      Whether the Office of Special Counsel for
   Immigration Related Unfair Employment Practices
            is Empowered to Challenge the
         Constitutionality of State Statutes
The statutory exemption for “discrimination ... otherwise required in order to comply with
  law, regulation, or executive order” excludes from the scope of the Office of Special
  Counsel’s jurisdiction all discriminatory activity based on state law.
                                                                          March 16, 1989
              M emorandum O pinion for the S pecial C ounsel for
              I mmigration R elated U nfair E mployment P ractices

   You have asked for our opinion on whether the Office of Special
Counsel for Immigration Related Unfair Employment Practices may chal­
lenge discrimination on the basis of citizenship status that is committed
pursuant to state law or whether such conduct is exempted from your
jurisdiction pursuant to the exception found in 8 U.S.C. § 1324b(a)
(2)(C).1 We believe that the language “discrimination ... otherwise
required in order to comply with law, regulation, or executive order” was
intended to exclude from the scope of the jurisdiction of your Office all
discriminatory activity based on state law.
   We have reached this conclusion based on the plain language of the
statute that action taken pursuant to any “law, regulation, or executive
order” of the state or federal government is exempted from the definition
of “unfair immigration-related employment practice.” This reading of the
language is bolstered by the fact that since state statutes are generally
presumed to be constitutional, the drafters of the exception would ordi­
narily have assumed that the “laws” referred to would be presumed to be
constitutional until actually held to be otherwise. See, e.g., Salsburg v.
Maryland, 346 U.S. 545, 553 (1954) (“The presumption of reasonableness
is with the State.”) (footnote omitted); Davis v. Department of Labor, 317
U.S. 249, 256 (1942) (“Faced with this factual problem we must give great
— indeed, presumptive — weight to the conclusions ... to the state
  M emorandum for Douglas W Kmiec, Assistant Attorney General, Office of Legal Counsel, from
Lawrence J. Siskind, Special Counsel, Office of Special Counsel for Immigration Related Unfair
Employment Practices (Feb. 22,1988) (“Memorandum”).
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 statutes themselves.”); Atchison, T. & S. F. R.R. v. Matthews, 174 U.S. 96,
 104 (1899) (“It is ... a maxim of constitutional law that a legislature is pre­
 sumed to have acted within constitutional limits, upon full knowledge of
the facts, and with the purpose of promoting the interests of the people
 as a whole, and courts will not lightly hold that an act duly passed by the
legislature was one in the enactment of which it has transcended its
power.”).2 Thus, we believe Representative Frank’s reference to “valid”
laws must be understood in light of a state law’s presumed validity. 130
 Cong. Rec. 15,938 (1984). Of course, this presumption of validity and the
limitation on your jurisdiction would not apply where the particular state
law had been invalidated or found unconstitutional.3
   Disregarding the plain language of the statute in order to permit the
Office of Special Counsel to challenge action taken pursuant to state law
would also raise more complex issues, some of constitutional dimension.
In this regard, considerable doubt exists whether administrative law
judges (“AU”) can determine the constitutionality of state statutes or are
precluded from doing so by Article III of the Constitution. In assessing
whether the assignment of particular duties to a non-Article III body
unconstitutionally infringes upon the prerogatives of the judicial branch,
the Court has been especially wary about authorizing the assignment to
non-Article HI tribunals of state law questions, Northern Pipeline Constr.
Co. v. Marathon Pipeline Co., 458 U.S. 50 (1982), and constitutional ques­
tions, Johnson v. Robison, 415 U.S. 361, 369 (1974). Under your memo­
randum, however, an AU would be making determinations about both.
Where that is the case an Article III court must exercise the firmest con­
trol over the non-Article III tribunal.
   That control is missing here. Review of the AU decision is only in the
court of appeals. It is not said to be de novo, and the court of appeals has
nothing to review other than the “cold record.” United States v. Raddatz,
447 U.S. 667, 679-80 (1980) (distinguishing between “an appellate court’s
review of a nisi prius judge in a trial on the merits” and “a special mas­
ter’s findings or actions of an administrative tribunal on findings of a
hearing officer”). In Raddatz, the Supreme Court upheld a magistrate’s
factual determinations in a constitutional proceeding only because the
magistrate was subject to the “broad discretion” of the district court
  2We are also fortified in this conclusion by the fact that the use of the word “law” m the exception in
section J324b(a)(2)(C) is similar to its use in other jurisdictional statutes. For example, 28 U S C. § 1331
provides that “(t]he district courts shall have original jurisdiction of all civil actions arising under the .
laws . of the United States ” Yet there is no doubt that an action to challenge an unconstitutional law is
one “arising under” the laws of the United States.
  3Where a particular state law has not been found unconstitutional, but you believe the state law is,
under analogous Supreme Court precedent, arguably unconstitutional on its face or as applied, we rec­
ommend that you bring this concern to the attention of the Assistant Attorney General for Civil Rights
for a discussion of whether federal litigation, a denial of federal benefits or some other appropriate
action should be taken in light of the constitutional doubts presented at that time. This Office, of course,
would be pleased to assist you or Civil Rights in evaluating these constitutional questions as they arise.
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judge “to accept, reject, or modify the magistrate’s proposed findings.” Id.
at 680. Had the proceeding not “[been] ‘constantly subject to the court’s
control,”’ id. at 682 (quoting Crowell v. Benson, 285 U.S. 22 (1932)), the
 Court would have found that the statutory procedure did not “strike[] the
proper balance between the demands of due process and the constraints
of Art. III.” Id. at 683-84. Stated another way, “‘[i]n cases brought to
enforce constitutional rights, the judicial power of the United States nec­
essarily extends to the independent determination of all questions, both
of fact and law, necessary to the performance of that supreme function.’”
Id. at 682 (quoting Crowell, 285 U.S. at 60).
   Were the Immigration Reform and Control Act of 1986, Pub. L. No. 99-
603, 100 Stat. 3359 (1983) (“IRCA”) to be read as giving ALJs the authori­
ty to make determinations as to the constitutionality of state law, the
established procedures might well fall short of the requirements set forth
in Raddatz. The facts upon which the determination of the constitution­
ality of a state statute would be based would be found by a non-Article III
official. Those facts could then be reviewed only by a court of appeals,
which review is not even (unlike the procedures reviewed in Raddatz)
 designated as “de novo.” This ill-comports with the respect due state
statutes in our federal system. See, e.g., Salsburg v. Maryland-, Davis v.
Department of Labor, Atchison, T. & S. F. R.R. v. Matthews. Moreover,
in the event an AU found a challenged statute constitutional, an individ­
ual claiming that the state law is unconstitutional would, on appeal —
especially in an as-applied challenge — be deprived of the opportunity to
have an Article III court assess in the first instance the alleged facts upon
which his claim is based. This Raddatz forbids.
   CFTCv. Schor, 478 U.S. 833 (1986), highlights the differences between
the circumstances when a non-Article III tribunal may decide certain
questions and the situation at issue here. In Schor, the Supreme Court
 held that a non-Article III tribunal could entertain state law counter­
claims even though the only review was by a court of appeals. The Court
based this decision on a number of important factors. First, Mr. Schor
 consciously chose the speed and inexpense of the administrative proce­
 dure to vindicate his right to reparations, thus choosing to have his claim
adjudicated before a non-Article III court. The state whose law would be
 challenged by the Special Counsel would not appear voluntarily.
 Moreover, the other factors considered by the Schor Court in assessing
 whether the adjudication of the constitutionality of the state statute “in a
 non-Article III tribunal impermissibly threatens the institutional integrity
 of the Judicial Branch,” 478 U.S. at 851, illustrate the constitutional prob­
 lems raised by AU review of constitutional questions. The Schor Court
 looked to (1) “the extent to which the ‘essential attributes of judicial
 power’ are reserved to Article III courts”; (2) “conversely, the extent to
 which the non-Article III forum exercises the range of jurisdiction and
 powers normally vested only in Article III courts”; (3) “the origins and
                                      74
importance of the right to be adjudicated”; and (4) “the concerns that
drove Congress to depart from the requirements of Article III.” Id. (citing
Thomas, 473 U.S. at 587, 589-93); Northern Pipeline, 458 U.S. at 84-86.
   Turning to the first two considerations, the essential attributes of judi­
cial power are not sufficiently reserved to an Article III court. This is illus­
trated by looking to the “converse”: whether ALJs are here vested with
powers “normally vested only in Article III courts.” Determining the con­
stitutionality of a state statute is one of the most important of all Article
III functions. It leads to precisely the kinds of determinations that are
“normally vested only in Article III courts”, Schor, 478 U.S. at 851, and
would take the AU well beyond the “particularized area of law” which
non-Article III tribunals may well be able to handle. Id. at 852.4
   Permitting such determinations by an AU would also run counter to
the strong tradition that constitutional issues should not be resolved in
administrative proceedings.5 Administrative agencies are often said to
“have no power to pass upon the constitutionality of administrative or
legislative action.” Zeigler Coal Co. v. Marshall, 502 F. Supp. 1326, 1330
(S.D. 111. 1980).6
   4This is illustrated by the likely response to a challenge by the Special Counsel The state (or state offi­
 cial) will assert that the citizenship requirements were established by “law." This would require the ALJ
 first to construe the state law, something about which even Article III courts normally defer to state
 courts. See, e.g , Horlonmlle J S D. No 1 v Hortonville Ed .455’?!, 426 U.S 482, 488 (1976) (“We are, of
 course, bound to accept the interpretation of Wisconsin law by the highest court of the State ") (citing
 cases), MuUaney v Wilbur, 421 U.S 684,691 (1975) (“This Court, however, repeatedly has held that state
 courts are the ultimate expositors of state law.”) (citing cases) Next, the AU would have to decide
 whether the statute accords with the state’s constitution C f K izzier Chevrolet Co v Geneml Motors
 Corp , 705 F2d 322, 329 (8th Cir), cert denied, 464 U.S. 847 (1983) (“Where state law supplies the rule
of decision, it is the duty of federal courts to ascertain and apply that law.”) Then, the AU will have to
determine whether under the Supreme Court’s jurisprudence, the citizenship requirement is justified
 Finally, the AU will have to determine whether the individual state official is immune from the civil
penalty portion of the judgment under the common-law doctnne of official immunity He would further
have to determine whether he can require the state (by er\joining the state official) to hire the individual.
8 U S C § 1324b(g)(2)(B)(m) and (iv).
   6Although your Memorandum only raises the issue of state laws, your reading of the statute would also
require us to resolve the issue of whether the Special Counsel could challenge as unconstitutional not only
state laws but also federal laws, regulations, and executive orders. 8 U S.C § 1324b(a)(2)(C) (discrimina­
tion compelled by any “law, regulation, or executive order”) If the Special Counsel could bring such a
challenge to federal laws, regulations, or executive orders, this would raise substantial difficulties For
AUs to be vested with the authority to ac^udicate the constitutionality of federal statutes would plainly
be contrary to the oft-made Supreme Court pronouncement, alluded to above, that “[a]4judication of the
constitutionality of congressional enactments has generally been thought beyond the jurisdiction of
administrative agencies ” Johnson v Robison, 415 U.S 361, 368 (1974) (quoting Oestereich v. Selective
Service Bd., 393 U.S. 233, 242 (1968)) (Harlan, J , concurring in result) Moreover, for ALJs to decide the
constitutionality of federal executive orders and regulations would raise two severe constitutional prob­
lems. First, the urutary executive established by the Constitution in Article II forbids one of the President’s
subordinates to challenge in court the constitutionality of an executive order. Second, it would also test
the limits of Article Ill’s “case or controversy” requirement to suggest that the Special Counsel (assuming
the AU concurred) could challenge in court the regulations of another part of the executive branch
   6Whether or not this is true — and we note in passing that the authonty of an administrative agency to
pass upon the constitutionality of state and federal legislation may well differ — we are hesitant to
impute to Congress a desire to vest in the AUs created by IRCA the power to find a state law unconsti­
tutional when that is no where alluded to in the statute or legislative history.
                                                     75
   We raise these issues above only to illustrate the dilemmas presented
if the plain meaning of the statute is disregarded.7 We do not think
Congress would have left these complex and difficult issues unad­
dressed, and this too, favors adherence to the plain language of the
statute. We have therefore concluded that discrimination because of citi­
zenship status that is required in order to comply with state law is except­
ed from the definition of an unfair immigration-related practice within
the meaning of 8 U.S.C. § 1324b.
   That said, we note Mr. Elhajomar is not without remedies. He may chal­
lenge the validity of the Hawaii law in state or federal court. The
Department could assist him, if it chose, through a Civil Rights Division
amicus brief or by intervening in such a proceeding. Alternatively, the
Department might take steps to terminate federal monies unless the con­
stitutional concern was rectified. For these reasons, as suggested earlier,
we believe you should raise any arguable unconstitutionality of a state
law with the Civil Rights Division. However, Congress has chosen to
exempt discrimination based on citizenship status that is required by
“law, regulation, or executive order” from the meaning of “unfair immi-
gration-related employment” practices and we believe that language must
govern. 8 U.S.C. § 1324b(a). Therefore, the Special Counsel may not use
IRCA to challenge action taken pursuant to state law.
                                                                 D ouglas W. K miec
                                                          Assistant Attorney General
                                                            Office of Legal Counsel




  7In addition, a reading at odds with the plain meaning would mean that although the Special Counsel
could sue a state, the complainant would probably be barred by the Eleventh Amendment. The Eleventh
Amendment would not preclude a suit by the Special Counsel against a state, for the Special Counsel is
not suing as “a Citizen of another State.” Moreover, the Court has held that the Eleventh Amendment
does not bar suits by the federal government against a State. Monaco v. Mississippi, 292 U.S. 313, 329
(1934) However, the statute also provides for a private right of action if the Special Counsel does not act
on a matter. 8 U.S.C. § 1324b(d)(2) It would be, nevertheless, problematic for Mr Elhajomar to be per­
mitted to sue a state in his individual capacity
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