Forget the border wall, Mr. President. Look to the hole in worksite enforcement rules

By Jerry Kammer on September 25, 2017

PBS NewsHour, September 25, 2017

If President Donald Trump is serious about stopping illegal immigration, he should forget about the border wall and turn his attention to the gaping hole in the enforcement of immigration law at U.S. worksites.

Washington has been unwilling to repair this problem, despite three decades of failure since Congress passed the erroneously named Immigration Reform and Control Act of 1986 (IRCA). As a result of the law, the U.S. population of undocumented immigrants grew from about 3.5 million in 1990 to its peak of 12.2 million in 2007. The current estimate is 11.3 million people.

Presented as a compassionate but pragmatic compromise, IRCA coupled a one-time amnesty for millions of illegal immigrants with an employer sanctions regime to punish those who knowingly hired persons not authorized to work in the United States.

But the law came into the world with a fatal defect. Because of the clout of strange-bedfellows — a left-right coalition that united immigrant rights activists, Latino politicians, businesses, and libertarians — IRCA was stripped of a mandate for the executive branch to develop a secure means of verifying that workers were authorized. Instead, workers were allowed to present documents from a wide assortment of easily counterfeited identifiers, and employers were required to accept any document that “reasonably appears on its face to be genuine.”

The result was a proliferation of counterfeit documents and fraud on a massive scale. Far from stopping illegal immigration, IRCA had actually stimulated it, according to Philip Martin, an immigration scholar at the University of California at Davis. “Perhaps the most important effect of immigration reform was to spread unauthorized workers from the Southwest to the rest of the country,” said Martin.

IRCA’s fundamental unintended consequence was the creation of a legal framework that enabled — and still enables — illegal immigrants to pretend to be legal while employers pretend to believe them.

The issue is largely ignored today, but it was a focal point of the immigration debate in the 1990s, when President Bill Clinton appointed Barbara Jordan, the civil rights leader and former Texas congresswoman, to lead the federal Commission on Immigration Reform. At the time, Jordan issued a blunt warning that failure to regulate immigration would provoke an anti-immigration backlash. “Unless this country does a better job in curbing illegal immigration, we risk irreparably undermining our commitment to legal immigration,” Jordan said.

Jordan wasn’t alone in expressing concern. Sen. Dianne Feinstein, D-Calif., warned her colleagues at a Senate hearing in 1996, “Ladies and gentlemen, let me say to you what I honest-to-God believe [is] the truth. If we cannot effect sound, just and moderate controls, the people of America will rise to stop all immigration.”

In his 1995 State of the Union address, Clinton himself talked tough on the issue. “All Americans, not only in the states most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country,” he said. Clinton pledged “to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan.”

The Jordan Commission’s report to Congress, titled “U.S. Immigration Policy: Restoring Credibility,” became the basis for legislation sponsored by Republicans Alan Simpson in the Senate and Lamar Smith in the House. But its call for a computer-based verification system was muzzled by the left-right coalition that supported the law. What survived was a pilot project that has led to the current E-Verify system, which most employers are free to ignore.

In 2007, as the Senate neared a vote on comprehensive reform legislation that repeated the IRCA formula of amnesty-plus-worksite enforcement, Doris Meissner, who had served as commissioner of the Clinton-era Immigration and Naturalization Service, endorsed the proposal while acknowledging her agency’s failure to enforce the law.

“We never really did in any serious way the enforcement that was to accompany the legalization of the people who were here illegally,” Meissner said. That was a far cry from her public assurance — shortly before the 1996 election — that under Clinton’s leadership, the INS “means business when it comes to enforcing immigration laws in the workplace.”

In 2013, when comprehensive reform was revived in the Senate, Meissner appeared on C-SPAN to support it again. But while the comprehensive reform bill was passed by the Senate, it stalled in the House, where Republican leaders refused to bring it up for a vote. They faced a populist revolt that drew on resentment at the failure of IRCA and the suspicion that the new legislation would do no better. That revolt, and the distrust in government that fueled it, helped carry Donald Trump to the presidency.

President Trump seems to view his proposed wall on the U.S.-Mexico border as a necessary assertion of national sovereignty. His critics claim that it would be absurdly expensive and ineffective against those who are highly motivated to enter the United States illegally. (Congress seems to agree; so far funding for the wall has been a non-starter). But there is no doubt that much of their motivation is derived from the understanding that employers with jobs are willing to hire them. And the decades since IRCA was passed have demonstrated that defenders of illegal immigrants are poised to condemn any effort to restrict immigration as rooted in nativism, bigotry, and offensive nationalism.

But even before the 2016 election, when it had become clear that Trump had struck a chord with working class Americans, some of his most prominent critics acknowledged that Trump had addressed legitimate grievances of American workers that cosmopolitan elites had ignored. In mid-2016, former Harvard president Lawrence Summers, who had served in the Obama administration, called for a course correction. “Reflexive internationalism needs to give way to responsible nationalism,” Summers wrote in the Washington Post, “or else we will only see more distressing referendums and populist demagogues contending for high office.” Summers said such an approach must be based on the understanding “that the basic responsibility of government is to maximize the welfare of citizens, not to pursue some abstract concept of the global good.”

Congress and the executive branch established worksite enforcement to protect this basic responsibility to American workers, both native born and immigrant. Now Congress and the president should forget about the border wall, and take up the task of building a credible system of worksite enforcement.