Lamar Smith’s Legal Workforce Act: Far More Than E-Verify—And Worth Fighting FOR, Not OVER
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Congressman Lamar Smith's breakthrough bill H.R.2885 is packed with features to expel illegal aliens from our labor force. It’s actually moving in Congress, but the patriotic immigration reform community is internally conflicted and this opportunity may well be missed. At least that's how it looks to me.

I. The Dispute Among Friends

Some of our headliner heroes, especially Congressman Lou Barletta [R-PA], Kansas Secretary of State Kris Kobach, and former Arizona state Senator Russell Pearce, have given thumbs down to H.R.2885 because it will preempt two state enforcement tools against illegal immigration:

  • State authorities' workplace raids based upon suspicion of hiring illegal aliens won't be permitted.
  • Some of the few states that have mandated E-Verify for private employers, either universally (AL, AZ, MS, SC) or partially (GA, LA, MO, UT), will have to amend and re-pass those laws for compatibility with the new federal law. (See here for a map of E-Verify rules by state. In most cases, states have mandated E-Verify only for government entities and, sometimes, for contractors that want to do business with those entities.)

The critics of the bill includes some of my colleagues (e.g. here and here) and some of the grassroots leaders who generated the pressure that yielded the E-Verify bills on their states' books (e.g. here).

Given the Obama Administration's intransigence against immigration enforcement, and the systematic federal nonfeasance on enforcement going back to the 1986 amnesty (amnesty and subsequent enforcement promised, only amnesty delivered), our compatriots, whose devotion and enormous efforts have delivered critical results, have the right to be suspicious of any hobbling of the states.

But, much as I admire Barletta (to whose campaigns I've donated, including his 2012 re-election effort), Kobach (whom I know and to whose campaigns I've also contributed), Pearce, and all our dissident "local notables", I think they're making the wrong call on H.R.2885.

Considering the old adage "the perfect is the enemy of the pretty darn good," I hope they'll reconsider their opposition to the bill because, while losing those two tools (the second only temporarily), we get so much more in return.

The details follow.

II. The Bill, Its Status, and Its Prospects

On September 12, 2011, 13-term Congressman Lamar Smith (R-TX), currently Chairman of the House Judiciary Committee and a stalwart for the cause of immigration-in-the-national-interest since the early 1990s, introduced H.R.2885 [220-kB PDF], the "Legal Workforce Act." (For a splendid account of our three-decades-and-counting struggle, see historian Otis Graham's book Immigration Reform and America's Unchosen Future. Smith's early involvement is recounted on page 149.)

With Chairman Smith powering it, the Legal Workforce Act was marked up (i.e. amended) by the Judiciary Committee during September and sent on to the House Ways and Means Committee, which must deal with it before it can reach the House floor. The Judiciary Committee's mark-up was not without peril for the bill, and its future is decidedly uncertain—especially if too many of us who understand immigration's existential threat to America blow off our civic duty to coming generations because we're offended by H.R.2885's imperfections.

Rosemary Jenks, head of Government Relations for NumbersUSA, tells me that she's seeing some movement of the bill in Ways and Means but that the House Republican leadership needs to feel massive pressure from the grassroots if the bill is to come before the whole House. She explained: "The leadership doesn't believe it's a good election-year issue, so they'll try to avoid it. It's our job to make sure that they can't avoid it, especially when we're talking about a bill that would open up jobs for millions of unemployed Americans."

(Over the years, VDAREcom has carried abundant commentary, especially by Steve Sailer and by Peter Brimelow, about the blind-as-shrews fecklessness of most national Republican leaders.)

In the following sections, I'll cover the bill's E-Verify components, its crucial Social-Security-related features, and the reasons the bill merits passage. (A terse list of H.R.2885's contents by the Congressional Research Service is provided here.)

III. The Coast-to-Coast E-Verify Rollout

E-Verify is the online system, free to users, that compares new hires' names, Social Security numbers [SSNs], birth dates, and, in some cases, photos with information from Department of Homeland Security [DHS] and Social Security Administration [SSA] databases to confirm—or not!—an individual's eligibility to work lawfully in the U.S.. Except for the photos, it's the same information that employers already must collect from new hires and record on I-9 forms. An employer who's signed-up for E-Verify must use it on all new hires, nullifying concerns about profiling.

Smith's bill mandates E-Verify use for a steadily-expanding universe of employers, starting with state and local governments, contractors to government at all levels, and companies having at least 10,000 employees. The rollout of deadlines for employers starts six months after enactment, and all employers must be signed-up for E-Verify by the two-year mark. (Agricultural employers must run typical new hires through E-Verify at the two-year mark but have a third year before they must check seasonal workers who are returning to their employ. Anyway, per the Pew Hispanic Center [1.9-MB PDF; see Table 5], most illegal aliens aren't working in agriculture, and those who are would be winnowed over time by the bill's Social Security aspects, discussed below.)

Small employers who don't want to do E-Verify screening themselves can comply, at minor cost, by using the services of an E-Verify Employer Agent, exemplified by VDARE friend and immigration patriot Hal Netkin (website here).

The bill also mandates E-Verify for "a person or other entity recruiting or referring an individual for employment." I think this means union hiring halls, employment agencies, and the like.

IV. It's Actually Enhanced E-Verify

For most employers, checking individuals' work-eligibility through E-Verify is allowed solely for new hires, within a few days after they're hired. (Current exception: Companies that do federal contract and/or subcontract work must also screen their existing employees who are working on federal contracts through E-Verify, and such companies have the option of "re-verifying" their entire workforces, both new hires and existing employees, including those not assigned to federal contracts.)

But H.R.2885 greatly enlarges E-Verify's purview. First, it mandates running all existing federal, state, and local government workers through E-Verify. Second, it unleashes employers who want to do the right thing, as Roy Beck, Executive Director of NumbersUSA, explains:

“The Legal Workforce Act would finally overturn the federal ban that prohibits employers from running their existing employees through E-Verify so they can voluntarily move illegal aliens out of their workforce.

“The ban is the reason that many of the companies that now use E-Verify to screen new hires still seem to have a lot of illegal aliens working for them. This usually isn’t the company’s fault. .. [It's] against the law for them to use E-Verify on their existing employees.

“Businesses that have wanted to be certain that their entire workforce is legal are currently prevented from doing so. This leaves them susceptible to government audits later on that may easily find the old illegal workforce and then create a public relations nightmare and a severe sudden disruption of the company’s operations.

“Many companies have begged the government to allow them to find the illegal aliens in their workforce and to allow them to fire them without facing lawsuits from civil liberties groups and unions.”

[H.R. 2164 Has SIX AGGRESSIVE TOOLS To End ‘Grandfather-Amnesty Loophole’ for Existing Illegal-Alien Workers, NumbersUSA, June 23, 2011]

(Roy was actually writing about H.R.2164, an earlier version of Smith's bill, but his words also apply to H.R.2885.)

Finally, the bill permanently authorizes E-Verify—ending our burden of having to fight reauthorizations through Congress every few years while also denying the Open Borders knaves their primary leverage to inflict another mass amnesty on the country. (Assuring adequate funding for E-Verify's continued operation and enhancement is a separate subject.)

V. The Social Security Trap: Combating Identity Theft and "Legacy" Illegal Aliens

Though mandatory E-Verify is crucial, it's not a standalone silver bullet against our illegal-immigration woes: The contractor Westat, using 2008 data in a 2009 analysis for DHS, estimated that about 50% of unauthorized workers screened through E-Verify mistakenly received authorization! Westat attributed this partial failure primarily to identity theft, i.e. an illegal alien obtains the name, birth date, and SSN of a genuine U.S. citizen or legal resident and uses those data to fool E-Verify.

Everify Poster(Presumably the performance is improving as photos are added to the databases. Moreover, Hal Netkin tells me that E-Verify strongly deters illegal aliens from even applying for jobs once they notice the posters announcing E-Verify participation that each participating employer must display prominently, in both English and Spanish; see the examples on this page.)

So E-Verify needs reinforcement against identity theft and to compensate for employers who won't voluntarily re-verify their already-in-place workers.

But Smith's bill fills those gaps by directing the SSA to act when it detects use of SSNs that's likely to be fraudulent. In brief, the SSA must inform employers about intrinsically problematic SSNs (e.g. mismatch between name and SSN) used by their employees, and the employers have to run those workers through E-Verify, firing those whom the system rejects. Further, in circumstances that suggest identity theft (e.g. a particular SSN being used simultaneously in far-flung places and/or disparate occupations), the SSA must take specified steps that will lead to both the dismissal of all fraudulent users of a given SSN and to the "lockdown" of that SSN for the benefit of its true owner. Roy Beck gives all the details here (see Tools 4, 5, and 6).

VI. H.R.2885's Pluses Far Outweigh the Minuses

Universal E-Verify screening and clampdown on SSN-fraud, together, will extrude illegal aliens from American workplaces over a few years, the centerpiece of the "attrition by enforcement" strategy. So what's not to love about H.R.2885?Everify Poster In Spanish

Well, some of our anti-H.R.2885 colleagues, besides being dismayed about those two preempted state enforcement powers (see above), are deeply suspicious that the bill has been endorsed by a traditional and powerful enemy of immigration sanity, the U.S. Chamber of Commerce [CoC], representing the cheap-labor addicts.

But it's precisely the tremendous state-level accomplishments of those professional and volunteer immigration patriot leaders over the last few years that have split the amnesty forces—separating the CoC from the grievance lobbies by persuading the CoC that it's finally time to deal, rather than accommodate a growing blizzard of state laws.

And it's time for us to cash in at the national level on all those heroic efforts!

The CoC is the BigFoot in the Senate, too, where Chuck Grassley [R-IA] has introduced his outstanding S.1196. But with the CoC in all-out opposition to S.1196 specifically because it's preemption-free, Senate Minority Leader Mitch McConnell [R-KY] is unlikely to push S.1196 to the Senate floor. (The only way for any E-Verify bill to get through the Senate is for McConnell to force it to a vote as an amendment to another bill, something his position allows him to do). McConnell, like House Speaker John Boehner [R-OH], has always been beholden to the CoC.

The skeptics further fear, from seeing the administration's current, outrageous de facto amnesty, that the terrific new features of the Legal Workforce Act will also go unenforced, leaving the loss of states' enforcement powers uncompensated and the nation worse off regarding illegal immigration than it is now.

Roy Beck has countered this quite plausible anxiety with arguments that really should be absorbed in detail, here. Meanwhile, I'll provide the Cliff's Notes version:

“The only power a President has in immigration policy is a power given to him by Congress ...Congress for some time has given a President the right to give out Deferred Action status to illegal aliens on a case-by-case basis. Thus, in basing his [de facto amnesty] on Deferred Action, Pres. Obama is operating in an area where Congress has indeed given him wide discretion [although it certainly seems like he's abusing that discretion].

“A mandatory E-Verify law, however, would be quite different. It would NOT give the President any discretion in setting up a computer system to track any employer that fails to use E-Verify in screening new workers.

“Such a law would NOT give the President any discretion in the computer system sending out 'No-Match Letters'to employers about existing workers who have mismatched or fictitious Social Security numbers, and ordering the firing of the workers who can't resolve the issue.

“I have no doubt that if Congress passes a mandatory E-Verify law that Pres. Obama will see that these systems are set up and put in operation.... (I do not believe that Pres. Obama would directly violate such a congressional mandate. But even if you think he would, why not pass a mandatory E-Verify law and just dare him to ignore it and prove he deserves impeachment.)”

[Does Pres. Obama's new amnesty attempt mean E-Verify bill wouldn't work? By Roy Beck, NumbersUSA, August 25, 2011]

Further important points for our side to internalize:

  • As Rosemary Jenks reminded me, "States that are never going to mandate E-Verify on their own, such as New York, California, Illinois, and Texas, are the ones with the most illegal aliens. Plus, H.R.2885 closes the ID-theft loophole for the first time, something the states have no power to do."
  • Even the states with E-Verify laws on their books aren't really doing much enforcement. For example, consider Arizona, whose universal, mandatory E-Verify law went into effect on January 1, 2008 (and passed U.S. Supreme Court muster in June). Nevertheless, as of January, 2011, only 26% of Arizona's businesses were enrolled with E-Verify. (See the E-Verify use rate and the effects of enacting H.R.2885 for each state in the highly informative grids provided by NumbersUSA.)
  • H.R.2885 has no effect on laws like Arizona's S.B.1070 nor on laws that deny taxpayer-funded benefits to illegal aliens. Further, workplace raids, like Sheriff Arpaio's, that are spurred by document fraud (as distinguished from raids based on the suspected presence of illegal aliens) are still allowed.
  • Our grievance-brigade enemies hate the bill, but what they criticize is E-Verify's vulnerability to identity theft. Since they actually oppose all enforcement, this is transparently insincere and obviously aimed at making our side skittish about E-Verify.
  • Roy Beck points out: "[O]nce Congress makes it just as illegal to NOT use E-Verify as it is illegal to NOT withhold Social Security taxes on a worker, nearly all employers will comply with the law. Most of the compliance with an E-Verify law will happen voluntarily (just as compliance with Social Security withholding)."
  • The Obama Administration isn't permanently in power.

VII. Wrapping Up

It needs to be said, loudly and repeatedly: We'd be nowhere without the local and state triumphs that Lou Barletta, Russell Pearce, Kris Kobach, et al. and grassroots leaders like D.A. King in Georgia, the folks of Indiana's IFIRE, Carol Helm in Oklahoma, and many others have sweated and bled for, benefiting all of us.

And it's urgent that we cash in now: Recall that the last great chance for patriotic immigration reform, including significant reductions in legal immigration, foundered when Barbara Jordan died in 1996, letting Bill Clinton renege on his support for the immigration-sanity measures that the Jordan-chaired U.S. Commission on Immigration Reform had proposed.

Fifteen long years and millions of illegal aliens later, the Legal Workforce Act is our most realistic shot at accomplishing part—just part!—of 1996's might-have-been.

Introduction in Congress of a good bill is usually of little significance, often done for publicity and soon forgotten. But H.R.2885 is a bill that's in motion—and which can pass if patriot forces apply unceasing pressure to our easily-distracted legislators.

So I urge those friends and heroes who are currently skeptical of H.R.2885 to reappraise the situation.

We have nothing to lose but our illegal aliens!

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