No Sanctions
Governments Haven't Fulfilled Promises
to Punish Rogue Employers

by Daniel Jester

Immigration Review #33
Fall 1998


In February 1996, with intense debate and lobbying in Congress over immigration legislation, President Clinton signed Executive Order No. 12989, barring employers that knowingly hire illegal-alien workers from receiving federal contracts. The ban is to apply for one year, a period which may be extended if the employer continues to break the law. This is in addition to penalties already included in the Immigration and Nationality Act, which can include fines of $250 to $10,000 per illegal alien employed and/or imprisonment. This promised to be a potent new tool for immigration law enforcement, one more step toward turning off the magnet of jobs that attracts illegal immigrants to the United States.

At the time, presidential spokesman Mike McCurry said "there's no grounds to suggest that this is an executive order based on politics." But nearly three years later, with the political pressure gone, nothing has been done to implement the order. Despite McCurry's comment that "it really represents a new sanction against those who violate the law," the order itself offers a more convoluted rationale: The move will "promote economy and efficiency in Federal procurement" because "contractors that employ unauthorized alien workers are necessarily less stable and dependable procurement sources than contractors that do not hire such persons," due to the Clinton Administration's "vigorous enforcement policy." (The entire order is on the Internet at http://www.ins.usdoj.gov/law/fr1996.htm and click on "Presidential Documents.")

Under the executive order, the attorney general is directed to report federal contractors that are knowingly employing illegal aliens to the appropriate contracting agency, which then may stop using that contractor. The contractor's name is also to be sent to the General Services Administration (GSA) and added to the "List of Parties Excluded from Federal Procurement and Nonprocurement Programs" (colloquially known as the Excluded Parties List and available on line at http://www.arnet.gov/epls/), so that other agencies will know that the contractor has been barred.

None of this has happened.

Among the many reasons (assigned "cause codes") a contractor may currently be added to the GSA's Excluded Parties List are: embezzlement, theft, forgery, and bribery; various violations of antitrust, narcotics, labor, export-control, and environmental laws; and denying or preventing military recruitment on campus (for colleges). Even violations of the Buy American Act can trigger debarment, but no contractor has been barred for hiring illegal aliens since the executive order was signed. Carolyn Jones, a lawyer with the employer sanctions unit in the General Counsel's office of the Immigration and Naturalization Service (INS), recently confirmed that she is not aware that an employer has ever been barred for hiring illegal aliens, saying that the government is still trying to create a formal procedure for identifying and reporting violators. Bob Reed, the INS official in the investigations branch of worksite enforcement charged with implementing the executive order, wouldn't provide any details, saying it would be "imprudent" to do so at this stage. Since the GSA has not even added a cause code for employing illegal aliens to its Excluded Parties List, it appears that the executive order will not be implemented any time soon.

The same thing happened in Florida. In May 1996, Governor Lawton Chiles signed his own executive order barring employers of illegal aliens from state contracts. While Florida was the only state to follow in Clinton's footsteps, its efforts have remained in a "staggered" implementation phase, according to Mark Schlakman, head of immigration and refugee policy for Chiles. Schlakman said that the state's program, being handled by the Department of Management Services, should be ready by the next governor's term, next year. Schlakman felt strongly that the law would be implemented if Lieutenant Governor Buddy MacKay was elected, but was unsure of what Republican Jeb Bush's devotion would be to the policy. Since Florida will rely on the federal list of barred contractors, however, it can't do anything until the federal government acts, whoever is elected governor in November.

At the local level, the Butler County (Ohio) Board of Commissioners has taken similar action. In the wake of INS arrests of illegal aliens in the Cincinnati-area jurisdiction, the commissioners passed a December 1997 resolution barring companies that hire illegal aliens from county contracts or economic development incentives. The resolution said board members were "appalled and saddened... that illegal immigrants [were] being employed in [their] communities in occupations that might otherwise be filled by Butler County citizens." To bar a contractor, the county will rely not on federal records, but on county records. Derek Conklin, the county administrator, said the county has not yet found anyone in violation of the resolution, but now that it has been passed he not only is ready to enforce it, but also to make the list of barred contractors public. It's not clear, however, how the county's records can help it identify rogue employers among firms based outside the local area.

Thus the central problem with these initiatives: State and local authorities simply have no way of enforcing such bans without cooperation from the federal government, since it is Washington that identifies and fines the employers of illegal aliens. Thus one way the Clinton Administration can prove that Executive Order No. 12989 wasn't "an executive order based on politics" would be for the INS to make available on the Internet a database similar to the Employer Sanctions Database created by the Center for Immigration Studies. With this information available to government at every level, as well as to the public, the process of punishing lawbreakers and protecting American jobs would be underway.