Enforcement of INA Employer Sanctions Provisions Against Federal Government Entities ( 2000 )

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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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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