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Why the U.S. Cannot Deliver on GATS Mode 4
By Victor Menotti
Only eleven weeks away from the WTO’s Fifth Ministerial in Hong Kong, where some nations seem to be staking the entire outcome on the United States’ offering to liberalize the cross-border “movement of natural persons” (GATS Mode 4), it is important to set realistic expectations based on what is possible in Washington’s current political context. True, the Bush White House is renewing its push for immigration reform, but this will not address what countries like India are demanding, specifically a commitment by the US to legally “bind” in the WTO the number of so-called H1b visas for the entry of high tech workers at a minimum of 65,000 per year. Facing clear opposition from Congress to bind visa quotas in WTO, the USTR is trundling toward Hong Kong empty-handed. Several factors make it impossible for the US to deliver on Mode 4, including:
• CONGRESS CONTROLS THE KEY
“We should not give these countries any false hopes that the Administration would be amenable at any time to agreeing to modify U.S. immigration or antitrust law in trade agreements. Article I, section 8, clause 4 of the Constitution gives Congress the power to ‘establish an uniform Rule of Naturalization,’ and that the Supreme Court has long found that this provision of the Constitution grants Congress plenary power over immigration policy,” wrote F. James Sensenbrenner, Jr., Chairman of the House Judiciary Committee which oversees immigration policy, in a March 3, 2005, letter to the US Trade Representative. Chairman Sensenbrenner, a Republican, was joined by the Committee’s Ranking Democrat, John Conyers, in a May 19, 2005 letter instructing USTR Robert Portman “not to negotiate additional immigration or antitrust provisions in bilateral and multilateral trade talks that require changes to the U.S. law.” Therefore, because increasing the number of H1b visas requires a statutory change by Congress, USTR cannot guarantee anything. Wanting to maintain some measure of popular sovereignty over who enters and exits the country, elected officials are unwilling to surrender congressional control in order to give, in the words of WTO Deputy Director General Alejandro Jara, “corporations the right to decide.”
• IMMIGRATION BACKLASH
Industry pressure to liberalize US immigration policy comes at a time when armed citizen militias are policing US borders looking for people entering illegally. The governors of Arizona and New Mexico have recently declared states of emergency while California Governor Arnold Schwarzenegger publicly endorsed the vigilantes, although he later withdrew his comments because of public outcry. With tensions escalating and the possibility for border violence increasing, elected officials need to appear “tough on immigration.” A number of immigration reform bills are currently before Congress, but none proposes to increase the number of H1b visas. Even if they did, there is simply is not enough time left in the calendar of Congressional Subcommittees to pass such legislation before Hong Kong.
• CONGRESSIONAL ATTENTION ELSEWHERE
The attention of Congress’ judiciary officials is currently focused not on immigration reform but on confirming President Bush’s two nominees for the Supreme Court, one the Chief Justice and the other the court’s first woman judge. For judiciary-focused elected officials and their staff who are engulfed in hearings to approve the nominees, the stakes could not be higher, since they are for a life-time appointments to oversee the interpretation of US law for the next generation. With a possibility that Congress does not confirm controversial nominees, President Bush would have to submit new nominees, meaning that Congress would have to repeat the hearing and approval process. Capitol Hill’s daily newspaper, Roll Call, reported on September 19, 2005 that the confirmation process could easily extend into December, the month of the Hong Kong Ministerial.
• HOMELAND SECURITY SCARE
America’s security establishment has come down on immigration policy like a bunker-busting bomb ever since discovering that some of the September 11 highjackers possessed valid visas, forcing a top-to-bottom rethink about how to assess who enters and exits the country. While security concerns must prevail, scare stories of terrorists posing as technical professionals are not only reinforcing ugly stereotypes but also complicating the process of immigration reform. Any new measures will certainly have to undergo severe scrutiny by the FBI, CIA, NSC, and Pentagon bureaucracies.
• UNDERMINING JOBS-CREATION STRATEGIES
As a direct result of globalization, US policymakers and educators have for the past decade been chanting the mantra of “hi-tech training” to prepare American workers for the global economy’s “new division of labor,” as employment in manufacturing and agriculture goes increasingly automated or offshore. Elected officials have approved millions of dollars in public education and training programs to prepare American workers for high-tech programming and computer-related jobs. Schools everywhere have been telling youth to train for the “careers of the future” in high-skill, high-wage positions that require special degrees and technical skills. It’s hard to imagine how elected officials who have staked their political careers on such programs would now support an increase in the entry of foreign workers to now take these same jobs.
• “BENCHMARKING” CAUGHT IN A BIND
Rich nations frustrated by the slow movement of services negotiations are now pushing new approaches, like the so-called benchmarking proposal, to “ensure a set of commitments across a broad spectrum of sectors and sub-sectors and in all four modes of supply.” Some proposals call for countries to bind existing levels of actual liberalization, and then go further by committing to liberalize even more deeply. While the US has not submitted its own proposal, it generally supported the proposals of others, indicating that it would later submit its own proposal. But given that Congress insists on not binding in trade agreements the key demand developing countries want most (the number of H1b visas), it is hard to see how the US could ever agree to such an approach.
• “PRIVATE DEALS” BOGUS
Claims by some countries that they have cut private deals to ensure themselves an adequate amount of H1b visas must be considered suspect, if not spurious. Why? First, no US authority could never make such a commitment without Congress’ first changing the statute of the law. Not only has that not happened, Congress is not disposed to doing it right now. Second, while it may be theoretically possible to make a private arrangement with some of the companies who sponsor many H1b visas (like members of the US Coalition of Services Industries), this would be a government to business agreement and not written into US law or bound in WTO. Any deal of this nature would be unenforceable and far from adequate for any country to bank on.
September 2005