The debate over Arizona’s new immigration law was bound to get overheated very fast. Few policy debates are more apt to consist of people yelling past each other than those that involve immigration. Those who argue that the police-powers law is carefully crafted and entirely reasonable are mostly correct. Those who argue that the law terrorizes the Hispanic community are also correct — because perceptions matters, even misperceptions. The danger is that we may be focusing too much attention on politically painful policies that only tinker marginally with police powers, and not enough on more palatable ones that can profoundly alter the economics of illegal immigration.
As one of the Arizona law’s principal drafters has explained, the law was carefully crafted to survive legal challenge — so much so, indeed, that it may not have much impact on day-to-day law enforcement. As Andy McCarthy notes, there may be “many instances where the law either won’t work or won’t be necessary.” Absent all the media hype, the bill might well fizzle into irrelevance soon after going into effect.
Despite the safeguards meant to survive legal challenge and prevent abuses, there is some real danger that instances of racial profiling and other abuses will result under the new law. But the hysteria of the bill’s opponents (it has been called a “cancer” and a “humiliation” for the Hispanic community) makes it look like the law has no safeguards at all. The more the bill’s opponents indulge in histrionic fear-mongering, the more illegal immigrants in Arizona will be scared into self-deporting — precisely what the bill’s proponents have wanted all along.
In this sense, President Obama has been enormously helpful to the whole coalition behind the Arizona law, particularly to the very anti-immigrant factions he most keenly opposes. By predicting the wholesale “harassment” of Hispanics under the law, Obama is fueling more fear among Hispanics than the law could have caused on its own in any form liable to survive legal challenge. After all, racial harassment is illegal, even under the new law. For Obama to throw around civil-rights charges that he won’t be able to prove in court is thus ideal from the point of view of the bill’s supporters.
I suppose you should be thankful when your opponent’s distortions help you advance your agenda in ways you could not have accomplished on your own. But here the benefit comes at a painful cost. The further alienation of the Hispanic community is a bad thing, not just for the Republican party’s prospects of rebuilding a “big tent” majority, but for the country as a whole. Besides, the solution to illegal immigration is most likely to lie where the cause lies: not in law enforcement but in the fundamental economics of why people want to come to the U.S. in the first place. Illegal immigrants think they can find work here. That’s what has to change.
Ironically, nearly three years ago, Arizona hit on perhaps the single best way to diminish the economic incentive. It passed H.B. 2779 (signed into law by Janet Napolitano), which requires all public and private employers in Arizona to use the federal E-Verify program to verify the employment eligibility of new hires electronically.
Since 1986, federal law has required new hires to present evidence of employment eligibility in accordance with the I-9 form. Typically, all you need to get over this hurdle is a driver’s license (which you can get without proof of lawful immigration status in most states) and a Social Security card (which is easy to fake). Presented with these documents, employers satisfy their “due diligence” obligation and gain safe harbor from the laws that punish hiring illegal immigrants. Millions of illegal immigrants — and thousands of employers — have learned how to game the system simply by relying on forged Social Security cards with randomly generated Social Security numbers.
E-Verify was developed to deal with this problem. Employers who enroll in the program use a web portal to verify whether a job applicant’s claimed Social Security number matches the name on his or her main form of identification. To game E-Verify, illegal job applicants will often have to engage in actual identity theft. This presents a more complicated and difficult proposition, and for many illegal immigrants, the cost and risk will be prohibitive.
The program has had its share of critics. Its launch was plagued by fits and starts because of a high rate of errors, but that problem has largely been worked out, as a Congressional Research Service report on E-Verify shows. Furthermore, contrary to what some critics assume, the burden on business is minimal — according to CRS, a large majority of participating businesses (about 80 percent) report spending less than $100 on start-up costs and less than $100 per year in operating expenses. Critics have also warned that E-Verify will lead to increased identity theft — and there is some evidence to support that. But simple solutions, such as including photos in the program’s databases and flagging instances where multiple incomes are being reported to the same Social Security number, can progressively eliminate the possibilities for identity fraud. The idea of E-Verify is fundamentally sound: incrementally increase the costs and risks of illegal job applications, and illegal immigrants will feel increasingly dissuaded from trying.
Arizona may be accused of a certain importunate impatience, just when evidence is accumulating that the state’s E-Verify mandate is working. The illegal-immigrant population has been declining markedly across the country due to several factors. But the number of illegal immigrants in Arizona dropped 18 percent in 2008, nearly twice the national rate. In the few states that have adopted universal E-Verify — Arizona, Oklahoma, Mississippi, and South Carolina at last count — many illegal immigrants have decided not to risk identity theft (a federal felony) in their job applications. The result has been self-deportation on a scale that has yet to be quantified but could be massive. It is reasonable to believe that a large part of the conspicuous drop in the number of illegal immigrants in Arizona is due to the effects of E-Verify. And those numbers will improve as the program improves.
As long as only a handful of states require universal E-Verify, most of those self-deporting illegal immigrants will be moving not back to their homelands, but to other states where getting a job is still easy. “Employment sanctuaries” such as Texas, which doesn’t require E-Verify for any employer at all, are an attractive option for illegal immigrants fleeing E-Verify states. This could significantly worsen the outlook for labor productivity in Texas, which is already projected to decline significantly due to the enormous net migration to the state of a deeply uneducated population of immigrants. The failure of Texas to implement universal E-Verify is glaring in a state where complaints about federal inaction are ubiquitous.
To be sure, E-Verify is not a politically easy proposition. The chambers of commerce of most states oppose universal E-Verify mandates. This is because businesses do not want to be deputized as enforcers of federal immigration laws under the threat of onerous penalties. But deputizing them is only fair: It is their demand for cheap labor that creates the incentive for illegal immigration, and the costs and risks of participating in the program are negligible.
Unlike many federal and state laws that focus on police powers to enhance law enforcement, E-Verify cannot be accused of “terrorizing” the Hispanic community. Indeed, legal Hispanic immigrants often support it because under the current system, they are unfairly forced to compete with illegal immigrants for work.And as the politically brilliant Haley Barbour showed when he signed Mississippi’s E-Verify mandate with representatives of business organizations standing next to him, it is possible to overcome the opposition of the business lobby. Without E-Verify, businesses that are willing to look the other way on hiring illegal immigrants have an unfair economic advantage over businesses that want to be law-abiding. E-Verify helps level the playing field.
The Arizona police-powers law distracts attention from the one way in which Arizona’s approach to illegal immigration can and should be a model for the nation: the adoption of a universal E-Verify mandate for all employers. Modern technology has given us a way to strike at the heart of the illegal-immigration problem. It comes not in the form of drones, or fences, or expanded police powers, but in the form of a simple legislative device that promises to alter the economics of illegal immigration. The several states should move as quickly as possible towards universal E-Verify.
– Mario Loyola is former counsel for national-security affairs to the U.S. Senate Republican Policy Committee.