This Year’s Most Important Jobs Bill

National Review Online, June 16, 2011

Rep. Lamar Smith has introduced what is probably the most consequential jobs bill of this Congress — the Legal Workforce Act (H.R. 2164), which phases in use of the E-Verify system for all new hires. (There was a hearing on the bill yesterday morning.)

Mandatory E-Verify schemes have been proposed before, but with the Supreme Court’s decision giving the green light to state mandates, business finally has a strong interest in a single national standard. Not only are perhaps a dozen additional states poised to pass E-Verify mandates over the next year (there are, I believe, 14 with full or partial mandates now), but county and city mandates are proliferating as well.

The bill does a nice job of finessing certain political stumbling blocks (the text of the legislation is here). For instance, agriculture would be given a three-year phase-in period, instead of the maximum two years for all other employers, and returning seasonal farmworkers would not be considered new hires. Given the degree of dependence on illegal labor in certain ag sectors, this seems reasonable, and if it makes it easier for farm-state congressmen to support it, so much the better.

Also, business lobbyists objected to the requirement in previous bills that after a certain point, all existing workers would have to be E-Verified, as opposed to just new hires. Smith’s bill addresses this quite cleverly by requiring the E-Verification of existing workers only for government agencies and contractors and anyone flagged in a Social Security no-match letter, who are the very people likely to be illegal aliens anyway. What’s more, any employer may choose to E-Verify his existing workforce, so long as he does so for all his employees.

Finally, some immigration hawks have been concerned that federal legislation would preempt successful state efforts at requiring E-Verify, watering down the mandate so much that broadening it would have little effect. But the new bill, while preempting any state or local criminal or civil penalties, preserves the power to revoke the business license of any firm failing to use E-Verify — which is the main penalty that immigration hawks have been working for anyway.

The arguments against mandating an electronic check of work eligibility as part of the existing hiring process have been exhausted. Some opponents now say they opposed Smith’s first attempt — in 1995 — because the technology wasn’t advanced enough yet. That’s disingenuous, but it’s moot now, so let them have their fairy tale.

More recently, opponents have said that E-Verify uses databases that are so error-ridden that legal workers would be barred from employment. That’s hogwash. In fiscal year 2010, there were around 47 million hires, according to the Bureau of Labor Statistics, and of those, more than 15 million were screened through E-Verify. Of those queries, 98.3 percent were automatically approved. A further 0.3 percent were initially kicked back, but eventually okayed after the problem was straightened out — often a women who hadn’t informed Social Security of her married name, or an employer who transposed a number or letter in the new employee’s name. (These are problems you want to straighten out now, not when you turn 65.) The remaining 1.4 percent of E-Verify queries were rejected as not authorized — either illegal aliens or legal visitors whose visas did not permit them to work. That’s more than 200,000 rejections last year, and if even one of them had been a legally authorized worker, his face would be on the cover of Time magazine. This is a dog that didn’t bark.

This earlier argument having failed, opponents of immigration enforcement have now taken to attacking E-Verify because it’s not tough enough. Noted immigration hawk Chuck Schumer, for instance, has made this claim. And, in fact, illegal aliens with the most sophisticated stolen identities have been able to fool the system. But the system is getting tighter all the time. If you present a passport or certain immigration documents, it now can pop the driver’s license information with one state, and others will follow. Former DHS policy director Stewart Baker points to private “identity assurance” systems as a further way to prevent identity theft and make E-Verify as close to foolproof as you can get.

The challenge for Smith’s bill will be getting it through the Senate — if it reaches the president’s desk, I don’t see how Obama can veto it. Then, as the system is phased in, starting with the largest employers and working on down, it will become increasingly difficult for illegal immigrants to find work. Many will leave, as Arizona has seen in the wake of its own E-Verify mandate. And many Americans will find jobs they otherwise would not have. Will an E-Verify mandate cut unemployment in half? Probably not. But can it shave a point, or even two, off the unemployment rate, enable involuntary part-time workers to find full-time work, and draw back into the labor market some of those who have dropped out? You bet.

And if Obama is still in the White House when these improvements happen, will he shamelessly claim credit for them? Sure, but it would be a small price to pay for a big step forward in limiting illegal immigration.