Immigration reform is back on the table -- with a vengeance.
Last month, House Judiciary Committee chairman James Sensenbrenner succeeded in attaching his Real ID Act to a must-pass Iraq appropriations bill. Now that spending measure is coming up in the Senate, and though it's unclear how the upper chamber will handle the congressman's proposal, members are girding for an all-out fight over immigration.
The Sensenbrenner legislation, tagged as a security measure, is a hodgepodge of provisions: one aimed at finishing a few miles of fence on the border near Tijuana, another raising barriers to asylum seekers who claim they are fleeing abuse in their home countries.
But the section likely to create the most controversy would make it more difficult for states to issue driver's licenses to illegal immigrants. Already under attack from both the right and the left, it has also provoked calls for still tougher measures, including a national ID card.
The bill's history in the House, where it passed by a whopping 261 to 161 margin, holds crucial lessons for the debate ahead. It's no accident that only eight Republicans dared vote against it, or that even President Bush, who prefers a more measured approach to illegal immigration, ended up endorsing it. What Sensenbrenner grasps - and his opponents ignore at their peril -- is that when it comes to immigration, what the public wants is control.
He is also right that a key element of that control is knowing who enters the country and monitoring what they do here -- and that is likely to require better identity documents. But neither the Real ID's driver's license provision nor a national ID is the answer: Both are the kind of cure that's worse than the disease, and neither is necessary to get a grip on illegal immigration.
The question is how exactly to deliver control. After all, we've been trying one way or another for decades now, and still, as the Pew Hispanic Center reported last month, there are nearly 11 million illegal immigrants living and working on U.S. soil. Entire industries -- agriculture, hospitality, food-processing, construction -- operate in the black market, and the workers they attract are eroding the rule of law not just on the border, but from coast to coast.
Measures like Sensenbrenner's, which enhance enforcement but don't otherwise address what's wrong with the status quo, cannot hope to restore order. The temporary guest worker program proposed by President Bush -- and now being written into law by Sens. John McCain and Edward Kennedy -- would help. After all, most laborers would prefer to come legally: It's both safer and cheaper. But even a temporary worker program coupled with tougher border enforcement will not be enough. As long as there are jobs available, migrants will do whatever they need to do to get to them. And we will not put an end to the illegal influx until we find a way to prevent employers from hiring unauthorized workers.
The unavoidable answer -- albeit deeply unpopular in this country -- is a credible "employer verification" system: one that replaces existing fraud-prone employment practices with a better way of ensuring that businesses hire only legal residents. And even some policymakers who favor a temporary worker program are beginning to think this might require some sort of employee ID.
Most Americans detest that idea, to put it mildly. We relish our privacy, we bristle at government interference in business -- and obviously any effort to prevent hiring one kind of worker will mean monitoring all hiring. Though the idea of creating national databases has grown more acceptable since 9/11, the mere mention of worker ID cards is still enough, in most circles, to end all discussion of an employment-based strategy.
It's hardly surprising that the last time we tried an employer-based approach - penalties against businesses that hire illegal workers are part of the landmark Immigration Reform and Control Act (IRCA) that Congress passed in 1986 -- it was so watered down as to be all but irrelevant. Still, unappealing as it may sound, an employer-verification system is probably the only way to remain a nation of immigrants and meet our labor needs without giving in to epidemic illegality of the kind we live with now.
The question is less "if" than "how": how to make sure a new verification program is effective and that it preserves our rights -- everyone's rights. The first principle, a lesson learned from the failed IRCA sanctions, is that the task assigned to business must be one it can realistically do. As is, we put employers in an impossible position: We require that they determine, merely by eyeballing an employee's documents, whether that person is legally authorized to work. All new hires, citizens and foreign-born, must by law show some form of ID -- the many possibilities include driver's licenses, Social Security cards, U.S. or foreign passports, green cards and school IDs; some are enough alone, others only in combination -- and many of the forged documents presented by illegal immigrants look convincing. Yet if employers ask too many questions, we accuse them of discrimination, and when there is a violation, we give them no clear guidance about how to handle it.
What businesses desperately want and need is a simple, streamlined, inexpensive method to make sure that they are on the right side of the law -- to verify that their employees are legitimate and to protect themselves from legal jeopardy. And the best way to do this, if the federal bureaucracy could pull it off, would be with electronic verification: something like a credit card system, using a swipe card, or cards, connected to a database.
But that needn't mean a national ID card - or an Orwellian nightmare of bureaucratic control. The system should be able to accommodate several different kinds of cards (though not as many as are currently allowed): updated Social Security cards, driver's licenses, temporary worker's visas and green cards. But any employee need produce only one. The cards would have to have photos. Ideally, the Department of Homeland Security would coordinate with the Social Security Administration so that the only other information required would be a Social Security number, which in the future could be embedded in all four types of cards.
As with credit card verification, responses would have to come in real time, and employers would learn only one thing about employees: whether they are authorized to work or not. Existing databases would have to be vastly improved: The 10-year-old pilot program that some businesses already use to verify workers' identities still produces far too many false hits, though the number is declining. As with credit histories, employees who were denied work would have access to their records and an easy-to-use appeals process.
Equally important, the new system must be phased in over time. We might start with temporary workers only, or with one sector - say, agriculture. Companies -- especially small companies - that wished to continue with the current paper-based method would be permitted to do so. Any expansion of the program would be tied to proof that it was working well. And of course it would hardly make sense except in the context of immigration reform that provided U.S. industries reliant on foreign laborers with enough legal workers to function and grow.
None of this will be easy, and the public is right to be skeptical. But in the long run, if it's done properly, a program of this kind would benefit everyone. Employers would get the workers they need with much less trouble -- the current paper-based system is notoriously cumbersome -- and more peace of mind.
Authorized immigrants would welcome a card they could rely on, and they would face less discrimination than they are currently exposed to. As for American workers, we would have no less privacy than we have now. We already provide this information when we get hired for a new job. The only difference under the new system is that it would happen electronically.
As it is, most Americans defy the law every day, many of us several times, benefiting one way or another from the work of illegal immigrants. We all say this is unacceptable; we say we want change. But ending the illegality is going to take more than a few miles of new fence. Do we want a working system, economically realistic but also airtight? Are we prepared to do what it takes to secure our borders and restore the rule of law?
Think about it - think about both the costs and the benefits - the next time you use your credit card.
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