The Conservative Split Over Mandatory E-Verify, Argued From Both Sides

Here is a rare sight in American politics: two groups of conservatives, both sincere, both armed with the Constitution, both certain the other has lost the plot, fighting over a government database. One side says that a nation that will not check who can lawfully work has no immigration law at all. The other says that a nation that checks every worker against a federal system has built the first draft of an internal passport.

They are both partly right, which is what makes the argument worth having. Let me give each side its full hearing and then tell you where I come out.

Define the thing

E-Verify is a federal internet-based system that lets an employer compare the information on a new hire's Form I-9 with records held by the Social Security Administration and the Department of Homeland Security. The employer enters the worker's name, date of birth, Social Security number and document information. The system returns one of three answers: the worker is confirmed, the worker gets a "tentative nonconfirmation" and has a chance to contest it, or the case ends in a final nonconfirmation and the employer must stop employing the worker or take the risk of knowingly keeping an unauthorized worker.

Two background facts. First, federal law since 1986 has made it unlawful to knowingly hire a person who is not authorized to work, and it requires every employer to complete an I-9 form for every new employee. Second, E-Verify is, at the federal level, mostly voluntary. Federal contractors are required to use it by regulation, and a number of states require it for some or all employers. A national mandate would make it compulsory for every employer in the country.

That is the question: should every employer in America be required to verify every new hire through a federal electronic system?

Where the system came from

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 directed the government to set up pilot programs for electronic confirmation of work authorization. There were three pilots in the statute. The one that survived was the "basic pilot," which began in a handful of states and was later expanded nationwide and renamed E-Verify. It was meant to be a test of four years. Congress extended it again and again, which tells you something about Congress. A temporary program that has outlived most of the people who wrote it is the most American institution there is.

The pilots were the answer to a problem created a decade earlier. The 1986 reform law put the duty to check on employers but handed them a form and a list of documents, and let them accept anything that "reasonably appears on its face to be genuine." That standard bred a market in counterfeit papers, and I tell that story in The 1986 Law's Real Failure Was the Fake Document Industry It Created. E-Verify was Congress's attempt to replace the honor system with a check.

The restrictionist case, at its strongest

The case for a mandate is simple, and I will state it in its own words.

One, employment is the magnet. Most people who cross or overstay do so to work. A law that forbids hiring illegally, and then lets everyone ignore it, is not a law but a suggestion with a penalty schedule nobody collects.

Two, enforcement at the border and in the interior is a treadmill without enforcement at the job. You can add miles of barrier and thousands of agents, and the incentive remains as long as a job is waiting at the other end for anyone who shows up with a plausible card.

Three, the honest employer is punished by the present system. A restaurant owner who checks carefully and turns away unauthorized applicants loses them to the competitor down the road who does not ask. A mandate levels the field. Everyone checks, so no one gets an advantage from not checking.

Four, E-Verify is cheap and fast. The system is free to the employer, and most checks return an answer within seconds. The compliance burden, compared to payroll taxes, wage-and-hour law and the rest, is small.

Five, the states have shown it can work. Arizona required all employers to use the system beginning in 2008 under its Legal Arizona Workers Act, which suspends the business licenses of employers who knowingly hire unauthorized workers. The Supreme Court upheld the law in Chamber of Commerce of the United States v. Whiting (2011), in a 5-3 opinion by Chief Justice Roberts. The Court held that federal law expressly preserves state authority over "licensing and similar laws," and that the Arizona statute fell within that exception. It also rejected the argument that requiring E-Verify conflicted with the federal scheme, since Congress had made the system available and had not forbidden states to require it.

That is a serious case. I would add one more point. A policy that asks employers to check is the one immigration enforcement tool that is aimed at the party with the most to lose and the most ability to comply. It does not require a single agent to knock on a single door.

The libertarian and business case, at its strongest

Now the other conservatives, who are no less sincere.

One, the system makes the federal government a gatekeeper to employment. Today a worker is hired when an employer says yes. Under a mandate, a worker is hired when an employer says yes and a federal computer agrees. That is a permission slip. A free people does not ask Washington for leave to take a job.

Two, the system is a step toward a national identity database. To work reliably, E-Verify has to know who everyone is. Critics fear that the logical next step, once the database becomes mandatory, is a biometric credential that every citizen must carry. The Constitution grants no power to issue one, and the American tradition has been to refuse one.

Three, errors fall on citizens. A database is only as good as its records. A person whose name is spelled differently across agencies, who recently married or changed a name, or who was naturalized and whose record lagged, may receive a tentative nonconfirmation and have to go to a Social Security office to fix it, while the employer, who may be nervous about the risk, hesitates to hire. A mandate multiplies those errors across tens of millions of hires a year. For the worker, the cost is a lost week of pay. For small employers, the cost is paperwork, training and the risk of an inadvertent violation.

Four, it pushes work into the cash economy. Employers who will not use the system, and workers who cannot pass it, will not stop working. They will work off the books, and the government will lose the payroll tax it now collects. The system rewards the very behavior it is meant to stop.

Five, it burdens agriculture and seasonal businesses. Farmers who need a crew for a short harvest say a mandate without a workable visa program is a mandate to let crops rot. Whether or not that is the whole truth, the objection is real, and farm-state conservatives raise it.

Each of those points has a thoughtful defender. I think a fair reader will find the second and the fourth the most serious.

The hole in the middle: borrowed identity

Here is the fact that neither side likes to dwell on, because it undercuts both of their strongest lines.

E-Verify checks whether the information a worker presents is consistent with government records. It confirms that a name, a Social Security number and a date of birth belong together. It does not, by itself, confirm that the person standing at the counter is the person described. If a worker presents a real Social Security number belonging to a real person, with the matching real name, the system says "confirmed." This is the identity-fraud gap. The system is strong against invented numbers and weak against borrowed ones.

The government knows this, and has added a photo-matching step for certain documents, in which the employer compares the photograph on the worker's card to the photograph in the federal record. It helps for those documents. It does not cover every case. And it reveals the dilemma: the way to close the gap is to link the check to something that is hard to borrow, such as a photograph or a biometric. And that is the very thing the libertarians fear.

So we have an honest tension. A mandate without identity strength lets the clever and the connected walk through. A mandate with identity strength builds the thing the cautious do not want built. Anyone who tells you the answer is obvious is selling something.

What the Constitution has to say

The Constitution does not mention work authorization. It does give Congress the power over naturalization in Article I, section 8, and the general power to regulate commerce among the states. Congress has used those powers to regulate employment through the minimum wage, the National Labor Relations Act and the Civil Rights Act. It is hard to argue that Congress has no authority to say who may be lawfully hired when it has authority to say what they must be paid and whom an employer may not discriminate against.

The sharper constitutional point concerns privacy and limits. The Fourth Amendment limits searches, not databases of information the government already holds, and the Court has not found a general constitutional right to avoid being checked against Social Security records. The Founding-era instinct, expressed in the debates over standing armies and general warrants, was suspicion of concentrated power. That instinct is not a legal test, but it is a good guide to what safeguards a mandate should include: a statute that bars the data from being used for any purpose other than work authorization, an effective way for a citizen to correct an error, a short deadline for the government to resolve a dispute, and criminal penalties for officials who misuse the data.

Madison wrote in Federalist No. 51 that "you must first enable the government to control the governed; and in the next place oblige it to control itself." A mandate satisfies the first half. The safeguards satisfy the second.

A worked example

Picture a landscaping company in Georgia with twelve employees. It hires six new workers in a season. Without a mandate, the owner fills out six I-9 forms, looks at the cards, and files the forms. If a card is fake and looks real, he has a defense. With a mandate, he enters six sets of data into a federal system. Five are confirmed in seconds. One returns a tentative nonconfirmation. The worker is a citizen whose Social Security record lists a maiden name. She has eight federal working days to contest it, visits an office, fixes the record and starts work a week late.

That is a cost. It is also the cost of a system that works as designed, with an error rate that falls as the records are cleaned. And, because every landscaper in the county is checking, none of them can undercut the others by taking the cheap route. Now picture the same owner under no mandate, and the competitor who skips the check, who offers a lower bid because his labor costs less and his legal exposure is, in practice, nothing. That is the world the honest businessman lives in now. Reasonable people can still say the first world is intrusive. They cannot say the second world is fair.

My verdict

I side with a mandate, with conditions, and I will tell you why in numbered form because that is how the argument should be made.

1. The law already forbids illegal hiring. The only question is whether the ban is enforced. A mandate is enforcement of an existing law, not a new restriction on liberty.
2. The honest employer deserves a level field. A rule everyone follows is fairer than a rule only the careful follow.
3. The identity gap must be closed by narrow means. Photo-matching and locking of a person's own record, so that a citizen can freeze his Social Security number against use by an impostor, are targeted tools. They do not require a national ID card.
4. Safeguards are not optional. Use limits, a fast correction process and penalties for misuse should be written into the statute before the mandate takes effect.
5. Agriculture needs an answer. A mandate with no workable visa program for seasonal work will fail in the fields and with it the political coalition behind it. The honest approach is to pair the mandate with a legal channel and phase it in. The history of the farm labor system is told in When the Bracero Program Ended, California Built a Tomato Harvester.

The libertarians are right that the burden of proof is on anyone who would expand federal power. I think the burden is met here, because the power in question is enforcement of an existing duty on an employer, not a new duty on a citizen. If you want to see how the employer's side of the law looks, The Employer Who Hires Off the Books Is Breaking the Law, Not Helping covers it, and the wage argument that often goes with it is at Jobs Americans Won't Do Is an Argument About Wages, Not About Americans.

There is a final irony. The employers who most loudly deny that they need an immigration system are the ones who benefit most from the absence of one. Having it both ways is a talent. Having a Congress that lets them is a policy.

The case in brief

1. E-Verify compares an I-9's information against Social Security and Homeland Security records; Congress created its pilot in the 1996 law and has extended it ever since.
2. The restrictionist case is that jobs are the magnet, that honest employers are punished by the present honor system, and that states such as Arizona, whose mandate the Court upheld in Chamber of Commerce v. Whiting (2011), show the system can work.
3. The libertarian and business case is that a mandate makes Washington a gatekeeper to work, risks a national identity database, burdens citizens with errors and can push work off the books.
4. The system's weakness is borrowed identity, and fixing it with a photo or a biometric is exactly what raises the privacy fear, so any mandate needs written limits on the data and a fast way to correct mistakes.
5. A mandate, phased in, with those safeguards and a lawful channel for seasonal work, enforces a law already on the books and is worth enacting.

What you can do: Read the Whiting opinion's syllabus at the Supreme Court's website, then call your state legislator and ask whether your state requires E-Verify and what the correction process is for a worker flagged in error.