Roosting Chickens & Petard-Hoisting: Bush Immigration Rule Struck Down

Practically the first thing Republicans did when they took over in ’94 was pass a bill requiring a cost-benefit analysis be applied to any rule or regulation made by any govt agency to show how the rule might harm business. It demanded that all rules be subject to simple $ valuations, and if the rule cost businesses more than it benefited – whoever – as expressed in $’s, then the rule was illegal. Since then, the CBA requirement has been applied, shall we say, selectively. It has been used to excuse/rationalize cuts in social services from food stamps to housing to health care. It has never been used to, oh, I don’t know, kill rules allowing corporations to pollute our water and air, sell dangerous products, or eliminate safe working conditions for employees.

As of yesterday, all that changed. A California judge struck down a new HS rule because the CBA hadn’t been done before Chertoff activated it.

A federal judge in San Francisco ordered an indefinite delay yesterday of a central measure of the Bush administration?s new strategy to curb illegal immigration.

The judge, Charles R. Breyer of the Northern District of California, said the government had failed to follow proper procedures for issuing a new rule that would have forced employers to fire workers if their Social Security numbers could not be verified within three months.

Judge Breyer chastised the Department of Homeland Security for making a policy change with ?massive ramifications? for employers, without giving any legal explanation or conducting a required survey of the costs and impact for small businesses.

(emphasis added)

Republicans in Congress, who never expected the CBA requirement to be applied to any rule the Bush Admin made, are, of course, screaming like stuck pigs.

Some conservative lawmakers who argue for vigorous enforcement of the immigration laws as a priority said they were outraged by the judge?s ruling.

?What part of ?illegal? does Judge Breyer not understand?? asked Representative Brian P. Bilbray, Republican of California and chairman of the House Immigration Reform Caucus. ?Using a Social Security number that does not belong to you is a felony. Judge Breyer is compromising the rule of law principles that he took an oath to uphold.?

What part of “a cost-benefit analysis is required before any federal regulation can be enforced” don’t you understand, Brian? It was your party’s goddamn law.

Naturally, Master Bilbray was shocked when a law meant only to put down initiatives unfriendly to corporate America and Democratic initiatives to help the needy was applied to a Republican initiative. As we all know, Republicans are above the law, even the laws Republicans themselves make.

But the fact that the judge is upholding a Republican-sponsored law will be lost in the coming conservative brouhaha over “activist liberal judges” interfering with Congressional “intent”. All that will be noticed is that Judge Breyer is a Bill Clinton appointee. End of story.

Well, not so damn fast, Brian. Your damn party insisted on this stupid law in the first place. If you don’t like it, sponsor a bill to repeal it and get it off all our backs. Don’t stand around whining because a judge applied your law to your issue. That would make you a…what? Can we say, “hypocrite”?

6 Responses to “Roosting Chickens & Petard-Hoisting: Bush Immigration Rule Struck Down”


    It’s like shooting yourself in the foot but having to wait thirteen years before you feel the sting.

  2. Laura says:

    Bilbray should have asked how it was he even came to represent So. CA without completing the absentee vote count… I’m just sayin’…

  3. First of all, Judge Breyer didn’t strike the rule down- he only enjoined it from being enforced (which, admittedly, usually means he WILL strike it down). Additionally, it sounds like the lack of a CBA was only one of the reasons for the injunction. If DHS didn’t do a CBA at all, then they’re really stupid, because an agency can put together a CBA in the time I’m spending writing this comment- an EPA official once remarked that you can fudge the numbers on anything to make it appear cost-effectivem since there’s no judicial review of the actual CBA.

    Which brings me to my next point. The law requiring the CBA is quite useless because it lacks any real teeth. An essential companion bill was killed by a Dem fillibuster that would have allowed for court challenges to the CBA performed by the agency.. In fact, the law at issue in this case (in the absence of its companion bill) really just codified a requirement that existed under Executive Orders from at least the time of the Carter Administration.

    Moreover, applying CBA to new rules is frankly just common sense- federal, state, and local governments have limited resources, which they should be using judiciously (or at least SHOULD have limited resources, unless you think deficit spending is actually a good thing). Similarly, private firms and citizens have limited resources, and overly strict regulations can make the cure worse than the disease, so to speak. For instance, let’s say that OSHA passes a rule that it estimates will prevent 10 significant but not life-threatening workplace injuries a year, nationwide. This rule makes sense if you don’t do a CBA. But let’s say that under our hypothetical, it would cost private firms a collective total of $100 million a year, or $10 million per injury prevented- is that really a good rule, when collectively employers could fully compensate the injured employees (including lost wages, hospital bills, etc.) for about $100,000 each? Similarly, let’s say this rule will cost OSHA $1 million a year to enforce properly(about the same amount as the value of the injuries prevented)- wouldn’t that $1 million be better spent by OSHA on stricter enforcement of a more valuable regulation? And this says nothing about the effects on state and local governments, which were the primary point of the law in issue here (it’s called the Unfunded Mandates Act).

    Sure, CBA was probably most often used in the 80s and 90s to kill regulations that would have increased private sector costs and the costs of a particular government service- but then again, most new rules and regulations are going to increase costs on the private sector are aimed at corporations or increasing government services. Fact is, CBA is a good thing in just about any case- but only if it is properly performed, which is only going to happen if it can be challenged in court. This of course is something the Dems prevented because they wanted their guy’s regulations to avoid scrutiny (oddly enough, there are very few Clinton era regulations that would have failed to withstand CBA scrutiny – as Greenspan has noted, the guy understood fiscal responsibility in a way few politicians do).

    Ultimately, CBA is no different than the legally required environmental impact analyses for new rules and regulations (which ARE subject to judicial scrutiny, and which have been used to great effect by pro-environment groups). In fact, environmental impact analysis is a fundamental part of a CBA.

  4. Just to add one quick caveat to my previous post:
    There is one important downside to CBA, which is that to perform it thoroughly enough to get an accurate CBA, it may cost more money than it saves (this being the primary problem with large-scale central planning of any sort).

    But it still needs to be factored in at some minimal level; otherwise, you’re just making rules without any regard for unintended consequences.

  5. Crap. I just read something else about this, so now I need to add yet a third comment.
    The law at issue was NOT the Contract With American-era law requiring CBA that Mick suggests. It was actually another CBA law that was passed at the end of the Carter Administration requiring the consideration of effects on small businesses in particular.

    That law actually DOES allow for judicial review as a result of some Clinton-era amendments that apparently came out of a White House-led task force of sorts. So unless you think that Clinton and Carter were both slaves to big business and that protections for small businesses in particular are really meant to protect big business, it’s tough to see how this law was meant to protect big business.

    Either way, my argument about CBA more generally still holds.

  6. mick says:

    Hmph. I have no memory of the Carter law at all. Probably wasn’t a big deal at the time.

    So unless you think that Clinton and Carter were both slaves to big business….

    Carter wasn’t, particularly, but Clinton certainly was. That’s what NAFTA, GATT, Clinton’s refusal to discuss legal curbs on globalization, his extraordinarily weak when not downright toadying environmental record, etc etc etc were all about. That’s what the DLC is all about. That’s what Hillary is all about. It was Clinton’s biggest failure/sell-out as president.

    Either way, my argument about CBA more generally still holds.

    Perhaps. There’s an argument to be had here about the efficacy, subjectivity, and selectivity of CBA’s, particularly as they relate to not-easily-quantifiable social problems. Reducing everything to some arbitrary $ value is a piss-poor way to decide policy.


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