Policybrief Nov. #9 V2
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November 2005 No. 9 SUMMARY For over twenty years now,Americans have understood that we are not going to get control An Idea Whose of illegal immigration unless and until we find a way to regulate US employers and their use of immigrant labor. The public understands this Time Has Finally and has continually called for workplace enforcement. Both independent commissions Come? The Case convened during this period to make recom- mendations on immigration policy – one led by for Employment Rev.Theodore Hesburgh, the other by former congresswoman Barbara Jordan – strongly Verification echoed the demand. And employer sanctions were at the heart of the landmark immigration Tamar Jacoby legislation, the Immigration Reform and Control Act, passed in 1986. But, despite this awareness Senior Fellow, Manhattan Institute and effort, we have yet to gain control of unau- thorized immigrant employment. For over twenty years now, Americans have understood that we are not going to get control of illegal immigration unless The reason: although IRCA made it a crime to and until we find a way to regulate US employers and their hire unauthorized immigrants, it failed to give use of immigrant labor. This understanding began to dawn on employers the tools they need to determine who policymakers as early as the mid-1970s, even as the first is authorized to work and who isn’t – a reliable, automated employment verification system. waves of the current illegal influx reached our shores. Former What’s needed: a process not unlike credit-card Senator Alan Simpson later recalled the moment when it verification that allows employers to swipe a card penetrated for him: “Upon becoming chairman of the Senate at the point of hire and receive a response in real Immigration Subcommittee, I was astounded to learn that it time from the Social Security Administration, was illegal to be an illegal alien, but it was not illegal for a informing them – no more and no less – whether US employer to hire one.” And within a few years, an an employee is authorized to work in the United unusually united political establishment – Democrats, States. The system needn’t be Orwellian. It Republicans, the president, local legislatures, the blue-rib- needn’t lead to a national ID. And although, the past two decades make clear, the idea will surely bon bipartisan commission chaired by university president meet with some resistance, a variety of circum- Rev. Theodore Hesburgh, among others – was pushing hard stances – from technical advances to changes in to police business activity. Still, a generation later, we have public attitudes driven by the threat of terrorism yet to gain control of unauthorized employment – a spectacu- – may put the control that has so long eluded us lar failure to follow through on an obvious and uncontested within our reach today. There is no way around insight about national policy. it: as history shows, we cannot control immigra- tion without workplace enforcement, and we It has not been for lack of trying. The issue of workplace cannot control what happens in the workplace enforcement has been before the public all through these without reliable verification. decades. Laws have been passed, money has Meanwhile, despite the changes of the past been spent, American hiring practices have decades, we as a nation now make almost no been severely altered. When it became clear effort to police immigrant hiring. Frustrated by that the first legislative tightening, the 1986 the evident legal loopholes and the prolifera- Immigration Control and Reform Act (IRCA), tion of false documents, the federal bureau- had not succeeded in delivering control, there cracy has little will to pursue worksite was another blue-ribbon panel and eventually enforcement, and the resources devoted to it another landmark law. The regulatory bureau- have dwindled steadily since legislation was cracy proliferated; showy enforcement actions passed. Already in the 1990s, the branch of were tried, at least for a while. And today, the immigration service charged with interior according to one estimate, American business- controls was shifting its focus away from work- es spend more than 13 million hours a year ers to criminal aliens. Then, in the wake of handling employment-related paperwork 9/11, routine employers became still less required by law. Still, our economy is ever important as attention concentrated on “criti- more dependent on illegal labor, with some 8 cal infrastructure,” such as airports and million unauthorized workers employed in nuclear power plants – at the expense of sectors as diverse as agriculture, food process- farms, restaurants and construction sites. ing, hospitality, and construction. Today, the budget for worksite enforcement is less than 3 percent of the budget for patrolling The measure of our failure is all around us. the border. There are fewer than 200 agents Every worker hired at every US workplace – on the job nationwide, and the main branch of more than 50 million new hires a year, citi- government devoted to preventing the hire of zens and foreign-born alike – fills out a form unauthorized immigrants is a little known, intended to screen out unauthorized immi- five-person office with no appropriated budget grants. Virtually all businesses, big and small, that oversees the regulation of 3,625 employ- comply with this requirement: the drill is as ers – out of some 8.4 million in the United routine as a newspaper want ad. But because States. Though arguably the most important of a legal loophole – a glaring and long-recog- tool we have at our disposal to control illegal nized loophole – employers are not obliged to immigration, this program, known as the Basic verify that the information entered on the Pilot, is voluntary – no business is required to forms is correct. Those who wish to inquire participate. And when the officials manning it about its accuracy face a wall of red tape and come across evidence of infractions, they do legal deterrents: they can, for example, be not pass that information along to investigators sued for posing too many questions of a new who could crack down on the offending hire. Employees are asked to produce docu- employers for fear that taking action would ments substantiating the information they sub- drive businesses away. mit, but employers have no reliable way to vet this paperwork – in an age of instant electron- As the nation gears up yet again to reform our ic communication, they eyeball it. And coun- immigration laws, it is critical that we under- terfeit versions of all the required credentials, stand this failure: not just how it happened – from a US passport to a birth certificate, can how it unfolded historically – but why. be purchased for a few hundred dollars in any Conventional wisdom holds cynically that it city in America. was unavoidable: that greedy employers stran- 2 Policy Brief gled the legislative process and blocked mous ‘Texas Proviso.” Not until the late implementation, that both political parties 1970s, when the current illegal flow began in (each for its own reasons) have a stake in ille- earnest, did most Americans consider making gal immigration, even that controls of this kind it a crime to hire unauthorized workers. – both the intensive regulation of business and the monitoring of identity it requires – are out The Hesburgh Commission of keeping with the American character. The Select Commission on Immigration and Maybe so. But if we cannot overcome these Refugee Policy, headed by Notre Dame obstacles, we will never get control of immi- University president Theodore Hesburgh, was convened in 1978 to gration. And in fact, history shows, the reasons Not until the late 1970s, for our failure are more complicated than these respond to restrictionist when the current illegal clichés suggest. “We tried it, and it didn’t pressures being generat- flow began in earnest, did work,” the cynics say, urging that we give up ed by the new influx. on efforts to police the hiring of unauthorized Composed of sixteen most Americans consider immigrants. But in truth, for all the effort of members – cabinet making it a crime to hire the past decades, we have not really tried members, congressmen unauthorized workers. workplace enforcement. And a variety of cir- and prominent citizens cumstances – from technical advances to – the panel minced no words in its diagnosis or its recommended remedy. “The thrust of the changes in public attitudes driven by the [commission’s findings],” a top staff aide threat of terrorism – may put the control that noted, “is the need for enforcement.” has so long eluded us within our reach today. Members understood that the problem was not immigrants – net-net, they appeared to benefit The Lessons of the Past the nation, if not economically, then in other ways – but rather the illegality associated with The skeptics are partly right, of course: the growing flow. Accordingly, the panel sug- Americans have long been inclined to look the gested, the United States should “close the other way when it came to regulating the back door to undocumented and illegal migra- employment of unauthorized immigrants. As tion [in order to open] the front door a little early as the late 19th century when we first more to . legal migration.” Members sug- passed legislation to limit who entered the gested doing so with a multi-tiered system of country, these laws were laxly enforced pre- enforcement measures: on the border, at large cisely to provide employers – in those days, in the interior and, above all, in the work- mostly farmers – the labor they needed to keep place. Their chief recommendation – their their businesses running. These laborers, it legacy – was that the nation should make it a was lost on no one, who were here outside the crime for employers to knowingly hire unau- law and could be deported at any time if they thorized immigrants.