Book: What Happened to Worksite Enforcement?
The Center for Immigration Studies hosted a panel discussion on Thursday, December 7, focusing on the history of the bi-partisan 1986 Immigration Reform and Control Act banning the employment of illegal immigrants and the subsequent bipartisan failure to follow through. The speakers will included Rep. Lamar Smith (R-TX), who has re-introduced mandatory E-Verify in the House, and Dr. Lindsay Lowell, previous Director of Research at the Congressionally-appointed Commission on Immigration Reform where he was also Assistant Director for the Mexico/U.S. Binational Study on Migration. Rep. Smith and Dr. Lowell joined by Jerry Kammer of the Center for Immigration Studies, who recently authored a book, entitled “What Happened to Worksite Enforcement?” which traces immigration reform over five administrations.
Date: Thursday, December 7, 2017, at 9:15a.m.
Location: National Press Club, Murrow Room, 529 14th St, NW, 13th Floor, Washington, D.C.
Introduction and Moderator
Executive Director, Center for Immigration Studies
Rep. Lamar Smith (R-TX)
Rep. Smith represents Texas’ 21st congressional district and is the former Chairman of the House Judiciary Committee, presently serving on the immigration subcommittee. Earlier this year he introduced The Legal Workforce Act, which requires employers to use the federal government’s employment verification system to ensure workers are legally authorized to work in the U.S. He also serves on the Homeland Security Committee.
Dr. Lindsay Lowell
Dr. Lowell is a Visiting Researcher at the Georgetown University School of Foreign Service. He is the previous Director of Policy Studies for Institute for the Study of International Migration. He was previously Director of Research at the Congressionally-appointed Commission on Immigration Reform where he was also Assistant Director for the Mexico/U.S.
Senior Research Fellow, Center for Immigration Studies A Pulitzer Prize-winning reporter who has been covering immigration for over 30 years.
MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies, a think tank here in town that examines and critiques the impact of immigration on the United States.
One of the most important parts of enforcing immigration laws is weakening the magnet of jobs that attracts people here in the first place. That’s always been seen as key. It was only – it was a key part of the 1986 immigration law, that exchanged/swapped amnesty for the illegal population that was here for, for the first time ever, prohibiting the employment of illegal immigrants, because until 1986 it was explicitly permitted to employ illegal immigrants. No disrespect to the congressman’s home state, but it was called the Texas Proviso, not by coincidence – (laughter) – where harboring illegal immigrants was illegal but the law specifically said that employing them did not constitute harboring them. That changed in 1986. The point was clear the decks by legalizing the long-term illegal immigrants, but making sure to set up a situation where we wouldn’t have this kind of situation in the future.
Well, that didn’t work out, and – because the problem was the lack of follow-through. And that story of the past 30 years of how the ban on hiring illegal immigrants has not really been properly enforced is the topic of the book whose author we’re going to hear from today and have some comments and thoughts on it, “What Happened to Worksite Enforcement? A Cautionary Tale of Failed Immigration Reform.”
Jerry Kammer is the author of it. He is with the Center, a former Pulitzer Prize-winning reporter who, again – no disrespect, Congressman – but he sent “Duke” Cunningham to jail. And he’s been writing about immigration for a long time because he was a reporter in Arizona, a reporter in northern Mexico. He had deep knowledge on this. And the book is not just kind of a rehash; he actually did a lot of new interviews. This is – no one’s really done this, spelling out in detail a narrative of how worksite enforcement has failed over the past three decades. The book is available on Amazon in hardcopy and Kindle.
And talking about both the book itself, but also the issue more generally, are two people who really are uniquely placed to know what they’re talking about.
Congressman Lamar Smith represents the 21st Congressional District in Texas. He’s now chairman of the Science Committee in the House, but has been chairman of the Judiciary Committee, chairman of the Immigration Subcommittee, has been for – on this issue has been the go-to person, really, in the House for something like three decades. Was the person driving the bus on the 1995 and ’(9)6 immigration legislation from the House perspective that, if it had passed, we’d all be in a lot better situation than we are today, if it had passed the way originally it was conceived.
And our other guest is Dr. Lindsay Lowell. He’s at Georgetown University and was research director at the Jordan Commission, the U.S. Commission on Immigration Reform, that – whose recommendations, quite frankly, like I said, we’d all be a lot better off if they had been implemented. And he’s worked on labor migration issues and enforcement of labor laws related to immigration for much of his career.
So what we’re going to do is start with Jerry, and then Lindsay’s going to give some thoughts, and then the congressman has to bolt. He has a time commitment. So we’re going to have the comments, and then we’re going to get to Q&A, as much of that as we can get in. So, Jerry, if you could start.
JERRY KAMMER: Thank you, Mark.
I was thinking this morning that I’d begin by saying that this project in a sense was 31 years in the making. It was in 1986 that I went to work as a correspondent in Mexico for the Arizona Republic. It was September of 1986, one month before Congress passed the Immigration Reform and Control Act of 1986, the famous or infamous IRCA.
I was thinking I’d like to begin today by quoting briefly a book published just before last year’s election, written by the journalist John Judis. That book is called “The Populist Explosion,” and he writes about the rise of Donald Trump and Bernie Sanders in our country, but also about the rise of populist parties in Europe. And he writes at various points in the book about the role of immigration anxiety in the rise of populism.
And he has an interesting description of the circumstances under which populists gain strength. He said, quoting here, “Those circumstances are times when people see the prevailing political norms, put forward, preserved, and defended by the leading segments in the country, as being at odds with their own hopes, fears, and concerns. The populists express these neglected concerns and frame them in a politics that pits the people against an intransigent elite.” I think we’ve certainly seen that with immigration, with public anger at immigration, and with the formation of a backlash against excessive and uncontrolled immigration, especially illegal immigration.
And in researching this – and I came to CIS because I wanted to have the chance to do research in this depth. After 30-some years as a reporter, it’s been really sad to see how much energy and time has been drained from investigative long-term reporting. But I got a chance to spend a good six months working on this project. And it’s fascinating to see how long and how consistently from the 1970s, when Democrat Peter Rodino of New Jersey proposed the first bill to make hiring unauthorized workers illegal, that Democrats back then were leading voices for immigration limits. And there’s been sort of a trendline over the years away from that, where they have become part of a populist left, to some extent, that is pushing for more immigration, and that regards limits on immigration frequently as based in bigotry or anti-immigrant sentiment. That, I think, is very painful for those of us who believe that immigration restraints should be reasonable and humane, and in the best interest of the country.
And I wanted to contrast that statement from John Judis with a caller to C-SPAN in 2013 – (chuckles) – when Congress – when the Senate was preparing to vote on the Gang of Eight bill. I have found C-SPAN to be a treasure trove of information. Their video library, if you just enter the terms “immigration” or enter “Lamar Smith” – enter “Doris Meissner,” about whom I’m about to talk, former commissioner of the Immigration and Naturalization Service – you come up with remarkable information that helps you form a history of immigration policy. And that’s really what this is an attempt at. It’s a history of our policy since IRCA, particularly as regards enforcement.
As you recall, IRCA was supposed to be a compromise combining a one-time-only legalization, a.k.a. amnesty, with measures to stop future illegal immigration at the worksite to demagnetize the worksite. And there was also a Border Patrol buildup. It was called at the time a three-legged stool. So you had – you had legalization, you had worksite enforcement – a.k.a. employer sanctions – and then you had a buildup of the border.
Well, I was struck when Doris Meissner came on. Doris was talking about the Gang of Eight bill and favoring it. And this really poignant call came in from a man who identified himself as Phil from Minot, North Dakota. I’d like to just read you – here’s Phil: “You have people in this country trying to run their businesses legally. They pay their taxes. They pay their workers compensation. They pay their insurance. And you have other businesses hiring illegal immigrants. They hire them, they know they can’t cover them with insurance, they pay them less money, and they don’t cover them with worker’s comp. They don’t cover them with liability insurance. So they can bid the job way cheaper than anybody running their business legally. If you’re running your business legally, you’re not hiring illegal immigrants, so I don’t hire illegal immigrants. So I have to bid my job to cover my expenses in this country, so I am going out of business because you guys are allowing people to hire illegal immigrants, and they’re really damaging this country. I don’t understand how people cannot see this. I mean, they are putting me out of business because I won’t work illegal immigrants.”
Now, in 30-some years of reporting, I came across many people like Phil in the country and on C-SPAN. C-SPAN, again, is a marvelous resource. And I would contrast that, as I do in the book here, to what we were told in Congress. First, we were told that IRCA was a serious effort to control illegal immigration. And then we were told, especially during the Clinton administration, that our government was really getting tough on illegal immigration. President Clinton made control of illegal immigration a major theme of his run for reelection in 1996. There’s a lot about that in the book, and I’m going to see how much I can cover of that in the few minutes that I have now.
But I want to go back to an editorial from The New York Times during the – it was a five-year debate, fascinating debate, that led up to the passage of IRCA. First, we had the report in 1981 from the Select Commission on Immigration and Refugee Policy, headed by Father Theodore Hesburgh, president of Notre Dame and former head of the Civil Rights Commission, and one of many liberals who believed that we must have limits on immigration. Barbara Jordan, later we’ll talk about her, also was the same way. And increasingly, they have become what I consider myself, sort of a contrarian liberal – although my friends on the other side of the immigration debate have disavowed me a long time ago in terms of any liberal credentials.
This is from the SCIRP report – SCIRP, Select Commission on Immigration and Refugee Policy – to Congress in 1981: “The Commission believes that a legalization program is a necessary part of enforcement, but it does not believe that the U.S. should begin the process of legalization until new enforcement measures have been instituted to make it clear that the U.S. is determined to curtail a new flow of undocumented illegal aliens. Without more effective enforcement than the U.S. has had in the past, legalization could serve as a stimulus to further illegal entry.” Now, that, of course, was prescient, and that is exactly what has happened.
The IRCA delivered on the amnesty. It did not deliver on the worksite enforcement. And so we’ve had a system ever since where we have sort of pretended to enforce the law, but not really seriously. And some members of Congress, notable among them Lamar Smith, have attempted to restore integrity, or at least establish integrity for the first time, in the verification process. And perhaps Congressman Smith will talk about that. But it has been remarkable to see how many times people of authority and knowledge have pointed out this hole in the verification system for workers, and yet we have been unable to patch that hole. And that is because of the power of the forces that kept that hole as part of the 1986 legislation.
Chuck Schumer was able to cut a deal to pass IRCA in 1986 in part by going along with the language being watered down so that verification was not credible. Father Hesburgh, who tried to have a credible verification program, who urged that it be included in IRCA, was very disappointed, and said that a worksite enforcement program without an effective verification program – said it was meaningless, he said, like kissing your sister. (Laughter.)
Here’s The New York Times writing about this topic: “Any sensible immigration reform requires a verification system.” I should say this is 1982. You’ll see how much The New York Times has changed in the years since 1982 in their editorial approach. So we need a verification system, it says. “The best way to deter illegal immigrants is to make it harder for them to get the jobs that lure them. The best way to do that, in turn, is to make it illegal for employers to hire them. Employers can only do that if they know who is illegal. Verification, however, is opposed by such divergent bodies as the U.S. Chamber of Commerce, which fears red tape for employers; and the Mexican American Legal Defense Fund, which fears discrimination against Hispanics.”
Now, Mexican American Legal Defense and Education Fund – MALDEF, and it’s commonly known – had a very powerful and respected spokesperson in this regard, Vilma Martinez. And here’s a comment from Ms. Martinez during the time when IRCA was being debated: “For Mexican-Americans and other Americans who share the physical characteristics of persons thought to be undocumented, employer sanctions will exacerbate existing patterns of employment discrimination. Well-meaning employers, fearful of government sanctions, will shy away from hiring us.”
So this was an argument that was repeatedly made. We had people who said, well, we have to have enforcement in order to protect the worksite and make sure only authorized people, including unauthorized immigrants, have access to jobs. But others came back and said, well, this is – this is going to have very negative effects on our people. Raoul Yzaguirre, who at one time ran the National Council of La Raza, in 1990 tried to get employer sanctions repealed, calling it the civil rights issue of our time. Now, that effort to have it repealed was defeated, but only after a battle in the Congress.
So we have the – IRCA passed in 1986, but the gaping hole was verification. And that hole was exploited by the proliferation of fraudulent document industry that reduced the I-9 verification process. I suppose you’re all familiar with the I-9. That’s the employment authorization verification form. It was reduced to what David Martin, former general counsel of the INS, called, an empty ceremony, because employers were able to pretend to believe that workers were authorized. And the workers were able to pretend to be authorized by presenting these phony documents.
That industry had always been in existence, but after IRCA it proliferated. It became a multimillion and perhaps even a multibillion dollar industry over the years. And so this gap in worker verification was obvious to everyone right from the beginning. Several times in this text I point to the work of the Government Accountability Office. The Government Accountability Office repeatedly said: You’ve got a problem here. Fix the verification process. And stop throwing money at the border.
Congress has always found it much more politically palatable to put money into the border patrol than to control the worksite. And if you don’t control the worksite, if that job magnet remains active, people are going to find a way – at least, many people are going to find a way to get to that job that’s being offered to them by employers, especially those who are willing to violate the law to find people who, in the words of former labor secretary Ray Marshall, work hard and work scared – is what Ray Marshall said. He was secretary during the Jimmy Carter administration.
Mark, how am I doing on time? OK. I will try to compress this.
I think it’s fascinating to see what happened in the 1990s, especially during the Clinton administration. That, to me, was a remarkable story. And I try to tell narrative stories, narrative journalism style in the book, and to see how enforcement at the worksite imploded, especially during the Clinton administration, especially during the second Clinton term, was really interesting. Clinton talked tough about stopping illegal immigration, until he was reelected. If you look at his 1995 State of the Union address, he’s running for office – he’s running for reelection, basically, still at this time, in the beginning of 1995.
And listen to this appeal to populist anxiety: “All Americans, not only in the states most heavily affected but in every place in this country, are rightly disturbed by large numbers of illegal aliens entering our country.” He used the term illegal aliens which, of course, is way un-PC at this point – or today. “The jobs they hold might otherwise be held by citizens or legal immigrants. The public services they use impose burden our taxpayers.” Clinton posed to, quote, “Better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan.”
Barbara Jordan headed another commission on immigration called the Commission on Immigration Reform, whose report in 1995 also called for making the verification process credible. And no one ever accused Barbara Jordan of having any animosity toward illegal immigrants. She was a powerful voice. Roy Beck here with us knows that very well, and actually founded NumbersUSA to continue Barbara Jordan’s work. When she died in early 1996, that was a terrible blow to those who tried to bring some coherence and integrity to the – to the worker verification process, and to immigration law in general.
So many stories. We followed this through, all the way to the end of the Obama administration. I do think that the Clinton years, the 1990s, were key. By the – by the end of that decade, the die might have been cast. One of the hearings that’s written about in this book happened in 1999, when Congressman Smith was furious at the INS announcement of a new plan, which basically said: Look, we’re not really going after people just because they’re here illegally. We’re going after the criminals. You called that in a hearing a bright, flashing light which says: Come on in. As long as you avoid further problems with the law, you’re going to be OK.
And that’s what – that was official INS policy by the end of the Clinton administration. And during the 1990s, huge growth. The population of unauthorized immigrants grew from about 3.5 million in 1990, throughout the decade, at what demographers now say was an annual average of 500,000 people per yet. During the 1990s, they were estimating that at about a quarter million. But now they say it was 500,000. So, during a 17-year span ending in 2007, the number of unauthorized immigrants grew from 3.5 million to a peak of 12.2 million. And this is at a time – much of this was happening when President Clinton was promising the people that he was serious about worksite enforcement.
He wasn’t serious. He capitulated to the interest groups, including some very interesting Chinese-Americans. A guy named John Huang was written about in a really good investigative piece by The Boston Globe, influenced President Clinton to stop – not to back the idea for limiting legal immigration.
OK. I’ve gotten the word. Big stop sign put up. Plenty more to talk about. That’s just an introduction. Thanks for the time.
MR. KRIKORIAN: Thank you, Jerry. And as Jerry pointed out, this is not, like, a dry policy paper with lots of graphs and tables and stuff. This is a story. There’s nothing wrong with graphs and tables. We use them. (Laughter.) But this – I think there is one graph, actually. But this is a story, and one that’s actually quite interesting to read.
So Lindsay Lowell is going to have a few comments now.
LINDSAY LOWELL: OK. I got my timer going. Good morning. I want to thank Jerry and Mark for having me here this morning. And I’ll try to keep my comments short, so the Congressman can make his presentation as well.
This is a subject that’s close to my long-term interests and research. I came to this city after working down in University of Texas, where I was doing a Leontief production function estimate of the impact of the unauthorized labor force on the wages of domestic workers. Lots of fun. Came here and worked for the Department of Labor, which at that point was empowered by the 1990 Immigration Act to actually put in place government research on these issues, something I think is always useful to put into any legislation – maybe because I’m a researcher – but also so that we know what we’re doing pretty well. After that, I was at the commission, as mentioned.
But when I came here, IRCA had been enacted. And I – you know, I really didn’t know what it was. It certainly wasn’t something I’d learned much about. We heard about the history here today. Some of the history, though, things we know like the Texas proviso and things like that, the Bracero program, the relationships that it engendered after that, I was somewhat surprised in my research on Mexican migration to find that worksite enforcement was first recommended by the Mexican government at the outset of the Bracero guest worker program in the 1940s.
And of course, European governments do worksite enforcement, usually bundled in their department of labor. And when I was at the department of labor, that’s basically how we saw worksite enforcement, as an integral part of workers’ rights, as a way of leveling the playing ground all the way around.
Now, there are a lot of challenges with worksite enforcement, with how you do it. I want to talk about those a little bit, because they form a bit of a background to what I think Jerry does, which is talk about politics. But that’s not what I thought the problems were going to be at the outset. We thought it was going to be more prosaic things like the money, boots on the ground, technology. It turned out to be basically finding will to enforce.
So let’s remember that it wasn’t at the grand bargain with IRCA. The Hesburgh Commission said we had to close the backdoor before opening the front door. And that’s what happened. IRCA basically was to control unauthorized migration. That led to the 1990 act. And the 1990 act really did boost skilled migration and the overall volume of migrants coming into the country. But that was a plan. That was a grand bargain on its own. In motion over time, not comprehensive, if you will.
But legalization at the time was seen as a – both a humane step, granted to people who had earned equity by being in the country and working for at least five years, the main program, but it was also seen as a way of clearing the marketplace in an effort to control future migration. But the control of future migration then rested heavily not just on the border, which is where a lot of the emphasis has been, but at the workplace.
It was seen as a magnet, but it was also seen as righting a wrong. The wrong of the Texas Proviso that let employers off the hook. Not to make policemen – not to make employers policemen, but to make them an integral part of making sure that they had a legal workforce, a way of managing future flows. The Jordan Commission, which I was on the staff of as a research director, picked up that ball and said: Well, we need to move forward with worksite enforcement, be more vigorous about it, but also recommended something called the basic pilot, which has become E-Verify as we know it.
Now, what were some of the problems? Paperwork we’ve heard about. But also what was interesting, one of the major academic critiques at the outset is we weren’t going to be hard enough on employers. That is, we weren’t going to enforce knowing hire violations very strongly. It was difficult to get to that next step. Of course, that and the very easy way of getting paperwork past the employer was intentional. It was intentional to basically avoid discrimination. My own research at the time found that discrimination, using the then-GAO survey, suggests that IRCA implemented wrongly by employers led to about 1 percent of all of the unemployed Hispanics losing jobs. So it was not a widespread impact.
At the same time, using the same survey, as suggested, five years after IRCA, that well over half of all unauthorized workers were using fraudulent documents at their jobs. Perhaps one reason there wasn’t discrimination, it wasn’t really being an effective screening tool. So these kinds of problems were embedded in it, and we knew it. And that’s why the – what’s why we had things like E-Verify, which with – which extensions and improvements in worksite enforcement really we believe, many of us believe, will be effective.
Why do we believe that it’ll be effective? Because research on E-Verify now and the dozen or so states that are using it clearly indicate – look at Pia Orrenius’ work – that the number of unauthorized in the state and those employed are going down. At the same time, the wages in states implementing E-Verify are going up for domestic Hispanic workers. Those are positive things. They’re the way it’s supposed to work. By the way, I’ve got parallel work from the early 1990s that suggests that fines in worksite enforcement function in that way.
So then we get to Jerry’s work. We’ve got the history. We come up to that point. And the problems that he focuses on aren’t really these technical things. It’s much more a look at a cascading set of failures of will. The odd bedfellows in the interests community, the Vidalia onion snafu, the vanguard problems point again and again to a lack of will, a lack of dollars, a lack of agents, and a lack of ability to embrace new ideas and technology going forward. And technology, of course, is what observer after observer says is one of the things that can help E-Verify work.
So I’m going to keep it there, and make it short, but that’s the world we’re in today, where legalization has become an issue of earned amnesty, fights over political wills, instead of equity and clearing the markets. And worksite enforcement, it’s argued that it should be off the table, when arguably, implemented correctly, it should have the intended effect of controlling future flows.
MR. KRIKORIAN: Thank you, Lindsay.
REPRESENTATIVE LAMAR SMITH (R-TX): Mark, thank you. And let me just say at the outset that I have seldom been in such good company. And it is I who are in the company of the immigration experts today. They know so much and it’s just a pleasure to be here today. Let me also just say real quickly that I know of no more a thoughtful analyst of immigration issues than Mark Krikorian. And so I always enjoy our times together and our visits, which occur frequently, but I wish they occurred more frequently.
I’m going to claim kinship with Lindsay Lowell on the basis of his having been a postdoc at the University of Texas. And I’m going to confess to Jerry that he accomplished what I once aspired to, and that is be a Pulitzer Prize winner. I was a reporter for a newspaper after college and thought I was going to be the next Pulitzer Prize winner. Then I realized it took me three times as long to write a page as everybody else around me. (Laughter.) And what do you do when you don’t know what else to do? You go to law school. And it’s been downhill ever – it’s been downhill ever since. (Laughter.) So, appreciate, like I say, the expertise at the table.
I have been waiting 30 years for a president who would make enforcement of immigration laws a priority. And I am pleased with what this administration has been doing. But looking back, very briefly, we had President Bush in the middle of the 2000s, first decade, start to enforce immigration laws. Then we went to the Obama administration, during which administrative arrest plummeted 95 percent. And then now we have a Trump administration who is sincerely and, I think effectively, starting to both investigate, conduct investigations, and to engage in deportations as well, both sides. So it’s refreshing to me to have an administration who is willing to enforce the law in a number of ways.
One component of worksite enforcement that I’ve been working on for a long time, of course, E-Verify. And I’ve introduced a bill just about in every Congress. We always seem to get it through the committee, oftentimes passed on the floor, but that’s the end of it. But we are not going to stop our efforts because I think if we can pass E-Verify we will have done a lot to reduce the attraction of the Magnet of the easy availability of jobs. That, itself, will reduce the amount of illegal immigration that we – that we have in this country today.
And, by the way, every time we think we’re making progress – and we are, as I said, under this administration – we need to remind ourselves that there are still hundreds of thousands of people entering our country illegally every year. We don’t know who they are. We don’t know where they’re going. We don’t know what they might do to innocent Americans. But – so there is still a problem that we need to address.
The E-Verify immigration reform is the most popular immigration reform, according to the polls that is being considered. It enjoys 82 percent approval rate by the American people. No other immigration reform comes close, although several are in the 60s and 70s. So you have a popular immigration reform that will obviously be very effective and that is, I’d say, even popular already with the number of employers who use it. We have about a third of the employers in the country who use it. We have something like a thousand every week voluntarily signing up for it. It’s doing a lot of good in a lot of ways. But we need to make sure that all employers use it. And that’s what we would like to get.
I have no good explanation whatsoever for why E-Verify was not included in the Republican senators’ immigration proposal that was released a couple of a days ago. I am hoping that the House will have it in their proposal. And I’ve talked to Chairman Bob Goodlatte, the chairman of the Judiciary Committee. And he certainly supports it. I’ve talked to Paul Ryan, our speaker. He supports E-Verify. So I’d like to think that the House will improve on what the Senate has proposed there as well.
It’s been mentioned a couple times, so let me real quickly just go back to the 1996 law since it was – since I worked on that. Just – let me just say how much of a delight it was to work with Al Simpson. He always made you laugh and smile, but he was also a very effective legislator. And this was the bill that introduced in the House, that he introduced in the Senate, we got across the finish line, but not without significant changes, to our regret.
The bill basically had an illegal immigration component and a legal immigration component, which was ending chain migration. We were trying to codify the Barbara Jordan Commission’s recommendation. And we had the support of the Clinton administration until just a couple of weeks before we went to the floor. The various special interest groups had gotten their attention. And unfortunately, they capitulated, as did the attorney general.
And so, when we got to the House floor, we knew we were going to be hit with an amendment, as we were, to strip out the legal immigration reform from the bill. That amendment, I’m sorry to say, was successful. Literally, I’ve never seen staff weeping on the floor before, but when we lost that amendment that’s what they were doing. They knew how much of a loss that was.
On the illegal immigration side, there were four components. And the four components were making it easier to deport criminal aliens, it was the beginning of the entry-exit system, which still has not been enforced but is starting to get enforced. We had E-Verify, which we are still waiting for. And it might surprise you, we also outlawed sanctuary cities. This is 1996, 20 years ago. And we have been waiting for presidents to enforce that ever since. So it wasn’t so much that we needed new laws, we just in the cases of almost all these provisions simply needed to enforce what had been enacted in 1996.
So that’s just a quick summary of some of the things we’ve been working on. I don’t think there’s anything more important than a combination of worksite enforcement that would include E-Verify if we want to address the still-heavy influx of illegal immigrants coming into our country today. But, again, good to be with you and thanks for including me.
MR. KRIKORIAN: Thank you, Congressman. I think the congressman has time for one or two questions before he has to leave. And then after that, we’ll be happy to continue. But – OK.
REP. SMITH: I realize I have a high hurdle, by the way, to clear today, having been associated with a former colleague, “Duke” Cunningham. (Laughter.) And inevitably associated with the Texas Proviso. So I’ve got – (laughter) – to try to – I’ve got to sort of reconstitute my – yes, rebuild it.
Q: My name Neil Munro. I work for Breitbart.
I’m wondering if you can tell me what Speaker Ryan is planning to do with his taskforce on immigration, and if he seriously would be willing to pick up the Senate version, the Senate reform bill from Grassley.
REP. SMITH: This will be a quick answer: I have no idea what the Senate – what the speaker plans to do. There is a(n) immigration working group in the House, as they had in the Senate. When I talked to Bob yesterday on the floor, Bob Goodlatte, there was a sense of urgency now that the Senate has come out, that the House needs to come out with their working group recommendations as well, which I am led to believe will include E-Verify.
Q: Fair enough. Then a second question: So, Texas is a very Republican state, but it’s a growing population of minorities and immigrants. At some point, it’s going to turn blue. You’re in the Texas delegation. Does the Texas delegation ever talk about this supertanker rock that’s going to hit someday?
REP. SMITH: Yes. And we do talk about the changing demographics in Texas. You’ve seen a little bit of what’s happened in Virginia, in part as a result of those same kinds of demographics. But I’m not willing to concede that we’re inevitably going to become a Democratic state. I’m hopeful. In part, this goes back to some efforts – gosh, this is going to take you all down memory lane – but long ago and far away, when I was Republican county chairman in Bear County, San Antonio, you have a country that is – I want to get this generally right – 60 percent Hispanic, 10 percent black, 30 percent Anglo.
And over a period of just four or five years, given those demographics, half the – we went from no countywide elected officials being Republicans to half, about 25 being Republicans. And obviously, to be elected, they had to attract significant Hispanic support. And we made a point of targeting Hispanics. We made a point of when you looked at a lineup of our candidates in Bear County, half were minorities or women. And so it wasn’t just – it wasn’t just talking theoretically. We were practicing what we were preaching.
And we also realized that when Hispanics have incomes above $50,000, they suddenly become part of the middle class. Many of them were small business owners. And we get 40 percent of their vote. And so I think we need to do some targeting. We need to empathize issues that are important to Hispanics. And I think that we can subsequently get our fair share and make – and hold on to Texas and make inroads elsewhere. But it’s going to require a major effort, yes.
Q: (Off mic) – on that point, when they get over 40(,000) or 50,000 – (off mic) – tend to vote Republican, I’ve heard, so – other calculations along those lines. Do any Republicans in the caucus say we want to raise wages for Americans in order to bring working-class people into the coalition? Does that ever come up?
REP. SMITH: It comes up. I don’t know how frequently. And I think many of us are willing to see, you know, wages go up, a little bit, perhaps, to make sure that Americans get the jobs that are now being held by illegal immigrants, for example. And that’s one of the great selling points of E-Verify and I think that’s what makes it popular, is that we’re really arguing on behalf of the unemployed and underemployed American worker. And that includes citizens and legal immigrants both. So, you know, I can’t speak for a lot of people, but I think that we all would like to see Americans employed and American workers put first, and get those available jobs.
MR. KRIKORIAN: Art?
Q: Mr. Chairman, Art Arthur.
REP. SMITH: Yes.
Q: You’d referenced Chairman Grassley’s SECURE Act. Could you comment on the interesting sanctuary cities policy, that only punishes cities that are involved in the 287(g) program?
REP. SMITH: Well – (laughs) –
MR. KRIKORIAN: I think Art uncovered that.
REP. SMITH: Curtis Philip is with me in the back, who is counsel in the office and has been with me, and with me on the Judiciary Committee before. And I am embarrassed because Curtis remembers everything that I did as chairman of the Judiciary Committee on immigration. (Laughter.) And I do not.
On that question, I don’t want to maybe make any comments about senators’ proposals, other than say that I think we should enforce the law when it comes to sanctuary cities. And I’m pleased with what the AG is doing. And I just think Attorney General Sessions is the best we could have, and the best we could have on immigration policy as well. And I miss him in the Senate, but he’s doing a lot of good work there.
But just to go back, I think we ought to enforce the law on sanctuary cities in whichever way we constitutionally can, whether it be, you know, government money or fines or whatever it might be.
MR. KRIKORIAN: And, Congressman, I had a question too, specifically about E-Verify. You said that Chairman Goodlatte is, you know, of the same mind on mandating use of E-Verify. Have you talked to other people in the leadership, in the Republican leadership? Not just the speaker, but other people, the majority leader and so forth? What is their thinking on this, because if it seems to me if everybody’s for it, then what’s the problem?
REP. SMITH: Why aren’t we doing it?
MR. KRIKORIAN: Right.
REP. SMITH: I’ve talked to every Republican leader. I’ve even handed them things in writing. And they all profess to be for E-Verify. And we’ll have a chance to show that soon.
MR. KRIKORIAN: But is there sort of a – because, remember, even President Obama said he was for E-Verify. But it was all once everybody gets amnesty, well, then we’ll concede to E-Verify. I mean, to some degree, that’s kind of the problem, isn’t it? The what comes first.
REP. SMITH: What comes first. And everything needs to come together, or probably nothing at all. We also have to give immigration a priority to begin with, and make sure something gets to the House floor. And nothing has been scheduled yet.
MR. KRIKORIAN: Right. OK.
REP. SMITH: OK.
MS. TELFORD: Representative Smith is going to have to leave right now. He’s ignoring his staffer. (Laughter.) You’re going to have to leave us, I’m afraid, but we’ll continue with questions after Representative Smith leaves.
MR. KRIKORIAN: Yes. Thank you very much, Congressman.
REP. SMITH: I thank you all, and apologize for leaving a little bit early.
MR. KRIKORIAN: That’s all right.
REP. SMITH: But, on the other hand, I’m leaving everybody in good hands, and I’ll be well-represented. So thank you.
MR. KRIKORIAN: Thank you. (Applause.)
Other questions? Oh. The – I actually had a question for Lindsay. Now, you weren’t on the Jordan Commission, obviously. But as the research director, you were there and part of the discussions. Were the commissioners and the senior staff – were they – you know, did they expect what now we call E-Verify to actually happen politically? In other words, do they see that as a difficult thing that was unlikely to ever happen? Or was there a sense that, well, you know, this is pretty obvious, so it should be obvious to everybody? In other words, do they understand the political will problem?
MR. LOWELL: That’s a tough question. You know, the commission’s first and foremost duty was to make recommendations on the way forward. It’s the politicians’ job to implement or move forward on that front. Of course, it’s the people over at the then-INS who actually implement as well. I can tell you that there was pretty much – well, there was always kind of an outlier on the commission, among the commissioners. But pretty much broad agreement that worksite enforcement was necessary. There was certainly buy-in to the idea that you had to have a magnet.
MR. KRIKORIAN: The outlier was the immigration lawyer? (Laughter.)
MR. LOWELL: Yeah, so the – so having said that, they – a lot of things that the commissioners tried to do was simplify things so, you know, let’s not have a whole alphabet soup of different non-immigrant visas. Let’s, you know, streamline them, let’s not so many classes of family admission, let’s streamline them. There’s always a rationale for why you do that; it’s just not simply to simplify, but they also saw that the document requirements for the I-9 form were just untenable, and so they were big early proponents of the basic pilot, which has become E-Verify. And they – yes, I think they thought that, correctly implemented, E-Verify would be much more successful, and there’s a lot of us who think that if we have successful paperwork at the worksite, that alone will get most of the way you need to go.
It works with – you know, if you look – people complain about the document requirements under E-Verify. The documentation requirements are minimal compared to what you have to do for FLSA –
MR. KRIKORIAN: Which is what?
MR. LOWELL: The Fair Labor Standards Act – wage and hour kinds of requirements. They are fairly minimal compared to what you have to do with tax adherence. They’re not even near as complicated or as costly as OSHA. So as a labor standard, I think that was the other way they were thinking about these things, and they really thought E-Verify would be helpful.
When the lawyers decided that you could do E-Verify but you had to maintain a parallel I-9 system that was seen as not exactly what the commission had in mind. And the other thing that the commission had in mind and – in – at the institute with Susan Martin we’ve always emphasized as a necessary step up in Department of Labor and wage and hour investigations, as well, because some employers will side-step these problems if you – so that’s what we’re saying.
MR. KRIKORIAN: Yes, thank you. I actually had a question for – oh, yeah, go ahead, Roy.
Q: Yeah, a question for both of you. So, on this failure of will, both in what you were watching in the ’90s and then what has happened in the last few years – OK, so you can see that the – one reason you don’t want to stop the hiring – or you – or you don’t want workplace enforcement, you don’t want E-Verify, is businesses want to continue to be able to hire illegal aliens or, in a larger sense, you do want the flow of illegal aliens to continue, either for business purposes or for political purposes. I’m just asking is there any other reason? Is there any other reason to oppose – I mean, now that there – the businesses that use it are – almost universally say it’s a great system, and there’s almost no – you know, no sign of any discrimination.
Is there any reason to oppose E-Verify other than you want the flow of illegal aliens to continue?
MR. KAMMER: I think some folks on the liberal side of the divide see increasing – they make no distinction between illegal or legal, and they see anyone who lays claim to being an immigrant – and Roy used the term alien in order to make the point that an immigrant is someone admitted, at least under the law. There are a lot of people who really see this in an almost Thomas Payne sense of liberty, of expanding liberty, and that’s automatically a good thing, and that the idea of limits – ipso facto limits – are wrong, and that this is all part of the great progressive advance of individual liberty. And you have pitted against that the fundamental, more conservative idea of – of the welfare of the community.
We used to have a lot of liberals who were concerned about that conservative aspect – Barbara Jordan, Father Hesburgh – but over the past 20 years, in particular, that has become politically incorrect among liberals in what Ron Brownstein calls the “coalition of the ascendant” who unite in favor of basically open borders.
MR. LOWELL: Yeah, I – that’s a tough one to answer easily. You know, as we know, immigration is a – it’s odd bedfellows so, you know, go to the Cato website. They don’t like E-Verify either.
My father was a businessman. He said, don’t make me a cop; I don’t want to do that. A lot of that, to me, goes to the culture of the workplace. There was an argument at the time with workplace sanctions that, if we had implemented them way back when – say the Mexicans had recommended it, or in the ’70s when this first came to the fore, that worksite enforcement – that is, sanctions on unauthorized workers – would have been part of the culture. We would have just seen it that way and accepted that. Instead, it’s dropped right in the middle of a culture wars of the kind of thing that, I think, Jerry is kind of suggesting, and it’s – because it’s not just worksite enforcement, is it? It’s all forms of fraud investigation and enforcement generally, which is just kind of lumped together loosely as something that’s seen as repressive, and we don’t want to do it.
Now that has a lot of deep American roots, and I think most of us kind of resonate a little bit with that. But the question is how you do it. It’s always how you do it. I think the way E-Verify works today, I would kind of concur with you. I don’t see it as a big imposition. I don’t see it as usually problematic. I don’t see it as enough. It has to be universal, there has to be boots on the ground to enforce it. There should be stepped-up Department of Labor investigations because there are at least two kinds of employers – one kind of employer, and the one I run into in my work, say, on the H-1B where they’re not really – really not exploiting these workers in a deep sense often. Employers just want to hire who they want to hire. I mean, it’s almost that simple. They just don’t get caught up in all this stuff. They – they showed up, they looked good, I want to hire them. Don’t tell me no.
But you’ve got another kind of employer who really is looking for strategy to get into the market, in a way, and they will use unauthorized workers, and not just unauthorized workers.
MR. KAMMER: If I could just add one thing quickly, there’s been a tremendous increase in the ethic of inclusiveness or inclusion as almost a sacred value amongst many liberal folks. And immigration policy that sets limits is, by definition, exclusive. You are setting limits, you are defining the area in which you are allowing immigration to occur, and you are defining as illegal anything that exceeds those limits. A lot of people, especially younger liberals, seem to find that offensive.
MR. KRIKORIAN: I think – I was going to – I’m going to ask one last question since I’m paying for the coffee and the microphone, but something Lindsay said was interesting. It resonated with something I remember – you know, that – in other words, that if we’d started this in the ’40s or the ’50s or the ’60s, it would be kind of factored in to business culture. I remember Dimitri Papadimitriou once, like 20 years ago or something, at some event said the goal would be to make legal employment the labor standard. And, you know, no one employs 11-year-olds to clean chimneys anymore. I mean, nobody even thinks of it. It’s sort of been factored in, and that’s essentially, I think, what we’re trying to get to, is where it becomes accepted as a labor standard.
The last question I wanted to ask – and I guess it’s maybe more for Jerry, but maybe Lindsay has something to say – how much did Barbara Jordan’s premature death actually affect the political direction this went into? Because the reason – you know, Congressman Smith said President Clinton, you know, abandoned their effort that he had earlier supported. Well, the reason he abandoned it is because Barbara Jordan passed away and he wasn’t able to get away with what he wanted to get away with because she had such moral authority that she was able to discipline him at least, in a sense keep him on the straight and narrow.
So I was just wondering if either one of you had thoughts on how much her death affected this.
MR. KAMMER: I think a great deal. Al Simpson said it was a terrible blow to his efforts in the Senate.
I think that Bill Clinton, having appointed Barbara Jordan – and Barbara Jordan was a towering figure, particularly at that time. No one ever questioned her credibility or her bona fides. When her voice was silenced, it was a terrible blow, and it made it easier for Clinton to back off his earlier statements of support for the recommendations of the commission.
MR. LOWELL: You certainly hear that, and I think it’s the case, you know, and the moral voices that were left – the ones some of us still admire deeply to this day, like Doris Meissner – you know, she saw her role at INS in different kinds of ways, and a lot of that carried out differently. So I think it was a big difference.
MR. KRIKORIAN: Well, we’re going to wrap it up here to respect people’s time. Thank you to Jerry and to Lindsay. Thank you in absentia to the congressman. And this will all be up on our website in a number of days. I appreciate it, and hope to see you at our next event. Thank you.
Q: Great effort by Jerry on this book.
MR. KAMMER: Thank you. (Applause.)
I have some bullet points about this. If anyone wants the bullet points –
MR. KRIKORIAN: Printed up, they’re outside.
MR. KAMMER: Yeah.
MR. KRIKORIAN: This is basically the Monarch Notes version in case you don’t want to read the whole – it’s only a hundred pages of text, really. I mean, you know – (laughter) – it’s not like people’s attention spans are that short.