American Federation of Labor, et al. v. Michael Chertoff, No. C 07-04472 CRB (N.D. Cal.)

A federal district court judge in California last week gave America another good example of why courts matter. Judge Charles R. Breyer put a stop, at least for now, to a governmental effort that would likely have resulted in the firing of potentially tens of thousands of legal workers this fall, all in the guise of a crackdown on illegal immigration.

Federal law requires employers to report the Social Security Numbers (SSNs) of their employees to the government. When the government cannot match an employee’s SSN with the number on file, the employer receives a “no-match” letter. Federal law also prohibits employers from knowingly hiring unauthorized aliens. In the past, receipt of a no-match letter by itself has not been considered by the government as constructive knowledge on the part of an employer that an employee was unauthorized to work. Indeed, there are a number of reasons for a no-match that are completely unrelated to immigration fraud, including erroneous Social Security Administration records, as the government itself admits.

In August 2007, however, the Department of Homeland Security (DHS), in an effort by the Bush Administration to crack down on illegal immigrants, issued a new rule regarding the no-match letters that could result in a finding that an employer had “knowingly” hired an undocumented alien if the employer received a no-match letter for that worker and could not resolve the discrepancy within 90 days. Since that timeframe is not sufficent for many legal workers to resolve these discrepancies, their employers, faced with the possibility of criminal sanctions, would be likely to fire them.

On October 10, 2007, Judge Breyer, ruling in a lawsuit challenging the new DHS rule, granted a preliminary injuction prohibiting the government from enforcing the rule. According to Judge Breyer, DHS had failed to supply a “reasoned analysis” for changing its historical position that a no-match letter, by itself, could put an employer on notice that an employee was not authorized to work. Judge Breyer found that “this change in position will have massive ramifications for how employers treat the receipt of no-match letters,” and that “the government’s proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers.”

For those who obey the laws and do not think that they are likely to be ensared in legal difficulties, this case doesn’t just illustrate that bad things can happen to good people. It also underscores why a fair and independent judiciary is critical to the preservation of our legal rights and interests, and an important “check and balance” on the exercise of executive power.