Employer sanctions: enforcement is everything

Employer sanctions matter only if they’re enforced. Enforcing employer sanctions requires having illegal workers themselves complain about, and testify against, their employers. The greater the legal penalties for coming here or being here illegally, the less willing they will be to complain and testify. So felonizing illegal entry is worse than pointless; it will actually tend to increase the influx of illegal migrants.

A reader points out that my earlier charge that Republican anti-immigration proposals exclude employer sanctions is overbroad. The Sensenbrenner bill provides for the creation of a data-base of those eligible to work, with stiff fines for employers who fail to check before hiring. The Frist bill also has employer-sanctions provisions, though bizarrely it “grandfathers” existing employment relationships. (Why not go the whole way, then, and grandfather the aliens holding those jobs? Otherwise, you make them captives of their current employers, and thus even more exploitable than they are now.)

But in either version the key question remains enforcement. How secure will the system be? How hard or easy will it be to beat it by pretending to be someone on the list? Can employers get away with pretending to believe that job applicants are who they pretend to be, as they get away now with pretending to be fooled by counterfeit green cards? And why shouldn’t we expect the same companies who have secured from BushCo lax enforcement of the environmental and workplace-safety laws to secure lax enforcement of employer sanctions from any Republican successor?

In any case the provisions in the Sensenbrenner and Frist bills to stiffen sanctions against the illegal aliens themselves would make enforcement of their employer-sanctions provisions virtually impossible.

Effective enforcement of employer sanctions needs the cooperation of the illegal aliens themselves as complainants and witnesses. Stiffening sanctions against them, as the Republican bills do, deters them from complaining or testifying, making them more attractive to employers. (It also makes them much more attractive as crime victims by increasing their fear of the authorities. This will increase the actual crime rate while reducing the apparent crime rate, which is based mostly on victim complaints.) Felonizing illegal entry, therefore, isn’t just pointless, it’s counterproductive, if the goal is to slow the influx across the southern border.

But if the goal is to exploit nativist fears without seriously inconveniencing employers too cheap to pay what citizens would demand to do their dirty work, making illegal immigration a felony makes perfect sense. No only does it sound tough, by frustrating enforcement of employer sanctions it actually helps guarantee that they … keep … coming, as Pete Wilson’s successful re-election ads warned they would, thus maintaining illegal immigration as a live issue to be exploited in future elections.

Whatever level of immigration occurs, we should work as hard as possible to make sure that as much of it as possible is legal, because illegal immigration is a crime problem, a terrorism problem, and makes illegal immigrants and their children much worse off, and much worse neighbors, than they would otherwise be. So we should both expand legal immigration and toughen enforcement against illegal immigration and the employment of illegal immigrations, to squeeze down on the size of the illegal underclass.

Instead, we reach a bad compromise &#8212 excessively strict quotas plus lax enforcement &#8212 that gives us the worst of both worlds: fewer legal immigrants than the country could comfortably absorb and benefit from economically, and more illegal immigrants than it’s healthy or safe for us to have around.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

2 thoughts on “Employer sanctions: enforcement is everything”

  1. Fine points, especially how the compromise is likely to be terrible.
    The real solution, a much smaller and less corrupt Mexican gov't with much greater economic chances there, is even more unlikely than the US gov't getting policy right.

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