BY RONALD CAMPBELL SEPTEMBER 14, 2010
On Nov. 6, 1986, President Ronald Reagan signed the bill that was supposed to end illegal immigration.
Instead, it became one of the biggest public policy failures since Prohibition.
The Immigration Reform and Control Act legalized most of the illegal immigrants then in the United States. To keep others out, it forbade businesses from hiring undocumented workers and threatened those who did with fines.
For a description of the law, see Government Accountability Office, “Foreign Workers: Information on Selected Countries’ Experiences,” September 2006 (GAO-06-1055).
Almost a quarter-century later, the undocumented population has soared from about 500,000 after the amnesty to about 11 million today. The primary reason: the breakdown of worksite enforcement, which Reagan had called “the keystone” of the 1986 law.
“Soared from about 500,000”: The law legalized 2.7 million out of a population estimated in 1986 at 3.2 million; see “Unauthorized Aliens Residing in the United States: Estimates Since 1986,” by Ruth Ellen Wasem, Congressional Research Service, RL33874, Aug. 25, 2009. “… to 11 million”: See “Illegal immigration estimates, 1986-2008,” spreadsheet derived from estimates from Congressional Research Service, Immigration and Naturalization Service, Department of Homeland Security and Pew Hispanic Center. “The keystone”: from Reagan’s signing statement.
“We’ve been running a very cynical policy for the last 15 years,” said Doris Meissner, the government’s top immigration cop from 1993 to 2001. “What we are saying out of one side of our mouth is, ‘We will make it harder for you to cross the border. … But there will be a job for you when you get here.’”
Interview, Doris Meissner, Dec. 17, 2009.
“The ’86 Act was built around this idea of workplace enforcement,” said Meissner’s successor, James Ziglar, who headed the Immigration and Naturalization Service from 2001 through 2003. But when the INS tried to carry out the law, “members of Congress whose districts were affected started to complain. … So it just didn’t get funded.”
Interview, James Ziglar, Feb. 9, 2010.
Over the decades, presidents and Congresses of both parties have chosen other priorities for immigration enforcement – securing the border, deporting people already in jail for violent crimes, preventing illegal immigrants from getting jobs at nuclear plants or airports.
Despite the post-9/11 crackdown, more than 500,000 illegal immigrants entered the country each year between 2000 and 2006. The flow began to ebb only in 2007, when immigrants encountered a much more formidable foe than the Border Patrol: the Great Recession.
“More than 500,000”: “U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade” by Jeffrey S. Passel and D’Vera Cohn, Pew Hispanic Center, Sept. 1, 2010. Also see “Illegal immigration estimates, 1986-2008,” Register compilation of estimates by Department of Homeland Security, Congressional Research Service, Pew Hispanic Center and others. The illegal immigrant population rose from about 8 million in 2000 to about 12 million in 2007 before declining to 11.1 million in 2009. Pew, which does the most widely cited studies of illegal immigration, estimates the annual inflow at 850,000 from March 2000 through March 2005, 550,000 from March 2005 through March 2007 and 300,000 from March 2007 through March 2009.
Federal immigration policies largely ignore the millions already here and almost entirely ignore the reason they illegally crossed the border or overstayed their visas: jobs.
The Obama administration, like the Bush and Clinton administrations before it, has focused on the border and on immigrants who break non-immigration laws.
In testimony to the Senate Judiciary Committee in May 2009, Department of Homeland Security Secretary Janet Napolitano, the former governor of Arizona, said, “A scattershot approach where DHS targets any and all of the around 12 million people in the United States illegally does not amount to an approach that maximizes public safety.”
Testimony of Secretary Napolitano before the Senate Committee on the Judiciary, May 6, 2009.
These policies have contributed to California’s growing dependence on immigrant labor. Some 1.75 million California workers, one of every 11, is here illegally.
“One of every 11”: 1.75 million unauthorized workers in a work force of 19 million, or 9.3 percent. See Passel and Cohn, “U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade,” Sept. 1, 2010. Their estimate of the total work force is about 500,000 more than the Census Bureau estimate used in these stories. See also “A Portrait of Unauthorized Immigrants in the United States” by Jeffrey S. Passel and D’Vera Cohn, Pew Hispanic Center, April 14, 2009.
“What you observe in the data is not like the weather,” said Steven Camarota of the Center for Immigration Studies, a group that favors restrictions on immigration. “It’s the result of policy choices.”
Interview, Steven Camarota, Nov. 18, 2009.
‘CLOSING THE BACK DOOR’
Illegal immigration became a hot issue in the early 1970s when labor unions persuaded House Judiciary Chairman Peter Rodino, D-N.J., to introduce a bill to fine employers who hired illegal immigrants. It went nowhere.
“Declining Enforcement of Employer Sanctions” by Peter Brownell, Migration Policy Institute, Sept. 1, 2005.
In 1981, a presidential commission on immigration, headed by Notre Dame University President Father Theodore Hesburgh, recommended employer sanctions as a means of “closing the back door to illegal/undocumented immigration, (and) opening the front door a little more.”
Cited in “DHS and Immigration: Taking Stock and Correcting Course,” by Doris Meissner and Donald Kerwin, Migration Policy Institute, February 2009.
After several tries, Congress passed a compromise bill containing employer sanctions in late 1986.
The new law scrapped a 1952-vintage loophole that had allowed employers to hire illegal immigrants for jobs those workers legally could not hold.
But the sanctions contained in the 1986 law were, by design, weak. Congress set the fines low and the government’s burden of proof high: Businesses had to “knowingly employ” illegal immigrants.
Business and civil rights groups had objected to employer sanctions, Meissner recalled. If the provisions had been any tougher, the bill would have died.
Workplace arrests of undocumented immigrants plunged 85 percent in the first full year after the passage of the 1986 law. They slowly recovered, peaking at 17,552 in 1997, midway through Meissner’s eight-year tenure as INS commissioner under President Clinton. Then they fell again.
In 2008, one of the bigger years for worksite enforcement, the odds of an undocumented immigrant getting busted on the job were about 1 in 1,300.
The maximum fine for a business that “knowingly employs” undocumented workers is $11,000, a fraction of the amount charged in other countries. In Germany, for example, the maximum fine is 500,000 euros ($640,000).
But the potential amount hardly matters because few employers are fined or even threatened with a fine. In 1992, the INS issued a record-high 1,461 notices of intent to levy a fine. In 2009, it issued just 172 such notices.
PLAYING IMMIGRATION COP
From the start, worksite enforcement has been unpopular with employers. It requires a boss to play immigration cop, sorting through as many as 26 forms of identification to spot the fakes.
Some employers ignore the requirement or pay it little mind. Mariela, a 28-year-old illegal immigrant and Highland resident who speaks unaccented English, got her first job at a restaurant without showing any identification. Her current employer accepted a photocopy of a crudely forged Social Security card.
Illegal immigrants surveyed by retired UC San Diego political scientist Wayne Cornelius and his students said that while most employers asked for identification, almost half of the employers knew they were unauthorized and another 11 percent probably knew.
Raids and audits are rare, but the consequences for the employer can be devastating.
After an audit of employee documents in the early 1990s, immigration authorities told Poway landscaper John Mohns to dismiss 50 of his 150 employees – “really good guys that we had put a lot of effort into training.” But his ex-employees were not deported. Instead, Mohns said, most of them “went down the street and got a job with my competitors.”
An Immigration and Customs Enforcement raid at six Swift & Co. meatpacking plants on Dec. 12, 2006, resulted in the arrest of 1,300 Swift employees and cost the company $30 million, Swift Vice President John Shandley testified.
Swift had been participating since 1997 in E-Verify, the federal government’s voluntary Web-based program for confirming that workers were legal. Every one of the arrested Swift workers had passed an E-Verify check.
“Simply put,” Shandley testified four months after the raid, “a company cannot legally and practically do more than we have done to ensure the legal workforce under the current regulations and tools available from the government.”
POLITICAL ‘THIRD RAIL’
No wonder then that Meissner calls worksite enforcement “a bit of a third rail” or that her successor, Ziglar, says that “nobody wanted to touch it.”
In 1999, responding to pressure from Midwestern congressmen, Meissner told top INS career official Mark Reed to find a way to drive undocumented immigrants out of Nebraska. Reed sent meatpacking plants letters identifying thousands of workers whose employment documents did not match federal databases.
As a result, “3,500 people fled the state of Nebraska,” Reed said. “Two weeks later, all those people (who had urged action) kicked me out of their state for ruining the economy.”
Ziglar, the INS commissioner from 2001 until 2003 when it was dissolved into the Department of Homeland Security, had no better luck making worksite enforcement politically palatable.
He remembers watching a congressman on television complaining about lax INS enforcement.
“I was literally watching it on TV and a spokesman brought in a letter he had sent” complaining that INS raids were hurting the harvest in his district, Ziglar recalled. He wouldn’t identify the congressman but said that he was a fellow Republican.
Instead of funding worksite enforcement, Congress poured money into border enforcement. And funds have continued flowing in ever-larger amounts since 1993, even as the undocumented population nearly tripled.
In 2003, UC San Diego economist Gordon H. Hanson calculated, the federal government devoted 53 times more man-hours to the border than it did to worksite enforcement.
In 2009, the Department of Homeland Security budgeted $126.5 million for worksite enforcement and 27.8 times more – $3.5 billion – for the Border Patrol. DHS spent more money training the workers who X-ray luggage at airports than it did on worksite enforcement.
Even within the agency that enforces immigration laws inside the borders, Immigration and Customs Enforcement, worksite enforcement is a stepchild. In 2009, the agency devoted just 5 percent of its man-hours to worksite enforcement.
The Border Patrol had 3,200 officers when the 1986 act passed and 4,000 when Bill Clinton became president in 1993. By the time he left office, it had more than doubled to 9,200 agents. Under President George W. Bush, it doubled again, to 17,500.
Last year, under President Barack Obama, it had 20,000 agents – far more than the FBI.
In addition to expanding the Border Patrol, Congress in 2006 authorized a high-tech border fence to discourage illegal immigrants from crossing the 2,000-mile frontier with Mexico. Average cost per mile: $2.91 million.
For all the billions spent and the thousands hired, it is unclear whether the border crackdown has worked.
At least a third of illegal immigrants walked right by border guards. They entered legally and overstayed their visas. Despite more than a decade of effort, the government is still struggling to track the comings and goings of tens of millions of foreign visitors.
The undocumented population, about 4.5 million when the border crackdown began in 1993, swelled to 12 million in 2007. It declined to 11.1 million in 2009, the first drop in decades.
The Bush and Obama administrations have claimed partial credit for the drop. But it also coincided with the deepest recession in 75 years.
The Great Recession has hit illegal immigrants particularly hard, giving prospective immigrants reason to stay home. Federal Reserve economist Pia Orrenius reported last year that immigrants are especially vulnerable to a downturn because they are less educated than other workers and more likely to work in construction or other recession-sensitive jobs.
While the recession has discouraged prospective immigrants and caused 1 million immigrants to leave, millions more are waiting it out.
One of them is Luciano, an illegal immigrant who welds iron doors and window frames in Anaheim. During the boom, he worked 45 hours a week. He now works 15 hours a week. He stays, he says, because of his daughters, both born in the U.S. “We want the girls to have a better future.”
BOON FOR COYOTES
Surveys of illegal immigrants by Cornelius, the UC San Diego political scientist, have showed consistently that most immigrants make it past the Border Patrol. Although about 45 percent are caught at least once, 97 percent eventually succeed.
The buildup on the border has made one big difference, however: It has forced immigrants to rely on immigrant smugglers, known along the border as “coyotes.” Coyote fees have risen nearly in lockstep with Border Patrol staffing. A one-way trip that cost $500 when the 1986 law was passed and $722 when the border campaign began in 1993 cost $2,848 in 2008.
Here’s another way of looking at it. In 2007, when taxpayers spent $2.3 billion on the Border Patrol, coyotes collected perhaps $800 million to sneak immigrants past the guards.
Hard evidence is scarce, but rising coyote fees might force undocumented immigrants to stay put rather than go back and forth between the U.S. and Mexico. In a 2001 study, Cornelius wrote that by driving up coyote costs, the government might be “keeping more unauthorized migrants in the United States than it is keeping out.”
Luciano’s wife, Martha, last visited Mexico in 2000. She was caught on her first attempt to return north and took a “very rough” trek through the desert to finally make it home to Orange County. She has not dared go south again, not even to see her grandson born in late 2009.
“We empowered alien smugglers,” said Reed, the former top INS official. “Now they (immigrants) have to bring their families with them because they can’t go back and forth. … It will be worse tomorrow than it is today.”45
“The border is really symbolism,” said Tamar Jacoby, president of ImmigrationWorks USA, a business-backed group that lobbies for expanded immigration. “It’s in the workplace that it has to happen.”
Interview, Tamar Jacoby, Sept. 24, 2009.
If she is correct, the future of worksite enforcement rests with E-Verify. But despite 14 years in development, E-Verify has yet to deliver on its promise: a simple, near-instant way for employers to make sure their workers are legal.
Congress mandated the Basic Pilot, predecessor of E-Verify, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Basic Pilot was one of three electronic verification pilots authorized by the 1996 law; the other two were dropped in 2003. See “Immigration Enforcement: Preliminary Observations on Employment Verification and Worksite Enforcement Efforts,” Government Accountability Office, June 21, 2005 (GAO-05-822T).
E-Verify was designed to combat the use of fake documents, a problem since the beginning of worksite enforcement. But while E-Verify can detect document fraud, it cannot detect identity fraud – the use of real documents borrowed or stolen from legal workers.
E-Verify cannot detect identity fraud: “Findings of the E-Verify Program Evaluation,” Westat, December 2009.
The result: Undocumented workers more likely than not will get a pass from E-Verify. That was among the findings of the most recent review of the program by the government’s social science consultant, Westat. The consultant found that 54 percent of the time E-Verify wrongly says that an undocumented worker is eligible for a job.
Westat, “Findings of the E-Verify Program Evaluation,” December 2009.
E-Verify also wrongly tries to deny jobs to naturalized citizens. The system issues false warnings that a particular worker is not authorized 1 percent of the time. But naturalized citizens, who are legally equal to native-born Americans, are 32 times more likely than natives to get a false warning, requiring them to prove the U.S. government wrong or lose their jobs.
Westat, “Findings of the E-Verify Program Evaluation,” December 2009.
The agency that runs E-Verify, U.S. Citizenship and Immigration Services, said in response to the Westat report that E-Verify “accurately detects the status of unauthorized workers almost half the time” and is “much more effective” than hand-checking documents, as most employers do. The agency also is making it easier for naturalized citizens to challenge false warnings.
About 780,000 of the nation’s 7.7 million workplaces use E-Verify. Legislation to mandate E-Verify for all hires is pending in Congress.
“780,000”: This is the number of offices, including branch offices, using E-Verify; e-mail from U.S. Citizenship and Immigration Services spokeswoman Mariana Gitomer, Aug. 30, 2010. Between Oct. 1, 2009, and Aug. 14, 2010, 14 million prospective employees were run through the system. “7.7 million”: This is the most recent number of business “establishments,” a term that includes branch offices and thus is comparable to the E-Verify number; from U.S. Economic Census, 2007. “Legislation to mandate E-Verify”: HR 2028 by Rep. Sam Johnson, R-Texas, and HR 2083 by Rep. Duncan Hunter, R-Calif. Broader immigration reform bills, including the outline released by Senate Democrats in May, also mandate E-Verify.
Reed, the former INS official, is skeptical about E-Verify. It was very good at spotting fake green cards, he said, but “it’s got a huge blind spot” for undocumented immigrants who claim to be citizens.
Interview, Mark Reed, Sept. 24, 2009.
He places more hope in the Obama administration’s strategy of auditing employment documents at businesses suspected of hiring unauthorized workers.
In July 2009, ICE issued 652 audit notices – more than it had issued in the entire previous year. It announced 1,000 more audits last Nov. 19.
“In July 2009”: ICE media release. “Nov. 19”: ICE media release. ICE does not have an estimate of the annual number of audits it has conducted; in its July 27, 2010, reply to a Freedom of Information Act request from the Register, the agency said it does not centrally track the number of audits.
By using audits instead of raids, Reed explained, “One agent can go after 300 companies rather than 300 agents go after one. … Now they’ve got some real economies built into this thing. They’ve got a nuclear bomb now.”
The question, he added, is whether they’ll use it.