Worse Than a Wall

The immigration solution everyone agrees on may end up hurting the most


Anyone convinced that America is suffering from excessive diversity should troll through the seven immigration bills now floating around the Capitol. Traversing the conceptual distance, roughly, between the minds of Lou Dobbs and Bill O'Reilly, Congressmen on both side of the aisle are debating how high the walls should be, how onerous the fines, how long the wait to legality. Amid all this robust debate, one steadfast conviction unites the almost-distinguishable ravings of center-left and center-right: The need to keep closer watch on those radical patrons of social unrest, American business owners.

Pick your acronym—EEVS (Electronic Employer Verification System) in the Senate bill, the BEVP (Basic Employer Verification Program) in the widely condemned House version, NEECS (New Employment Eligibility Confirmation System) in the alternate McCain/Kennedy rendition. Each represents a federal database system that will bestow a yea or nay upon every would-be worker in the Land of the Free, whether she is surnamed Rogers or Rodriguez, born in Manassas or Mexico City. The system the ACLU calls "permission slip to work" requires verification from not one but two federal agencies; the Social Security Administration (SSA) and the Department of Homeland Security (DHS). If any of the prominent immigration measures pass as they are now written, every hiring decision will become a matter of public concern, subject to dual bureaucracies, two databases, and an untold number of deciders.

Verification systems poll well; they have come to represent the response of a solid middle ground, of just wanting, for goodness sake, to follow the law. "They do work hard," sighs Rep. James Sensenbrenner (R-Wis.), pondering the plight of the illegal immigrant in America, "but they are criminals." That sentiment conveniently fails to account for lawmakers' own part in transforming the attempt to work into a transgression worthy of deportation, and in outlining a path to legalization so burdensome, bureaucratic, and restrictive that millions of otherwise law-abiding immigrants would rather risk sanction than attempt it.

The hate-the-crime-love-the-criminal ruse inevitably compels a crackdown on that other class of hopeless scofflaws, employers, who become reluctant enforcers in a muddled immigration regime. A mandatory employee database system has been a staple of legislative wish lists for years, and most of the bills now in place would scale up a voluntary test program known as Basic Pilot. In August the Government Accountability Office reviewed that program and found it to be staggering under the weight of 3,600 employers (Pdf). Mandatory usage would bring that number to 8.4 million.

How does the government that brought you the prescription drug benefit debacle plan to manage an electronic system involving every employed person in these United States? The GAO needs a color-coded map to explain, but here is the basic summary: Employers send data for every new hire to DHS, which then sends information to SSA, which then sends information back to DHS, which sends info back to the employer, who can either contest any rejected applicants and begin the process anew, risk fines for not complying, or accept the findings. The burden of contesting mistakes and keeping records lies with employers. The cost, says the GAO, will be about $11.7 billion—annually—"with employers bearing much of the cost."

Every employee must be entered and tracked individually, which may prove impossible for employers who hire large numbers of workers on a seasonal or day-by-day basis and businesses that depend on labor flexibility to stay competitive. It's a 21st century system built for a lost world of 9-to-5 employment, a retro-futuristic vision of time cards, assembly lines, and electronic surveillance.

Despite sharply negative reports from GAO and independent contractors hired by DHS, pro-enforcement groups trot out survey data about the hundreds of hard-core verification fans out there, including user approval ratings exceeding 90 percent. "Participating employers overwhelmingly report positive experiences," enthuses the Center for Immigration Studies. CIS fails to mention what the report itself notes; that survey data reflects a percentage of the very tiny percentage of employers who voluntarily signed up for Basic Pilot. A large percentage of U.S. soldiers report positive experiences in the service, too; under the same reasoning, we really ought to reinstate the draft.

That assessment also ignores the fact that would-be employees, not employers, may be the people getting most severely screwed. According to GAO, electronic systems fail a staggering 15 percent of the time, forcing delays as someone at DHS manually follows up. But even a tiny percentage false negatives could result in a national nightmare of workers on hold while DHS shuffles paper, or wrongly denied work when their employers choose not to contest—scenarios Glenn Garvin recounted for Reason in 1995, when the INS was testing another verification system. Sound like a recipe for lawsuits? The system's supporters think so too. So the House bill prohibits employees from filing class action lawsuits against the government after they've been unjustly fired.

Why are we doing this again? Even in the halls of Congress, economic arguments against immigration are losing their aura of truthiness, so pro-enforcement types are now focused on national security. And in the context of terrorism, the employer-as-border-patrol-agent makes even less sense; it presumes that terrorists come here to work.

If the next Al Qaeda operative with big plans pauses to work his way up at a meatpacking plant before committing mass murder, the Electronic Employment Verification System will probably be there to stop him. If not, well, at least everyone will have followed the law.