Bush administration in tactical retreat on SSN no-match rule

In the wake of the collapse of the efforts in Congress to reform immigration laws, DHS thought it had found a way to keep a better eye on illegal immigrants working, illegally, in the United States: Send letters to employers asking them to explain, within ninety days, any discrepancies or mismatches between their employees’ Social Security numbers and the Social Security Administration’s (SSA) database of individuals who are legally allowed to work in the United States. If an employer could not find an explanation for such a mismatch, the employee would have to be let go. The Bush administration on Friday said it would now suspend its legal defense of this new rule, which was issued in August, in the process losing the first round of a court battle over a central measure in its immigration strategy. The New York Times’s Julia Preston writes — as we wrote last week — that the administration will revise the rule so as to meet concerns raised by a federal judge in California and re-issue the modified rule in late March in the hope that the revised language would be approved by the court. The administration responded the rule issued on 10 October by the judge Charles Breyer of Federal District Court in San Francisco. Judge Breyer found that the government had failed to follow proper procedures in issuing the rule and that it should have completed a study of the rule’s impact on small business. He also said that it was an accepted fact that the Social Security database the government would use to verify workers’ status was full of errors: Relying on this data base to verify legal employment would lead to the dismissal of thousands of workers who were American citizens or who were employed in the United States legally (the SSA’s inspector general found that 12.7 million of the records of U.S. citizens in the agency’s database contained errors which could lead to them being fired).

On Friday the government filed a four-page motion with the court asking Judge Breyer to suspend the case so DHS could rewrite the rule and conduct the small-business impact survey, which it expects to do by 24 March. The government said that it wanted to “prevent the waste of judicial resources” and that it was confident the amended rule would “fully address the court’s concerns.” DHS officials said they were not abandoning the rule and were still considering an appeal of Judge Breyer’s ruling but that for now, they are “planning to provide an answer to the small number of minor issues that the judge raised in his opinion,” Laura Keehner, a spokeswoman for the department, said. The legal challenge was brought by a a coalition of labor unions and business groups, including the A.F.L.-C.I.O. and the San Francisco Labor Council as well as the U.S. Chamber of Commerce. “It’s clear the government has given up defending an indefensible rule,” said Lucas Guttentag, a lawyer for the American Civil Liberties Union, another group bringing the lawsuit. “But now they’re hoping to rush through another half-baked rule without addressing the fundamental flaws. It’s like putting lipstick on Frankenstein.”

In his 10 October decision, Judge Breyer also stopped SSA from sending about 141,000 no-match letters to employers which, among them, cover more than eight million workers. The letter would have contained instructions from DHS about the rule.