Chertoff

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

On August 15, 2007, the Department of Homeland Security (DHS) promulgated a final rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” See 72 Fed.Reg. 45611 (Aug. 15, 2007). Plaintiffs, a consortium of unions and business groups, filed a motion for preliminary injunction, arguing that in-junctive relief is appropriate because they have demonstrated a high probability of success on four theories: that the rule (1) contravenes the governing statute; (2) is arbitrary and capricious under the Administrative Procedure Act; (3) is an exercise of ultra vires authority by DHS and the Social Security Administration (SSA); and (4) was promulgated in violation of the Regulatory Flexibility Act. The balance of hardships tips sharply in plaintiffs’ favor and plaintiffs have raised serious questions going to the merits. Accordingly, the motion for a preliminary injunction is GRANTED.

Background

A. The SSA No-Match Program,

The SSA maintains earnings information on workers for the purpose of determining eligibility for Social Security benefits for which the worker and his dependents may be entitled. See 42 U.S.C.…