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.

Read the rest of this post »

Details about the Boston bombers are surfacing by the minute, but many opponents of immigration reform are already using it as an excuse to oppose reform. There is no reason to assume that continuing the status quo immigration policy will prevent future terrorist attacks.

Legalizing the peaceful and otherwise law-abiding unauthorized immigrants here will allow law enforcement to focus on legitimate national security and crime threats. It is more costly for the government to weed out criminals and national security threats when there is such a large and relatively peaceful unauthorized immigrant population. Shrinking the size of that immigrant black market quickly and cheaply through responsible legalization, and allowing more immigration of workers in the future, will channel scarce government resources toward legitimate security and criminal screenings and away from enforcing economic protectionism. Every minute that a government official currently spends raiding workplaces and checking whether immigrants will affect the wages of technology workers or Washington lawyers is a waste.

Removing peaceful people from the immigration black market and channeling future immigrants into a legal system—after security, criminal, and health checks—is likely to increase safety, not diminish it. The number of permitted immigrants should be determined based on the demands of the market, not the whims of politcs. The government should shed its economic protectionist role in immigration enforcement and instead devote its resources to weeding out the terrorist and criminal needles in an otherwise peaceful and productive haystack.

Last year, the United States lost three cases at the WTO in which domestic regulations were challenged by our trading partners as disguised protectionism.  In each of the three cases—a ban on clove cigarettes, dolphin-safe labels for tuna, and country-of-origin labels for meat—the WTO found that the challenged regulation impacted the competitiveness of foreign goods significantly more than domestic like products and that this discrimination did not further the goals of the regulation.  The United States must amend each of these regulations in the next few months or the complaining governments will be able to pursue WTO-authorized trade sanctions against us. 

The offending regulations don’t have to be repealed to be made WTO-compliant, but the United States must do at least one of three things for each of them:

1. Diminish the negative impact on foreign products,
2. Increase the negative impact on domestic products, or
3. Better validate the different treatment.

In  the first attempt at reform, the Administration chose Option 3.  Existing regulations require that meat sold in grocery stores carry country-of-origin labels that differ based on the national origin of the animal before it was slaughtered in the United States.  Last year, the WTO determined that tracking and recording requirements in the law made it more costly for U.S. slaughterhouses to purchase foreign-raised cattle, and that the burden was not proportional to the amount of origin-related information ultimately passed on to consumers.  The Department of Agriculture proposed in early March to “comply” with the WTO ruling by increasing the amount of information the labels would carry.  The reforms would require labels on meat sold in grocery stores to say specifically where the animal was born, where it was raised, and where it was slaughtered.

It’s vitally important to recognize that this new regulation will do absolutely nothing to improve market access for foreign cattle or to reduce the discriminatory nature of the regulation.  What it will do is make the discrimination somewhat less obviously protectionist.  It will not reduce that protectionism, settle the dispute, or in any way liberalize trade.  On the contrary, the Administration took the opportunity to further privilege the special interests behind the original law.

For the second and most recent attempt at reform—this time for the dolphin-safe label requirements—the administration chose Option 2 (Increase the negative impact on domestic products).  Packaged tuna sold in the United States can only be labeled dolphin-safe if it is caught according to specific guidelines mandated by law.  These guidelines are different depending on where the tuna is caught and are particularly onerous for fisheries operating off the coast of Mexico.  The WTO found that the U.S. regulation’s lax standards for tuna caught in the rest of ocean did not further the goal of protecting dolphins but rather demonstrated the law’s protectionist nature.

The new regulation continues to single out the Eastern Tropical Pacific for special treatment but also makes it slightly more difficult for fisheries operating elsewhere to earn a dolphin-safe label.  The Mexican government has yet to respond to the reform proposal.  The Mexican tuna industry, however, has unsurprisingly voiced its continued opposition.  The reform is definitely not as robust as it could have been—and quite likely not enough to make the regulation sufficiently even-handed—but at least it does something to diminish the discrimination.

The third restriction the United States must reform is the ban on clove cigarettes.  In 2009 Congress passed a new tobacco control law, which gave the FDA the power to regulate tobacco products and banned flavored cigarettes—except for menthols.  There are basically two kinds of flavored cigarettes.  One is clove cigarettes made almost exclusively in Indonesia and smoked by less than 1% of American smokers.  The other is menthol cigarettes made almost exclusively in the United States and smoked by around 25% of American smokers.  The ostensible purpose of the ban was to discourage youth smoking by removing flavored cigarettes from the market, but the judges at the WTO couldn’t figure out how that goal was furthered by exempting the most popular kind of flavored cigarette from the ban.

In the cigarette case, none of the compliance options seems likely.  Option 1 would see the U.S. ending the ban on clove cigarettes while Option 2 would see the U.S. banning menthols.  Perhaps Option 3 could be pursued if the FDA can conjure up a study showing that kids who would have taken up smoking because they liked cloves will now turn away from tobacco altogether instead of just smoking menthols or regular cigarettes.  Options 1 and 2 face significant political hurdles.  Option 3 faces significant reality hurdles.

In each of these regulations, the protectionist aspect frustrates the goals of the activists initialing supporting them.  How did these laws come to be passed in the first place if they do such a bad job meeting their own goals? Sallie James and I try to answer that question in a brand new Cato Policy Analysis on regulatory protectionism.  We also propose a number of legal and political tools that can help prevent progressive causes from unwittingly generating unnecessary trade barriers.  You can come hear about these and other unfortunate examples and, if you are so inclined, critique our proposals at a forum we’re hosting at Cato this Thursday.