U.S. District Court Charles Breyer's decision to halt the federal government's proposed crackdown on employers who allegedly employ illegal immigrants was ultimately made on fairly narrow technical grounds, having to do with whether proper cost-benefit studies were done first. On whatever grounds, however, the decision was welcome. The enforcement program would have been needlessly disruptive of millions of workers and thousands of companies.

The administration, through the Department of Homeland Security, planned to send letters to 140,000 employers informing them that at least 10 of their employees - 8.7 million in all - had Social Security numbers on file that did not match government records, raising the likelihood that those employees were illegal immigrants. The companies would have had 90 days to clear up discrepancies, and if they were not cleared up they would have had to fire the "no-match" employees. Those who didn't do so would have faced sanctions, including possible criminal charges.

The suspicion always existed that there was a grandstanding and purposely disruptive aspect to this proposed enforcement action. The thinking was that it would be so disruptive to so many businesses that Congress would come to its senses and pass something resembling the administration's "comprehensive" immigration reform legislation that it had so callously rejected earlier this year.

Judge Breyer ruled that the proposal was not only cynical, it was illegal.
One problem is that a December 2006 report by the Social Security Administration's inspector general estimated that 17.8 million of the agency's 435 million individual records contained discrepancies that could result in a no-match letter being sent regarding a legally authorized worker. The report said 12.7 million of those records with errors belonged to native-born Americans.

If the enforcement regimen had been carried out, then thousands of innocent and legally authorized employees could have had their lives turned upside-down, and perhaps found themselves fired if it took more than 90 days to clear up discrepancies.

The other problem is that while no-match letters have been sent out in the past, the program has been voluntary, without the threat of possible criminal prosecution for employers. Adding that threat was a major change in Homeland Security policy, and it was unclear that it was authorized by existing law. Congress is supposed to be the lawmaking body, and an administrative agency can't make new law simply by writing a rule, especially when it isn't backed up - as this was not - by legal explanation and justification.

Furthermore, the 1980 Regulatory Flexibility Act requires an agency to do studies considering the cost of imposing new regulations on small businesses. The Homeland Security department had not undertaken such an assessment.

The fact that such an enforcement program would have been, as Judge Breyer noted, massively disruptive to legitimate businesses and employees reflects some facts too seldom acknowledged. Most of the 10 million to 12 million immigrants in the country illegally have jobs and many companies and industries rely on them. And the government has simply not come up with adequate tools for identifying undocumented/unauthorized/illegal workers. This program would have been a stab in the dark.

Homeland Security Secretary Michael Chertoff said he was disappointed in the decision and was reviewing his options, which could include appealing this decision. Instead, he should drop the enforcement program and work harder to find a way to approach the problem of illegal immigrants within the confines of existing law.