By Spencer S. Hsu
Washington Post Staff Writer
Thursday, October 11, 2007 2:04 PM
A federal judge barred the Bush administration yesterday from launching a planned crackdown on U.S. companies that employ illegal immigrants, warning of its potentially "staggering" impact on law-abiding workers and companies.
In a firm rebuke of the White House, U.S. District Judge Charles R. Breyer of San Francisco granted a preliminary injunction against the president's plan to press employers to fire as many as 8.7 million workers with suspect Social Security numbers, starting this fall.
President Bush made the effort the centerpiece of a re-energized enforcement drive against illegal immigration in August after the Senate rejected his proposal to overhaul immigration laws. But the court ruling -- sought by major American labor, business and farm organizations -- highlighted the chasm that the issue has opened between the Republican Party and its traditional business allies.
The case also called attention to the gulf between Washington rhetoric about the need to curtail illegal immigration and the economic reality that many U.S. employers rely on illegal labor, as well as to the government's inability for nearly three decades to develop adequate tools for identifying undocumented workers.
In a 22-page ruling, Breyer said the plaintiffs -- an unusual coalition that included the AFL-CIO, the American Civil Liberties Union and the U.S. Chamber of Commerce -- had raised serious questions about the legality of the administration's plan to mail Social Security "no-match" letters to 140,000 U.S. employers.
"There can be no doubt that the effects of the rule's implementation will be severe," Breyer wrote, resulting in "irreparable harm to innocent workers and employers."
The government letters are intended to warn employers for the first time that they must resolve questions about their employees' identities or fire them within 90 days. If they do not, employers could face "stiff penalties," including fines and even criminal prosecution, for violating a federal law that bars knowingly employing illegal workers, Homeland Security Secretary Michael Chertoff said when he announced the plan Aug. 10.
The plaintiffs convinced the judge that the Social Security Administration database includes so many errors -- incorporated in the records of about 9.5 million people in 2003 alone -- that its use in firings would unfairly discriminate against tens of thousands of legal workers, including native-born and naturalized U.S. citizens, and cause major workforce disruptions that would burden companies.
"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," the judge wrote. "Moreover the threat of criminal prosecution . . . reflects a major change in DHS policy."
Breyer also said that the government may have ignored a 1980 law, the Regulatory Flexibility Act, that requires it to weigh the cost of imposing new regulations that would significantly burden small-business owners. Randel K. Johnson, a vice president of the Chamber of Commerce, said the ruling shows that "the government cannot do anything it wants simply in the name of enforcement. They've got to be careful about building their record and complying with the law."
In a statement, AFL-CIO President John J. Sweeney said: "This is a significant step towards overturning this unlawful rule, which would give employers an even stronger way to keep workers from freely forming unions. . . . More than 70% of SSA discrepancies refer to U.S. citizens."
Chertoff expressed disappointment with the decision and said the administration will continue to aggressively enforce immigration laws while considering an appeal, which plaintiffs' attorneys said could take at least nine months.
"Today's ruling is yet another reminder of why we need Congress to enact comprehensive immigration reform," Chertoff said. "The American people have been loud and clear about their desire to see our nation's immigration laws enforced."
Several analysts said the Bush administration's plan appeared to be designed to push business interests back into the debate by demonstrating that the failure of legislative reform efforts would carry costs, and to reassure conservative lawmakers who oppose illegal immigration that the White House is able and willing to crack down on offenders.
Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service and now a senior fellow at the nonpartisan Migration Policy Institute in Washington, said the ruling "shows how ineffective the current laws are."
"It reinforces the opinion that many of us hold that until you have a better legal framework -- which requires new legislation -- we're stuck very much with the status quo," Meissner said.
In a statement, Rep. Brian P. Bilbray (R-Calif.), an opponent of Bush's approach who won election to the House last year on the issue, criticized the court. "What part of 'illegal' does Judge Breyer not understand?" he said. "At a time when the federal government is finally trying to enforce current immigration law, we cannot have activist judges stand in the way of doing what is right."
The scope of the problem is uncontested. A three-year government audit ending in 2001 found "widespread" misuse of Social Security numbers by illegal immigrants, who often present fake or fraudulent documents to obtain jobs. Overall, 7.2 million illegal immigrants account for at least 10 percent of low-skilled U.S. workers and 5 percent of the total U.S. workforce, according to a Pew Hispanic Center analysis of 2005 census data.
Illegal immigrants make up even greater portions of workers in specific industries, including 24 percent in farming, 17 percent in cleaning, 14 percent in construction and 12 percent in food preparation. But the government's record in developing tools to screen such workers is spotty, largely because of successful efforts by employers, labor unions and civil rights groups to water them down.
A government program to verify the validity of new hires' Social Security numbers, proposed in concept in 1981 and launched in 1996, remains voluntary and covers only about 23,000 of 8 million U.S. employers. It is also hampered by a high false-alarm rate and the limited ability to detect identity theft involving stolen or fraudulent numbers. Between June 2004 and May 2006, it erroneously rejected 11 percent of foreign-born U.S. citizens and 1.3 percent of authorized foreign-born noncitizens, according to a report provided to Congress.
In protest, Illinois Gov. Rod Blagojevich (D) signed legislation in August that bars companies in his state from participating in the program until it is 99 percent accurate.
The federal government has mailed Social Security no-match letters to employers since 1994, but such notices were generally silent about workers' immigration status and employers did not face liability. In June 2006, the Department of Homeland Security proposed using the letters to combat immigration fraud involving existing employees, and it finalized its plans this summer. The AFL-CIO and the ACLU filed suit to halt the Sept. 4 start of the mailings, and they were joined by the U.S. Chamber of Commerce and the trade associations for the agriculture, restaurant and construction industries.
On Aug. 31, U.S. District Judge Maxine M. Chesney issued a temporary restraining order pending an Oct. 1 hearing before Breyer, who was appointed by President Bill Clinton in 1997 and is the brother of Supreme Court Justice Stephen G. Breyer.