Between a Rock And a Hard Place

A nation of immigrants is finding it hard to also be a nation of laws.

When it comes to enforcing immigration laws, the Homeland Security Department seems to be in a lose-lose situation. In August, Illinois Gov. Rod R. Blagojevich signed a law amending the state's Right to Privacy in the Workplace Act to prohibit employers from participating in the agency's voluntary electronic employment-verification program known as E-Verify. Then last month, a federal judge in California blocked an agency plan that would have given employers

90 days to reconcile employee Social Security numbers that don't match official records or be held accountable for hiring undocumented workers. Homeland Security is suing Illinois to overturn its law. At press time, department officials hadn't yet decided whether to appeal the judge's decision in California. But Homeland Security Secretary Michael Chertoff doesn't need a legal verdict to come to his own conclusions about the recent measures. In a Sept. 24 post on his official blog, Chertoff asked, "Could it be that the Illinois state legislature wants to prevent business from using the best available tools to determine whether new employees are illegal aliens?"

Likewise, he questioned editorials in The Washington Post and The New York Times critical of the department's plan to use Social Security data to identify illegal workers. In an Oct. 4 blog post, he wrote, "The Post asserts that there will be negative economic consequences if illegal workers are fired due to receipt of a no-match letter. That may be true; it's the reason we supported immigration reform earlier this year. But the fact remains, Congress rejected the reform measure. So my department is charged with enforcing the law as it is. Those who say we should only make a tepid effort to enforce the law are really asking us to pursue a silent amnesty."

The E-Verify program and the department's attempt to make employers reconcile Social Security numbers with existing records both are aimed at giving employers better tools to validate an individual's eligibility to work and to flag undocumented immigrants working in the country illegally. It might seem like a straightforward issue-both programs help identify document fraud and make it harder for illegal workers to get jobs-but almost nothing about immigration policy is straightforward. Just a month before Illinois passed its law, Arizona passed a law requiring employers to participate in the same voluntary program Illinois wants to prohibit.

That disconnect between Illinois and Arizona and other states that have enacted laws aimed at both expanding and limiting access to benefits for undocumented workers is being played out in communities across the country and reflects the lack of a national consensus on immigration. Likewise, the California ruling stems from similar ambivalence. The judge in that case, Charles Breyer of the U.S. District Court, Northern District of California, issued the ruling as a temporary injunction to prevent "irreparable harm" to employees while the court considers a lawsuit against Homeland Security by the American Civil Liberties Union, the U.S. Chamber of Commerce, the AFL-CIO and a host of other organizations seeking to thwart the department's rule that employers reconcile Social Security records.

"Immigration is one of those issues where right and left doesn't mean very much. Rather it's an up and down issue-it's the elite versus the people," says Mark Krikorian, executive director of the Center for Immigration Studies, a nonprofit organization in Washington that supports limited immigration. "When you understand the context, the fact that the ACLU, the AFL-CIO and the Chamber of Commerce are all on the same page isn't so surprising," he says.

He cites a 2002 survey by the Chicago Council on Foreign Relations that shows an enormous gap between the attitudes toward immigration of most Americans and so-called opinion leaders, including members of Congress, journalists, business executives, leaders of church groups, academics and heads of major interest groups. The poll found that 60 percent of the public regards the present level of immigration to be a "critical threat" to American interests, while only 14 percent of the nation's leadership felt so, a 46 percentage point gap that had grown from a 37 percentage point gap four years earlier.

As Congress has been unable to find consensus for passing a comprehensive immigration reform law in recent years, states have attempted to fill the void.

The National Conference of State Legislatures has been tracking more than 1,400 pieces of immigration-related legislation introduced in state capitols across the country this year-two and a half times more bills than were introduced in state legislatures in 2006. Perhaps not surprisingly, legislation addressing employment and documentation requirements represented the bulk of those bills.

The Migration Policy Institute in Washington estimates annual legal immigration in recent years has averaged about 1 million people, but the actual inflow of immigrants is closer to 1.8 million when counting those who enter the country illegally and those who overstay their visas.

"No country can afford to have an immigration system that either ignores or otherwise merely ratifies the facts on the ground. Yet, that is what the United States has been doing for a while now. The result is a challenge to the most basic rules of governance; a hit-or-miss relationship between immigration policy and crucial U.S. economic and social priorities; and an exceptional degree of political attention, not all of which has been thoughtful or productive," wrote Demetrios G. Papademetriou, president of the Migration Policy Institute in a foreword to a report last fall by the bipartisan Independent Task Force on Immigration and America's Future.

The task force, co-chaired by Spencer Abraham, former senator and Energy Department secretary, and Lee H. Hamilton, former Congress member and vice chairman of the 9/11 commission, found that current immigration policy is "broken and outdated." The result is the country's need for low-skilled labor is being met largely by illegal immigration, whereas temporary visa programs meet the needs for highly skilled labor.

"The most dramatic manifestation of the breakdown of America's immigration system is that a large and growing share of today's immigration is illegal.

According to recent estimates, 11.5 million to 12 million unauthorized immigrants are in the United States-nearly one-third of the country's foreign-born population," said the report, "Immigration and America's Future: A New Chapter."

Abraham and Lee recommended that the government create a secure, biometric Social Security card to combat fraud, enable individuals to establish their eligibility to work, and allow employers to easily verify the authenticity of documents presented by citizens and non-U.S. citizens alike.

They also endorsed the kind of programs Homeland Security is trying to promote with E-Verify and the now-thwarted rule requiring employers to address discrepancies in employees' Social Security records. "Mandatory employer verification and workplace enforcement should be at the center of more effective immigration enforcement reforms," the report noted. "Without them, other reforms-including border enforcement-cannot succeed."

Chertoff would no doubt agree. As he wrote in his Oct. 4 post: "People wonder why it's so difficult for the government to get a grip on illegal immigration. But interest groups often work to slow or stop our efforts through lawsuits or political pressure. . . . It's up to Congress to enact legislation that will fix the problem comprehensively. Until then, we shouldn't tie the hands of the men and women trying to enforce the law as it is."