Andy: You make two important points I want to respond to, one specifically about Lamar Smith’s E-Verify bill and one more broadly about the states’ role in immigration enforcement.
You get to the core of the fear some immigration hawks have about the proposed bill’s preemption language when you raise the possibility that “the feds preempt the states and then do no enforcement themselves.” This is what the Justice Department’s lawsuit against Arizona’s 2010 immigration law is about and it’s a genuine concern. But even if your worst fears with regard to this bill were to be realized (which I don’t think is likely, even with the current crowd in D.C.), I still don’t think we’d be worse off than now, and almost certainly better off.
The reason I think so is that E-Verify isn’t a hypothetical thing, a promise that Obama could welsh on during the next five years (I’m afraid so) of his administration. It’s a going concern, one of the more smoothly operating of federal systems, as hard as that is to believe. And when it becomes mandatory, the legitimate, mainstream corporations that employ a large share of the 8 million illegals in the workforce will incorporate it into their normal HR process and they’ll do so in good faith. McDonald’s, for instance, responsible for half of May’s new hires and the entry point into employment for lots young people and others, has the largest number of Social Security no-matches of any employer. Once they (and other big, legitimate companies) incorporate E-Verify into all hiring (some McDonald’s franchisees do already) and into their legally binding franchise agreements (as Dunkin Donuts did a few years ago), a huge area of employment for illegals will simply disappear. Crooked employers who will just go through the motions of using E-Verify will always be with us, but there’s a lot of low-hanging fruit just waiting to be picked. In other words, even if the Obama folks totally ignore immigration enforcement, Smith’s bill would make use of E-Verify a labor standard that the vast majority of employers would follow.
The other point is about the state role in immigration enforcement generally. You write, “I guess I just don’t see what is so desirable about a single national standard of immigration enforcement.” We disagree here — immigration, like national defense, is an area where I think it’s imperative that our “highest concern is the national immigration situation,” as you put it. This is why I view the state activity, while often useful in itself (especially regarding police identification of illegals), mainly as a tactic rather than a strategy — the goal is to pressure Washington to have a better national policy overall. In the short term, it’s obviously better for Arizona that illegals leave the state, even if they just move to Nevada; but the long-term national interest is in having them leave the country altogether. Even Kobach agrees on this; in response to your piece on the Supremes’ Arizona decision, Kris wrote (I was one of nearly two dozen cc:s, so it wasn’t a private communication):
McCarthy is writing about a judicial battle concerning the states’ purported right to regulate immigration free from congressional control — a battle that was lost in the 1870s. The question of Congress’s plenary authority to regulate immigration has been settled for more than a century.
There are areas where conservatives should fight for a return to a primary, even exclusive, state role, such as education. But immigration control — a fundamental expression of national sovereignty — isn’t one of them.