Moving an immigration bill

How to do employer sanctions the right way. Why the bill that comes out of Congress, if a bill does come out of Congress, is likely to be worse than no bill at all.

A friend from Washington called to give me the heads-up: Congressional Democrats are about to make a move on immigration. With friendly fire from the Tancredo wing pinning down Bush and McCain, the prospects look lousy, but they’re going to give it the old college try. And they’re prepared to make some significant concessions, including an English-language requirement for achieving legal status, a major tightening of of “family reunification,” and some sort of national ID card.

The Democrats’ only hope of getting enough Republican votes to get something through is the threat that the Tancredo wing may be doing to the Republicans nationally what the Pete Wilson ’94 re-election campaign did for Republicans in California: make the GOP a semi-permanent minority party. They can also (as Hillary Clinton did at the California State Democratic Convention) try to raise the salience of the national-security implications of the current mess. Susan Ginsburg has argued that we can accomplish most of what we need to in terms of hampering terrorist mobility without addressing larger immigration issues, but there’s at least facial plausibility to the claim that having 12 million people in the country illegally constitutes a security threat.

It seems to me that the anti-immigration forces have a legitimate point that a normalization program without effective controls on continued inflows is asking for a repeat of Simpson-Mazzoli. But I don’t believe for a second that we can fix the program by controlling border crossing; as a former DEA once said about drug interdiction, if we build a fifty-foot wall around the country, the smugglers will by fifty-one-foot ladders.

So controlling illegal immigration means making it harder for illegal immigrants to get jobs. The best way to do that is to make it more dangerous for employers to hire them. That in turn requires that employers (1) be able to tell who’s eligible to work and who isn’t and (2) have a good chance of getting caught if they hire someone who isn’t eligible.

It’s technically feasible &#8212 though it would be expensive &#8212 to give employers a foolproof means of checking work-eligibility, even without going as far as giving everyone a personal picture ID. Compile a numbered list of those eligible to work (citizens and aliens with visas that permit employment) including some easily-readable biometric data (fingerprint or equivalent). Anyone on that list can get a card containing a digitized form of the biometric data and an encrypted number that matches the number on the list. When I show up for a job interview, I show my employment card, and the employer first compares the card with me by seeing if my fingerprint (or whatever) matches the data on the card and then queries the central data-base to find out whether the number on the card corresponds to an entry on the list. (Employers too small to have their own fingerprint-scanning equipment could buy the checking service commercially or get it from a state employment agency.)

Once that was in place (we’re talking years and billions of dollars) no employer could reasonably complain about having hired an illegal unknowingly.

At that point we could ratchet up the penalties: a $50,000 fine should do the trick. But harsh penalties don’t help unless they’re actually collected, and the way things are now the illegal employee has every incentive to keep the employer’s illegal behavior a secret. So we need an incentive for workers to rat out their employers. But what could be simpler? If you’re not eligible to work, and you can prove that someone has employed you illegally, you get a green card. Suddenly illegal aliens discover that they can’t find work, because employing an illegal means putting yourself in his power.

All that seems fairly obvious, but so far none of the players seems to be interested. What I’m worried about is that instead we’ll get a “comprehensive” bill that makes the normalization process contingent on the success of border controls which will never succeed, while including indentured servant (pardon me, “guest-worker”) provisions for the benefit of employers unwilling to offer wages Americans are willing to take. The result will be to make the current undocumented population worse off without solving the security problem or much reducing the inflow. (Life in the U.S. as an undocumented worker could get much, much worse than it now is and still be better than life in much of Central America.)

I’d much rather have no bill at all than a bill like that, and a bill like that is what I think we’re likely to get if we get any bill at all. So I’m not a fan of the decision to push the issue forward. But the Democrats don’t have much choice; if there’s going to be a train wreck, it has to be clear to the voters, and especially to pro-immigrant voters, that it was the Republicans who spiked the rails.

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: