E-Verify Bills: Legislative Perspective

By James R. Edwards, Jr. on July 1, 2011

A lot of questions, concerns, and even arguments have broken out over House Judiciary Chairman Lamar Smith’s H.R. 2164, the Legal Workforce Act. Here and here are two looks at the issue with legislative politics in mind.

Rep. Smith’s legislation makes E-Verify permanent. It requires all employers except for certain agricultural outfits to check new hires’ work eligibility. It gets at day labor recruitment sites with an E-Verify mandate. It restores checks on Social Security mismatch letters and requires that the true owners of mismatched Social Security numbers be notified. Employers are required to E-Verify all flagged workers (99 percent or so are likely illegal aliens). It ups the fines for having illegal workers from levels that were low even when they were set in the 1980s. It also freezes the Social Security numbers of deported aliens.

But to get support from major business groups that have vigorously worked against E-Verify, H.R. 2164 makes some concessions. Current employees are grandfathered into their current jobs, unless the Social Security Administration’s annual search of employer tax records identifies a Social Security number mismatch with a worker’s name or finds a number being used in several places. Illegal aliens returning to the same unscrupulous, law-breaking farms where they worked in previous years don’t have to be E-Verified. And the bill preempts states and localities from enacting their own E-Verify laws.

The preemption measure, though unfortunately unclear in its wording, does appear to preserve the existing exception for state and local action connected to business licensing. This exemption in current law has enabled several states and localities to condition business licenses on not employing illegal aliens. And H.R. 2164’s preemption relates only to E-Verify requirements. Under states’ inherent authority and principles of federalism, states and localities may continue to write laws that address other harmful effects of illegal and criminal immigration. The options include involvement of state and local law enforcement, state offenses for illegal alien-trafficking and harboring, etc.

The reason we’re where we are, with the U.S. Chamber of Commerce and other big business groups supporting a national E-Verify bill, stems from the past several years of successful lobbying by pro-enforcement groups at the state and local level and in the courts. The recent Chamber of Commerce v. Whiting win for immigration hawks in the U.S. Supreme Court effectively sealed the deal, driving Big Business’s lobby to accept reality. Their long-time allies among the ethnic advocacy, identity politics, and radical Leftist organizations aren’t exactly pleased with this turn of events.

Now, as policy goes, Sen. Charles Grassley’s S. 1196, the Achieving Accountability through Electronic Verification Act, is the gold standard. It makes the E-Verify program permanent and requires every employer to check work eligibility for everybody, including all current employees, and allows checking of prospective new employees. S. 1196’s preemption section blocks states and localities from barring employers from using E-Verify; that is, this federal E-Verify requirement is a floor, not a ceiling. And it contains a heavy penalty in connection with harboring or hiring illegals. The Senate bill has 10 cosponsors, including a strong showing of freshmen.

In the current political environment, with the U.S. House in Republican hands, the U.S. Senate run by the Democrats, and a Democratic administration, H.R. 2164 stands a better chance of being enacted than does S. 1196. There are 23 Democratic Senators up for reelection next year—many from states with GOP governors, legislatures, congressional delegations, and which Bush or McCain or both carried in recent presidential elections. Factor in the significant business support for the House bill, in light of the nationwide state and local legislative mandates of E-Verify, and the tide is rising in H.R. 2164’s favor. It is absolutely true that the showing of federalism on the immigration front has played a major role in getting us where we are today. But swallowing a limited federal preemption initially may well be worth it to force E-Verify upon California, Illinois, and other open-border sanctuary states.

It would be unfortunate to allow the perfect to become the enemy of the good. The bottom line is H.R. 2164 gets a couple of runners across home plate. It’s not the grand slam that S. 1196 is. But surely it’s better, politically and practically, to score a couple of runs this inning and then come back next inning (after the 2012 elections, when the GOP is likely to gain strength in both the U.S. House and Senate and maybe even take the White House) and then address the shortcomings of H.R. 2164, which are fewer than some of the critics may indicate.


Topics: E-Verify