Part I of the Exam (75% of total grade)
This section of the exam deals mainly with three different statutes – the
Occupational Safety & Health Act of 1970 (OSHA), the Immigration Reform & Control
Act of 1986 (“IRCA”), and the Homeland Security Act of 2002 – and various
administrative materials enacted pursuant to these statutes. Sections I-VI provides an
overview and relevant text of these statutes and administrative materials. Part VII
contains a factual scenario to which these laws should be applied. Part VIII asks three
questions about the application of these laws to this scenario. Read the laws and facts
carefully, and then answer all three questions.
I.
Overview of the Immigration Reform & Control Act of 1986
A. Legislative history of IRCA: The bill that became the Immigration Reform
& Control Act of 1986, 8 U.S.C. 1101 et seq. (“IRCA”) was a dramatic change in the
nation’s immigration laws. Prior to the IRCA, immigration laws prohibited entry into the
United States of various classes of immigrants, but businesses were under no obligation
to refrain from hiring them. In the words of the Judiciary Committee Report that
accompanied the bill that would become IRCA:
This legislation seeks to close the back door on illegal immigration so that
the front door on legal immigration may remain open. The principal
means of closing the back door, or curtailing future illegal immigration, is
through employer sanctions. …. U.S. employers who violate this
prohibition would be subject to civil and criminal penalties. Employment
is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status.
Employers will be deterred by the penalties in this legislation from hiring
unauthorized aliens and this, in turn, will deter aliens from entering
illegally or violating their status in search of employment…. [T]he
Committee remains convinced that legislation containing employer
sanctions is the most humane, credible and effective way to respond to the
large-scale influx of undocumented aliens. While there is no doubt that
many who enter illegally do so for the best of motives -- to seek a better
life for themselves and their families -- immigration must proceed in a
legal, orderly and regulated fashion. As a sovereign nation, we must
secure our borders.
The Judiciary Committee Report also noted that the bill had support on the Left as well as
the Right, quoting from a statement by the National Association for the Advancement of
Colored People that this organization
strongly supports employer sanctions. Our branches across the country,
particularly in large cities, report that the undocumented worker impacts
the employment of blacks. Many blacks are forced from employment rolls
by the undocumented worker who is hired at a subminimum wage and is
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at the mercy of the employer. The worker is consciously aware that he/she
has no protection because of illegal status and will accept 'starvation'
wages to be employed in the United States.
Nevertheless, business interests were concerned about the burdens that the bill would
impose on private enterprise. Representative Libby Tarian, a pro-business sponsor and
floor manager of the bill that became IRCA, tried to assuage her supporters in the House
(like her, pro-business politicians who were leery of federal supervision of private
enterprise) by stating on the floor:
this bill does not overwhelm business with regulatory responsibilities.
The duties of employers under this law are very modest: they are not being
dragooned into becoming deputies of the INS. All they have to do is make
modest efforts to check their workers’ documents up front when they hire
them. As long as they do not connive at hiring undocumented workers,
businesses will face no liability.
B. IRCA’s basic prohibition on hiring aliens unauthorized to work in the
United States and basic duty to verify employment eligibility:
IRCA
comprehensively revised the Nation’s immigration laws by making it illegal for
employers to hire any aliens that lack proper authorization to work in the United States.
Under IRCA, the employers must not (1) hire an alien for a job while “knowing the alien
is an unauthorized ...with respect to such employment,” (2) hire any person for a job
without taking certain steps to verify the person’s identity and work eligibility, or (3)
continue to employ any person after discovering that the person is an unauthorized alien
with respect to their job. 8 U.S.C. §1324a(a)(1)-(3).
To comply with the second
condition, employers must attest under penalty of perjury on a form (known as an “I-9
form”) that they have examined certain documents provided by prospective employees to
establish both the identity of those prospective employees and their authorization to work
in the United States. 8 U.S.C. §1324a(b).
If an employer complies “in good faith” with the requirements of the
employment verification system by attesting that he or she examined the specified
documents, then IRCA gives the employer an affirmative defense that they have not
violated the prohibition on the knowing hiring of an unauthorized alien under 8 U.S.C.
§1324a(1)(A). Any employer who knowingly hires an unauthorized worker is liable for
fines of up to $11,000 per violation (i.e., illegally hired worker). Failure to fill out a
proper I-9 form for each employee can result in fines of $1,000 for each missing or
incomplete form. The ICRA also makes it unlawful for “any person or entity knowingly
... to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying
a requirement of this chapter or to obtain a benefit under this chapter.” 8 U.S.C.
§1324c(a)(1).
C. Legislative history and summary of the employer’s duty not to
discriminate or retaliate against employees:
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1. Legislative History of Anti-Discrimination Provision: When IRCA was
debated, critics worried that employers might use compliance with the law as a pretext
for firing workers for improper reasons – for instance, because the workers had a foreign
accent, darker skin, were suing the company, or were union organizers. Representative
Saul E. Darrity, a pro-labor member of the House, introduced several amendments
prohibiting employers from terminating undocumented aliens if the motive for
termination were to eliminate union organizers or whistle blowers from the workforce.
Representative Tarian, the bill’s sponsor, spoke against such amendments on the ground
that they would place business in an untenable position: “If they fire the undocumented
alien, they end up getting sued for discrimination. If they don’t, they end up getting sued
for aiding illegal immigration. That’s a Catch-22. Let’s keep this law simple: if you
don’t have the right to work in the United States, then you don’t have the right to the
protections of labor laws intended for legitimate workers.”
Darrity nevertheless offered his amendment as a partial amendment to the base
bill that eventually would become IRCA in the Committee of the Whole. However,
Representative Emma Grayshun, a pro-immigrant member of the House, offered a
substitute amendment that proposed to replace Darrity’s proposal with a prohibition on
employers’ discriminating on the basis of an employee’s national origin or such
individual's citizenship status. Grayshun’s substitute amendment passed over Darrity’s
amendment, replacing Darrity’s amendment as the amendment to be voted on against the
unamended base bill. Grayshun’s amendment then won a majority of the votes against
the base bill in the Committee of the Whole, thus becoming the part of the bill that
ultimately passed both Houses of Congress.
2. Summary of Anti-Discrimination provision: As a result, the final version of
IRCA contained a provision that employers may not discriminate on the basis of national
origin or citizenship status, except to the extent that the latter trait constitutes ground for
denial of work eligibility under the IRCA. Thus, employers may not distinguish among
legal immigrants – e.g., permanent resident aliens, refugees, asylum seekers, or other
persons lawfully present in the United States – in their efforts to comply with IRCA. 8
U.S.C. §1324b(a)(1).
IRCA also makes it illegal for “a person or other entity to
intimidate, threaten, coerce, or retaliate against any individual for the purpose of
interfering with any right or privilege secured under this section or because the individual
intends to file or has filed a charge or a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this section.” 8 U.S.C.
§1324b(a)(5).
II. Overview of the Occupational Safety & Health Act of 1970
A. Safety Standards: The Occupational Safety & Health Act of 1970
(“OSHA”) requires that employers’ workplaces comply with detailed safety and health
standards protecting workers from injuries ranging from ergonomically unsuitable work
areas to hazardous materials. Pursuant to 29 U.S.C. §655(b)(1), the Secretary of Labor
(“Secretary”) is responsible for promulgating safety and health standards after consulting
with advisory committees of scientific experts. In promulgating these standards, the
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Secretary must provide notice and opportunity for comment consistent with section 553
of the Administrative Procedure Act.
B. Anti-retaliation provisions: OSHA also provides that “[n]o person shall
discharge or in any manner discriminate against any employee because such employee
has filed any complaint or instituted or caused to be instituted any proceeding under or
related to this chapter or has testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of himself or others of any right
afforded by this chapter.” 29 U.S.C. §656(c). By regulation, the Secretary has stated that
“right[s] afforded by this chapter” include “by necessary implication” the right not only
to make complaints against a non-complying employer but also to “request information
from the Occupational Safety and Health Administration” and to abstain from entering
worksites that pose a “serious injury or death arising from a hazardous condition at the
workplace.” 29 C.F.R. §1977.12.
C. State jurisdiction over occupational safety & health where no federal
standard is in effect: OSHA provides that “Nothing in this chapter shall prevent any
State agency or court from asserting jurisdiction under State law over any occupational
safety or health issue with respect to which no standard is in effect under section 655 of
this title.” 29 U.S.C. §666(a).
D. State authority to implement federally approved plans for occupational
safety & health: In addition to their power to enforce state laws over occupational safety
and health issues where there is no federal standard in effect, the states also have a power
to implement federally approved state plans for protecting occupational health and safety.
If any state government submits an implementation plan to the Department of Labor
meeting, in the judgment of the Secretary, seven statutorily specified standards of
efficacy and protectiveness, then that state may implement these federally approved
safety standards with state personnel. These federal prerequisites include (for instance)
adequate assurance that the state’s proposed standards “are or will be at least as effective
in providing safe and healthful employment and places of employment as the [federally
promulgated standards].” 29 U.S.C. §666(c)(2). (Currently, 22 states implement plans
approved by the Secretary, while the rest are governed by federal standards enforced by
federal personnel). In states that fail (or refuse) to submit a state plan meeting federal
standards, then the OSHA’s safety standards are enforced by the U.S. Department of
Labor itself, acting through the Occupational Safety & Health Administration headed by
the Assistant Secretary of Labor for Occupational Safety & Health.
III. Responsibility for implementing IRCA prior to 2002:
A. Enforcement of immigration laws by DOJ prior to 2002: Prior to 2002,
IRCA and all other immigration laws provided that they should be enforced by the U.S.
Attorney General aided by the Immigration & Naturalization Service (“INS”), a
subagency within the Department of Justice (“DOJ”) and subject to the Attorney
General’s direction and control In 1983, the Attorney General promulgated a regulation
transferring responsibility for adjudicating violations of the immigration laws to the
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Executive Office of Immigration Review (“EOIR”), a subagency created by the same
regulation. 8 C.F.R. §1003.0. Under this regulation, administrative law judges within the
EOIR would hear and decide cases brought by INS under various provisions of the
various immigration statutes governing (for instance) exclusion and deportation of aliens,
grants of asylum and refugee status, and citations for forging documents or violating the
conditions of entry into the United States.
Within the EOIR, review of ALJs’ decisions was provided by a 15-member
administrative tribunal entitled the “Bureau of Immigration Appeals (“BIA”). The
Attorney General’s regulation creating the BIA provided in 8 C.F.R. §1003.1(d) that:
(1) [the BIA] shall function as an appellate body charged with the review
of those administrative adjudications under the Act that the Attorney
General may by regulation assign to it. The Board shall resolve the
questions before it in a manner that is timely, impartial, and consistent
with the Act and regulations. In addition, the Board, through precedent
decisions, shall provide clear and uniform guidance to the [INS], the
immigration judges, and the general public on the proper interpretation
and administration of the Act and its implementing regulations.”
(i) The Board shall be governed by the provisions and limitations
prescribed by applicable law, regulations, and procedures, and by
decisions of the Attorney General (through review of a decision of the
Board, by written order, or by determination and ruling pursuant to section
103 of the Act).
(ii) Subject to these governing standards, Board members shall exercise
their independent judgment and discretion in considering and determining
the cases coming before the Board, and a panel or Board member to whom
a case is assigned may take any action consistent with their authorities
under the Act and the regulations as is appropriate and necessary for the
disposition of the case.
The DOJ’s regulations also specified that immigration judges who are reviewed by the
BIA “shall act as the Attorney General's delegates in the cases that come before them”
and “shall exercise their independent judgment and discretion and may take any action
consistent with their authorities under the Act and regulations that is appropriate and
necessary for the disposition of such cases.” 8 C.F.R. §1003.10.
B. DOJ’s regulations defining employers’ duty to verify documents and hire
in good faith: The Attorney General also issued regulations interpreting the employers’
duty to verify whether documents submitted by an employee were genuine. Under this
regulation, the employer had an obligation to “physically examine” certain enumerated
documents – passports, alien registration cards, birth certificates, drivers’ licenses, etc –
to “ensure that the documents presented appear to be genuine and to relate to the
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individual.” 8 C.F.R. §174a.2(b)(1)(ii)(A). In addition, the Attorney General defined
“knowing” employment of an undocumented worker in 8 C.F.R. §274a.1(l) as
(1) having actual or constructive knowledge. Constructive knowledge is
knowledge that may fairly be inferred through notice of certain facts and
circumstances that would lead a person, through the exercise of reasonable
care, to know about a certain condition. Examples of situations where the
employer may, depending on the totality of relevant circumstances….
The regulation continued by enumerating examples of constructive knowledge, such as
failure “to take reasonable steps after receiving information indicating that the employee
may be an alien who is not employment authorized,” such as “ignoring written notice
[from the federal government] that [the information in an I-9 form] is assigned to another
person, or that there is no agency record that the document has been assigned to any
person.”
C. The Memorandum of Understanding between the DOJ and DOL on
IRCA enforcement prior to 2002: After IRCA was enacted in 1986, a controversy arose
concerning employers’ reporting immigration violations against their own employees in
retaliation for those employees’ bringing complaints against the employers under various
labor laws regulating hours, wages, collective bargaining, and work conditions. Several
highly publicized INS raids on hotels and meat-processing plants during the late 1980s
and early 1990s underscored the worry that federal immigration law was being used by
employers as a weapon against workers who were trying to enforce labor laws. In some
of the cases, the work sites were on the eve of a union certification election when the raid
took place, leading to the arrest and deportation of several union organizers. In other
cases, workers had brought complaints against their employer for safety violations shortly
before the INS officers descended on the plant.
To address these concerns, the Attorney General entered into a “Memorandum of
Understanding” (“MOU”) with the Department of Labor in 1998 concerning enforcement
of IRCA. Under this MOU, the DOL and the INS undertook to “develop and implement
policies that avoid inappropriate worksite interventions where it is known or reasonably
suspected that a labor dispute is occurring and the intervention may, or may be sought so
as to, interfere in the dispute.” The MOU established that when ICE agents know or have
reason to suspect that a labor dispute is occurring, they should get clearance from the
Attorney General who would consult with DOL, in order to avoid conducting “an
inappropriate work site raid.” The 1998 MOU was published in the federal register but
not otherwise subject to any public comment. The MOU stated that it was an “internal
guidance document” to assist officials charged with immigration enforcement. In
explaining the basis for its limit on IRCA enforcement, the MOU stated: “Allowing
employers to use the IRCA to violate labor laws actually undermined the IRCA’s purpose
of discouraging the hiring of undocumented workers, by giving employers an incentive
actively to seek out undocumented aliens, knowing that these sorts of workers will be
least likely to resist employers’ violations of labor, safety, and wages & hours laws.”
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D. The ALJ’s decision in In re Reynalda Montoya In 2000, an immigration
judge within the EOIR issued an opinion in the case of In re Reynalda Montoya in which
the ALJ terminated the INS’s removal proceedings against two garment workers who
had been arrested in a raid on a textile factory. The two workers were part of an
organizing effort by the Union of Needletrades, Industrial and Textile Employees
(UNITE!) at the factory. UNITE! had filed complaints with the DOL concerning unpaid
wages for overtime hours worked that were due under the Fair Labor Standards Act, and
interference with their union organizing rights protected by the National Labor Relations
Act. As a result of the employer’s retaliatory call, immigration agents raided the factory.
The workers were arrested and placed in deportation (removal) proceedings. In
immigration court, the workers filed a motion to suppress all evidence that the
immigration agents had obtained in the raid and to terminate proceedings on the ground
that the INS had failed to comply with the MOU. The immigration judge granted the
workers’ motion to terminate removal proceedings, finding that the MOU was binding on
immigration agents, because the MOU “was designed to protect fundamental labor rights
protected by federal statutes that form an implied limit on IRCA.” According to the ALJ,
“the [INS’s] failure to adhere to MOU invalidates [the] removal proceedings, because
evidence acquired in violation of labor laws is implicitly excluded under an implied rule
of evidence derived from those laws that IRCA left intact.” The immigration judge stated
that the MOU constituted a reasonable way of respecting this implied exclusionary rule,
such that, had INS officials honored the MOU, then the deportation proceeding could
have gone forward.
The INS did not appeal the ruling, and the BIA, therefore, never issued an opinion
addressing the case.
IV. The Homeland Security Act of 2002
In 2002, Congress enacted the Homeland Security Act, abolishing the INS and
transferring responsibility for enforcing the immigration laws from the Department of
Justice to the newly created Department of Homeland Security (“DHS”), a cabinet-level
Department headed by a Secretary of Homeland Security appointed by the President,
confirmed by the Senate and serving at the pleasure of the President.
In the section of the Homeland Security Act of 2002, 8 U.S.C. §1103(a), creating
the office of the Secretary of Homeland Security, the Act provides that:
(1) The Secretary of Homeland Security shall be charged with the
administration and enforcement of this chapter and all other laws relating
to the immigration and naturalization of aliens, except insofar as this
chapter or such laws relate to the powers, functions, and duties conferred
upon the President, Attorney General, the Secretary of State, the officers
of the Department of State, or diplomatic or consular officers: Provided,
however, That determination and ruling by the Attorney General with
respect to all questions of law shall be controlling.
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(2) He shall have control, direction, and supervision of all employees and
of all the files and records of the [INS].
(3) He shall establish such regulations; prescribe such forms of bond,
reports, entries, and other papers; issue such instructions; and perform
such other acts as he deems necessary for carrying out his authority under
the provisions of this chapter.
(4) He may require or authorize any employee of the [INS] or the
Department of Justice to perform or exercise any of the powers, privileges,
or duties conferred or imposed by this chapter or regulations issued
thereunder upon any other employee of the [INS].
(5) He shall have the power and duty to control and guard the boundaries
and borders of the United States against the illegal entry of aliens and
shall, in his discretion, appoint for that purpose such number of employees
of the [INS] as to him shall appear necessary and proper.
In the section of the Homeland Security Act creating the DHS, 6 U.S.C. §111(b),
the Act provides that
(1) In general The primary mission of the Department is to – (A) prevent
terrorist attacks within the United States; (B) reduce the vulnerability of
the United States to terrorism; (C) minimize the damage, and assist in the
recovery, from terrorist attacks that do occur within the United States; (D)
carry out all functions of entities transferred to the Department, including
by acting as a focal point regarding natural and manmade crises and
emergency planning; (E) ensure that the functions of the agencies and
subdivisions within the Department that are not related directly to securing
the homeland are not diminished or neglected except by a specific explicit
Act of Congress; (F) ensure that the overall economic security of the
United States is not diminished by efforts, activities, and programs aimed
at securing the homeland; (G) ensure that the civil rights and civil liberties
of persons are not diminished by efforts, activities, and pro-grams aimed
at securing the homeland; and (H) monitor connections between illegal
drug trafficking and terrorism, coordinate efforts to sever such
connections, and otherwise contribute to efforts to interdict illegal drug
trafficking.
During the congressional debates over the Homeland Security Act, different
interest groups argued fiercely about whether to leave the EOIR (and its adjudicative
functions) within the Department of Justice or rather transfer it to the DHS. In general,
those who supported more stringent enforcement of laws restricting illegal immigration
wanted to transfer the EOIR’s adjudicative functions to the DHS, while those who
wanted to insure the protection of immigrants’ rights wanted the EOIR to continue
performing its adjudicative function within the DOJ.
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Representative Libby Tarian offered a partial amendment to the base bill in the
Committee of the Whole providing that the functions of the EOIR would be transferred to
the DHS. In response to Tarian’s amendment, Representative Saul E. Darrity offered a
perfecting amendment explicitly codifying In re Reynalda Montoya’s understanding of
the IRCA. Darrity’s perfecting amendment was passed by the Committee of the Whole,
but the resulting amendment that combined both Darrity’s and Tarian’s proposal (i.e., an
amendment both to transfer the EOIR’s functions and to codify Reynalda Montoya)
was defeated when the Committee voted on whether to amend the base bill. In the end,
the Congress left the EOIR (containing the BIA and the immigration ALJs) within the
DOJ to perform the same adjudicative functions that they had performed before 2002
under the supervision of, and subject to review by, the Attorney General.
V. The DHS’ IMAGE Program for enforcing IRCA
In 2005, the DHS published a notice of a proposed rule-making in the Federal
Register pursuant to section 553 of the Administrative Procedure Act, announcing the
proposed creation of a new public-private cooperative program entitled the “Immigration
Mutual Agreement between Government and Employers” (“IMAGE”). The purpose of
the IMAGE program was (in the words of the notice), to induce employers to provide
more information to the Bureau of Immigration & Customs Enforcement (“ICE”), a
subagency within DHS, concerning the documentation and work-eligibility of their
employees. Under the IMAGE program, employers would enter into an agreement with
ICE, agreeing to cooperate closely with ICE in detecting and apprehending any alien
workers who lacked proper work authorization by (for instance) permitting ICE to audit
their I-9 forms, creating an anonymous tip line by which employees could supply
information to ICE, and screening all employees’ social security numbers with the” EVerify” system of checking employees’ social security numbers against the Social
Security Administration’s own database. In return, the DHS would extend a strong
presumption that, absent clear and convincing evidence to the contrary, the employers
participating in the program had a “good faith” defense under 8 U.S.C. §1324a(1)(A)
that they did not knowingly hire any aliens ineligible to work in the United States.
To overcome employers’ skepticism about opening up their employment records
to federal investigation, DHS also stated in the notice that they were repealing the MOU
with the Department of Labor. Therefore, employers were entitled to participate in
IMAGE even during an ongoing labor dispute. The DHS’ notice stated that employers’
right to participate in IMAGE was limited only by the requirement in IRCA, 8 U.S.C.
§1324b(a)(1), that employers not discriminate on the basis of their workers’ national
origin or citizenship status or in retaliation for making claims that such discrimination
occurred. However, so long as all workers’ files were turned over impartially for ICE’s
inspection without regard to the employees’ national origin, alienage, or efforts to enforce
the IRCA itself, the DHS would place no limit on employers’ participation, even when
such participation affected undocumented workers’ power to enforce labor laws.
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In response to comments from union officials and immigrant rights advocates that
the repeal of the MOU violated the OSHA and similar labor laws, the DHS stated that,
regardless of whether employers had outstanding claims under labor laws against them,
they were under a continuing obligation to avoid “knowing” employment of
undocumented workers – and those workers’ filing of labor complaints could not
eliminate this federal obligation. “It is ‘knowing’ acceptance if, under the totality of the
circumstances, the employer has constructive knowledge of documents’ unreliability.
Therefore, failing to take advantage of a cheap and reliable way of verifying those
documents like the IMAGE program is a form of ‘constructive knowledge’ of -- turning
a blind eye to – the fact that the proffered documents are fraudulent.” DHS also observed
that “workers who commit document fraud or otherwise violate the immigration laws
have no right to take advantage of labor laws intended for the benefit of legitimate
employees. Such rights are superseded by the immigration laws to the extent necessary
to ensure that the right to work in the United States is reserved for documented aliens and
citizens.”
The DHS published the final rule in the Federal Register in 2006 after offering the
responses as summarized above as the basis for the rule, as required by section 553 of the
Administrative Procedure Act.
VI. The Department of Labor’s 2006 Interpretative Rule
Meanwhile, the Department of Labor’s Occupational Safety & Health
Administration had published an interpretative rule (i.e., without providing any
opportunity for any comment under section 553 of the Administrative Procedure Act) in
the Federal Register in 2006, stating that, in enforcing the anti-retaliation provisions of
OSHA against employers, the Department would presume that any effort by employers
voluntarily to supply to immigration officials data about employees beyond what was
statutorily required during an “ongoing labor dispute” would create a presumption that
the employer had engaged in illegal retaliation under OSHA’s anti-retaliation provisions
contained at 29 U.S.C. §656(c). The interpretative rule defined “ongoing labor dispute”
as any unresolved complaint brought by an aggrieved worker under OSHA or other
statute enforced by the DOL. The Interpretative Rule also specified that the employer
would bear the burden of rebutting the presumption by producing clear and convincing
evidence that the decision to volunteer employee data was not related to the ongoing
labor dispute.
VII. The ICE Raid on Plucky’s Chickens, Inc.
In 2008, Juan Gomez works at a poultry-processing plant in North Carolina
owned by Plucky’s Chickens, Inc. Juan is a Mexican citizen who entered the United
States illegally in 2000. Juan secured the job at Plucky’s in 2002 by presenting a forged
birth certificate, a forged social security card with a non-existent social security number,
and a North Carolina driver’s license. The Human Resource department at Plucky’s
filled out an I-9 form for Juan, but, when Gomez was initially hired, Plucky’s had not
entered into a Memorandum of Understanding with the DHS. For this reason, Juan’s
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phoney social security number was not submitted to DHS for verification through the
DHS’s “E-Verify” system. Juan was not unusual in this respect: A substantial percentage
of Plucky’s workforce consisted of aliens ineligible to work within the United States who
submitted counterfeit documentation with their I-9 forms.
After several years of working under grueling conditions in the chickenprocessing plant, Juan and his co-workers were fed up with the unsafe and unsanitary
working conditions (including equipment that was not properly washed and sanitized
after use, automated cutting blades that lacked proper safety guards and kill switches to
prevent accidents, bad ventilation in an atmosphere permeated with chicken feces and
residue, etc).
They approached the North Carolina field office of the DOL’s
Occupational Safety & Health Administration to bring a formal complaint about the
conditions at the facility. (This field office was a federal office, as North Carolina had
never submitted any implementation plan to carry out the OSHA with state law pursuant
to 29 U.S.C. §666(c)(2)). The workers also began meeting with representatives from the
United Food & Commercial Workers to discuss forming a union at the facility.
Soon after the workers began their organizing and litigating efforts, Stan Pat
(Plucky’s CEO) directed Plucky’s Human Resources Department to contact the Bureau
of Immigration & Customs Enforcement and enter into an agreement under ICE’s
IMAGE program. Shortly after Plucky’s supplied all of its employees’ social security
numbers and other information to the ICE, ICE officials launched a raid on Plucky’s
facility where Gomez was employed. Gomez along with several dozen workers were
arrested and held for deportation.
VIII. Questions
Question 1: 25% of exam grade. Gomez’s lawyer, Ida Muir, comes to you for
advice. Ida would like to know whether Gomez has a decent argument that the ICE’s
arrest and deportation of Gomez is illegal under the best interpretation of IRCA and/or
the various administrative decisions implementing IRCA. Write a memo providing the
strongest argument in defense of such a view of IRCA, responding to the greatest
weaknesses in the argument and assessing the odds of the argument’s success.
Remember to set forth the strongest argument possible, even if you do not think that it is
a winner: Ida wants to know what all of her options for her client are.
Question 2: 25% of exam grade. Even if Gomez is destined to be deported
under the IRCA, Ida would like to know whether either DOL or Gomez might have some
claims under either federal or state law to recover fines, damages, or other relief from
Plucky’s. “If Plucky’s was so concerned with being a good corporate citizen by
cooperating with federal authorities,” fumed Ida, “then why did they wait until there was
labor unrest to help out?” Ida would like to encourage the DOL to bring an action against
Plucky’s under OSHA’s anti-retaliatory provision. But she would like even more to
bring a private claim against Plucky’s under the North Carolina Whistleblower Act
(NCWA). The NCWA provides that “any person who terminates the employment of any
employee on the grounds that the employee reported any violation of any federal, state, or
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local law protecting health or safety has committed wrongful employment retaliation and
is liable to the employee for such relief as deemed appropriate by a state court of general
jurisdiction, including reinstatement of employment, back-pay, compensatory, and
punitive damages.” The N.C. statute requires that factual issues be tried by a jury, Ida is
optimistic that a local jury would not look kindly on Plucky’s cooperation with federal
immigration authorities.
The NCWA’s remedies of compensatory and punitive damages are obviously
more attractive to Ida and Gomez than the much smaller fines that Plucky’s would have
to pay under the OSHA. Nevertheless, Ida will take what she can get: She would like to
know whether either or both the state or federal laws could be enforced against Plucky’s.
Write a memo providing the strongest argument that (a) both laws can be enforced
against Plucky’s, (b) the North Carolina law can be enforced against Plucky’s even if the
OSHA anti-retaliation provision cannot be so enforced, and (c) neither law can be
enforced against Plucky’s (this last being Ida’s worst-case scenario). As always, respond
to the greatest weaknesses in each argument and assess the odds of the argument’s
success.
Question 3: 25% of exam grade. When the story of ICE’s raid on Plucky’s
facility and Gomez’s subsequent lawsuits hit the press, there is a firestorm of
controversy. The President of the United States, Terry Fide, is besieged by interest
groups ranging from immigrant advocates, anti-immigrant groups, and the National
Association of Manufacturers, all of whom want him to exercise whatever authority he
possesses to resolve the conflict of state and federal law in their favor.
You are a lawyer in the Office of Legal Counsel (a DOJ office that provides legal
advice to the executive branch). Your boss, the head of OLC, has asked you to write a
memo summarizing and evaluating the legality of the President’s options. Write a memo
answering the following three questions:
A. Could the President issue an executive order repealing either or both the
DHS’s IMAGE program or DOL’s 2006 interpretative rule? Make the best argument for
such a power while explaining the greatest legal obstacles to such an argument, and
assess the probability that the argument would prevail in litigation.
B. Assume that DHS’ IMAGE program could not, consistent with IRCA and its
implementing regulations as currently written, be unconditionally imposed on businesses
without their voluntary consent. Could the President nevertheless require enrollment of
businesses in DHS’ IMAGE program as a condition for obtaining federal contracts?
Make the best argument for such a power while explaining the greatest legal obstacles to
such an argument, and assess the probability that the argument would prevail in litigation.
(For the purposes of this question, assume that the Federal Property and Administrative
Services Act, 40 U.S.C. §§ 471et seq. (“the Procurement Act”) is in force, but do not
assume without argument that any D.C. Circuit opinion construing that Act is necessarily
correct, and do not assume without argument that either OSHA or IRCA should be
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construed in the same way as the National Labor Relations Act, 29 U.S.C. §§ 151 et seq.
(NLRA) has been construed).
C. Assume that the North Carolina Whistleblower Act is not preempted by any
federal statute by the force of that statute or existing implementing regulations alone.
Could the President nevertheless issue an executive order declaring that state laws like
the North Carolina Whistle blowers’ Act are preempted by some combination of IRCA,
OSHA, and other relevant legal principles? Make the best argument for such a
Presidential power to preempt state law while explaining the greatest legal obstacles to
such an argument, and assess the probability that the argument would prevail in litigation.
Also assess whether there some other means by which the President could ensure that
companies cooperating with the ICE are protected from liability under state law without
directly preempting state law with an executive order.
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