Immigration Reform: From Orwell to Kafka

by Shaker Constant Comment

Background: On February 28, 2008, Representative Sam Johnson (R-Texas) introduced "The New Employee Verification Act" (H.R. 5115), legislation that will reform the nation's approach to worksite enforcement. The bill will replace the current I-9 process used to verify whether employees are work-authorized in the United States with a mandatory electronic employment verification system that is "adequately funded and vigorously enforced," said Johnson. The timetable for employers to register in Johnson's mandatory Electronic Employment Verification System (EEVS) to verify the eligibility of all new hires would be within three years of enactment of the bill. The legislation would also strengthen enforcement through tougher employer penalties. Separately, the proposed bill would also create a voluntary Secure Electronic Employee Verification System (SEEVS), which employers could choose to use as an added level of security. The SEEVS would include a standard background check and the collection of a biometric technology—such as a fingerprint or eye scan—to secure an employee's identity, work authorization and prevent future fraudulent use of a Social Security number for the purposes of illegal employment.

In the wake of the federal government's failure to enact broad immigration reform, congressional advocates and the Bush Administration will try to attach a mandatory electronic employment verification (EEV) system to any immigration bill it considers, according to a recently released policy analysis written by Jim Harper, Director of Information Policy Studies at the Cato Institute. Intended to strengthen internal enforcement of U.S. immigration laws, the EEV is an Internet-based employee vetting system that the federal government would require every employer to use. The Cato Institute is a non-profit public policy research foundation headquartered in Washington, DC.

In Electronic Employment Eligibility Verification: Franz Kafka's Solution to Illegal Immigration, Harper argues that a mandatory EEV system, which would create privacy issues for law-abiding Americans and increase the likelihood of identity fraud, would be "ineffective, invasive and costly."

Although an earlier Cato Institute study, written more than a decade ago by John J. Miller and Stephen Moore, alerted and educated policymakers who were then considering a national identification card system as a first step toward the reduction of illegal immigration, a pilot program now threatens to resurrect the system they warned against. Harper's analysis notes that, during last summer's congressional debate on immigration reform, a national identification system was "treated as a matter of consensus agreement," remaining a viable, if not prominent, policy option.

Harper predicts that creating an accurate and mandatory EEV would require a national identification system with substantial costs incurred by American taxpayers—an estimated $20 billion to create and hundreds of millions more per year to operate. Moreover, he contends, a nationwide EEV system "would send a substantial number of workers—native-born and legal immigrant alike—into labyrinthine bureaucratic processes, preventing them from working until the federal government deemed their papers to be in order." With regard to employees who believe they have been wrongfully refused the right to work, Harper notes that the current E-Verify program has no process for appealing final nonconfirmations. "A nationwide EEV system would wrongly give thousands of eligible American workers final nonconfirmations each year, with no apparent appeal process, blatantly depriving them of due process and, of course, their livelihoods."

The analysis also foresees a huge cost in the loss of Americans' privacy when both employers and the government collect and store personal employee data. "Kept in digital form for long periods, this personal information could be readily converted to untold new purposes," Harper said. In addition, because the EEV process uses social security numbers, data could be easily correlated with tax records at the Internal Revenue Service, education loans in the Department of Education and health records at the Department of Health and Human Services, he warns. "Unless a verifiable data destruction policy were in place, any EEV system, however benign in its inception, would be a surveillance system that tracked all American workers," Harper said.

Another important issue to consider in this debate is security against forgery, fraud and tampering. While some government-issued identification documents are resistant to this, Harper notes that things necessary to make a system impervious to forgery and fraud could "convert it from an identity system into a cradle-to-grave biometric tracking system—a national ID and surveillance system."

While acknowledging that proponents of internal immigration enforcement stand on a sound principle—that people should enter the country legally—Harper is worried that current immigration law is a greater threat to the rule of law than people crossing the border to come here to work. With nationwide EEV, he contends, "the United States would move to a regime where the last word on employment decisions would not be with the worker and employer but with bureaucrats in the federal government." Harper's policy analysis can be found here.

And we thought the whole telecom/FISA issue set a terrible precedent. Why do I have the feeling we ain't seen nuthin' yet? I’ll be sure to post updates on this; in the meantime, we need to do all we can to head this off before it’s too late…