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It Takes Two

Immigration and the rule of law.

May 6, 2013, Vol. 18, No. 32 • By PETER SKERRY
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With an immigration bill finally on the table, Republicans would do well to stop and ponder how they have arrived at this juncture. Since the November election they have been preoccupied with how to approach Hispanics on this critical issue. Because almost 80 percent of illegal immigrants are Hispanic, conservative elites have​—​appropriately​—​been wrestling with terminology and have just about persuaded themselves that “illegals” are more prudently referred to as “the undocumented.”


But the soul-searching seems to have stopped there. Whatever they call them, Republicans continue to insist that the undocumented must be treated as law-breakers, even as criminals, who must be penalized and not allowed to benefit from their transgressions. For a party struggling to renew itself, this isn’t much progress. What Republicans now need to consider is that the undocumented are hardly the only law-breakers here. More precisely, Republicans must assess how much responsibility for illegal immigration can be fairly attributed to employers.

This won’t be easy. Especially at this juncture in the process, no one wants to point fingers​—​certainly not at employers who are complicit in illegal immigration. To be sure, back in 2009 the Obama administration prioritized the criminal prosecution of employers who hire the undocumented and brought some large firms to heel. But right now, Democrats want to mobilize their troops and focus attention on the travails of worthy newcomers who just happen to be here without documents.

Republicans, as I have suggested, have their own problems. For them, immigration enforcement has meant securing our border with Mexico, for which public support has been readily mobilized with images of imposing physical barriers, sophisticated surveillance technology, and thousands of Border Patrol agents. By contrast, interior enforcement has been a much tougher sell. After all, it arouses images of busy Americans being hassled at highway checkpoints or hard-working businessmen wasting their time filling out government forms and answering the questions of intrusive bureaucrats. And since employers tend to be well organized and vocal when it comes to immigration, Republicans have sought to avoid offending what looks to be a natural constituency. But then so have many Democrats.

As for the rest of us, Americans tend to identify with employers, who are like “us.” In many cases the employers are us, insofar as they are homeowners relying on laborers, gardeners, painters, carpenters, cleaning ladies, and nannies, who are typically undocumented.

In fact, casual reliance on illegal immigrant workers is unlikely to run afoul of the law. Individuals who hire fewer than 10 illegal workers during any 12-month period are effectively exempt from prosecution. To be sure, candidates for high government appointments and politicians are subject to embarrassing exposure on this point, and they might be legally vulnerable for failing to pay Social Security taxes for undocumented workers. But the average American can still drive down to the Home Depot parking lot and hire a day laborer without fear of violating the law.

And so it has been for most of our history. It was not until 1986, when Congress enacted the Immigration Reform and Control Act (IRCA), that employers were prohibited from hiring noncitizens lacking work authorization. Up to that time, to be sure, it had been a felony to harbor illegal aliens. But at the insistence of agricultural interests, the so-called Texas Proviso stipulated that employing illegals was not to be construed as harboring them. So those who insist on upholding “the rule of law” would do well to consider how immigration law has evolved and changed.

In any event, IRCA changed all that, and for the first time, employers​—​excepting the homeowners described above​—​became subject to fines and prosecution for hiring undocumented immigrants. Yet an unholy alliance of immigrant advocates, business interests, and civil libertarians raised alarms about the creation of a “national identity card” and stymied efforts to create a secure means of identification that would allow employers to reliably determine the legal status of job applicants. At the same time, Congress enacted anti-discrimination provisions to discourage employers from avoiding the risk of hiring illegal immigrants simply by not hiring foreign-looking applicants. The result is that employers have been required to ascertain the legal status of their employees but discouraged from doing so aggressively.

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