Sen. Grassley’s Proposed E-Verify Mandate Is an Expensive Dud

Senator Chuck Grassley (R-IA) recently introduced S. 179, known as the Accountability Through Electronic Verification Act (ATEVA), to mandate E-Verify in the United States.  The bill would mandate E-Verify for all employers in the United States while also mandating civil penalties for non-compliance of $1000 to $25,000 per violation.  ATEVA also includes criminal penalties of $15,000 per illegal immigrant hired and/or a 1 to 10-year prison sentence for repeat violators.  The bill also includes a good faith clause to prevent punishment of the businessman in case E-Verify makes an error.

If ATEVA were to become law, the mandatory E-Verify portion would go into effect one year after the President’s signature.  Most worrying though is that ATEVA would require all employers to verify their existing employees no later than 3 years from the date of enactment.  The identity of unlawful immigrants who are granted final non-confirmations would then be transferred to Immigration and Customs Enforcement (ICE) for removal.  Of course, ICE would have to locate the person but that is still a worrying increase in enforcement coordination.

ATEVA does not resolve the real and persistent problems with E-Verify. 

The first big problem is that E-Verify is expensive.  Oftentimes it is labeled a “free online system” but nothing supplied by the government is free to the taxpayers who pay for it.  E-Verify is also not free because of the opportunity cost of employers and workers who use the system.  The current I-9 form costs employers about 13.48 million man-hours each year to process.  ATEVA would add to that even if the I-9 is eventually replaced by E-Verify.  Those are a lot of hours that employers could otherwise spend on growing their businesses but instead must waste complying with government rules.

About 46.5 percent of contested E-Verify cases in 2012 took DHS eight work days or more to resolve.  During that time, employers are justifiably reluctant to train new employees who might not be work authorized.  Employers will likely avoid that cost by pre-screening job applicants to exclude those who come back as tentative non-confirmations.  Workers could thus get rejected from every job they apply for but not know that a simple and correctable error in the E-Verify database is the reason.  ATEVA makes prescreening illegal except with the expressed permission of the employee but we shouldn’t expect that to prevent unlawful prescreening by employers who don’t mind breaking labor market regulations in the first place.

The second problem is that E-Verify is ineffective at detecting illegal immigrant workers and the system’s accuracy rates are notoriously difficult to judge.  An audit of the system by the firm Westat found that an estimated 54 percent of unauthorized workers were incorrectly found to be work authorized by E-Verify because of rampant document fraud.  E-Verify relies upon the documents presented by the workers themselves.  Frequently, identity information comes from deceased Americans – a loophole the government seems incapable of closing.  For instance, SSNs for roughly 6.5 million Americans who are 112 years old or older do not have a death date attached which means they can easily be used by illegal workers and nobody would complain.  An illegal worker using the SSN of a deceased American would likely end up work authorized.

Employer avoidance of  E-Verify’s is even more difficult to fix.  Many employers ignore E-Verify even when it’s mandated, just like they ignore other government immigration enforcement rules.  Alabama, Arizona, Mississippi, and South Carolina all mandate usage at the state level, yet usage and enforcement have been lax.  In 2014, only 56 percent of employers in Alabama, 57 percent in Arizona, 43 percent in Mississippi, and 54 percent in South Carolina used E-Verify for new hires despite their state laws mandating that 100 percent of employers must use the system.  ATEVA tries to solve this problem by placing high civil and criminal penalties on employers who break the rules.  Violating I-9 rules currently opens up employers to serious criminal and civil penalties but that hasn’t incentivized many to comply even in states where E-Verify is mandated.  It’s also hard to believe that the government will fine to death many small businesses for failing to use E-Verify properly.   

The third problem is that some Americans would be kicked out of the labor market due to E-Verify.  E-Verify’s inaccuracy rate means that Americans will be barred from work due to false positives.  Roughly 0.15 percent of all E-Verify queries currently result in a false “final non-confirmation.”  While that is an admittedly small percentage, if applied nationwide to an American labor pool of roughly 125 million workers, it would result in 187,500 wrongly issued FNCs to American workers each year.

The fourth problem is that E-Verify is supposed to help curb illegal immigration by turning off the jobs magnet.  In the real world, E-Verify barely altered the wages of suspected illegal immigrants.  In Arizona, the E-Verify mandate lowered the expected wage gain of immigrants from Mexico from 253 percent to 241 percent – hardly diminishing the strength of the wage magnet.  That small effect could even overstate E-Verify’s effectiveness because it includes a period of time before employers and employees learned how to circumvent the system. A national mandate in the near future would confront many millions of employers and illegal immigrants who now know how to get around the system thanks to their experience Arizona and other states.

The fifth problem is that ATEVA will incentivize identity theft.  A huge cottage industry of forged identity documents sprung up after the government first mandated that employers check the identification of new hires in 1986 through the I-9 form.  Just as IRCA gave a big boost to the black market 31 years ago, nationally mandated E-Verify would subsidize it even further regardless of the anti-identity theft provisions in ATEVA.         

The sixth big problem will be the reaction to mandatory E-Verify.  The system’s errors and loopholes mean that it will be quickly rendered useless as an employment verification system – which is the most positive thing I’ll say about E-Verify.  Congress will not react to E-Verify’s failure by throwing up it hands and calling it a day.  Congress would instead integrate other biometric information like fingerprints or perhaps even DNA into a national identity system to close the E-Verify “loopholes” to make the system more effective.  Such a beefed up E-Verify system could easily be used for other purposes like creating a national gun registry.  It is unwise to mandate participation in a new government identity tool that will expand in the future, especially in an era of serious privacy scandals.  

ATEVA is another in a long line of bills introduced to mandate E-Verify in an attempt to force employers to help enforce federal immigration law.  The government should enforce its own laws rather than conscripting employers.  If the government cannot enforce its own laws then that is a signal that its laws should change.  Americans should not have to ask government permission to work from a federal government database.  If ATEVA were to ever become law, it would be an expensive new scheme that would fail to help enforce our immigration laws and likely lead to more invasive forms of national identification.

Special thanks to Scott Platton for his help in writing this.

Flynn’s Fast Fall

Michael Flynn’s resignation as National Security Advisor is good news, mostly because it makes it slightly less likely that the Trump administration will blunder into a foolish war, especially with Iran. It won’t be the end of the scandal though, as it is hard to believe that the President was totally unaware of Flynn’s actions.

Flynn’s fall is surprising only for its speed. Since he gained prominence as a Joint Special Operations Command intelligence officer in Iraq for helping to develop the “find, fix, and finishmethod of seizing or killing suspected insurgents and terrorists, Flynn has, to put it mildly, showed a deficit of the sound judgment needed in a National Security Advisor.

As head of the Defense Intelligence Agency, Flynn apparently pushed analysts to hype Iran’s malign influence and to find evidence that it had a hand in the 2011 Benghazi attack, feuded with senior staff, demonstrated hostility to dissent, favored conspiracy theories, and got fired for some combination of those things and generally poor management.

He wrote an overwrought book with Michael Ledeen which includes various dubious and unsubstantiated claims, especially about Iran, including that it is allied against the United States with jihadists, North Korea, China, Russia, Syria, Cuba, Bolivia, Venezuela, and Nicaragua.

In his speech at last year’s Republican National Convention, Flynn essentially accused Hillary Clinton of treason for her email server debacle, despite his own dubious record in handling classified information. And, while receiving classified intelligence briefings along with Trump, Flynn was secretly employed as a lobbyist for Turkish interests, a fact that he hid while taking Turkey’s line in an op-ed endorsing the extradition of Fethullah Gulen. Around that time, Trump was attacking lobbyists and subsequently pretended to bar them from his administration.

You Shouldn’t Be Criminally Liable If You Don’t Have a Guilty Mind

Todd Farha, CEO of WellCare Health Plans, was convicted of knowingly executing a fraud by submitting false expenditure reports to the state. However, the district court decided that “knowingly” didn’t actually have to mean that Farha knew that the reports were false, but only that in submitting the reports Farha acted with “deliberate indifference” as to whether they were accurate. Essentially, a non-lawyer was convicted for being insufficiently cautious in adopting an interpretation of an ambiguous regulatory statute.

The U.S. Court of Appeals for the Eleventh Circuit upheld Farha’s conviction even in the absence of the required statutory mental-state element (what lawyers call mens rea). The appellate court decided, in agreement with the district court, that deliberate indifference toward falsity may stand in for knowledge of falsity. The practical implication is that the court lowered the mens rea standard and used a civil standard of liability to a criminal case. (You can be liable in a civil lawsuit even if you’re not guilty for criminal-punishment purposes.)

Cato has now filed a brief supporting Farha’s request that the Supreme Court review his case. The lower court’s holding is out of step with precedent, with bedrock principles of statutory interpretation regarding the mental-state elements of a criminal offense, and with common sense notions of justice. The most egregious aspect of the ruling is that mens rea elements are seen as so crucial to the criminal law that the Supreme Court has been willing to read them into a statute when the statute is silent regarding necessary mental state.

Yet the Eleventh Circuit took the opposite approach and read out of the statute mental-state elements that make the crime too hard to prosecute. This decision is especially troubling in an era of over-criminalization, with an estimated 300,000 separate federal crimes. This situation is exacerbated by the fact that many of the crimes are inherently complex, leading to ambiguity in underlying regulatory-compliance requirements that makes it incredibly challenging for people to understand what they must do to avoid liability.

Unfortunately, instead of attempting to rectify some of this ambiguity, the court here added more ambiguity—because arguably any crime can have a lower mental-state requirement added by the court at trial. This ruling has given prosecutors more weapons and made it even harder for businesses to comply with rampant regulations and made their owners and officers subject to arbitrary legal jeopardy. Many people will now be stripped of their liberty simply on the grounds of an incorrect interpretation of complex and ambiguous statutes. With the deck already stacked in favor of the government—and with myriad civil remedies available—there’s no logical reason to add the weapon of a diluted mens rea to the government’s arsenal.

For further discussion of Farha v. United States and other issues attending regulatory crimes, tune into this Federalist Society teleforum today at 3pm ET (and the audio recording should appear at that link later).

The Statutory Illegality of Trump’s Executive Order on Immigration

I have previously reviewed the ineffective arguments that the Trump administration has used to rebut the statutory argument against its nearly complete ban on immigration from seven majority Muslim countries in State of Washington v. Donald Trump. This argument will have a more direct bearing on two other cases, one by the American Immigration Council in Washington (Ali V. Trump) and another by the American Civil Liberties Union in Maryland (IRAP v. Donald Trump). The formidable Josh Blackman, Cato adjunct scholar and Associate Professor of Law at the South Texas College of Law, thinks he may have found a couple of ways to save the statutory (as opposed to constitutional) case for the government. He explains them in a series of posts on his blog (see 1, 2, 3, and 4).

An Apparent Conflict

My argument has rested on section 202(a)(1)(A) of the Immigration and Nationality Act (INA), as amended in 1965 (8 U.S.C. 1152(a)(1)(A)):

Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

The Trump administration has insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952:

Nuclear Apocalypse Likely Farther than Doomsday Clock’s Hands Claim

It’s been a busy time for nuclear weapons-related news—between President Trump’s alleged confusion about and denouncement of the New START arms reduction treaty with Russia on Friday, the White House’s subsequent assurances that the president understands the treaty, and North Korea’s missile launch test over the weekend.

The people behind the “Doomsday Clock,” have declared that the world is “two and a half minutes to midnight.” That’s the closest we’ve allegedly been to Armageddon since 1953, when both the U.S. and Soviet Union first possessed thermonuclear weapons.

A graph from HumanProgress.org might help put the current fearful commotion in perspective.

The U.S. has 4,000 nuclear warheads stockpiled and Russia has 4,490, according to the Federation of American Scientists, a group devoted to arms reduction, as of their latest data update on January 31st of this year. 

Washington Should Reassess, not Reassure, U.S. Allies

Donald Trump’s comments about U.S. foreign policy during the 2016 election campaign offered some promise of a policy bright spot in what was otherwise likely to be a dismal, if not alarming administration. Trump condemned the Iraq War for the folly it was and he displayed a distinct lack of enthusiasm for the entire concept of nation building. He also subjected Washington’s long-standing alliances in Europe and East Asia to withering criticism. Trump quite accurately termed NATO “obsolete,” and he took allies in both regions (as well as countries such as Saudi Arabia) to task for shamelessly free riding on America’s security exertions. Such comments continued even when he became president-elect.

Unfortunately, hopes for a more focused and enlightened U.S. foreign policy are fading fast. Trump administration officials had barely arranged the personal photos in their new offices before adopting a belligerent policy toward Iran. The imposition of new sanctions on Tehran threatens to derail a bilateral relationship that had shown cautious signs of improvement under Barack Obama. Trump seems even to be backing away from his call for improved relations with Russia. Expectations for an easing of sanctions against Moscow are at least on hold, and the president’s initial telephone conversation with Vladimir Putin apparently included comments sharply criticizing the New Start Treaty on nuclear weapons as unfairly limiting Washington’s ability to modernize and possibly expand its nuclear arsenal. That’s not a very astute way to begin a process of rapprochement.

Worse yet, as I discuss in a new article in the National Interest Online, Trump and his advisers are beating a rapid retreat from his critical comments about Washington’s alliances. One of his first actions as president was to reassure German Chancellor Angela Merkel and other European leaders that he regarded NATO as having “the utmost importance.” Why an alliance that he had repeatedly termed obsolete now possessed such importance Trump did not explain.

The president also dispatched Secretary of Defense James Mattis on a trip to East Asia to reassure both Japan and South Korea of America’s undying devotion to their security. Trump himself did the same during his just-completed summit meeting at the White House with Japanese Prime Minister Shinzo Abe.

Don’t Block the Education Secretary, End the Department of Education

Newly sworn-in Secretary of Education Betsy DeVos tried, and eventually succeeded, to visit a Washington, D.C., public school Friday morning. As warned by her opponents after she was confirmed by a razor-thin margin on Tuesday, she was met by protesters who intended to make good on the threat to block her at every turn. In this case, literally: according to videos like this, they physically tried to prevent her from entering the building.

The opposition to DeVos, as I’ve suggested over the last several weeks, has been over the top and, frankly, unfair. It also hasn’t done much to improve the sick state of the national political dialogue.

That said, there may be no one more sympathetic to objections to federal education meddling than me. Indeed, if the school refused to let DeVos visit because it did not want the disruption or political theater, I’d have been all for it.

But there is a way more constructive way to solve the problem of dangerous or unwanted federal intervention than blocking schoolhouse doors: work to end the federal Department of Education.

This does not, by the way, mean ending the federal role in keeping states and districts from discriminating in their provision of education, but that is much more properly a Justice Department responsibility.

The vast majority of what the Education Department does is collect taxpayer money, burn a bunch off in bureaucracy, then bundle the remainder into programs that tell states, districts and schools how to run education, all with little evidence of meaningful academic effects. This situation will likely improve a bit with the Every Student Succeeds Act, which does return some control to states, but a little better is still awfully bad.

The good news is that a window has opened for the protestors and anyone else worried about federal power — or maybe just interested in seeing the Constitution obeyed — to end the education department.

Rep. Thomas Massie, R-Ky., has just introduced legislation to end the Education Department. The text of the bill is simple: “The Department of Education shall terminate on December 31, 2018.” That’s it. I’d like to see what would happen to all the programs the department runs — they’re the meat of the problem — but the simple bill is a major step in the right direction.

I hope DeVos’ opponents would agree that ending most federal education intervention would be a good thing. But if not, don’t worry: I won’t try to visit your school.