To Enforce the Law: The No-Match Battle

Sometimes wishful thinking can lead to embarrassing flights from reality.

A case in point was a recent ACLU press statement with a giddy headline that blared, “Government Abandons Current No-Match Rule Harmful to Legal Workers.”

What prompted this rejoicing was the government’s decision to issue a supplementary rule in response to a recent court decision temporarily halting our no-match rule. The rule gives businesses guidance on handling letters from the Social Security Administration informing them of workers whose names and Social Security numbers don’t match government records. It provides a safe harbor for honest employers while discouraging dishonest ones from knowingly keeping illegal aliens on their payrolls.

So why is the ACLU celebrating? It’s because it opposes virtually every measure – including this one – to enforce America’s immigration laws. But was its headline correct? Has the government abandoned the fight for the no-match rule? And is the rule harmful to legal workers?

Not at all.

Far from abandoning the rule, we’re going to fight hard to make it effective. To that end, we are pursuing two approaches. First, we’re addressing the discrete concerns the district court raised in October in our forthcoming supplemental rule. Second, we have filed an appeal of the district court’s order to the Ninth Circuit. We’re pursuing both options at once in order to get the quickest possible resolution.

Another ACLU myth is that the no-match rule hurts legal workers. False. It specifically tells employers that they should not fire employees on the basis of no-match letters alone. The lack of a match could reflect a clerical mistake or some other innocent explanation, rather than a nefarious attempt to evade our immigration laws. The no-match rule shows employers and workers how to correct this discrepancy – and it gives them a full three months to do it. Businesses that follow the procedures in the rule will have a safe harbor from enforcement action. Those that ignore no-match letters place themselves at risk and invite suspicion that that are knowingly employing workers who are here illegally.

The ACLU’s lawsuit has helped put this vital protection on hold. That’s bad for immigration enforcement, bad for America’s law-abiding employers and their legal employees, and good for dishonest businesses who deliberately hire illegal workers. And that’s why – contrary to ACLU fantasies – we’re not going away. We will continue to fight to enforce the laws on the books, as the American people expect us to.

Michael Chertoff