Tag: E-Verify

The Path to National Identification

In my 2008 paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” I wrote about where “internal enforcement” of immigration law leads: “to a national, cradle-to-grave, biometric tracking system.” More recently, I wrote “Internal Enforcement, E-Verify, and the Road to a National ID” in the Cato Journal. The “Gang of Eight” immigration proposal includes a large step on that path to national identification.

National ID provisions in the 2007 immigration bill were arguably its downfall. Scrapping the national ID provisions in the current bill would improve it, allowing our country to adopt more sensible immigration policies without suffering a costly attack on American citizens’ liberties.

Title III of the “Gang of Eight” bill is entitled “Interior Enforcement.” It begins by reiterating the current prohibition on hiring unauthorized aliens. (What seems to many a natural duty of employers was an invention that dates back only as far as 1986, when Congress passed the Immigration Reform and Control Act. Prior to that time, employers were free to hire workers based on the skills and willingness they presented, and not their documents. But since that time, Congress has treated the nation’s employers as deputy immigration agents.)

The bill details the circumstances under which employers may be both civilly and criminally liable under the law and provides for a “good faith defense” and “good faith compliance” that employers may hope to use as shelter. The bill restates (with modifications) the existing requirements for checking workers’ papers, saying that employers must “attest, under penalty of perjury” that they have “verified the identity and employment authorization status” of the people they employ, using prescribed documents or combination of documents. Cards that meet the requirements of the REAL ID Act are specifically cited as proof of identity and authorization to work.

In addition, the bill would create a new “identity authentication mechanism,” requiring employers to use that as well. It would take one of two forms. One is a “photo tool” that enables employers to match photos on covered identity documents to photos “maintained by a U.S. Citizenship and Immigration Services database.” If the photo tool is not available, employers must use a system the bill would instruct the Department of Homeland Security develop. The system would “provide a means of identity authentication in a manner that provides a high level of certainty as to the identity of such individual, using immigration and identifying information that may include review of identity documents or background screening verification techniques using publicly available information.”

The bill next turns to expanding the E-Verify system, requiring its use by various employers on various schedules. The federal government and federal contractors would have to use E-Verify as required already or within 90 days. A year after the DHS publishes implementing regulations, the Secretary of Homeland Security could require anyone touching “critical infrastructure” (defined here) to use E-Verify. She could require immigration law violators to use E-Verify anytime she likes.

WaPo: Let’s Have a National Identity System

There can be no denying the link between the E-Verify system prominent in discussions of immigration reform and the policy of having a national identification system. The Washington Post editorialized about it this past weekend, saying “a universal national identity card” must be part of “any sensible overhaul of the nation’s immigration system.”

I’ve written about it many times, as I certainly will in the future. Today, though, I’ll commend to you a well-written piece by David Bier on the Competitive Enterprise Institute’s “Open Market” blog. In “The New National Identification System Is Coming,” Bier writes:

“Maybe we should just brand all the babies.” With this joke, Ronald Reagan swatted down a national identification card — or an enhanced Social Security card — proposed by his attorney general in 1981. For more than three decades since, attempts to implement the proposal have all met with failure, but now national ID is back, and it’s worse than ever.

Read the whole thing.

The irony is that appropriate immigration reforms—those that align the law with our country’s need for immigrant workers—could dispense entirely with “internal enforcement,” national employment surveillance, and deputization of businesses as immigration agents.

“We’re Going to Have to Come Up with Something.”

And that something is a national ID.

The quote is Senator Chuck Schumer’s (D-NY), speaking about immigration reform at Politico’s Playbook Breakfast. The national ID gloss is mine, based on the immutable logic of “internal enforcement.”

Senators Schumer and McCain (R-AZ) say that the “Gang of Eight” senators who are working up an immigration reform package are united on the idea of making it impossible for illegal immigrants to get work in the United States. The only way to do that is to put all working Americans—if you work, that means you—into a national ID system.

“People say, ‘National ID card,’” Senator Schumer says. They do because that is what he’s talking about.

Now, they haven’t gotten all the way through the logic of their plans. Senator Schumer talks about a “non-forgeable [Social Security] card,” but a Social Security card only proves that a certain name is linked to a certain number. If a system is going to prove that a given person is entitled to work in the United States, it must be an identity system. It must compare the identifiers of the person to the identifiers in the system, whether held on a card or in a database, so that it can assess their legal status, including natural-born citizenship.

This is why Senator Schumer also talks about biometrics. The system must biometrically identity everyone who works—you, me, and every working American you know. There is no way to do internal enforcement of immigration law without a biometric national identity system.

It looks as though E-Verify, an incipient national ID system, will be a part of most or all comprehensive immigration reform proposals. Ironically, immigration reform that aligns the law with our country’s economic need for labor would obviate the need for E-Verify and a national ID. 

There are lots of ways to become familiar with the national ID issues that have yet to bubble up in this early stage of the immigration reform debate. My 2006 book, Identity Crisis, is a decent primer on identity and national ID generally. I examined the direct line between internal enforcement of immigration law and a national ID in my 2008 paper: “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.” And my article in last year’s special Cato Journal on immigration reform was called: “Internal Enforcement, E-Verify, and the Road to a National ID.”

The Good and Bad of the Immigration Reform Blueprint

Today, the so-called Gang of Eight senators revealed a blueprint for an immigration reform bill. Details in the actual legislation will matter a great deal but these are initial impressions based on the blueprint. The good and the bad.

Good:

  • Earned legalization for non-criminal unauthorized immigrants. After paying fines, back taxes, undergoing a criminal background check, and other firm penalties, unauthorized immigrants will be able to stay in the United States and eventually earn a green card. This will increase their wages over several years much faster than if they remained unauthorized. 
  • DREAMers will not face the same penalties as unauthorized immigrants who intentionally broke U.S. immigration laws, which is a positive step.
  • Legalization for unauthorized immigrant workers in the agricultural industry will be fast-tracked. This is especially important because the majority of farm workers in most states are unauthorized immigrants.
  • Removing some regulatory barriers and increasing quotas for highly skilled immigrants. This will likely include an increase in the number of employment based green cards and removing the per-country quotas that produce wait times for Indian, Chinese, Mexican, and Filipino workers. Currently, numerous firms and immigrants are dissuaded from even trying to obtain employment based green cards because of the enormous wait times.

Bad:

  • Increases the amount of resources spent on border security. The size of the border patrol is double of what it was in 2004. The number of border patrol agents is seven times greater than what it was in the 1980s with about nine times as many on the southern border. More technology and aerial drones on the border will be wasteful and not produce results.
  • Strong employment verification system like E-Verify. As I wrote here, here, and here, E-Verify is an intrusive big government workplace identification system that does not even root out unauthorized immigrants. In Arizona, which has had mandatory E-Verify since 2008, many unauthorized immigrants have moved deeper into the black market, some industries fire numerous unauthorized workers but don’t hire natives to fill the spots, and the business formation rate dropped because the penalties for intentionally or knowingly hiring unauthorized workers are so draconian.
  • Increases regulations for guest worker visas. Current guest worker visas for agricultural workers are so overregulated that they are barely used. Adding more regulations will only make the visas more unusable and incentivize American farmers and employers to hire unauthorized workers.

A viable guest worker program will increase economic growth in the United States. Guest worker visas are not as good as green cards for lower-skilled workers, but they are the only viable option at this moment. The devil is in the details but this blueprint does not provide for enough future low-skilled immigration.     

You Can Say it All You Want

…but that doesn’t make it true.

One of the laws recently signed by the president, which Congress quietly passed before leaving town to campaign, was Public Law 112-176. Among other things, it extended the authorization the national background check system, E-Verify.

A line tacked on to the end of the law speaks to an issue with E-Verify:

Nothing in this Act may be construed to authorize the planning, testing, piloting, or development of a national identification card.

Well, you can say it all you want, but that doesn’t make it true.

Maybe Congress is playing a little trick, saying “no national ID card,” knowing that E-Verify is a cardless national ID system.

New Hampshire Says No to National ID

New Hampshire has been a bellwether state in national ID debates before. I wrote about its push-back against the E-Verify federal background check system in a recent post entitled “Cardless National ID and the E-Verify Rebellion.”

The bill that was the subject of that post, HB 1549 by Rep. Seth Cohn (R-Merrimack 6), has now passed the Senate, and it is on its way to Governor John Lynch’s desk for his signature.

It is pared down from its original version, but it now makes clear that state driver’s license records cannot be used in a national identification system. That is what E-Verify is rapidly becoming, and New Hampshire has rapidly said “No.”

‘How an E-Verify Requirement Can Help’

I know little about a House Judiciary Committee hearing tomorrow on E-Verify, but the title of it has a peculiar odor: “Document Fraud in Employment Authorization: How an E-Verify Requirement Can Help.”

You see, the immigration policies Congress has set are the source of the problem. Document fraud is made more likely by employment authorization requirements meant to enforce them, which are also—let’s remember—intrusive and costly business regulation.

In my Cato Policy Analysis “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” I wrote about restrictive immigration policies and the intrusive “internal enforcement” programs they have spawned. In a section titled “Counterattacks and Complications,” I examined how workers and employers will collude to avoid and frustrate worker verification. Mandatory E-Verify will increase identity and document fraud because it makes these frauds profitable. Trying to solve this problem, the government will naturally gravitate toward more powerful identity systems, including biometric identity cards and tracking.

Sure enough, House Judiciary Committee chairman Lamar Smith’s bill, the “Legal Workforce Act,” has a “pilot program” for a biometric national identity card.

When committing fraud is the pathway to productive employment, you know something is out of whack. Among the things out of whack are: too-restrictive immigration policy, internal enforcement, and E-Verify. This is supposed to be a free country where willingness and ability are the keys to employment.