Immigration Penalties for Foreign Government Officials Engaging in "Economic Discrimination"
Recently introduced legislation from Congressman Michael Baumgartner (R-WA) seeks to penalize "foreign officials who weaponize the government to discriminate against American companies" by amending the Immigration and Nationality Act "to make foreign government officials who engage in economic discrimination against U.S. persons inadmissible to, and deportable from, the United States." A press release explains:
The legislation responds to this growing global pattern uncovered by the House Judiciary Committee: foreign governments using coercive state powers to target successful American-owned companies while protecting favored domestic competitors. In Europe, regulators have now fined Google more than $1 billion under the Digital Markets Act (DMA) for how it presents its own services in search results and operates its Play Store. This is part of a regulatory regime backed by fines of up to 10 percent of worldwide annual revenue and up to 20 percent for repeat violations. In South Korea, authorities subjected American-owned Coupang to dozens of investigations, thousands of document demands, and a record-setting fine. In Brazil, officials have advanced DMA-style legislation that would impose special restrictions on overwhelmingly large U.S.-headquartered technology platforms.
What does Baumgartner have in mind by "economic discrimination"? The legislation defines it as follows:
ECONOMIC DISCRIMINATION.—Any alien who, while serving as a government official of any foreign government, initiates, directs, conducts, engages in, or issues one or more investigations, enforcement actions, licensing determinations, fines, fees, tax assessments, or other legal, regulatory, or administrative burdens against a United States person that are, individually or taken together, more severe, more frequent, or less procedurally favorable than those initiated, directed, conducted, engaged in, or issued against a similarly situated party that is not a United States person, is inadmissible.
That strikes me as a very broad scope. It seems like it is focused on disparate impact, and I'm not sure what room there would be to make an intent-based argument in defense.
How would this standard be applied? A fact sheet elaborates on the real world examples cited in the press release above:
A Growing Global Pattern
● European Union. The European Union’s Digital Markets Act imposes special obligations on designated “gatekeeper” companies, most of which are American. Violations can result in fines of up to 10 percent of worldwide annual revenue, rising to 20 percent for repeat violations, as well as possible structural remedies. House Judiciary Committee oversight has raised concerns that the law’s thresholds and obligations disproportionately burden American technology companies while insulating European competitors.
● South Korea. House Judiciary Committee investigators found that South Korean authorities subjected American-owned Coupang to a broad government campaign involving: more than ten government agencies; dozens of unrelated investigations involving more than 4,000 document requests and at least 652 employee interviews; and a fine exceeding $410 million, the largest imposed on a single company in South Korea. The Committee report concluded that Coupang received disproportionately hostile regulatory treatment not faced by similarly situated Korean competitors.
● Brazil. Brazil has proposed Digital Markets Act-style legislation that would allow regulators to designate large digital companies for special obligations lasting as long as ten years. The proposal could require interoperability, data sharing, heightened merger scrutiny, and restrictions on common business practices, with fines reaching 20 percent of gross revenue in the affected line of business. House Judiciary Committee oversight has warned that the proposal appears designed primarily to reach large U.S.-headquartered platforms.
I know these examples are commonly cited by groups in the U.S., but it is important to note that the foreign governments at issue here all claim there are legitimate policy reasons for their actions. While there may be a disparate impact on American companies, they argue, that is not enough to find the actions to constitute "discrimination," as the criteria under the legislation/regulation at issue are objective and the intent is not to protect domestic producers from foreign competition. In the view of the foreign government officials, these actions are all legitimate and evenhanded.
I would also note that while the Baumgartner legislation seems focused on tech regulators, it is written in a way that would give it a much broader reach. For example, anyone responsible for any sort of tariff, including trade remedies, could be covered.
I have no idea whether this legislation will become law. And if it did, I have no idea how it would be applied. Would U.S. immigration courts suddenly have to act like trade dispute panels and make determinations about whether discrimination exists as a result of governments' enforcement of their regulations? That doesn't seem like a great role for them to be playing.