Courts Step Into Immigration Debate When Administrations and Legislation Fail

October 2007Newsletters Legally Speaking

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Immigration has begun to use a new naturalization examination. By October 1, 2008, ALL immigrants applying for United States citizenship will encounter a test of their knowledge of U.S. civics, history, and government. The test has been redesigned to emphasize and promote common American values and to educate new citizens regarding how our government works.

One of the more misleading questions is: "What stops one branch of government from becoming too powerful?" The two choices are: "Checks and Balances" and "Separation of Powers." Frankly, in the immigration context, the answers are wrong. The correct answer should be the "Judiciary."

Courts of law are the place where many are going as state and local legislatures and federal and state administrations powerfully flex their muscles against illegal immigration. It means greater distraction, delay, and cost for employers and immigrants, since the symptoms of a problem are being treated rather than pursuing the cure for the root cause.

The New York Times recently reported on the court ruling that stopped a government strategy for immigration enforcement, the Social Security no-match program. The article states: "A federal judge has halted a reckless plan by the Bush administration to use Social Security records for immigration enforcement. This is good news, not just for the American economy, which would have been crippled by the attempt to force millions of undocumented workers off the books, but also for the untold numbers of innocent citizens and legal residents who also would have been victims of the purge."

The Social Security no-match program (described in detail in our Alerts of August 1, 2007 and October 5, 2007) has been enjoined (stopped or delayed by a court order). This is not to say that unscrupulous employers or illegal aliens can breathe a sigh of relief. That certainly is not the case. In fact, there are screaming headlines of immigration raids and incarceration of immigrants and citizens who violate the immigration law. Koch Foods and the Long Island gang raid debacle are just two recent examples.

Back to basic civics – Congress (Legislative) has been unable to enact legislation that addresses the issues that are posed by millions of undocumented workers and a broken immigration administration system. State and local legislatures have acted in this vacuum, and so has the administration (Executive). To the extent that state and local laws and actions by the administration overstep their legal and constitutional boundaries, the courts (Judiciary) will step in, as did District Judge Charles R. Breyer of the Northern District of California in the Social Security no-match case. In regard to mailing 140,000 no-match letters to employers concerning more than eight million workers, Judge Breyer – noting that the lack of match may be "based on SSA records that include numerous errors" – stopped the letters, ruling that "while a change in agency policy is not the concern of the courts, when there is such a change it must be in compliance with [the law]."

Similarly, Arizona’s recently enacted the Legal Arizona Workers Act, which is touted as the strictest state immigration enforcement law in the nation, has been stopped by court action. Among other requirements, the Act would require Arizona employers to verify the employment eligibility of every new employee through a program known as "Everify." A joint program of the U.S. Department of Homeland Security and Social Security, Everify imposes heavy compliance burdens and carries substantial penalties for non-compliance on entities that contract with the State of Arizona. Scheduled to go into effect on October 1, 2007, Everify has been delayed since the legality of the act has been challenged in federal court in Phoenix.

At least until there is immigration reform, there will be lawsuits filed throughout the country challenging state and local immigration laws as well as over reaching by law enforcement.