48 Pages Posted: 29 Oct 2008
Date Written: April 28, 2008
The October 2007 preliminary injunction issued against the Department of Homeland Security's "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" provides a good case study of the role judicial review can play in agency rulemaking. In AFL-CIO v. Chertoff the U.S. District Court for the Northern District of California issued a preliminary injunction against enforcement of DHS's rule based on three objections: the rule was ultra vires; DHS gave no reasoned analysis for the rule change; and DHS was obligated to conduct a regulatory flexibility analysis pursuant to the Regulatory Flexibility Act. The court erroneously rejected arguments that the rule contravened its underlying statute, the Immigration Reform and Control Act.
The court's order put no pressure on DHS to revise the rule's crucial substance. As a result, a "bad" procedural law will soon be in effect. Had the court come to the opposite conclusion regarding whether the rule contravened its statute, DHS would probably have revised the rule to accomplish its goals while causing far less injury to immigrants, workers, and small businesses. This case thus illustrates how more critical judicial review is important to the formulation of good administrative agency rules.
Keywords: no-match, SSN, SSA, AFL-CIO, Chertoff, RFA, Regulatory Flexibility Act, regulatory flexibility analysis, reasoned analysis, administrative law, immigration law
Suggested Citation: Suggested Citation
Edwards, Matt W., AFL-CIO v. Chertoff: A Hollow Victory for Immigrants, Workers and Businesses (April 28, 2008). Available at SSRN: https://ssrn.com/abstract=1290609 or http://dx.doi.org/10.2139/ssrn.1290609