Will he or won’t he? Homeland Security Secretary Michael Chertoff is reportedly mulling over an appeal of a federal judge’s ruling against the department’s controversial “no-match” regulation.
In what amounted to a major victory for small business groups, U.S. District Court Judge Charles R. Breyer issued an injunction on Oct 10, effectively blocking implementation of the regulation until a trial can be heard on its merits next year. Chertoff has 30 days to appeal, and if he prevails in court, the rule will go into effect immediately and run until the trial concludes.
The department has declined to commented on its plans; Chertoff has said only that he is studying the judge’s ruling and has made no decisions. But the word in Washington is that he will appeal. That view is also shared by the National Small Business Association, which has been tracking the issue closely.
The controversy began in mid-August when the Department of Homeland Security (DHS) published the regulation. In one fell swoop, it dramatically increased an employer’s liability for verifying the status of employees who received Social Security Administration (SSA) no-match letters. I was one of the first to report on the controversial rule in my Aug. 30 column, New Immigration Regulation Will Hurt Small Businesses.
The SSA has been sending the letters for years. They typically go out when a discrepancy is discovered between a worker’s Social Security and employment data. In the past, employers have largely left it up to the employee to straighten out possible errors. But the new regulation would impose tough new requirements.
Small business owners, for example, would be forced to fire employees who fail to clear up errors within 90 days of receiving a letter. Employers could be fined up to $10,000 if they fail to do so and could be subject to other fines and criminal penalties as well. The new rule also includes a so-called “safe harbor” provision that would protect employers from liability if they follow a series of procedures.
Ironically, the AFL-CIO and the American Civil Liberties Union (ACLU) — not small business groups — filed the lawsuit that led to Breyer’s ruling. But the National Federation of Independent Business (NFIB) and the U.S. Chamber of Commerce filed “friend of the court” briefs in support of the case, after the unions won a temporary injunction.
The NFIB argued in its brief that the DHS violated the federal Regulatory Flexibility Act (RFA) when it finalized the regulation. The act requires federal agencies to study proposed rules and consider less costly alternatives if the proposed rule will adversely affect small businesses. Breyer criticized DHS for making such a significant policy change without an RFA analysis, and said the new regulation would have “massive ramifications” for employers.
While the Chamber, the NFIB, and other small business groups continue to lobby against the measure on Capitol Hill, proponents are marshaling their forces as well. Rep. Tom Tancredo, a conservative Colorado Republican, intends to file legislation to overturn the court’s ruling. Tancredo favors a zero-tolerance approach to illegal immigration.