As my colleague Mark Krikorian has said, “E-Verify remains the single most important step in reasserting control over immigration” and “Any politician who doesn’t come out clearly and unequivocally in support of universal E-Verify can’t honestly claim to support immigration control.” Well, Sen. Mitt Romney (R-Utah) has just introduced universal — in other words, mandatory for all employers — E-Verify legislation (S. 4529). The senator issued a press release stating that his bill “would require all employers to use the federal electronic E-Verify system to confirm the employment eligibility of their workforce” and quotes him as saying that “By requiring all employers to use E-Verify, our legislation would ensure that businesses only hire legal workers — eliminating a key driver of illegal immigration and protecting jobs for hardworking Americans.” Romney’s bill is cosponsored by Sens. Tom Cotton (R-Texas), Bill Cassidy (R-La.), James Lankford (R-Okla.), J.D. Vance (R-Ohio), and Joe Manchin (I-W.Va.).
It is worth taking this opportunity to explore the history of and rationale for employer sanctions, culminating with E-Verify.
1951: Employer Sanctions Blocked
The House Judiciary Committee noted in 1996 that “laws against the employment of illegal aliens ... were considered by Congress as early as ... 1952”. The story actually begins a few years earlier. Professor Daniel Tichenor at the University of Oregon has written that “[p]ro-labor liberals long disdained the cozy relationship between growers, the INS [Immigration and Naturalization Service] and Western committee chairs in Congress — an alliance that granted employers access to a steady supply of cheap and exploitable Mexican [farm] workers” and that “[d]elegates at [American Federation of Labor] conventions as early as 1950 endorsed ... [“]a criminal penalty for employers who hire” aliens who entered the U.S. illegally.1
Mexican migratory farm workers came to the U.S. either legally, through the infamous “Bracero” Program (negotiated by the United States and Mexico in 1942 to allow for the entry of farm workers under contracts with American employers guaranteed by the U.S. government), or illegally, as “wetbacks” (in the common vernacular of the time).2
In 1950, President Harry Truman established “The President’s Commission on Migratory Labor”, which issued a report a year later noting that “[a]n authority on Mexican-American affairs explained ... to the Commission ... [that ‘t]he free and easy dipping into the cheap-labor reservoir that is Mexico, has made it virtually impossible for the citizens of Mexican descent in this area to make a satisfactory living[]’” and concluding it to be “unquestionable” that “the wetback traffic has severely depressed farm wages”. As to the living and working conditions of the illegal Mexican workers themselves, the report found that:
Where the wetback makes up the major proportion of the seasonal and migratory work force, virtually no housing, sanitary facilities, or other conditions of civilized living are supplied. ... A witness ... did not overstate the squalor of the housing and living conditions that are much too common ... when he said, “I have seen, with my own eyes, people ... living in shacks that I wouldn’t put a horse in.”
The Commission recommended that “[l]egislation be enacted making it unlawful to employ aliens illegally in the United States”, concluded that:
Something more needs to be done to discourage the employment of wetbacks and to take the profit out of it. It was repeatedly suggested to the Commission that it recommend making the employment of a wetback a crime. This suggestion has merit since, if the risk involved in employing wetbacks were increased, the traffic would soon diminish.
In 1951, in the midst of the Korean War, Congress passed and President Truman signed into law an extension and restructuring of the Bracero program in response to the Mexican government’s threat to terminate the program unless abuses against its nationals were dealt with. During congressional consideration of the legislation, Sen. Paul Douglas (D-Ill.) offered an amendment establishing employer sanctions with criminal penalties for “[a]ny person who … employ[s] any Mexican3 alien not duly admitted by an immigration officer or not lawfully entitled to enter or to reside within the United States … when such person knows or has reasonable grounds to believe or suspect or by reasonable inquiry could have ascertained that such alien is not lawfully within the United States.”
Sen. Dennis Chávez (D-N.M.), a New Deal liberal and the first Hispanic Democrat to be elected to the U.S. Senate, supported the Douglas amendment, stating on the Senate floor on April 30, 1951, that:
[T]he head of a veterans' organization in Corpus Christi, Tex., a man representing about 50,000 Texas boys of Mexican origin ... complain[s] that they cannot compete with this class of labor [Mexican migratory workers]. They are unable to feed their families … . This situation exists in my State, in the case of people whose ancestors have lived there for generations, perhaps for 400 years, people who now have sons fighting in the United States Army … . [T]hey have to leave home and family to try to get a piece of work in Nebraska or, possibly, in Wyoming. [T]he situation … will not only affect the American way of life unless something is done about it, but it will affect American labor, American standards of living, and American health.
On May 1, Chávez implored the Senate:
Any time we prefer foreign labor to our own American labor we are interfering with the basic ideas of our Government, especially when such foreign labor is so desperately in need of work, and that, of necessity, it will work for a miserable wage.
Should we not do something at least to prevent wetbacks from coming in and keeping a veteran from making a living? ... Thousands of children of veterans are not able to enjoy good health because veterans and their families are forced to work for starvation wages because of imported labor ... . Americans of Mexican origin in Texas must have — They are even begging — must have opportunity to live like human beings and first-class citizens. The best way to do it is to stop all imported labor.
The Washington Post editorialized on May 2 that:
[T]here ought to be a stringent prohibition against the employment of so-called wetbacks-Mexicans who come into the country illegally. Without such safeguards, the ... bill would serve, as Senator [Chávez] charged, to bring back the things which Lincoln did away with and to bring about peonage in my state and in certain other areas of the United States. The demand that such safeguards be included in the bill implies no hostility to Mexican immigrants and no desire to keep American growers from obtaining all the labor they need. But the misery of the Mexicans must no longer be exploited to the disadvantage of themselves and of hungry workers on this side of the border.
Astonishingly, the Senate actually adopted Douglas’ amendment after protracted and heated debate and then passed the bill.
In the House, there was also heated debate on the House version of the Douglas amendment, debate that was far uglier, bitter, and vitriol-filled.
During House floor consideration on June 27, 1951, Rep. Thomas Abernethy (D-Miss.) made accusations that employer sanctions would turn employers into Gestapo agents (accusations that I can recall still being made during my years as a House staffer):
[T]here was a precedent for [the employer sanctions amendment] in Hitler's Germany and Mussolini's Italy. The fiery ovens of Buchenwald are still smoking from the burned flesh of a particular group of people because of their failure to report to Hitler and Mussolini the knowledge or suspicion which they had or should have had of some individuals who had violated Hitler's laws. America has never punished its people because of their failure or refusal to be snoopers and more particularly for their failure to report their suspicions of offenders of the law.
And, in a statement made the same day that is remarkable for its level of ridicule, callousness toward the living conditions of Mexican farm workers, and not so veiled anti-Semitism, Rep. Clare Hoffman (R-Mich.) stated that:
The gentleman from New York [Emanual Celler] who knows so much — and I do admire his educational ability — he has traveled, as I understand, all over the world and he knows quite a bit about slums, I take it that he could have learned more about that right at home in New York than anywhere else … . [H]e criticized and took a crack at the farmers because, he contends, they are not treating migrant laborers as they should be treated. He intimated some of our farmers and fruit growers are compelling these people to live in slums.
Well, it is unfortunate that the gentleman does not … get out to Michigan … . He will find [Mexican workers], true, living outdoors in tents, cabins or shacks. He will find them out in God's sunshine and clear air, their living and sleeping accommodations similar to all living and working conditions where people are seasonably employed. He will find them eating good food, sleeping in good beds.… Those people come back every year because they find the work profitable, the living conditions satisfactory. They get this fresh air, they get this good food, pure water, plenty of milk, eggs, fruit — oh, yes, and they get some meat once in a while too, quite often, much oftener I think than the average dweller in New York city; and year after year they come back. They live better in western Michigan than many do at home … . [T]hey have a vacation up there … they go back home with a pocket full of money and they go back much stronger, healthier than when they came. They like it, the work is good for them. They go home fat, healthy and happy — thinking of the day when they can return.
These folks from New York and the other cities who are complaining … I suggest … they go back to their home cities, clean up their own slums and send some of the people who live there, if they really want to enjoy a vacation this summer, send them out to Michigan. We will give them plenty of everything they ought to have not only for their material body, but we will get a little more religion and patriotism into some of those who have never seen or lived in the country-in the great outdoors … . [T]hey will be better Americans for the experience.
The Senate-passed employer sanctions provision was stripped out of the companion bill under consideration in the House following a ruling of nongermaneness. Modified language was offered as an amendment and ruled germane, but then defeated by a vote of 55-125. The Bracero program was ultimately extended without employer sanctions.
The next year, in 1952, the Senate used the House’s rejection of the Senate’s employer sanctions provision as an excuse not to include it in a Senate-passed bill further extending the Bracero program. In 1953, as Tichenor has written:
[President] Eisenhower dispatched Attorney General Herbert Brownell to southern California ... to investigate [growing public angst regarding illegal Mexican migration] ... . With White House backing, he urged Congress to enact employer-sanctions legislation similar to that previously proposed by Senator Douglas and labor activists. But congressional supporters of Southwestern growers remained adamantly and opposed to such legislation; the employer-sanctions proposal languished in committee.
1986: Employer Sanctions Finally Enacted into Law
The Select Commission on Immigration and Refugee Policy, established by Congress in 1978, was chaired by Rev. Theodore Hesburgh, the president of the University of Notre Dame and former chair of the U.S. Commission on Civil Rights. The Select Commission concluded in its final report in 1981 that:
The vast majority of undocumented/illegal aliens are attracted to this country by employment opportunities. … As long as the possibility of employment exists, men and woman seeking economic opportunities will continue to take great risks to come to the United States, and curing illegal immigration will be extremely difficult. … [T]he success of any campaign to curb illegal migration is dependent on the introduction of new forms of economic deterrents.
Without an enforcement tool to make the hiring of undocumented workers unprofitable, efforts to prevent the[ir] participation … in the labor market will continue to meet with failure. Indeed, the absence of such a law serves as an enticement for foreign workers.… [S]ome form of employer sanctions is necessary if illegal migration is to be curtailed.
The following year, the Supreme Court expressed similar sentiments in Plyler v. Doe, a seminal decision written by Justice William Brennan, Jr., a liberal icon, barring states (at least without clear congressional authorization) from denying public education to illegal alien children or requiring them to pay tuition:
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor.
The dominant incentive for illegal entry ... is the availability of employment ... . [W]e think it clear that “[charging] tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens.
The House Judiciary Committee noted in 1996 that “The endorsement by the Select Commission in 1981 provided a strong impetus for the passage of ... employer sanctions[, which] became a part of the Simpson-Mazzoli immigration reform bill, eventually enacted as the Immigration Reform and Control Act of 1986 (IRCA).” Joyce Vialet, a Congressional Research Service specialist in immigration policy, in a report written at the request of the Senate Judiciary Committee, similarly concluded that:
[W]hile the Select Commission’s recommendations regarding the legislative control of illegal immigration did not differ significantly from the legislative proposals which had evolved during the 1970’s, its work provided a major impetus for the continued congressional examination of illegal immigration in the early 1980’s and the eventual enactment of [IRCA].4
But the road to enactment was not easy, as both business and Hispanic advocacy organizations had taken it upon themselves to block employer sanctions legislation. Tichenor has written that:
A broad coalition of business interests organized to defeat [Simpson-Mazzoli in 1982], from grower interests and the U.S. Chamber of Commerce to the National Association of Manufacturers and the Business Roundtable. The Chamber of Commerce’s Christopher Lewis complained that a law requiring “government permission before a U.S. citizen can accept a job and before an employer can hire that U.S. citizen is both extremely costly and unworkable.” ... A core of liberal advocacy group leaders ... held regular strategy meetings on how to derail employer sanctions … . “Our mission was to carry out the equivalent of legislative guerrilla warfare,” one of the working group organizers explains. “We were willing to do whatever it took to make sure sanctions ... never saw the light of day.”
Professor James Gimpel at the University of Maryland’s Department of Government and Politics and James Edwards, Jr., concluded that in Congress, “the strongest opposition came from Hispanic members and from conservative Republicans opposed to employer sanctions” and that:
Republicans ... were highly skeptical of this legislation on the grounds that it forced employers to do the work of INS agents, raising the cost of doing business by forcing them to scrutinize documents and imposing penalties if they make a mistake.
The emergence of employer sanctions as a threat to both business and minority constituencies was enough to create a strange liberal-conservative coalition among members in border regions that would appear again and again.5
How did IRCA finally cross the finish line? Tichenor concluded that:
IRCA was propelled by several forces. The [Select] Commission underscored the urgency of the illegal immigration problem and of giving intellectual and bipartisan credibility to a reform package of employer sanctions and amnesty that was embraced by the media and other opinion leaders. Congressional entrepreneurs pressed for compromise legislation behind closed doors, creating a sense of momentum that compelled business, ethnic, and civil rights groups to pursue sacrificing strategies on a measure they opposed. Finally, in an era of divided government, both the House Democratic leadership and the Reagan White House were eager to avoid blame for killing an illegal immigration control initiative endorsed by [the Select Commission], the media, and the general public.
He also noted that “In 1985 key business lobbies endorsed the measure as a tolerable alternative. As the Business Roundtable’s Samuel Maury noted, ‘We have agreed to accept the employer sanctions provision as long as Congress does not place an undue burden on employers.’” And Nancy Humel Montwieler has written that “[o]ver time, the U.S. Chamber of Commerce ‘relented from its hardline opposition[]’” and by 1985 offered “qualified support” for IRCA’s grand compromise: legalization in exchange for sanctions.6
The Second Circuit Court of Appeals concluded in 1990 in Intercommunity Center v. I.N.S. that:
[IRCA] was the result of fifteen years of congressional hearings and executive branch studies concerning the problem of illegal immigration ... . By 1986, Congress had determined from these hearings and studies that “employment is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status.” ... Addressing this problem, Congress concluded that employer “sanctions, coupled with improved border enforcement, is the only effective way to reduce illegal entry and ... the most practical and cost-effective way to address this complex problem.”
IRCA itself provides that:
It is unlawful for a person or other entity ... to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien ... with respect to such employment ... [or] to continue to employ the alien ... knowing the alien is (or has become) an unauthorized alien with respect to such employment.
And IRCA established the associated “I-9” process in which employers must examine the identity and employment authorization documents of new hires.
How Is an Employer to Know?
The ill-fated Douglas amendment was not without flaws. It would have penalized an employer who “knows or has reasonable grounds to believe or suspect or by reasonable inquiry could have ascertained that such alien is not lawfully within the United States”. This teed up the strongest argument against employer sanctions, in that the amendment failed to provide employers with a uniform and reliable method to determine whether job applicants were legally eligible to work.
This failing was to become a recurring theme in the decades-long quest for sanctions and the impetus for the eventual enactment of E-Verify. It is nicely laid out in this exchange on the Senate floor on May 7, 1951, between Sen. Ralph Owen Brewster (R-Maine) and Douglas:
[Mr. Brewster]: We do not have wetbacks in Maine, but a great many of our friends come over from Canada. They work both in the potato fields and in the woods. What is the meaning of “reasonable inquiry”?
[Mr. Douglas]: I am not a judge, or the son of a judge, or the grandson of a judge. These matters would be left primarily to judicial interpretation. The language would mean, however, than an employer would be expected to check up on the legality of entry of the aliens whom he employed, and should not accept them sight unseen without making some effort to determine whether or not their papers are in order.
[Mr. Douglas]: This provision, of course, applies only to aliens. It is not intended to establish a registration system for persons who are citizens of the United States. However, those who are legal entrants are supposed to carry with them some document to indicate that they are legal entrants. It would be proper to ask a man whether or not he was an immigrant. If so, he could be asked to show his card.
[Mr. Brewster]: If he says that he is not an immigrant, what is the employer supposed to do? Is he supposed to investigate his birth certificate?
[Mr. Douglas]: There is certainly no obligation to investigate his birth certificate or to ascertain whether he has paid a poll tax or property tax or whether he is upon any voting roll or not … . But if all the circumstances of appearance and language and lack of identification card and failure to furnish any evidence of residence give rise to a question as to legality of entry, the employer should make some further inquiry.
Rep. Antonio Fernandez (D-N.M.) even recited the Brewster/Douglas exchange during House floor debate on June 26, 1951, as evidence of the unworkability of employer sanctions. Also on the House floor that day, Rep. John Lyle, Jr. (D-Texas), stated:
[I]f this bill were amended in the House as it was in the Senate by adding the so-called Douglas amendment, it would do great harm to hundreds of thousands of splendid Americans of Latin descent … . Many of our fine citizens are of Latin descent. Their ancestors fought for the independence of Texas and for the freedom of this country in three other wars … . Yet, they bear Mexican names. They have the characteristics of the people across the border. They speak Spanish fluently. Yet the effect of this amendment would be to compel them to carry at all times, when they sought employment, proof of their citizenship … . [H]ighly discriminatory legislation is being offered under the guise of protecting so-called downtrodden people.
Such professions of concern might be taken with a grain of salt, for, as Rep. Wayne Hayes (D-Ohio) noted, “some of the people who have been standing in the well of the House here worrying about the poor Mexican workers are some of the same people who have fought civil rights ever since I have been in the Congress.”
Echoing the 1951 debates, the Select Commission’s report explained that:
[The Select Commission] acknowledges the criticism leveled at previous employer sanctions legislation on the basis of the vague, and therefore unenforceable, requirement that employers must knowingly hire undocumented workers. It therefore holds the view that an effective employer sanctions system must rely on a reliable means of verifying employment eligibility … . The Select Commission … fears widespread discrimination against those U.S. citizens and aliens who are authorized to work and who might look or sound foreign to a prospective employer … . Without some means of identifying those persons who are entitled to work in the United States, the best-intentioned employer would be reluctant to hire anyone about whose legal status he/she has doubts.
While the commissioners voted 14-2 in favor of employer sanctions, they were unfortunately “unable to reach a consensus as to the specific type of identification that should be required for verification”. Congress eventually found a resolution to the identification dilemma (though not a satisfactory one). Joyce Vialet explained:
The controversy regarding employer sanctions turned in large part on the issue of identification, or how employer[s] were to determine whether prospective employees were, in fact, legally authorized to accept employment. In an effort to meet concerns about discrimination, the Simpson-Mazzoli bill as originally introduced required that all employers examine specified documentation from all new hires, with penalties for failure to do so. While this all-inclusive requirement went through some permutations in various subsequent version[s] of the bill, it was included in [IRCA].
1996: The Enactment of Voluntary E-Verify
As foreshadowed in 1951, the Achilles Heel of IRCA’s employer sanctions was and remains their verification mechanism. Lamar Smith, chairman of the House Judiciary Committee’s immigration subcommittee from 1995 to 2000 and author of H.R. 2202, the House foundation for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), explained (along with then-subcommittee counsel and my then-colleague Edward Grant7) in 1997 that:
The enforcement centerpiece of the IRCA — sanctions against employers who hire illegal aliens — failed to include any system whereby employers could reasonably verify the status of their new employees. A booming market in fraudulent documents soon developed.
Unfortunately, the easy availability of counterfeit documents … has made a mockery of the law. Fake documents were produced in mass quantities.… As a result, even the vast majority of employers who wanted to obey the law had no reliable means of identifying illegal aliens.… At the other extreme, rogue employers could easily collude with illegal alien employees to avoid the provisions of IRCA … comfortable in the knowledge that they were presented with “genuine” documents.
Even worse for honest employers, they, per Smith and Grant, “actually risked being found guilty of discrimination on the basis of national origin if they asked for additional documents”.
Not surprisingly, the next immigration commission established by Congress, the U.S. Commission on Immigration Reform, chaired by stateswoman and civil rights icon Barbara Jordan, recommended to Congress in 1994 that:
A better system for verifying work authorization is central to the effective enforcement of employer sanctions.
The Commission recommends development and implementation of a simpler, more fraud-resistant system for verifying work authorization.
In examining the options for improving verification the Commission believes that the most promising option for secure, non-discriminatory verification is a computerized registry using data provided by the Social Security Administration [SSA] … and the INS.
Jordan testified before the House Judiciary Committee in 19958 as to her commission’s recommendation. She stated, echoing the Select Commission, that “Reducing the employment magnet is the linchpin of a comprehensive strategy to reduce illegal immigration. Illegal aliens are here for jobs. That is the attraction. So the only effective way to deter illegal immigration must include the worksite.” Jordan then explained the failings of IRCA:
The current system of verification is doubly flawed: it is too susceptible to fraud, particularly through the counterfeiting of documents; and it can lead to increased discrimination against foreign-looking and foreign-sounding authorized workers.
The current process of employment verification has not functioned as the law intended to deter the hiring of undocumented aliens. The system may be thwarted easily by fraud. Widespread counterfeiting of documents that can be used for verification of identity and employment authorization has been reported since IRCA’s implementation.
Jordan then detailed the commission’s recommendation:
As envisioned by the Commission, [a] computerized registry would be used to verify that a social security number is valid and has been issued to the individual who is being hired. This database would be created and updated from SSA and INS files, but not connected to either. From SSA would come a limited set of data: name; social security number; and several other identifiers, such as date of birth and mother’s maiden name. From INS would come information about the immigration status of lawfully admitted immigrants, nonimmigrants, and other aliens permitted to remain temporarily or permanently in the United States ... .
The Commission believes the key to this process is the social security number. For decades, all workers have been required to provide employers with their social security number. The computerized registry would add only one step to this existing requirement: an employer check that the social security number is valid and has been issued to someone authorized to work in the United States.
Rep. John Bryant (D-Texas), the subcommittee’s ranking Democrat, asked Jordan: “I’m afraid to say I’m somewhat computer-illiterate, and I’m wondering about the technical feasibility of this much data, about this many people, on the computer system that is, I suppose, on full-time alert; that is, accessible at any time of the day or night by the employer. Can that actually be done?” Jordan responded, “Congressman, we are told that it can actually be done, and we have been told that by people who are alleged to know what they are talking about.” She had panache.
Rep. Sonny Bono (R-Calif.) — yes, that Sonny Bono, who had the perspective of a person who had started his own Italian restaurant — asked Jordan:
Once we get a system like this in place, will that take the heat off the employer? In other words, if an employer gets a verification on the phone [this was 1995!] … will then that take the burden off the employer to be responsible for whether that person is here legally or illegally? ... so that if it is, in fact, verified by whatever pilot program you use, will the employer be off the hook?
Jordan responded with refreshing candor: “Congressman, if that employer’s burden is not lessened as an outcome of this verification system, it’s a total failure.”
In 1995, Lamar Smith introduced major immigration reform legislation that included an electronic employment eligibility confirmation system like the one recommended by the Jordan Commission — with one major change. Rather than a “database … created and updated from SSA and INS files, but not connected to either”, the verification system, as the House Judiciary Committee described it, would simply “use[] existing databases of the SSA and the INS”, “compar[ing] the social security (and, for a noncitizen, alien) number provided by new employees against the existing databases”. Chairman Smith crafted the confirmation system in this way in order to assuage concerns about a new federal database for U.S. citizens. He and Edward Grant later explained that “IIRIRA was [in part] enacted to fulfill the promise of the IRCA and significantly weaken the job magnet. … IIRIRA creates … employment eligibility verification pilot programs designed to make fraudulent documents useless … [and] give employers the tools they need to hire legal workers.”
Smith’s original legislation (H.R. 1915) and his revised bill (H.R. 2202) would have both required INS to “establish the employment eligibility confirmation mechanism by not later than October 1, 1999”. The program was mandatory for employers in the sense that if an employer could not “establish[] that it has complied in good faith” with the confirmation mechanism, the employer could no longer rely on IRCA’s “affirmative defense” (by which an employer who has completed the I-9 process in good faith is considered to have established that it has not knowingly hired an unauthorized alien). Additionally, “Before establishing the mechanism, the [INS] shall undertake such pilot projects, in at least 5 of the 7 States with the highest estimated population of unauthorized aliens, as will test and assure that the mechanism implemented is reliable and easy to use.”
Opposition to the “confirmation mechanism” was intense. Judiciary Committee ranking Democrat John Conyers, Jr., and seven other Democrat members stated in the Judiciary Committee’s report on H.R. 2202 that:
Amazingly, at a time when many argue that Government is too intrusive and bureaucratic and spends too much … H.R. 2202 proposes a computerized national employment registry under the guise of immigration reform. This “employment verification system” represents a perilous threat to our Constitutional rights. By forcing the government to maintain a file on every single individual within a covered state and to approve every single hiring decision within that state, H.R. 2202 will truly usher in the era of a “Big Brother,” all-intrusive federal bureaucracy.
Of course, it was IRCA a decade prior that had established the principle that the federal government would “approve every single hiring decision”. In any event, the diatribe continued:
Even more ominously, since the telephone verification system will inevitably be subject to government errors and discrepancies, it may will be a mere prelude to a full-fledged national ID card, complete with voice, retina and fingerprint identifiers.
[It] will also dangerously increase the Federal Government’s ability to monitor individuals. Although the legislation purports to limit the use of the information maintained in these new files to “employment verification” purposes only, the system is bound to be subject to unauthorized disclosures and leaks. Just as supposedly sacrosanct census data were used to identify Japanese-Americans for internment during World War II, the massive new data base necessitated by the Republican immigration bill will prove a tempting target for future legislation intent on cracking down on tax cheaters, “deadbeat” dads, or unpopular dissident groups.
The proposed verification system also generated a large measure of opposition by many House Republicans and business groups (especially regarding making participation mandatory), who invoked the specter of Big Brother or worse. Committee Member Steve Chabot (R-Ohio) stated during House floor debate on H.R. 2202 that:
[T]here really are only two sides to this debate. There are some people, some very well-intentioned people, who believe that we need a national computerized system through which the Federal Government would specifically approve or disapprove every hiring decision that is made in this country. Then there are those of us … who do not believe that such a system is appropriate … . [I want to] strike from the bill that section which asserts the Federal Government's power to sign off on new employment decisions as they are made. … As former Senator Malcolm Wallop has written … this [is] “One of the most intrusive government programs America has ever seen.” The Wall Street Journal calls it odious. The Washington Times asks in editorializing against the system and for our amendment, “Since when did Americans have to ask the government's permission to go to work?”
[O]thers in this body argued that without a national ID, anyone could buy fake documents with corresponding numbers and cheat the system. So we know what is coming next, a national ID card in all likelihood.
The bottom-line question … is whether this Government of ours should be in the business of saying yea or nay whenever an American citizen takes a new job. I say no. So do the Catholic Conference, the ACLU, the National Center for Home Education, Americans for Tax Reform, Citizens for a Sound Economy, the Cato Institute, Concerned Women for America, the Eagle Forum, the Christian Coalition, and virtually all the legal experts who have taken a look at this, including the American Bar Association.
As I have previously noted, Congress had already decided the question of “the government’s permission” back in 1986, as Chabot sort of acknowledged: “This system is to be added on top of the burdensome I-9 document review requirements that started us down the road, down the path of making employers into basically Federal agents … . Remarkably, [the] very failure [of IRCA’s employer sanctions] is advanced as a justification for proceeding further down that path.”
Chabot offered an amendment during committee markup of H.R. 2202 to strike the verification system entirely, which was barely defeated by a vote of 15-17 (Republicans 7-13, Democrats, 8-4).
The committee did approve by voice vote an amendment by Rep. Martin Hoke (R-Ohio) to terminate the pilot projects not later than October 1, 1999, and to provide that the INS “shall not establish such mechanism in other States unless Congress so provides”, and did approve by a vote of 16-13 (with the support of Chairman Smith) an amendment offered by Bob Barr (R-Ga.) to exempt employers with three or fewer employees.
The Committee approved H.R. 2202 by a vote of 23-10, with all Republicans (including Chabot) but only two Democrats voting in favor. To get the bill to the House floor, Lamar Smith agreed to make the pilot programs in general purely voluntary in exchange for a separate floor vote on an amendment to return them to being mandatory. A deal was reached and the bill went to the floor in amended form. But Chabot still opposed the pilot programs. He stated during House floor consideration that:
[B]ecause of massive opposition to this scheme, its proponents have decided to get a foot in the door by starting with an initial so-called voluntary pilot project … . [W]e know where this program is designed to lead. The end goal is and always has been a national mandatory system by which the Federal Government would assert the power to sign off on the employment of every U.S. citizen. That was what was in the bill to start with, and that is what its proponents have said they want. In fact, some of them cannot even wait beyond today to ratchet up a level of coercion. The very next amendment with its very explicit employer mandate clearly shows where all this is headed.
Well, at least this new Government program is voluntary, we are told. Not for the employees, it is not. Let me repeat. Employees, American citizens, have absolutely no choice whatsoever about whether they are covered under this section, nor is it truly voluntary for employers. To quote Senator Wallop again, the strong-arm incentive for the business owners to join the system is that they will be targeted for additional Federal enforcement if they choose not to participate. The Small Business Survival Committee says the system would create unprecedented employer liability. They oppose it, as do, for example, the Associated General Contractors, the National Retail Federation, and many, many others.
Chabot offered an amendment striking the pilot programs. Lamar Smith spoke in opposition to the amendment:
[T]his amendment would totally undermine our efforts to stop illegal immigration. A vote for this amendment is a vote for continued illegal immigration. A vote for this amendment is a vote against protecting jobs for American citizens. In order to cut illegal immigration, controls at the border are not enough. Almost half of all illegal aliens come into this country legally and stay after their jobs, after their visas have expired. Why? Jobs. Jobs are the No. 1 attraction for illegal aliens coming to this country. If we can reduce the attraction of this magnet, we can save taxpayers untold millions of dollars and improve the prospects of vulnerable American workers now competing with illegal aliens for jobs.
For the past decade, employers have checked the identity and work eligibility documents of new employees. Unfortunately, the easy availability of counterfeit documents has made a mockery of the law. Fake documents are produced in mass quantities in southern California. Just from 1989 to 1992, there were 2.5 million bogus documents seized. This amendment would strike the quick check system in the bill that allows employers to verify the identity and work eligibility of new hires. The bill proposes only that we have a pilot program to be set up for 3 years in five States and then it expires. The amendment would deny employers the opportunity to choose to do what is in their own interest. It says that Congress knows better than businesses what is best for them. Now talk about big brother.
American workers will benefit from the quick check system. It will ensure that they will not be competing for jobs with illegal aliens … . [E]lectronic confirmation requires no national ID card, no new database, and it ends in 3 years. This is not a first step toward anything. That is also why the National Federation of Independent Business, the National Rifle Association, and the Traditional Values Coalition do not oppose the voluntary quick check system.
Let us trust business owners to decide what is best for them. The quick check system is a convenience many want, and that is why the National Federation of Independent Business does not oppose [it]. Let us follow the lead of the U.S. Commission on Immigration Reform which recommended a verification system very similar to the one we have in this bill. The commission found that such a system would reduce the use of fraudulent documents, would protect American jobs and would reduce discrimination.
Also speaking against the Chabot amendment was Rep. Barney Frank (R-Mass.), a liberal and gay icon who opposed H.R. 2202 as a whole. He stated that “as much as I admire my friend [Mr. Conyers] the ranking member, his talking about the camel's nose under the tent reinforces my view that, if we were to restrict free speech at all, we should make it illegal to use metaphors in the discussion of public policy.” Frank also had panache.
Frank continued:
We are not talking about camels, noses and tents. We are talking about whether or not we have a rational approach to enforcing the laws against illegal immigration. I have to say that, of all the things in my life that puzzle me, why so many of my liberal friends have such an aversion to this simple measure is the greatest … . [W]e are not talking about a card anybody has to carry anywhere. What we are saying is what would seem to be the very noncontroversial principle, if one were applying for a job, one of the things one should be asked to do is to verify that one is legally eligible to take the job and is in this country legally.
He warned of the alternatives:
It only applies when applying for a job … . If we do not do this, what are the alternatives? The alternatives are much more interference with liberty. If in fact we do not try to break the economic nexus that has people hired illegally and the only way we can do that is by simply requiring that people identify that they are here legally, then we get into much more repressive efforts. We get into much more interference with liberty.
To turn this into some act of oppression makes no sense whatsoever, and, as a matter of fact, the opposite is the case.
Frank pushed back on claims that the verification system represented an invasion of privacy:
[T]he notion that you are now allowed to apply for a job in perfect anonymity seems puzzling … . What [is] the invasion of privacy? When going and applying for a job, one has to prove that one is here legally. Now, I think they have to prove maybe what their education is, maybe they have to prove their age, maybe they have to prove a lot of things. How can it be logically argued that it is an invasion of privacy to add to all the information they already have to give, their social security number, and et cetera; and, oh, by the way, can we please establish that they are here legally? It does not make any sense. I have friends on the left who react; I do not understand why.
Frank took on the contention by his fellow Democrats that the verification system was the sequel to the internment of citizens of Japanese ancestry during World War II:
[T]he gentleman talked about the Japanese roundup, one of the worst periods in American history and wholly irrelevant to this. It has absolutely nothing in common … . Locking people up because of their ancestry has nothing in common with saying, by the way, in addition to social security, educational qualifications and everything else, we want to make sure that they are here legally. That puzzles me.
And he pointed out that the verification would decrease, not increase, discrimination based on national origin:
[T]he way to minimize it is to, in fact, have a better system of identification. The better the system of identification, the less likely we are to have this discrimination. So I do not understand. Yes, people are afraid of forms of national identification. That is not what we are talking about.
Oh, and Frank took a jab at opposition by conservatives, saying that “apparently on the right wing we now have this increasing view that the American Government is the enemy and is to be prevented from enforcing any of its laws”.
Frank even expressed his strong support for making the verification system mandatory. In fact, he stated that “I do not believe that a purely voluntary system makes sense. If … we cannot go beyond this to adopt an amendment that makes this a binding thing, we are talking about simple rhetoric. But this is obviously the first step.”
The House defeated Chabot’s amendment by a vote of 159-260 (with 79 Republicans and 79 Democrats voting in favor of the amendment). A subsequent amendment by Rep. Elton Gallegly (R-Calif.) to make the pilot programs mandatory was defeated by a vote of 86-331 (with 43 Republicans and 43 Democrats voting in favor of the amendment). The House approved H.R. 2202 by a vote of 333-87 (with Rep. Chabot and all but six other Republicans voting in favor, and Democrats also supporting the bill by a vote of 105-80). A House-Senate conference committee agreed to a conference report, which the House approved by a vote of 305-123 (with Rep. Chabot and all but five other Republicans voting in favor, and Democrats opposing it by a vote of 76-117).
The conference report explained that the bill “sets up three pilot programs … which will last four years each … . Participation … will be voluntary … except with regard to the executive and legislative branches of the Federal Government and certain employers who have been found to be in violation of certain sections of the Immigration and Nationality Act.”
The first pilot program embodied Lamar Smith’s verification system, inelegantly named the “basic pilot program” (and rebranded as E-Verify in 2007). The other two (now quiescent) pilots originated in the Senate:
The second pilot program, the citizenship-attestation pilot program … will operate in at least 5 States or, if fewer, all of the States that issue driver’s licenses and identification cards with enhanced security features and procedures… . It will operate like the basic pilot program [except that i]f an employee attests to being a citizen, the employer is not required to [complete the I-9 process or] make an inquiry through the confirmation system.
The third pilot program, the machine-readable document pilot program … will operate as does the basic pilot program, except that if the new employee presents a State-issued identification document or driver’s license that includes a machine-readable social security number, the employer will make an inquiry through the confirmation system by using a machine-readable feature of such document.
The conference report, amended after negotiations with the Clinton administration (but with the pilot programs untouched), was enacted into law as part of an omnibus appropriations bill.
The Path to Mandatory E-Verify?
The existential angst in Congress over the verification system is no more. E-Verify has been continually reauthorized and tweaked by Congress. And over the years, both houses of Congress passed immigration reform legislation including provisions to make E-Verify mandatory in one form or another.
In 2005, the House passed quite controversial omnibus immigration enforcement legislation (House Judiciary Committee Chairman F. James Sensenbrenner, Jr.’s H.R. 4437) containing mandatory E-Verify, and E-Verify wasn’t even the controversial part! House speaker to be and Rep. John A. Boehner (R-Ohio) was one of 17 Republicans who voted against the Sensenbrenner bill. Boehner said the mandatory E-Verify provision was “a huge unfunded mandate on employers” and would later say that “his position on immigration cost him votes in his quest to become majority leader”. That didn’t stop Boehner, as I remember all too well, from preventing Judiciary Committee-passed mandatory E-Verify legislation (Lamar Smith’s H.R. 2885) from going to the House floor once he became speaker. My colleague Mark Krikorian has written that following the Supreme Court’s 2011 decision in Chamber of Commerce v. Whiting ruling that IRCA did not prohibit states from requiring employers to participate in E-Verify:
The Chamber of Commerce reluctantly flipped and embraced the E-Verify mandate proposed by Rep. Lamar Smith … in order to pre-empt a multiplicity of state and local rules and to ensure a single national standard. That legislation was approved in committee but went no further in the Republican House, due to opposition from agricultural interests.
The Senate passed “comprehensive” immigration legislation containing variations of mandatory E-Verify in 2006 (S. 2611, by a vote of 62-36) and in 2013 (S. 744, by a vote of 68-32). Such legislation went down to defeat in the Senate in 2007 (S. 1348, by a procedural vote of 45-50), but for reasons unrelated to its E-Verify mandate.
The House passed immigration reform legislation containing mandatory E-Verify in 2023 (H.R. 2, by a vote of 219-213). In 2018, reform legislation containing mandatory E-Verify went down to defeat (H.R. 4760, by a vote of 193-231) The E-Verify provision played a part in generating opposition, but not because of concerns over Big Brother. Rather, some members were openly fearful that mandatory E-Verify would actually work and deprive employers of illegal alien workers. The only statements during House floor debate critical of the provision were:
[Jerrold Nadler (D-N.Y.)]: It would decimate the agriculture community by requiring employers to use the E-Verify employment verification system without fixing the underlying immigration system.
[Zoe Lofgren (D-Calif.)]: It mandates the use of E-Verify, which would be highly disruptive to restaurants, hotels, and other industries … .
[Sheila Jackson Lee (D-Texas)]: It mandates the use of E-Verify on a nationwide basis, thereby crippling industries such as agriculture, restaurants, hotels, construction, and many others … despite the reliance on undocumented immigrants by several large sectors of the U.S. economy.
Concerns that mandatory E-Verify may actually work as advertised are in fact valid! A fair number of states now require some, many, or all employers within their boundaries to participate in E-Verify. A 2016 paper by economists Pia Orrenius and Madeline Zavodny evaluating state mandatory E-Verify laws concluded that:
E-Verify laws reduce the number of unauthorized immigrants in a state. This effect tends to be concentrated among recent arrivals and is particularly large for newly arriving immigrants. [T]he evidence suggests that E-Verify laws divert some newly arriving unauthorized immigrants to other states. The number of new likely unauthorized immigrants rises in a state as more nearby states begin requiring employers to use E-Verify.
[T]he results here … suggest that most of the drop in the number of already-present unauthorized immigrants in states that adopt universal E-Verify laws is due to them leaving the USA entirely.
The following year, Orrenius and Zavodny wrote a report issued by the Federal Reserve Bank of Dallas in 2017 concluding that:
[C]ompared with what would probably have otherwise occurred, states with universal E-Verify policies typically experienced large reductions in the number of likely unauthorized immigrants and even greater declines in the number of unauthorized workers … . [T]hough some unauthorized immigrants may choose to avoid or leave a state with a mandate, job opportunities for those who do reside there decrease.
Pia Orrenius stated that the report’s “key takeaways … are that E-Verify, when it’s mandatory … can have very large deterrent effects on the employment of undocumented immigrants and possibly also on … illegal immigration”.
Will E-Verify ever become universal? American workers can only hope so.
End Notes
1 Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America, Princeton University Press: Princeton, N.J., 2002.
2 President Truman’s Commission on Migratory Labor noted that “[t]he term wetback is widely accepted and is used without derision” and thus “for convenience it is used” in the commission’s report.
3 Senator Douglas explained that:
I should like to have these provisions apply to all illegal entrants of whatever nationality, but when that was proposed it was said it would interfere with the jurisdiction of the Committee on the Judiciary which was framing a general revision of the immigration law. Therefore we have confined the application of this amendment to employment of that type of labor covered in the agricultural labor measure now before us.
4 Joyce Vialet, “U.S. Immigration Law and Policy 1952-1986: A Report Prepared for the Use of the Subcommittee on Immigration and Refugee Affairs, Committee on the Judiciary, United States Senate”, CRS, Library of Congress, S. Prt. 100-100, 1988.
5 James G. Gimpel & James R. Edwards, Jr., The Congressional Politics of Immigration Reform, Pearson Longman: London, UK, 1999.
6 Nancy Humel Montwieler, The Immigration Reform Law of 1986: Analysis, Text, and Legislative History, Washington, D.C.: Bureau of National Affairs, 1987.
7 I should note that I worked for Chairman Smith at the time as a counsel on the subcommittee and participated in the drafting of H.R. 2202’s employment eligibility verification mechanism.
8 “Verification of Eligibility for Employment and Benefits”, Hearing Before the Subcommittee on Immigration and Claims of the House Committee on the Judiciary, 104th Congress, 1995.