not be satisfied unless the U.S. made bound commitments to improve its Mode 4 access. V.S. Seshadri, the Indian embassy's minister for commercial affairs, said the fundamental purpose of the WTO is to 'lock in predictability,' and a multilateral agreement without bound commitments on mode 4 would raise questions in New Delhi on 'why we should make commitments that are bound in return for unbound commitments.'

The U.S. has already indicated it will not make any additional commitments on mode 4 access in its revised services offer, which is due on May 31. The first U.S. offer bound the existing U.S. commitment of 65,000 H1-B visas per year, which can only be used by professionals who have a college degree.

Fishman pointed out that Sensenbrenner is not opposed to changing laws to allow more immigration, and noted that the chairman had recently voted to create a new temporary worker program for up to 10,500 Australian nationals. The provision was included as an amendment to the defense supplemental spending bill last month during Senate floor consideration, and Fishman said this was an example of an immigration and visa provision going through the proper legislative channels.

WTO Director General Supachai Panitchpakdi this week said members had 'begun to heed' his calls to submit services offers without delay. At a May 26 General Council meeting, he noted that Australia submitted its revised offer that day, and that Canada tabled its offer on May 18 (see related story).

India, according to an embassy official, is expected to get cabinet approval for its revised offer in time to table it by the May 31 deadline. EU officials have also said that member states are poised to sign off on an offer to be tabled by the deadline.

The U.S. has also said it would have an offer by May 31, but U.S. and EU sources said the U.S. offer will only contain a few new commitments, such as language to address the classification of certain telecommunications services.

INSIDETRADE-23-21-2

Text: Sensebrenner, Conyers Letter To USTR

May 19, 2005

The Honorable Rob Portman
United States Trade Representative
600 17th St., N.W.
Washington, D.C. 20508

Dear Ambassador Portman:

Congratulations on your confirmation as the United States Trade Representative, a position that is critical to the future economic health of our country. As you commence your service, we would like to stress the importance of an issue of critical interest to us and other Members of the Judiciary Committee.

In 2003, former Ambassador Zoellick made a commitment that this Administration would no longer entertain any changes to American antitrust or immigration law in the context of the General Agreement on Trade in Services (GATS) or in any other bilateral or multilateral trade agreement negotiated by the United States. On March 3, 2005, the enclosed letter was sent to Acting U.S. Trade Representative Allgeier requesting that he reconfirm Ambassador Zoellick's commitment. His response to this letter was deeply troublesome. Mr. Allgeier failed to provide specific assurances that USTR would maintain this commitment. In addition, Mr. Allgeier stated that the inclusion of services provisions (Mode 4 -- which includes the liberalization of temporary entry) in GATS comprises a 'critical pillar . . . for a successful conclusion of the Doha Round of negotiations.' We are writing to seek your personal assurance that Mr. Allgeier's remarks do not reflect the policy of USTR under your leadership, and to seek confirmation from you that the Administration will abide by the broad commitment made by Ambassador Zoellick not to negotiate immigration or antitrust provisions in bilateral or multilateral trade agreements that require changes to United States law.

Article I, section 8, clause 4 of the Constitution gives Congress the power to 'establish an uniform Rule of Naturalization.' The Supreme Court has long held that this provision of the Constitution grants Congress plenary power over immigration policy. As the Court found in Galvan v. Press 347 U.S. 522, 531 (1954), '. . . [that] the formulation of policies [pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.' And, as the Court found in Kleindienst v. Mandel 408 U.S. 753, 766 (1972) (quoting Boutilier v.INS, 387 U.S. 118, 123(1967)), '[t]he Court without exception has sustained Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.''

The inclusion of immigration matters in bilateral or multilateral trade agreements undermines congressional authority to exercise its exclusive authority over this subject. In addition, consideration of immigration and antitrust matters in bilateral or multilateral trade agreements strips Congress of its ability to subject these proposals to the debate and amendment process so vital to creating sound policy. In fact, the constitutional basis of congressional immigration authority specifically requires the establishment of a 'uniform' immigration policy -- a constitutional mandate that is fundamentally assaulted whenever immigration provisions are negotiated on an ad hoc, bilateral, or multilateral basis in trade agreements. Finally, immigration provisions in trade agreements cannot be later modified by Congress without placing the United States in violation of those agreements. This limitation on congressional powers deprives Congress of the authority to revisit agreements to which the United States has acceded despite fundamentally changed national or international circumstances. This arrogation of power and divestiture of congressional authority is something that we and our colleagues have forcefully and repeatedly opposed. Additionally, while it has not presented itself as a problem to date, we further expect that USTR would refrain from negotiating intellectual property provisions, requiring substantive changes to U.S. law, within the framework of bi-lateral and multi-lateral trade agreements.

We were gratified that Ambassador Zoellick agreed with these principles and agreed that any changes to American immigration or antitrust law be only considered through the normal legislative process. It was only because of Ambassador Zoellick's commitment that many members of the House and Senate agreed to support passage in the 108th Congress of legislation implementation the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Having made this point sufficiently clear, we again extend an invitation to the Administration and to America's international trading partners to submit to Congress their legislative proposals to liberalize temporary entry requirements, to make other changes to the Immigration and Nationality Act, or to alter America's antitrust laws.

We look forward to working with you and the President to craft the best immigration and trade policy for America, and thank you for your attention to this request.

Sincerely,

F. JAMES SENSEBRENNER, JR.
Chairman

JOHN CONYERS, JR.
Ranking Member