The Corner

Making the Perfect the Enemy of the Good

As I noted yesterday, some immigration hawks are balking at Lamar Smith’s bill to make use of E-Verify mandatory for all new hires. (My piece on the bill over at the home page is here.) That’s now come out in the open with Kris Kobach’s NY Post op-ed today.

Let me start by noting that Kris is a patriot, a genuine conservative, and a good guy, and I will happily vote for him when he runs for president some day, as I think likely. But his objections to the Smith bill, though real, just aren’t serious enough to outweigh the benefits of the legislation. First off, the headline was obviously not written by him because the bill contains no amnesty, no legalization, no path to anything. (Read the pdf of the bill here.)

Kris’s main objection is that the bill would “defang” state efforts to enforce immigration law. The bill would indeed limit state action specifically regarding immigration and employment to yanking the business licenses of firms that aren’t using E-Verify. That means that states would not be able (as under the 2007 Arizona law recently upheld by the Supreme Court) to use the business license penalty against firms found to have repeatedly employed illegals. The fear is that since the Obama administration is singularly unenthusiastic about immigration enforcement, the only opportunity for enforcement is in the states.

But I think this misses the point. Only the federal government can make the determination that a firm has knowingly hired illegal aliens, so preserving the states’ ability to pull a business license for that is irrelevant if the feds aren’t making any determination of that sort. And Arizona has suspended only a handful of licenses since the law was passed in 2007 (I’m trying to get a straight answer from the state’s Commerce Department, but I believe it’s in the single digits). The point is that, though this is a concession, it isn’t a big thing to give away in exchange for all employers in all states to use E-Verify in hiring. Remember, California, New York, New Jersey, Illinois, Maryland, and Washington State are among the top-12 illegal immigration states that will never pass E-Verify mandates on their own and they account for close to half the illegal population (and I’m not optimistic about Texas or Florida, numbers 2 and 3 in the size of the illegal population). So we’re trading away a state power of very limited utility in exchange for a national standard that will prevent most illegals from finding new jobs (the majority of illegal aliens work on the books, not for cash, and thus are vulnerable to E-Verify).

The bigger problem is a confusion about the purpose of the state laws on immigration. They are a means to an end — better federal enforcement everywhere. But those who’ve gotten deeply invested in the state-by-state approach have come to see it as an end in itself.

Kris also objects that the bill would grandfather most illegals in jobs they already hold. This is true only on the surface, because multiple use of the same Social Security number would require the Social Security Administration to find the real holder of the number and then E-Verify everyone else using it, resulting in their dismissal.

And his contention that the provision exempting returning agricultural workers from E-Verification “would likely allow millions of illegal aliens to continue working here” is simply incorrect — the Pew Hispanic Center reports that less than 5 percent of the illegal workforce works in agriculture, and the share of them who will return to the same employer year after year just isn’t that big — again, a concession, but not a big one.

And finally, the Left understands how dangerous Smith’s E-Verify bill is to their goal of open borders. America’s Voice has sent out an alert warning its members that the alert would lead to “mass layoffs and mass deportations.” Now, that could all be a clever diversionary tactic to make us think they oppose the measure, but Occam’s razor suggests they really are afraid of it.

Ironically, the head of America’s Voice, Frank Sharry, warned his comrades during the 2007 amnesty debate that if they didn’t accept the compromises Kennedy had negotiated (and which we on the right knew were phony concessions anyway), they’d lose their best chance at wining. The Left balked at the (phony) concessions, including then-Senator Obama, the bill died, and their moment passed.

This is a restrictionist moment, with a Republican House, a committed and knowledgeable Judiciary Committee chairman, lots of vulnerable Democratic senators, and a Democratic president up for reelection with 9 percent unemployment. Let’s not let our moment pass.


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