Will Congress Outlaw Local Laws?

One has to admire the Sisyphean tenacity of the Congress as it starts to roll another boulder up the mountain of public opposition to the federal encouragement of illegal immigration.  The latest attempt, HR 5515, masquerading under the euphemistic label “New Employee Verification Act” (NEVA) is another unworthy successor to the recently demised “Comprehensive Immigration Reform Act” and “Dream Act” in its insolent attempt to procure cheap labor and voting constituencies for the political ruling classes, Democrat and Republican alike.

Pushed as replacement for the current E-Verify system (formerly Basic Pilot) by which employers can use the Internet to verify the legal work status of workers, this bill would create yet another massive computer database requiring seven million US employers to query for all newly-hired employees.  E-Verify has been successful for its relatively few users, but it does suffer from faults due to poor and incomplete data.  The new NEVA system would presumably, but not convincingly, fix some of these faults, so at first glance it sounds like a good deal.  But then one must consider the recent experience with government computer projects like the new, and now abandoned, “virtual fence” on the Arizona border, which sucked up $20 million only to provide high-tech nesting towers for Arizona vultures.

As always when dealing with the political class growing ever more distant from the populace it rules, the NEVA devil is in the details.  For all of its noble goals, hidden in the voluminous wording of this legislation is the true agenda of its sponsors, to wit, the section on preemption, Section 101(b)(2)(A), which reduced to simple language* would preempt and ban any and all state or local law for immigration-related issues enacted to impose employer fines or sanctions, or would forbid any laws requiring employers to verify work status or identity for work authorization.  It would also prevent any unit of government from verifying status of renters, determining eligibility for receipt of benefits, enrollment in school, obtaining a business or other license, or conducting a background check.

This preemption, buried deep in the text of the bill, would kill all the laws recently enacted by long-suffering states and localities in response to the federal government’s unwillingness to enforce its own federal laws on immigration.  Gone would be the recent highly effective and highly successful enforcement legislation of Arizona and Oklahoma, the local laws and ordinances of towns like Hazleton, PA, Costa Mesa, CA, Herndon and Prince William, Virginia, and over a hundred other localities, and of hundreds more in process of enactment.  

For one example, the control of business licenses is now one of the few areas not preempted.  It is one of the few tools still left to states and local governments to fight the presence and hiring of illegal workers, and the award of benefits and welfare.  NEVA would take even those tools away.  Having abdicated its own responsibilities on immigration enforcement, the Congress is apparently on a search-and-destroy mission for any lower elected body that might actually want to follow the rule of law and provide the protection for its citizens that the federal government seems incapable and unwilling to provide.

The oxen now being gored by these successful local initiatives have been given a considerable role in crafting this debilitating legislation.  The whining exploiters and profiteers of illegal labor in Arizona would love to see that state’s tough yet effective laws removed, and the Chamber of Commerce, a leading advocate for open borders and unlimited cheap labor, has contributed via testimony and a revolving door for some of its alumni in Congressional staff positions.  They have not been hesitant to push for total preemption of all state actions in their Congressional testimony and policy papers.

While the preemption clause is the most fatal of the flaws in this legislation, there are others embodied within.  For example, it only applies to new workers applying for positions after the date of enactment.  It ignores the tens of millions of illegal workers already in the country.  There is no requirement to “re-verify” workers already employed, even if they are not entitled to work, or even to be, in the United States.  Once enacted, no further inquiry would be made of those here illegally unless they apply for a new job.  

As long as a currently-positioned illegal does not apply for a new job, he is home free from further inspection.  You can bet there will be a massive surge of “hiring” to get workers on the roles before the legislation takes effect, even if they don’t do much work for a while.  This intentional omission guarantees a continuing cheap labor pool of millions which should satisfy the exploiters’ needs for quite some time, say until amnesty and a path to undeserved citizenship make them permanent.

Also lurking in the text is a safe harbor position that holds employers accountable only for the hiring decisions related to their own employees, not those of their subcontractors.   Many if not most current illegal workers are employed through subcontractors, many of whom are unlicensed and working “off the books”.  In the mid-Atlantic area it’s called the “Verizon Exemption”, based on that company’s penchant for hiring numerous subcontractors for its billion dollar cable-laying operations who almost exclusively employ illegal workers.  Of course, the practice allows Verizon to say, probably with great accuracy and greater duplicity, that it does not hire illegals.  But it sure pays for a lot of them, if indirectly and at a rate that is far below union wage scales and benefits it used to pay its now laid-off American employees.

It should be said that there are some good components to the NEVA Act.  Theoretically, it could improve on the E-Verify system, assuming that a government program which spans three massive bureaucracies (Social Security, Homeland Security, Health and Human Services) can create and administer a massive new and secure data system.  It could also eliminate some of the paper record-keeping requirements of the current system, like I-9 Forms.  Another positive provision would be the use of the data as a tool for denying benefits (Social Security entitlements, welfare and education benefits) to those not legally entitled to them.

But beside the legal issues, there are other deficiencies in the proposed NEVA system of an administrative or technical nature.  The proposed database is not a new creation, but an expansion of the system now used to track “deadbeat dads” (a rather sexist statement itself).  NEVA is assumed by its proponents to be an improvement over what it claims is the error-prone E-Verify system, a statement not backed up by the statistics.  But the “deadbeat dad” system has its own catalogue of errors and wrong identities, so it is debatable that in its expanded design it will be any better.  NEVA also relies on source documents which themselves may be as compromised as the current false document plague inflicting other systems.  For example, a driver’s license would be adequate for anyone who claims they are a US national (and who won’t).  For the uninformed, driver’s licenses are those little cards you get down at the DMV, or from the guy at the day labor site, or some basement print shop which can also get you a matching Social Security card.  

Why spend large sums to modify the “deadbeat dad” system with its own deficiencies rather than improve the E-Verify system specifically designed for the work eligibility task?  Perhaps we should follow the money and see which government contractor has a vested interest in this new procurement.

The Act also requires that an employer actually hire the worker before he checks the NEVA system on eligibility.  Trial lawyers and the ACLU will love this provision, as it will open the door for subsequent legal mischief if the employer finds out things that would have prevented that individual from being hired in the first place.  It also provides for private entities to set up a parallel “Secure Employment Eligibility Verification System” (SEEVS) which can be used in lieu of the federal government system.  There are no specified constraints on who can set up these external systems.  It could be IBM, but it could also be La Raza or the ACLU.  They would have access to normally secure and privacy restricted personal information in immigration and Social Security databases – and a lot of opportunity for mischief.  But to be fair, La Raza opposes NEVA because it does not also include amnesty and a path to citizenship.

Although labeled “bipartisan”, this bill submitted by Rep. Sam Johnson (R-Tex.) is overwhelmingly Republican in its sponsorship (28 out of 31).  It appears to be a counter to Democrat Heath Shuler’s SAVE Act legislation, a much better, if not perfect, alternative now blocked by fellow Democrat Speaker Pelosi’s pro-illegal obstinacy.  

Apparently the Republican leadership in Congress, not having been slapped around enough by the voters in the disastrous 2006 elections for its disconnect with those voters, is hell-bent on continuing to fight the overwhelming majority of Americans who want the illegal immigration problem fixed, not facilitated.  Rather than listen to the people, they seem to be more attuned to the special interests whose siren call on Comprehensive Immigration Reform in 2006 led Republicans into the minority.

It would also be informative to hear what the Presidential candidates think about this legislation.  Has John McCain still gotten the message — “secure the borders first” — or would he support this usurpation of local and state governments, including his own Arizona, by a federal authority with a history of apathy and indifference?

Candidates for the coming election are now a monotone chorus chanting “change”.   Well, a welcome change for them and the rest of the inside-the-Beltway crowd would be to start enforcing the ample and adequate immigration laws we already have.  A welcome change would also be to get off the open-border cheap-labor bandwagon and start paying attention to what the people want.  If not, then let’s kick that boulder back down the mountain, and see if they want to try it again.