National Review, October 15, 2021
A new memo from DHS Secretary Alejandro Mayorkas on worksite enforcement of immigration laws garnered some media and political attention because it prohibits ICE from conducting worksite raids for illegal aliens. But the memo is more than just the latest in a series of anti-immigration-enforcement directives by this administration. Rather, it represents the Left’s rejection of the very concept of illegal employment.
Step back to 1986, when President Reagan signed the Immigration Reform and Control Act. The law was structured as a grand bargain that exchanged amnesty for settled illegal aliens in exchange for a first-ever prohibition against the employment of those who try to come in the future. Prior to 1986, federal law explicitly permitted employers to hire illegal aliens — if found out, the illegal alien might face the consequence of deportation, but the employer was off the hook.
The point of the new law was to weaken the magnet of jobs that drew foreigners to sneak across the border in the first place. But the nature of those jobs was not at issue. Yes, many illegal immigrants were, and are, exploited — through wage theft, appalling working conditions, etc. But the point of the ban on hiring illegals is to keep illegal aliens out of the labor market altogether, regardless of how good or bad the jobs are that they’d take. The objective, in other words, was to protect American workers from competition by people who had no right to be here.
Mayorkas’s new memo, on the other hand, is concerned almost exclusively with protecting illegal-immigrant workers. The goal, as Mayorkas writes on the first page, is to “maximize the impact of our efforts by focusing on unscrupulous employers who exploit the vulnerability of undocumented workers” [my emphasis], mentioning specifically “illegal acts ranging from the payment of substandard wages to imposing unsafe working conditions and facilitating human trafficking and child exploitation.”
Those are all bad things, of course, and immigration enforcement is right to target them. But they are merely symptoms of the underlying problem, which is widespread employment of illegal immigrants. Address that, and these violations become much rarer.
The memo’s exclusive focus on “exploitative employers” ignores the fact that the majority of illegal-alien workers are employed on the books (with fake or stolen Social Security numbers), paid above the minimum wage, and work in conditions no different from their citizen and legal-immigrant co-workers.
The distortion of the labor market caused by the ongoing inflow of illegal workers is a function of their number, not lurid exploitative practices that a relatively small share experience. This ongoing labor-supply shock holds down wages and reduces incentives to recruit and train American workers and invest in labor-saving, productivity-increasing technologies.
This is the context in which the memo bans ICE agents from conducting worksite raids. Of course, under the Biden administration, ICE wasn’t doing any raids anyway, but the memo formalizes that policy.
Compare this to the efforts of the previous administration. In 2017, ICE conducted a mass audit of an industrial bakery in Chicago, forcing the employer to let go 800 mostly Mexican illegal aliens, which led to their replacement by American, mostly black, workers. The issue here was not that the illegal-alien workers were chained to their machines or being fed gruel — rather, it was their mere presence in the job market without authorization that was the problem.
ICE under Trump similarly went after illegal employment at Mississippi chicken plants, a trailer manufacturer in Texas, and a meatpacker in Tennessee. Not only were Americans hired to fill these jobs, but the government managed to get indictments of managers in a number of cases, despite the difficulty in doing so due to the (intentional) wording of the statute.
Mayorkas is right to the extent that if worksite raids are the only thing ICE did regarding worksite enforcement, then it would accomplish little. The danger is that bureaucrats would simply add up arrest numbers to justify budgets, without any underlying strategy. In that case, raids would merely become a cost of doing business, and even the illegals would just come back and find other jobs.
But raids are an essential tool in any broad strategy to reduce illegal employment, along with personnel audits, expansion of E-Verify, prosecutions for ID theft and fraud, and more. It is precisely through raids sparked by tips about large-scale illegal employment abetted by company managers that investigators get the evidence backing up those tips to build cases and get indictments.
Prior to the Trump administration, ICE and INS had lackluster records on worksite enforcement, driven by the overlap in interest between cheap-labor employers and anti-borders agitators. My colleague Jerry Kammer, a Pulitzer Prize-winning former journalist, tells that story in his 2020 book Losing Control. But even under Obama, DHS never openly disavowed the ban on hiring illegal aliens.
Back in 1990, once all the illegal aliens had gotten their amnesty, Senators Ted Kennedy and Orrin Hatch, aided by the National Council of La Raza, tried to renege on the 1986 grand bargain and formally repeal the ban on hiring illegals. They were stopped by Coretta Scott King, who wrote of the “devastating impact the repeal would have on the economic condition of un- and semi-skilled workers — a disproportionate number of whom are African American and Hispanic.”
But Kennedy is getting the last laugh, as the Biden administration does administratively what he couldn’t in Congress.