Enforcement of INA Employer Sanctions Provisions Against

Federal Government Entities

Section 274A of the Immigration and Nationality Act, which establishes em ployer verification requirements and authorizes the Immigration and Naturalization Service to take enforcement actions 

against em ployers for failure to comply with those requirements, authorizes imposition o f em ployer 

sanctions against federal government entities.

The INS can exercise this enforcement authority against persons and entities within all three branches 

o f the federal governm ent in a manner consistent with the Constitution.

March 15, 2000

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l

I m m ig r a t io n a n d 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 requirements and authorizes the Immigration and Naturalization Service (“ INS” ) to take 

enforcement action against employers for failure to comply with those requirements, can be applied to federal government entities, in light of the possible constitutional 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 knowingly 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 of violations” of section 274A. See 8 U.S C. § 1324a(f)( 1 M 2)

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of 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 penalties 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 determined 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 antidiscrimination provision of section 274B. See Enforcement Jurisdiction o f the Special 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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“ Application to Federal Government — 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 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 investigation, 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 Air 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 General 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 “ ‘lawsuits between two federal agencies are not generally justiciable.’ ” EPA Opinion,

21 Op. O.L.C. at 111 (quoting Constitutionality o f Nuclear Regulatory Commission’s Imposition o f Civil Penalties on the Air 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 of 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 of “ 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.

We 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 Forrester, the Supreme Court concluded that questions regarding the scope 

of 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 

of the official functions exercised and evaluates “ the effect that exposure to particular 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 functions 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 of their duties” was not substantial 

enough to warrant absolute immunity. Id. at 230. The Court held that administra2 Indeed, the Executive Branch has various procedures in place to avoid litigation and promote internal dispute 

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

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

an enforcement action under section 274A would impose some administrative burdens 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 Sentencing 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, notwithstanding 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, 1142^4 (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 Against 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 congressional 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. Proxmire, 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 Representatives 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 motivation:

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 of section 274A against Congress, we will here address only the general question 

o f the availability of 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 whether the constitutional 

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

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

while Congress 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 concerns, 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 history, 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 Member [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 proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of 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 deliberations 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 .ll, 248-49. Two courts of appeals, however, have addressed 

this issue.

In the original panel decision in Davis,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), rev’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 performance, but concluding that it was ‘ ‘essential that the understudy to [his] Administra5 The onginal panel decision m Davis was 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 Cir 1978). The Supreme Court reversed on 

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

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

Court also declined to reach it Davis, 442 U.S at 236 nil, 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 legislative 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 of

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 of Congress in the “ discharge of 

their functions,” personnel decisions affecting them are correspondingly 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 purposes.

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 immunity 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 Representatives’ 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 Gravel and Brewster, the mere

6 We note too that there is some question w hether and how the Supreme Court’s ruling in Forrester v. White

bears on Browning As noted above, Forrester requires a “ functional” approach to claims of absolute judicial immunity in the context of employment decisions. T he 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 of 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 of personnel, and verification that they are not unauthorized aliens.

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

applied Forrester's functional approach in rejecting a D C. Council member’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 

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

The functions of probation officers and legislative aides are therefore equally important to the due functioning of 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 employee’s importance to the legislative process the greater should be the state legislator’s 

freedom to violate that employee’s constitutional rights

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fact that an individual may have some duties that relate to core legislative processes does not make all matters bearing on that person’s employment “ 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 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 purpose, is that it does not prohibit inquiry into activities that are casually or incidentally 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 Member 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 Browning." Id More recently, in United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir 1995), the District of 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 of Browning is out of step not only with the Supreme Court’s precedents, but also with 

the District of 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 congressional defendants who dismissed a food service manager for allegedly discriminatory reasons Id at 931. Browning

cited Walker as the genesis of a standard focusing on the nature of the employee’s duties, and immunizing all 

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

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

considered the employee’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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executive enforcement would not involve inquiry into legislative acts or the 

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

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

Gravel, 408 U.S. at 625. Section 274A applies to the “ hiring, recruiting, or referring” of individuals for employment in the United States, and requires employers 

to verify, by examining certain specified documents, that individuals being considered 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 inspection. 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 document retention requirements. Regardless of how integrally connected to the legislative 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 of Legal Counsel

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