The Corner

Re: Perfect the enemy of the good on E-verify?

Mark, I have more sympathy for Kris Kobach’s arguments than you do. I wrote a column, after the Supremes’ decision in the Arizona case, contending that the regulation and punishment of illegal alien trespassers were generally understood for the first century-plus of our history to be a state matter, not a responsibility of the federal government. I also contend that the Court’s ruling in the Arizona case was not one to be celebrated: While the majority ruled for the state, all the justices seem to accept the principle that immigration enforcement is so clearly a federal matter that Congress could, if it chose to do so, completely preempt the states from any enforcement. In fact, I said that if the Obama administration was smart, they would carry out the non-execution of the immigration laws by recommending that Congress pass more sweeping ones — Obama could then fail to enforce those while the states would be impotent to do anything about illegals within their borders (and the media would perversely give Obama credit for the toughness of his proposed laws rather than highlight the irresponsible absence of enforcement).

The fact that you support Rep. Smith’s bill weighs heavily with me, but I do worry that the bill is exactly what I was concerned about: the feds preempt the states and then do no enforcement themselves.

As I read the preemption section of the bill (starting at p. 50 of the pdf), it does — as you say — bar the states from any enforcement action except yanking licenses for failure to use e-verify. But what if you had employers who used e-verify but then ignored what the e-verify system told them — hiring the illegal alien anyway? Unless I’m reading this wrong — and if I am, I’d be grateful to be corrected — the bill would not permit the state to take any enforcement action in those circumstances: The fraudulent employer is essentially insulated by going through the motions of using the system. Why would an employer do such a thing, you might ask, since using the system and then ignoring its feedback would be very strong evidence of intent to violate the law — it would make the federal case against the employer stronger. Well, the employer would be banking on the fact that only the federal government had jurisdiction to punish such behavior, and that the feds (i.e., Obama/Holder/Napolitano) would have no interest in doing so.

Again, if I have that wrong, I’d love to be corrected. Meanwhile, I have to take issue with a couple of your other points points. First, you say, “Only the federal government can make the determination that a firm has knowingly hired illegal aliens, so preserving the state’s ability to pull a business license for that is irrelevant if the feds aren’t making any determination of that sort.” (Emphasis added.) I don’t see why this is so.

There are a lot of ways a state could determine that a firm knowingly hired illegal aliens. To be sure, one way to prove it would be for the feds to tell the state that an alien hired by the employer is illegally here and ineligible to work — and, in fact, Arizona’s statute mandates that the state rely exclusively on the federal determination of the alien’s status (i.e., the state law does not permit state investigators to do their own independent investigation because they don’t want conflict with the feds on that status finding — a record of conflict is bad for the state in a preemption litigation). But saying that only the federal government can make the determination about a particular alien’s status is different from saying that only the federal government can make the determination that a firm has knowingly hired illegal aliens.

One could easily imagine a situation in which state investigators get access to informants who either are part of the firm’s management and involved in a scheme to hire illegals, or are smugglers who steer illegals to that firm (or are perhaps even the illegals themselves). This would give the state a basis to yank the license. Sure, it would be useful, in order to corroborate the informants, to have the federal determination that some of the aliens hired by the firm are, in fact, illegals. But that federal determination might not be necessary to prove the case.

You also assert, “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.” I could not disagree more. The purpose of state laws is to protect the people of the state — that is the end to which they are the means. A state does not legislate in order to achieve better federal enforcement. In a properly functioning federal system, where the federal government would be limited to the few things we need it to do, the states would be doing most law enforcement, tailored to their priorities, not to the policies of whatever administration happened to be in power in Washington. 

Obviously, if one’s highest concern is the national immigration situation, then one might argue for a one-size-fits-all system (provided, of course, that the central government would actually enforce the rules of the system). But if I were a lawmaker or governor of a state, my priority would be to protect my state. If I held office in, say, Arizona, and my aggressive enforcement made illegals think it was better to try Texas or New Mexico, that would be fine by me. And if some states wanted to compliment federal inaction against illegal immigration with sanctuary policies, that wouldn’t be my concern either — as long as my state did not have to foot the bill for it or be much affected by the consequences of it. If the feds were not keeping illegals out of the country, and New York was keen to be a sanctuary state, I’d be happy that the illegal aliens had some welcoming place to go … as long as New York was forced to shoulder all the burdens of its generosity.

I guess I just don’t see what is so desirable about a single national standard of immigration enforcement. It seems to me that on this issue, as on so many, letting the states deal with conditions in their own territories, and being content with the inevitability that some will be strict, some lenient, and some in between, is the most attractive feature of federalism: It allows people to gravitate to the places where life best suits them. The imposition of uniform standards where there is no necessity of having them is what causes so much civil strife.  

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