How many times will Charlie Brown let Lucy pull the football out from under him while he falls flat on his back? And why is Charlie always surprised by Lucy’s duplicity?
Those are the kind of questions facing members of Congress this month as they consider Rep. Lamar Smith’s bill, H.R. 2164, designed to mandate the E-Verify employment eligibility verification program for all employers. Lawmakers must look not only at the language in the bill but how the president and executive branch agencies will enforce any new immigration-related law.
The sad record on federal non-enforcement of immigration laws over the last 25 years does not inspire confidence that new laws will be enforced in line with congressional intent. Then when you add to that dismal record the Obama administration’s duplicity – in both the Department of Justice and the Department of Homeland Security – the low confidence index of the Bush years moves into negative numbers.
In 1986 Congress passed the Immigration Reform and Control Act (IRCA) granting amnesty to 3 million illegal aliens. Part of the compromise that allowed passage of that amnesty was a new federal law prohibiting the employment of “unauthorized aliens.” The problem soon encountered was that the provision is not self-enforcing, so in 1996, Congress enacted another immigration reform bill that included the electronic eligibility verification program now known as E-Verify.
The Smith bill strengthens the E-Verify program immensely in addition to making it mandatory for all employers. It has many good features, and some of its compromises are reasonable. On its face, it is a giant step forward in federal immigration enforcement. Based on the laudable goals of the bill as well as Smith’s past record as a steadfast supporter of energetic enforcement, dozens of conservative congressmen have joined in sponsoring his bill.
I endorsed H.R. 2164 last week, but I regret to say that endorsement was too hasty. The bill needs to be amended to remove its too-broad federal pre-emption of state authority on immigration enforcement. On closer inspection, the case for this broad pre-emption simply is not persuasive.
At one level, federal pre-emption in regulating unlawful employment makes sense. Employers should be subject to a single national standard for lawful employment of aliens, not different standards in different states. Conservatives could support federal pre-emption in E-verify enforcement as part of a viable compromise. The problem is that the bill goes beyond pre-emption in enforcement of E-Verify sanctions. It extends the pre-emption to all state action relating to employment of illegal aliens in local communities.
This broad pre-emption is not warranted or prudent given the continuing federal laxity in immigration enforcement. States should not be barred from employment-related enforcement until the federal government has demonstrated it is willing to do the job.
Attorney General Holder has engaged in unprecedented efforts to block state laws that simply help enforce existing federal law. Holder’s arguments in federal court against Arizona’s S.B. 1070 displayed an arrogance and hypocrisy which send a chilling message to the American people: The Obama administration will not enforce H.R. 2164 or any federal immigration law according to the intent of Congress.
The Supreme Court’s recent ruling in Whiting not only upheld a 2007 Arizona law mandating E-Verify for all Arizona employers, it affirmed a state’s right to discourage illegal immigration even without an expressed delegation from Congress. Such thinking is entirely consistent with long-established principles of federalism. Arizona’s S.B. 1070 will certainly be upheld in similar fashion.
That is why Holder’s legal justification for trying to invalidate S.B. 1070 is so radical and duplicitous. The Obama administration argued in federal district court that the federal government can as a matter of policy – without any congressional mandate – choose to not enforce immigration laws in order to harmonize enforcement with the foreign policy goals of the U.S. State Department. In other words, non-enforcement of our immigration laws can be justified in order to placate the interests of foreign governments.
Janet Napolitano has followed a similar Obama policy in choosing to leave our southwest border dangerously insecure against human trafficking, drug smuggling and cross-border violence. Border Patrol officers have been ordered to chase illegal trespassers back to the border instead of apprehending them to drive down the agency’s apprehension numbers. The lower apprehension numbers are then used to show the border is “more secure than ever.”
The Obama administration has chosen to sacrifice immigration law enforcement to political expediency. The implication for H.R. 2164 is clear. As long as the federal government chooses to pursue a deliberate policy of non-enforcement of U.S. immigration laws, any broad federal pre-emption of state laws must be opposed.