Regulating Employment: A Barrier to Comprehensive Immigration Reform


Some thoughts about long term comprehensive immigration reform:

Few knowledgeable observers would disagree that the revamping of the nation’s immigration laws is a complex matter, both politically and policy-wise. The near-misses with comprehensive immigration reform efforts illustrate the formidable political challenges. In 2013, for example, a bipartisan group of the Senate passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering border enforcement, and providing a path to legalization for undocumented immigrants in the United States. That legislation, as one might expect, had components that were not altogether satisfying to supporters and opponents of reform. Ultimately, the leadership of the Republican-controlled House of Representatives prevented a vote on that compromise piece of legislation.

The policy challenges of immigration reform, including reducing the pressures for undocumented immigration, also are formidable. It goes without saying that, as the United States has experienced, immigration reform that would remedy the system’s current shortcomings is hard to come by. The Immigration Reform and Control Act (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986). passed by Congress in 1986, was the last piece of legislation that attempted to address the nation’s immigration system in a holistic fashion. Amnesty programs in IRCA regularized the status of hundreds of thousands of undocumented immigrants present in the United States at that time. The Act’s increased enforcement measures, including sanctions imposed on employers of undocumented immigrants designed to prevent the emergence of a new undocumented population however, were unsuccessful in preventing the emergence of a new undocumented population. See Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. Chi. Legal. F. 193, 200-04 (describing IRCA’s employer sanctions provisions (IRCA § 101, 100 Stat. 3359, 3360-72 (codified at 8 U.S.C. § 1324a (2012)) as part of a “grand bargain” among interest groups necessary for Congress to enact immigration reform legislation). For a variety of reasons, employer sanctions proved difficult to enforce and failed to end the employment of undocumented workers, resulting in the growth of a new undocumented immigrant population. See, e.g., Nicholas Laham, Ronald Reagan and the Politics of Immigration Reform 195 (2000) (contending that IRCA’s employer sanctions regime has been “an unmitigated failure” and noting that the Act “failed to solve the problem of illegal immigration”). For critical analysis of the failure of employer sanctions to deter the employment of undocumented immigrants, see Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The Immigration Reform and Control Act of 1986 , 8 Geo. Immigr. L.J. 343 (1994); Michael J. Wishnie,Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. Chi. Legal F. 193; see also Leticia M. Saucedo, The Legacy of the Immigrant Workplace: Lessons for the 21st Century , 40 T. Jefferson L. Rev. 1 (2017) (analyzing the vulnerability of immigrant workers historically and in contemporary United States).

To provide a long-term solution to large-scale undocumented immigration, immigration reform would need to do at least two things: (1) address the status of the existing undocumented immigrant population; and (2) prevent the growth of a new one. Experience teaches that the nation can implement a path to legalization for undocumented immigrants. However, as seen with IRCA, policy measures that avoid the growth of a new undocumented immigrant population pose formidable policy challenges.

There currently is no ready means to ensure effective and efficient enforcement of the bar on the employment of undocumented immigrants. Importantly, federal law does not make E-Verify, the national computer database created to allow employers to verify employment authorization, mandatory for all employers. “Although only 7 percent of employers have enrolled in E-Verify, Congress has considered several proposals to make the system mandatory.” Jessica Clarke, Identity and Form, 103 Calif. L. Rev. 747, 781 (2015) (footnote omitted). Some states, however, have required use of the system by employers. See, e.g., Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) (rejecting challenge to Arizona law requiring employers in the state to use E-Verify); Leann Gerlach, The Adverse Consequences of the System in the Absence of Comprehensive Reform , 91 N.C. L. Rev. 361 (2017) (analyzing critically the mandatory use of E-Verify in North Carolina).

Making the use of E-Verify mandatory by employers would not instantly end the employment of undocumented workers and would have problematic side-effects. The database in its current form has a large error rate, which undermines its current effectiveness. See Westat, Findings of the E-Verify Program Evaluation 114 (2009), available at ; Emily Patten, Note , E-Verify During a Period of Economic Recovery and High Unemployment , 2012 Utah L. Rev. 475, 482-83; see also David A. Martin, Resolute Enforcement is Not Just for Restrictionists: Building a Stable and Efficient Immigration Enforcement System , 30 J. L. & Politics 411, 429-30 (2015) (discussing “E-Verify's vulnerability to identity fraud”); Juliet P. Stumpf, Getting to Work: Why Nobody Cares About E-Verify (and Why They Should) , 2 U.C. Irvine L. Rev. 381, 398-404 (2012) (analyzing the significant flaws in the current E-Verify system). The United States appears to be years away from creating a computerized system that can reliably and efficiently identify undocumented workers. As one leading immigration scholar opined, “[t]here is no clear way to fix employer sanctions anytime soon. The widely discussed ‘smart cards’ or ‘swipe cards’ will be years in the making. Meanwhile, massive work will need to be done on government databases to clean up misspelled, duplicate, and false names.” T. Alexander Aleinikoff, Administrative Law: Immigration, Amnesty, and the Rule of Law, 36 Hofstra L. Rev. 1313, 1314 (2008) (footnote omitted). Deficiencies in the system would have to be remedied before it could be expected to effectively facilitate enforcement of the prohibition on the employment of undocumented immigrants.

The deficiencies in the current employment verification system militate in favor of consideration of alternatives that allow for better enforcement of the bar to the employment of undocumented immigrants. Creating an alternative through a national identification card, improved employment verification database, or some other mechanism, would increase the likelihood of convincing a majority of Congress to enact a new piece of comprehensive immigration reform legislation that includes a path to legalization for undocumented immigrants. Creating such an enforcement mechanism unfortunately is far from an easy task. Some possible alternatives have been the subject of intense debate:

While there are administrative and national security arguments for universal registration, Americans have historically rebuffed the idea of a national ID card. In recent years, national identification cards have been proposed to deal with an array of national security and immigration-related issues, all of which . . . were rejected as threats to traditional values of liberty and freedom from undue government interference . The specter of a national identification card has come up most recently in debates over comprehensive immigration reform. The reform bill that passed the Senate in the summer of 2013 includes a provision making use of the E-Verify [a federal computer database voluntarily used by employers to verify the authorization to work] program mandatory for employers, a proposition which requires the federal government to maintain an inventory of all those eligible to work in the United States, including citizens . . . . [C]ritics from both sides of the aisle have come out against E-Verify because they perceive it as leading to universal registration .

Nancy Morawetz & Natasha Fernandez-Silber, Immigration Law and the Myth of Comprehensive Registration, 48 U.C. Davis L. Rev. 141, 198-99 (2014) (emphasis added) (footnotes omitted); see Jonathan Weinberg, Providing Identity, 44 Pepp. L. Rev. 73 (2017) (analyzing the history of national identification proposals in the United States); Margaret Hu, ID Cybersurveillance, 88 Ind. L.J. 1475, 1480-83 (2013) (analyzing how a biometric identification system raises the potential of governmental cybersurveillance).

Put simply, the policy challenge of creating a system that would effectively reduce the employment of undocumented immigrants is daunting, to say the least. Nonetheless, addressing the issue seems critical to congressional passage of immigration reform.


This post originally appeared on Law Professor Blogs © 2014-2018 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.

About The Author

Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.

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