Res Judicata: Can an E-Verify Mandate Be Enforced?
Enforcement of the law prohibiting the employment of illegal immigrants, the Immigration Reform and Control Act (IRCA), enacted in 1986, has been pathetic. When the was first enacted, illegal migration from Mexico initially slowed to a trickle as Mexicans waited to see how seriously the U.S. Government would enforce IRCA.
Yes, IRCA requires all employers to complete a form upon hiring each new employee in which the employer swears he or she has looked at two forms of documentation provided by the perspective employee and that they “appear genuine and relate to the employee.” This does not mean the employer must be a fraud expert, but must make a good faith effort to discern if the document is real and was issued to the person tendering it. The employee must also sign the same form (called an I-9) swearing that he or she is authorized for employment in the U.S. and that the documents tendered are legitimate. Some employers relying on large immigrant workforces, particularly agriculture, did not comply at all.
The Immigration and Naturalization Service, which has since been replaced by the Department of Homeland Security (DHS) made a few high-profile prosecutions of such employers in the late 1980’s, and the result was that that employers do complete the Forms. But DHS has never been serious about really enforcing IRCA against employers who knowingly accept fake documents. Such prosecutions fell 77% in the 1990’s, and the flow of illegal immigrants soared as Mexicans realized we were not serious about keeping them out of our workforce. There were 2 million illegal immigrants when IRCA was enacted. Now we have an estimated 12 million. This is direct result of our policy of non-enforcement. We probably would have been better without IRCA.
Enter E-Verify, an online system that matches the document numbers provided by perspective employees on their I-9 Forms against the Social security and DHS data bases. So if a Social Security number or alien registration number was not issued to the person tendering it, the employer will instantly receive a “Not Authorized” message in his in box. In theory this would be a superb tool to supplement (or really supply) some actual teeth to the current visual inspection system.
E- Verify has been voluntary for several years. Hundreds of thousands of employers, typically large ones, have signed up for it despite the minimal cost it imposes (a little extra time for each hire). DHS does not charge a fee. Studies show E- Verify is now about 99% effective in identifying imposters using fake documents. However, it is not particularly effective in rooting out more sophisticated illegal immigrants who use fake documents bearing real Social Security numbers belonging to real American citizens. Such numbers can be purchased in the black market. But DHS is phasing in a digital photo of legally admitted aliens into the system. So soon, employers will also see the face of legal aliens (taken at time of their inspection and entry). This will help employers identify illegal aliens masquerading a legal. It is not perfect, but we must remember the perfect is the enemy of the good.
Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee is offering a bill to make use of E-Verify mandatory for all employers. Like many bills, this one sounds good in theory. If E-Verify were used throughout the country, and DHS enforced that use, a large majority of illegal immigrants would finally be deprived of employment, the magnet that draws them here. But will the Obama DHS, headed by Janet Napolitano, really enforce the law? The Obama administration is not enforcing IRCA now. Yes, there has been an upturn in deportations (removals) of illegals DHS deems dangerous for other reasons, i.e., other felony convictions unrelated to their illegal immigration.
The recent disclosure of memos from John Morton, in charge of Immigration and Customs Enforcement, the part of DHS that actually conducts deportations, shows he is not interested in initiating removal proceedings against ordinary illegal immigrants. This is a de facto amnesty for most illegal immigrants and a clear subversion of IRCA, which was meant to preserve American jobs for Americans and legal aliens. Mr. Morton should be, and is, being called to account for this policy by the House Judiciary Committee.
So enacting mandatory E-Verify would likely be opposed by the President, who let’s recall, favors blanket amnesty for all illegal aliens in the country who have not committed subsequent violent felonies (though working with a fake identification document is a felony). Yet 2012 is an election year, and the President would be under tremendous political pressure to sign a mandatory E-Verify bill into law. It’s a popular idea with almost all constituencies. In 1996 President Clinton was similarly obliged to sign that year’s Republican-passed immigration enforcement bill into law.
I am concerned that mandatory E-Verify will not be enforced by this administration and thereby initiate another tsunami of illegal immigrants from as occurred after the non-enforcement of IRCA. On the other hand, the Supreme Court upheld Arizona’s mandatory E-Verify law in June. So, if mandatory E-Verify is enacted and not enforced, the states could step into the breach. This is a big if. I don’t see Illinois, New York, or California, the states with the largest illegal alien populations, enacting Arizona-like laws. In fact, the California legislature is considering a law which would prohibit counties or municipalities in that state from enacting such laws.
Hopefully, Mitt Romney, who supports the Smith bill, will make it an issue in the campaign. This would send a signal to Mexicans contemplating an illegal entry, and to all of those foreigners here legally with visas and contemplating overstaying, as big a source of illegal immigration as Mexico, that they will not find employment. Yet, if this is not followed up promptly with real enforcement against employers who do not correctly use E-Verify, the effort will do much more harm than good.