Enforcement of INA Employer Sanctions Provisions Against Federal Government Entities

Enforcement of INA Employer Sanctions Provisions Against

Federal Government Entities

Section 274A o f the Im m igration and N ationality Act, which establishes em ployer verification require­

m ents and authorizes the Im m igration and N aturalization Service to take enforcem ent actions

against em ployers fo r failure to com ply with those requirem ents, authorizes im position o f em ployer

sanctions against federal governm ent entities.

T he INS can exercise this enforcem ent authority against persons and entities within all three branches

o f the federal governm ent in a m anner consistent with the C onstitution.

March 15, 2000

M em orandum O p in io n fo r th e G en era l C o u n sel

I m m ig r a t i o n and N a t u r a l iz a t io n S e r v ic e

You have requested our advice as to whether section 274A of the Immigration

and Nationality Act (“ INA” ), which establishes employer verification require­

ments and authorizes the Immigration and Naturalization Service (“ INS” ) to take

enforcement action against employers for failure to comply with those require­

ments, can be applied to federal government entities, in light of the possible con­

stitutional concerns that such enforcement action might raise. As we explain more

fully below, we believe that section 274A clearly contemplates the imposition

of employer sanctions against federal government entities. Moreover, with respect

to employers within all three branches, we conclude that the INS can exercise

its authority to take enforcement actions against such persons or entities consistent

with the Constitution.

BACKGROUND

Section 274A of the INA provides for the assessment of civil monetary penalties

and cease and desist orders against any “ person or other entity” who has know­

ingly hired, or knowingly continued to employ, any unauthorized alien or who

has failed to comply with the employment verification system mandated by section

274A(b).' 8 U.S.C. §§ 1324a(e)(4Me)(5) (1994 & Supp. II 1996). As used in

section 274A, the term “ entity” includes “ an entity in any branch of the Federal

Government.” Id. § 1324a(a)(7).

The INS has the authority to investigate complaints of potential violations of

section 274A by inspecting employment eligibility verification forms maintained

by employers and compelling the production of evidence or the attendance of

witnesses by subpoena. Id. § 1324a(e)(2). If, based upon such an investigation,

the INS determines that an employer has violated section 274A, it serves a Notice

1 Criminal penalties and injunctive relief may also be imposed against persons or entities engaged in a “ pattern

or practice o f violations” of section 274A. See 8 U.S C. § 1324a(f)( 1M 2 )

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o f Intent to Fine ( “ NTF” ) on the employer. 8 C.F.R. § 274a.9 (1998). An employer

served with a NIF may request an evidentiary hearing before an Administrative

Law Judge ( “ ALJ” ). 8 U.S.C. § 1324a(e)(3). If the employer does not request

a hearing, the NIF becomes a final, unappealable order, id.\ if a hearing is

requested, the ALJ’s subsequent decision and order become the final decision and

order of the Attorney General, unless a reviewing official or the Attorney General

herself modifies or vacates the order, pursuant to regulations. See id. § 1324a(e)(7).

Section 274A also provides for judicial review and judicial enforcement of final

orders. Under section 274A(e)(8), “ [a] person or entity adversely affected by a

final order respecting an assessment may, within 45 days after the date the final

order is issued, file a petition in the Court of Appeals for the appropriate circuit

for review of the order.” 8 U.S.C. § 1324a(e)(8). If a person or entity refuses

to comply with any final order, the statute provides that “ the Attorney General

shall file a suit to seek compliance with the order in any appropriate district court

of the United States.” Id. § 1324a(e)(9).

DISCUSSION

As noted above, section 274A authorizes the INS to assess civil monetary pen­

alties against any “ person or other entity” that violates the employment

verification provisions of that section. Section 274A(a)(7) provides: “ For purposes

of this section, the term ‘entity’ includes an entity in any branch of the Federal

Government.” 8 U.S.C. § 1324a(a)(7).

We must first determine whether Congress intended to authorize the INS to

assess administrative penalties and otherwise bring enforcement proceedings

against governmental employers. A straightforward reading of the statutory text

leads us to conclude that that was clearly Congress’s intent. Prior to passage of

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

( “ IIRIRA” ), Pub. L. No. 104-208, 110 Stat. 3009-546, section 274A contained

no provision defining the scope of the term “ entity.” In fact, this Office deter­

mined in 1992 that the absence at that time of any definition of the phrase “ person

or other entity” from the INA, together with the lack of evidence that Congress

intended the phrase to include federal agencies, precluded application of the term

“ entity” to a federal government agency in the context of the employer anti-

discrimination provision of section 274B. See Enforcement Jurisdiction o f the Spe­

cial Counsel fo r Immigration Related Unfair Employment Practices, 16 Op.

O.L.C. 121, 123-24 (1992).

In 1996, Congress amended section 274A to make clear that the term “ entity”

did apply to federal government entities. Section 412(d) of IIRIRA added new

subparagraph 274A(a)(7) to the INA:

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Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities

“ Application to Federal Government — For purposes of this sec­

tion, the term ‘entity’ includes an entity in any branch of the Fed­

eral Government.”

8 U.S.C. § 1324a(a)(7). We believe the language of that provision is manifest:

for purposes of section 274A, the term “ entity” applies to all federal government

employers, including agencies within the executive, judicial and legislative

branches. The House Conference Report accompanying IIRIRA confirms our

reading of section 412(d): “ This provision clarifies that the Federal government

must comply with section 274A of the Immigration and Nationality Act . . . .”

H.R. Conf. Rep. No. 104—828, at 237 (1996). The plain text of the statute, together

with its legislative history, thus leaves no question as to Congress’s intent that

federal government entities be covered by section 274A, including the investiga­

tion, assessment and enforcement provisions of section 274A(e).

Having concluded that Congress intended to authorize the INS to assess civil

penalties and bring enforcement actions against other governmental employers,

we further conclude that the INS can exercise that authority consistent with the

Constitution. Because different constitutional issues are raised by INS enforcement

of section 274A against executive agencies, the judiciary, and Congress, we will

separately address application of the statute to each branch.

Enforcement Actions Against Executive Branch Agencies

The President has authority under Article II of the Constitution to supervise

the executive branch, which includes the authority to resolve disputes within that

branch. Authorizing the INS to assess civil penalties against other agencies does

not give rise to a constitutional problem under Article II. The critical point is

that the INA “ does not preclude the President from authorizing any process he

chooses to resolve disputes between [the INS] and other federal agencies regarding

the assessment of administrative penalties.” Administrative Assessment o f Civil

Penalties Against Federal Agencies Under the Clean A ir Act, 21 Op. O.L.C. 109,

116 (1997) (“ EPA Opinion” ). Under section 274A, any agency that disputes an

INS assessment has the opportunity to voice its objections in an administrative

hearing before an ALJ, whose decision is subject to review by the Attorney Gen­

eral or her delegate. 8 U.S.C. § 1324a(e)(7). There is no limitation in the statute

on the President’s authority to review the matter if he chooses to do so, and the

absence of any such restriction on his discretion is dispositive. EPA Opinion, 21

Op. O.L.C. at 116.

In the context of one federal executive agency assessing civil penalties against

another, the statutory provision of judicial procedures to enforce those penalties

also might be thought to raise constitutional concerns related to the Article III

limitation on the jurisdiction of the federal courts to actual cases and controversies.

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The civil action provisions contained in sections 274A(e)(8) and (9) might be

construed to suggest that one executive branch agency may sue another in federal

court over an administrative penalty. This Office has consistently held that “ ‘law­

suits between two federal agencies are not generally justiciable.’ ” EPA Opinion,

21 Op. O.L.C. at 111 (quoting Constitutionality o f Nuclear Regulatory Commis­

sion ’s Imposition o f C ivil Penalties on the A ir Force, 13 Op. O.L.C. 131, 138

(1989)). Federal courts may adjudicate only actual cases and controversies, and

a lawsuit involving the same party as both plaintiff and defendant — which would

generally be the result if one executive agency sued another — does not constitute

an actual controversy.

However, in practice, such a scenario would not arise, for the internal executive

branch dispute-resolution process described above would either obviate the need

for a final administrative order or preclude noncompliance with such an order.

In the event o f any dispute between INS and another executive agency as to a

civil penalty assessment, the President, as head of the executive branch, has the

authority either to direct the Attorney General not to impose a final order or to

order the agency to comply with such an order. In either case, the judicial review

provisions of sections 274A(e)(8) and (9) simply would not be triggered.2

Enforcement Actions Against the Judiciary

As noted above, the definition o f “ person or other entity” applies to the judicial

branch, as well as to the legislative and executive branches. Application of section

274A to the judiciary raises questions concerning the possible assertion of judicial

immunity.

W e do not believe that any plausible claim of judicial immunity from section

274A could be made in the wake of Forrester v. White, 484 U.S. 219 (1988).

In F orrester, the Supreme Court concluded that questions regarding the scope

o f absolute judicial immunity must be evaluated in light of the purposes served

by such immunity. Id. at 226-27. That “ functional approach” looks at the nature

o f the official functions exercised and evaluates “ the effect that exposure to par­

ticular forms of liability would likely have on the appropriate exercise of those

functions.” Id. at 224. The Court in Forrester applied the functional approach

to reject a judge’s claim of absolute immunity from civil liability for his decision

to demote and discharge a probation officer. In doing so, the Court distinguished

between “judicial acts” and “ the administrative, legislative, or executive func­

tions that judges may on occasion be assigned by law to perform.” Id. at 227.

It reasoned that, with respect to the latter category, the danger of “ officials’ being

deflected from the effective performance o f their duties” was not substantial

enough to warrant absolute immunity. Id. at 230. The Court held that administra­

2 Indeed, the Executive Branch has various procedures in place to avoid litigation and promote internal dispute

resolution See, e g , Exec. O rder No 12146, 3 C.F R. 409 (1979)

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Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities

tive decisions, including personnel decisions, are not regarded as judicial acts and

thus are not immunized “ even though they may be essential to the very func­

tioning of the courts.” Id. at 228.

Forrester's holding makes clear that personnel decisions such as those that are

the subject of section 274A enforcement actions do not warrant absolute judicial

immunity. Such actions fall into the category of “ administrative, legislative, or

executive functions” that a judge might perform, rather than “judicial acts” that

merit the protection offered by absolute immunity.

Nor do we see any separation of powers problem with executive enforcement

of section 274A against the judiciary. The Supreme Court has made clear that

not all interactions between the judiciary and the executive branches, even those

that might be categorized as “ quite burdensome,” are necessarily constitutionally

forbidden. Clinton v. Jones, 520 U.S. 681, 702 (1997). It is only where the burden

imposed by one branch is so onerous as to “ impair another in the performance

of its constitutional duties” that the general separation of powers principle is vio­

lated. Id. at 701 (citing Loving v. United States, 517 U.S. 748 (1996)). Although

an enforcement action under section 274A would impose some administrative bur­

dens upon its subject — to the extent, for example, that it required compliance

with subpoenas issued or cooperation with investigative efforts — such burdens

would certainly not be so demanding as to interfere with the judiciary’s proper

execution of its constitutional obligations. See Mistretta v. United States, 488 U.S.

361, 409 (1989) (President’s appointment and removal power over federal Sen­

tencing Commission does not “ prevent[], even potentially, the Judicial Branch

from performing its constitutionally assigned functions” ).

Indeed, in the context of criminal law enforcement, courts have consistently

upheld the power of the executive branch to prosecute sitting judges, notwith­

standing the more significant intrusion upon the judiciary occasioned by such

enforcement, and have rejected the judges’ claims that such executive action

undermines judicial autonomy. See, e.g., United States v. Claiborne, 727 F.2d

842, 8 4 5 ^ 9 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706, 709-11

(11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124, 1 1 4 2 ^4 (7th Cir.), cert,

denied, 417 U.S. 976 (1974). As the court in Hastings explained in rejecting a

rule that would have granted sitting federal judges immunity from criminal

prosecution: “ [T]he minuscule increment in judicial independence that might be

derived from the proposed rule would be outweighed by the tremendous harm

that the rule would cause to another treasured value of our constitutional system:

no man in this country is so high that he is above the law.” 681 F.2d at 711.

If executive enforcement of the criminal laws against the judiciary (which could

include indictment, prosecution, and imprisonment of a sitting judge) does not

undermine judicial independence, we cannot say that the comparatively negligible

intrusion upon the judiciary that might be occasioned by executive enforcement

of section 274A is a threat to judicial autonomy.

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Enforcement Actions A gainst Congress

For similar reasons, we see no general separation of powers problem with

applying section 274A against Congress. The more significant question is whether

enforcement actions may be initiated against Members of Congress or congres­

sional offices consistent with the legislative immunity accorded by the Speech

or Debate Clause of the Constitution.3 The Speech or Debate Clause provides

that, “ for any Speech or Debate in either House, [Senators and Representatives]

shall not be questioned in any other Place.” U.S. Const, art. I, §6, cl. 1.

In interpreting the Speech or Debate Clause, the Supreme Court has not confined

its protections literally to “ Speech or Debate in either House” but has given it

“ a practical rather than a strictly literal reading which would limit the protection

to utterances made within the four walls of either Chamber.” Hutchinson v. Prox-

mire, 443 U.S. I l l , 124 (1979). Thus, in United States v. Johnson , 383 U.S.

169 (1966), the Court foreclosed prosecution of a Member of the House of Rep­

resentatives for allegedly taking a bribe in return for delivering a speech on the

floor of the House. The indictment necessarily focused upon both Johnson’s

motives in making the speech and the contents of the speech itself, and the Court

concluded that the Congressman’s motive “ is precisely what the Speech or Debate

Clause generally forecloses from executive and judicial inquiry.” Id. at 180. In

holding Johnson immune from prosecution under the Speech or Debate Clause,

however, the Court emphasized that its holding was limited to the facts before

it, and reserved the question whether Speech or Debate immunity would preclude

“ a prosecution which, though as here founded on a criminal statute of general

application, does not draw in question the legislative acts of the defendant member

of Congress or his motives for performing them.” Id. at 185.

Six years later, in United States v. Brewster, 408 U.S. 501 (1972), the Supreme

Court resolved that question by holding that Speech or Debate immunity did not

bar prosecution of a member of Congress for soliciting and receiving sums of

money in return for ‘ ‘official acts performed by him in respect to his action, vote

and decision” on proposed postal rate legislation, where the Member could

successfully be prosecuted without inquiry into either legislative acts or their moti­

vation:

The question is whether it is necessary to inquire into how

appellee spoke, how he debated, how he voted, or anything he did

in the chamber or in committee in order to make out a violation

3 With respect to the applicability o f section 274A against Congress, we will here address only the general question

o f the availability o f speech and debate immunity W e do not address the more specific question of who the proper

defendant may be in individual enforcement actions. W e also do not address the question w hether the constitutional

privilege against arrest except in cases o f “ Treason, Felony and Breach of the Peace” that is accorded Members

during sessions o f Congress would preclude enforcing a subpoena in an administrative proceeding against a Member

while C ongress is in session U S Const art 1, § 6 , cl. 1. See Gravel v. United States, 408 U S . 606, 614-15

(1972).

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Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities

of this statute. The illegal conduct is taking or agreeing to take

money for a promise to act in a certain way. There is no need

for the Government to show that appellee fulfilled the alleged

illegal bargain; acceptance of the bribe is the violation of the

statute, not performance of the illegal promise.

Taking a bribe is, obviously, no part of the legislative process

or function; it is not a legislative act. . . . Nor is inquiry into a

legislative act or the motivation for a legislative act necessary to

a prosecution under this statute or this indictment.

Id. at 526.

Accordingly, the Court in Brewster confirmed that the Clause does not protect

all conduct relating in any way to the legislative process, but is “ limited to an

act which was clearly a part of the legislative process — the due functioning of

the process.” Id. at 515-16 (emphasis in original). Proper attention to the history

and purposes of the Clause, including the underlying separation of powers con­

cerns, did not justify a broader reading:

We would not think it sound or wise, simply out of an abundance

of caution to doubly insure legislative independence, to extend the

privilege beyond its intended scope, its literal language, and its his­

tory, to include all things in any way related to the legislative

process. Given such a sweeping reading, we have no doubt that

there are few activities in which a legislator engages that he would

be unable somehow to “ relate” to the legislative process.

Id. at 516.

The Court further clarified the proper scope of the Speech or Debate Clause

in Gravel v. United States, 408 U.S. 606 (1972), decided the same day as

Brewster. Senator Gravel made copies of the Pentagon Papers part of the public

record of a meeting of the Senate subcommittee that he chaired. Subsequently,

the press reported that Senator Gravel had separately made arrangements with

a private press to publish the papers. A federal grand jury that was investigating

alleged criminal conduct with respect to the public disclosure of these classified

documents subpoenaed Senator Gravel’s aide to testify, and Senator Gravel sought

to quash the subpoena under the Speech or Debate Clause.4 Id. at 608-09. The

Court held that the action under scrutiny — the publication by a nongovernmental

4 The Court concluded that “ the Speech or Debate Clause applies not only to a M ember [of Congress] but also

to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member

himself ” Id at 618

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press of classified documents — was not “ protected speech or debate within the

meaning of Art. I, § 6, cl. 1 of the Constitution.” Id. at 622.

The Court began its analysis by noting that simply because “ Senators generally

perform certain acts in their official capacity as Senators does not necessarily

make all such acts legislative in nature.” Id. at 625. It then explained:

The heart of the Clause is speech or debate in either House. Insofar

as the Clause is construed to reach other matters, they must be an

integral part of the deliberative and communicative processes by

which Members participate in committee and House proceedings

with respect to the consideration and passage or rejection of pro­

posed legislation or with respect to other matters which the Con­

stitution places within the jurisdiction o f either House.

Id. The hearings were complete and the record of the hearings was available.

Subsequent publication of the Pentagon Papers by a nonprofit press was neither

requested nor authorized by the Senate and ‘ ‘was in no way essential to the delib­

erations of the Senate.” Id. Because questioning regarding that publication did

not “ threaten the integrity or independence of the Senate by impermissibly

exposing its deliberations to executive influence,” the Court determined that this

conduct was not protected by the Speech or Debate Clause. Id.

Although the Supreme Court has thus delineated the general scope of Speech

or Debate immunity, it has not yet resolved the question of its applicability to

employment-related decisions. In Davis v. Passman, 442 U.S. 228 (1979), the

Court specifically reserved the question whether a Congressman’s allegedly

discriminatory decision to fire his administrative assistant was shielded by the

clause. Id. at 236 n .l l , 248-49. Two courts of appeals, however, have addressed

this issue.

In the original panel decision in D avis,5 the Fifth Circuit determined that the

Speech or Debate Clause did not protect a Congressman from a suit by a former

aide who alleged that the Congressman unconstitutionally discriminated against

her on the basis of her sex when he dismissed her. 544 F.2d 865, 878 (5th Cir.

1977), r e v ’d on other grounds, 571 F.2d 793 (1978) (en banc), rev’d, 442 U.S.

228 (1979). The Senator had written the aide a letter commending her job perform­

ance, but concluding that it was ‘‘essential that the understudy to [his] Administra­

5 The onginal panel decision m Davis w as the only decision in the history of lhat case to address the Speech

or Debate Clause issue. The Fifth Circuit, in its en banc opinion, did not reach the Speech or Debate Clause question

because it concluded that the plaintiff could not maintain a private cause of action under the due process clause

of the Fifth Amendment. Davis v Passman, 571 F.2d 793, 801 (5th C ir 1978). The Supreme Court reversed on

that question, holding that both a cause o f action and a damages remedy could be implied under the Fifth Amendment,

however, because the en banc Court of A ppeals had not considered the Speech or Debate Clause issue, the Supreme

Court also declined to reach it Davis, 442 U.S at 236 n i l , 248-49

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tive Assistant be a man.” Id. at 867 n.l. Reciting familiar passages from Gravel

that limit the scope of the clause to “ legislative acts,” the panel concluded:

[Representatives are not immune from inquiry into their decisions

to dismiss staff members. Such dismissal decisions certainly are not

“ an integral part of the deliberative and communicative processes

by which Members participate in committee and House proceedings

. . . .” [quoting Gravel, 408 U.S. at 625]. Peripheral or tangential

activities of a representative must not be confused with the legisla­

tive core. . . . When members of Congress dismiss employees they

are neither legislating nor formulating legislation. The fear of

judicial inquiry into dismissal decisions cannot possibly affect a

legislator’s decisions on matters pending before Congress. The

democratic process remains unfettered.

Id. at 880. Its holding, the panel believed, “ g[a]ve effect to the Supreme Court’s

mandate in Gravel. ‘Legislators ought not to stand above the law they create but

ought generally to be bound by it as are ordinary persons.’ ” Id. at 881 (quoting

Gravel, 408 U.S. at 615). Because exceptions to the constitutional premise that

all persons are equal before the law “ must be limited, guarded, and sparingly

employed,” the court insisted that “ Davis is entitled to have her claim heard

on the merits.” Id.

The Court of Appeals for the District of Columbia Circuit concluded almost

a decade later, however, that legislative immunity did shield a Congressman from

a suit challenging an employment decision. Browning v. Clerk, U.S. House o f

Representatives, 789 F.2d 923 (D.C. Cir.), cert, denied, 479 U.S. 996 (1986). In

Browning, a black woman who was discharged from her job as Official Reporter

of the House of Representatives claimed that her dismissal was racially motivated,

in violation of the Fifth Amendment. 789 F.2d at 924-25. The court, relying on

Gravel, asserted that:

Personnel decisions are an integral part of the legislative process

to the same extent that the affected employee’s duties are an

integral part of the legislative process. . . . Thus, if the employee’s

duties are an integral part of the legislative process, such that they

are directly assisting members o f Congress in the “ discharge of

their functions,” personnel decisions affecting them are correspond­

ingly legislative and shielded from judicial scrutiny.

Id. at 928-29 (citation omitted). Applying this standard, the court discussed at

length the importance of the role of an Official Reporter in the communicative

and deliberative processes of Congress, and concluded that such reporting was

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indeed an integral part of legislative functioning. Id. at 929-30. In coming to

this conclusion, the court pointed out that, in order to resolve Browning’s claims,

the judiciary

would necessarily have to inquire about matters at the very heart

of the legislative process, such as the nature of the hearings to

which Browning was assigned, the purposes underlying those

hearings, and whether Browning’s performance frustrated those pur­

poses.

Id. at 930.

There are two ways to read the decision in Browning. First, Browning could

be read for the proposition that, in determining whether Speech or Debate immu­

nity attaches to any particular employment decision, the proper focus is whether

judicial scrutiny of that decision would necessitate any inquiry into legislative

conduct or motivations. If so, then the employment decision relates sufficiently

to the legislative process to merit immunity. See id.; see also House of Representa­

tives’ Brief in Opposition to Petition for Certiorari, Browning v. Clerk, House

o f Representatives (No. 86-547), at 5. Alternatively, Browning could be read more

broadly, to suggest that the applicability of Speech or Debate immunity in the

employment context depends solely upon the nature of the employment at issue.

If the employee’s duties can be said to be an “ integral part of the legislative

process,” immunity attaches to any personnel decisions regarding that employee;

if the employee’s duties cannot be so characterized, it does not. Browning, 789

F.2d at 929.

While we acknowledge that there is language in Browning to support the second

reading that focuses on employment duties, Supreme Court Speech and Debate

precedents, as well as the specific facts of Browning, compel our conclusion that

the decision must be read more narrowly.6 Under G ravel and Brewster, the mere

6 W e note too that there is some question w hether and how the Supreme C ourt’s ruling in Forrester v. White

bears on Browning As noted above, Forrester requires a “ functional” approach to claims of absolute judicial immu­

nity in the context o f employment decisions. T h e distinction that Forrester makes between “ judicial acts” and

“ the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform”

is based on the rationale that, with respect to the latter category, the danger of “ officials’ being deflected from

the effective performance o f their duties” is not substantial enough to warrant absolute immunity Forrester, 484

U S. at 230. That rationale could be applied equally to the administrative functions of the legislative branch, such

as hiring o f personnel, and verification that they are not unauthorized aliens.

In the wake o f Forrester, the District of C olum bia Circuit, in Gross v Winter, 876 F 2 d 165 (D C . Cir. 1989),

applied Forrester's functional approach in rejecting a D C. Council m ember’s claim of legislative immunity for

her allegedly discriminatory decision to fire a probation officer Gross recognized that “ [tjhe Supreme Court’s strict

‘functional’ immunity analysis in Forrester . contrasts with the employee-centnc approach this court took in

B row ning." Id at 171 The court found Forrester, not Browning, controlling'

The functions o f probation officers and legislative aides are therefore equally important to the due func­

tioning o f the judicial and legislative processes, respectively Nonetheless, under Forrester, the functions

judges and legislators exercise in making personnel decisions affecting such employees are administrative,

not judicial or legislative. Forrester's functional approach also forecloses the somewhat curious logic that

the greater the em ployee’s importance to the legislative process the greater should be the state legislator’s

freedom to violate that em ployee’s constitutional rights

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fact that an individual may have some duties that relate to core legislative proc­

esses does not make all matters bearing on that person’s employment “ an integral

part of the deliberative and communicative processes by which Members partici­

pate in committee and House proceedings with respect to the consideration and

passage or rejection of proposed legislation or with respect to other matters which

the Constitution places within the jurisdiction of either House.” Gravel, 408 U.S.

at 625. As the Court noted in Brewster, in a passage relied upon in Browning:

“ The only reasonable reading of the Clause, consistent with its history and pur­

pose, is that it does not prohibit inquiry into activities that are casually or inciden­

tally related to legislative affairs but not a part of the legislative process itself.”

Id. at 528, quoted in 789 F.2d at 927. Under that standard, even if a particular

employee’s duties could be said to relate to the legislative process, there might

be any number of purely administrative decisions made with respect to that

employee that would have nothing to do with the employee’s fulfillment of his

or her duties and that therefore would not merit legislative immunity.7

The Speech or Debate Clause arguably was implicated in Browning not because

the job of official reporter for the House of Representatives included duties that

were integral to the legislative process, 789 F.2d at 928, but because the disputed

factual issue in the employment claim was whether the reporter was fired for

poor job performance or for racial reasons. Id. at 930. We believe that the more

sweeping language in Browning must be read in light of those facts. The District

of Columbia Circuit court concluded that the particular employment decision at

issue in Browning presented a risk of judicial second-guessing of judgments “ at

the very heart of the legislative process.” Id. at 930. Legislative immunity was

warranted in Browning, on the narrower view, because assessing the adequacy

of Browning’s job performance would have required the trial court to “ inquire

into matters at the very heart of the legislative process” — such as the nature

and purpose of the hearings to which Browning had been assigned. Id.

In contrast, permitting the INS to enforce section 274A against Congress would

not, thwart any of the purposes underlying the Speech or Debate Clause, for

Id at 172 However, in applying Forrester to a case involving a D.C. Council member rather than a M ember of

Congress, the court in Gross expressly noted that it was not reaching the question “ whether special considerations

applicable to members of Congress, such as separation-of-powers concerns, continue to justify the absolute immunity

standard for congressional personnel decisions adopted in Brow ning." Id More recently, in United States v. Rosten-

kowski, 59 F.3d 1291, 1303 (D.C. Cir 1995), the District o f Columbia Circuit again reserved the question whether

Browning remained good law after Forrester, because the employees at issue lacked “ even the most tangential

relationship to the ‘legislative process’ ” and employment decisions respecting them thus could not be immunized

even under the broadest reading of Browning.

7 The broader reading o f Browning is out of step not only with the Supreme Court’s precedents, but also with

the District o f Columbia Circuit’s own pnor law The Browning court appeared to misread an earlier decision, Walker

v. Jones, 733 F.2d 923 (D.C Cir 1984), in which the court denied Speech or Debate Clause immunity to congres­

sional defendants who dismissed a food service manager for allegedly discriminatory reasons Id at 931. Browning

cited Walker as the genesis o f a standard focusing on the nature o f the em ployee’s duties, and immunizing all

personnel decisions with respect to employees whose duties closely relate to the legislative process Id at 925.

In fact, W alker— like Johnson, Brewster, and Gravel — properly focused directly on the legislator’s actions, and

considered the em ployee’s duties only as potentially relevant to the question whether a personnel action regarding

that employee might implicate the legislator’s motives Id

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Opinions o f the Office o f Legal Counsel in Volume 24

executive enforcement would not involve inquiry into legislative acts or the

motives for legislative acts. Nor would it “ threaten the integrity or independence

o f [Congress] by impermissibly exposing its deliberations to executive influence.”

Gravel, 408 U.S. at 625. Section 274A applies to the “ hiring, recruiting, or refer­

ring” of individuals for employment in the United States, and requires employers

to verify, by examining certain specified documents, that individuals being consid­

ered for employment are not unauthorized aliens. 8 U.S.C. § 1324a(b), (b)(1).

Once the employer has examined these documents, the employer must attest in

writing to the verification and must retain the verification form for future inspec­

tion. Id. § 1324a(b)(l)(A), (b)(3). Any investigation by the INS as to whether an

employer has complied with these verification requirements or whether the

employer knowingly hired or continued to employ an unlawful alien thus would

not involve inquiry into the employee’s duties or job performance. Rather, such

an investigation would require examination of the verification form, and possibly

the circumstances surrounding the employer’s execution of that form, including

whether the employer had complied in good faith with the attestation and docu­

ment retention requirements. Regardless of how integrally connected to the legisla­

tive process the employee’s duties might be, the actions of a Member of Congress,

in complying with these verification requirements or in knowingly hiring an

unlawful alien, could not be characterized as “ legislative acts,” and any inquiry

into section 274A compliance would not reach such legislative acts or the motives

underlying them. The ministerial requirements imposed under section 274A are

at most “ casually or incidentally related to legislative affairs.” Brewster, 408 U.S.

at 528. Like the conduct at issue in Brewster, knowingly hiring an unlawful alien

“ is, obviously, no part of the legislative process or function; it is not a legislative

act.” Id. at 526. We therefore conclude that executive enforcement of section

274A against legislative branch entities is not precluded by the Speech or Debate

Clause.

CONCLUSION

The plain language of section 274A makes clear that its enforcement provisions

apply to persons and entities within all three branches of the federal government.

We conclude that the INS can exercise its enforcement authority under section

274A against persons and entities within the executive, judicial, and legislative

branches in a manner consistent with the Constitution.

RANDOLPH D. MOSS

Acting Assistant Attorney General

Office o f Legal Counsel

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