Three Decades of Failed Reform: Immigration Politics and the Collapse of Worksite Enforcement

By Jerry Kammer on August 2, 2018

National Review, July 26, 2018

The year was 2007. Immigration and Customs Enforcement (ICE) performed a sudden raid at a factory in New Bedford, Mass., that sewed rucksacks and ammunition pouches for the U.S. military. Despite a local unemployment rate of 9.4 percent, the factory owners had recruited unauthorized Central American immigrants, provided them with phony identification papers, paid them the minimum wage or less, manipulated records to deny overtime pay, and imposed sweatshop conditions including $20 fines for bathroom breaks longer than two minutes. "Now I understand how they kept outbidding me," said a competitor.

Today, in the aftermath of President Trump's similarly strenuous campaign to stem the flow of Central Americans across the Rio Grande, leading Democrats are calling for ICE to be abolished completely. Sen. Kamala Harris (D-Calif.) has suggested that immigration enforcement is the work of racist bigots. "We have to stop vilifying and criminalizing whole populations of people because they came and arrived here from south of the border!" she proclaimed last year. Meanwhile Trump, while declaring an urgent need for a wall across the Mexican border, has shown scant interest in repairing the virtual wall around the American jobs market that Congress long ago promised but has abjectly failed to deliver.

Every feature of the widening gyre that is the modern immigration debate —outrage, efforts to delegitimize all enforcement, a pro-enforcement backlash that sometimes targets all immigration, and a political environment that smothers efforts to find common ground — is a result of the colossal failure of the last major immigration-reform law, the Immigration Reform and Control Act of 1986. Known as IRCA, it stands as one of the most consequential failures of governance in our recent history, and we cannot understand how we got ourselves in this mess unless we understand how IRCA failed to earn its ambitious name.

When President Ronald Reagan signed IRCA into law, he confidently predicted that "future generations of Americans will be thankful for our efforts to humanely regain control of our borders." Passed by an exhausted Congress after five years of rancorous debate, the reform was widely touted as a wise and moderate compromise. It combined the compassion of amnesty with a plan to stop future illegal immigration by requiring employers to verify that new hires were authorized to work.

But the law had a fatal defect: The IRCA worker-verification system, providing for both civil and criminal penalties for scofflaw employers, was vulnerable to fraud. A counterfeit-documents industry arose, enabling workers to pretend to be legal and employers to pretend to believe them. For the past 32 years, a left–right coalition of ethnic groups, immigration activists, business interests, and civil libertarians has, in pursuit of various special interests, frustrated efforts to mandate a computer-based worker-verification system.

As a result, completion of Form I-9, by which employers attest to having verified that new hires are authorized, has become what a former general counsel of the Immigration and Naturalization Service (INS) has called "an empty ceremony". Further, between 1990 and 2007 the number of illegal immigrants in the United States grew by an annual average of 500,000, reaching a peak of 12.2 million in 2007, before leveling off at about 11 million, where it stands today.

In the beginning, it seemed that IRCA might actually work. Amnesty moved briskly, and the U.S. government issued some 2.7 million green cards. On the control side, there were signs that the labor market was adjusting. The Los Angeles Times reported that hotel operators in Orange County were raising wages in the expectation that the market would tighten. Said one businessman, "It just makes sense that there will be greater competition for a smaller pool of employees."

There was optimism at the INS, too. Border Patrol agent Mike Moon, who monitored worksite enforcement in western Texas during the late 1980s, thought the threat of sanctions would incentivize legal hiring just as a potential IRS audit encourages tax payments. "I worked on the premise that if we started getting employers' attention, the word would get out," says Moon, now retired.

But IRCA's flaw quickly exploded the prospect of worksite control. In 1988 the Los Angeles Time, after examining hiring practices at hotels, construction companies, landscaping services, janitorial services, and car washes, concluded that employer sanctions "simply aren't working." Employers said they couldn't tell whether the documents workers submitted were legitimate. "Many acknowledge that they knowingly accept questionable documents, while others are ignoring the law's requirements altogether," the paper reported.

Reagan's pro-business, anti-regulation sensibility inevitably influenced the INS's work. INS commissioner Alan Nelson sought to turn the stick of enforcement into the carrot of educational outreach about the law's requirements. "His yardstick was not 'How many fines did we issue this month,'" one former INS official recalls. "It was 'How many people did we educate this month.'"

Moon's initial optimism was defeated by the resolution of one of his cases, in which the INS alleged that employers at an El Paso Walmart had knowingly hired five unauthorized Mexican workers to assemble bicycles. It was a flagrant violation, Moon says. "They were warned once and they did it again." The fine was originally set at $10,000. But then INS lawyers allowed Walmart to negotiate it down to $3,000. "For a corporation as big as Walmart, a fine like that is considered just more overhead, just part of the cost of doing business," says Moon. It also became routine procedure, turning into what Moon calls "a real morale killer" for agents in the field.

INS criminal investigators were surprised by the resilience of the counterfeit-documents trade. "There's so much money associated with it that every time we arrest and prosecute a ring, there's always somebody to step in behind them," said John Brechtel, who supervised INS investigations in Los Angeles. Taking down a single counterfeiting operation there, agents seized 115,000 blank documents — including green cards and Social Security cards — with an estimated street value of $5 million.

The fake-documents problem was compounded by the regulation that allowed new hires to present employers with 29 different documents — from Social Security cards, immigration documents, and birth certificates to school and tribal records — some of which were produced in multiple formats. Moreover, employers had to accept any document that "reasonably appears on its face to be genuine". In 1990 the Government Accounting Office (now known as the Government Accountability Office) began practically pleading with the INS to trim the permissible-documents list. Nine years later the agency, which has functioned like a Greek chorus in the worksite-enforcement drama, reported that the INS had "made little progress" in that effort.

The INS was no more energetic on immigration under President George H. W. Bush. Gene McNary, who had helped Bush win Missouri in the 1988 election, was named INS commissioner despite having no experience with immigration. He soon became aware of the interior-enforcement challenge posed by the burgeoning population of illegal immigrants drawn to the wide-open American labor market. At a 1990 Senate hearing, McNary acknowledged that his agents had been overwhelmed by the 100,000 calls the INS received annually from local law-enforcement agencies that had detained illegal immigrants and expected that the INS would pick them up. Describing the case of a Salvadoran man the INS declined to remove after arresting him for trespassing, McNary noted that because the man had not been convicted, he was not a priority. The man was then released, and he stole a pickup truck with which he killed two pedestrians. Local communities would grow increasingly frustrated with such cases.

Bill Clinton did no better. During his second year in the White House, he became concerned with the backlash against illegal immigrants in California, where voters overwhelmingly approved a ballot initiative to deny them state services. Clinton was wary of a challenge in the 1996 presidential election from the state's Republican governor, Pete Wilson, who rode populist anger at the illegal influx to reelection in 1994. Clinton dispatched Attorney General Janet Reno to the West Coast, where she supervised the launch of "Operation Gatekeeper", an initiative to boost border defenses. "We will not rest until the flow of illegal aliens has abated," she declared. While Gatekeeper eased Clinton's political problems, it simply diverted the illegal influx eastward into Arizona, which then bore the brunt of the problem. It also set a precedent that has been followed ever since: Throw billions at border security to demonstrate your toughness, while doing little to secure the worksite.

In 1994, Clinton named civil-rights icon Barbara Jordan, a former congresswoman, to chair a federal commission on immigration reform. She warned that continued failure to enforce limits would have political and social consequences: "Unless this country does a better job in curbing illegal immigration, we risk irreparably undermining our commitment to legal immigration." Calling for a credible worker-verification regime to protect American workers, she said, "We should make their task easier to find employment, not harder."

Jordan's commission also proposed a reform of legal immigration. It called for Congress to end "chain migration", which allowed an established immigrant to sponsor foreign-born brothers and sisters in a potentially expanding pattern of extended-family immigration.

Jordan's proposals, especially with the initial endorsement from Clinton, were a high-water mark of efforts to reduce immigration and invigorate worksite enforcement. But Jordan's death in early 1996 deprived that movement of its most powerful voice. Moreover, the left–right coalition was as forceful as ever. Cecilia Muñoz of the National Council of La Raza, echoing a civil-libertarian theme, called Jordan's verification proposal "worse than Big Brotherism." Pro-business activist Grover Norquist joined the fray as a lobbyist for Microsoft, which led the Silicon Valley charge against proposals to cut visas for high-tech workers.

But perhaps the most influential figure was a man named Johnny Huang, an immigrant from Taiwan whose fundraising prowess had won him the position of vice chairman of the Democratic National Committee. Two months after Clinton was reelected, an exposé in the Boston Globe detailed Huang's successful campaign in 1996 to persuade Clinton to reverse his early endorsement of Jordan's proposal to end chain migration. The story began with the following revelation: "President Clinton made a last-minute about-face last year on his immigration policy, a reversal that brought the White House in line with the top priority of Asian-Americans who had paid $12,500 each a month earlier to attend a fund-raising dinner with Clinton that generated $1.1 million." The dinner was hosted by Huang. It was Huang who had told Clinton in a memo that preservation of the preference for sibling immigration was the "top priority" of his people.

While Clinton reversed his position on legal immigration, he ostentatiously asserted his determination to stop illegal immigration. Wary now of the populist challenge from Pat Buchanan, who was making illegal immigration a centerpiece of his campaign for the Republican nomination, Clinton declared that "American jobs belong to America's legal workers." He issued an executive order barring companies that had knowingly hired unauthorized workers from receiving government contracts. "When it comes to enforcing our nation's immigration laws, we mean business," he vowed.

Just before the 1996 election, INS Commissioner Doris Meissner held a press conference to boast that the INS had deported 67,094 illegal immigrants in the just-completed fiscal year, making her a de facto member of the Clinton campaign staff. Echoing her boss and a campaign slogan, she declared that the INS "means business when it comes to enforcing immigration laws in the workplace."

It was empty rhetoric. Meissner had little enthusiasm for the hard and sometimes cruel work of making immigration limits stick. INS investigators who interviewed her about her tenure said she was clearly uncomfortable in their presence. She was a nice person, several said, but she wasn't an enforcement person.

While Meissner provided no coherent plan to counter the hiring of illegal immigrants, she did allow some energetic local efforts to do the job. For example, Bart Szafnicki of the INS Atlanta office led an operation to arrest dozens of unauthorized Mexican workers who were harvesting Georgia's $80 million Vidalia onion crop. The farmers there had spurned the government's H-2A visa program for temporary workers, complaining it was a bureaucratic tar pit. They resorted to the simple and cheap expedient of hiring workers with phony documents.

The Vidalia operation drew the attention of Georgia Republican congressman Jack Kingston, who had earlier expressed the get-tough opinion that there was "no need to apologize for cracking down on those who flout our laws by entering illegally." His chief of staff, signaling Kingston's change of heart, now voiced outrage, complaining, "What the INS has done with Gestapo tactics has been to eliminate the labor supply."

The INS was constantly whiplashed between those who benefited from illegal immigration and those who suffered from its downsides. The last major Clinton-era operation at the worksite was launched in 1999 by Mark Reed, director of the INS Central Region, in response to an urgent request from the Nebraska and Iowa congressional delegations. At a meeting with Reed and Meissner, they told of a stream of complaints from furious constituents. "It was the old complaint," Reed recalls. "The schools were being overrun. The health care was being overrun. The judicial system was being overrun. Basically, their lifestyle was being overrun because we were unable to stop the flow of people across the border."

Reed adopted a strategy that was elegant in its simplicity. After INS agents who audited a meat processor's I-9 files identified some 4,000 workers of dubious legal status, agents scheduled them for interviews. Three thousand failed to show up and lost their jobs, while most of the others clarified their legal presence and went back to work.

While Vanguard, as Reed's strategy was called, was an enormous operational success, it was a political failure. The meat industry mounted a high-powered campaign, calling attention not only to the damage Vanguard did to the processors but also to the cascading upstream effects on the state's cattle and hog producers. Their big guns included former Nebraska Governor (and future Senator) Ben Nelson, a Democrat, and Iowa's Republican Senator Chuck Hagel. Nebraska governor (and future senator) Mike Johanns also got involved, appointing a task force that called for an amnesty for the state's unauthorized workers. Johanns himself preferred more work permits and also called on the industry to boost wages in order to attract more workers to an industry that had once sustained a blue-collar middle-class workforce.

Meissner told Reed to stand down. "She told me we would have to rethink Vanguard," Reed recalls. "I knew then that it was dead." And so, instead of demonstrating that the Clinton administration was serious about responding to grassroots concerns, Vanguard demonstrated the futility of cracking down on a powerful industry that had become addicted to unauthorized workers. Illegal immigration from Mexico and Central America, drawn by the economic boom of the late 1990s and the fecklessness of worksite enforcement, continued. Border Patrol arrests on the southwest border, which never dipped below 1,270,000 per year between 1995 and 2001, reached their all-time high of 1,643,679 in 2000, a daily average of 4,503.

During the George W. Bush presidency, the contrast between the shutdown of worksite enforcement and the buildup of the Border Patrol became stark and absurd. From a force of 3,200 agents when IRCA was passed, the Border Patrol grew to nearly 10,000 in 2001 and reached 17,499 by the end of the Bush presidency. This allowed Congress to strike a pose of determination to secure the border while still allowing the jobs magnet to draw hungry workers. Researchers at the Public Policy Institute of California did not find "a statistically significant relationship between the build-up and the probability of migration" and concluded that job opportunities "have a stronger effect on migration than does the number of agents at the border."

Bush, invoking the "compassionate conservatism" of his presidential campaign, praised the self-sacrificing commitment of those who crossed the border illegally in search of work. "Family values do not stop at the Rio Grande," he frequently said. It was a big switch from his party's 1996 platform, which had warned that "illegal immigration has reached crisis proportions."

The terrorist attack in September 2001 also shaped interior enforcement. Washington decided to focus investigations on the hiring practices at "critical infrastructure" sites, such as airports and nuclear-power plants. Scant attention was paid to other areas of the economy. The GAO reported that in 2003 a mere 4 percent of agents' time was devoted to worksite enforcement, down from 9 percent in 1999. By this time, the INS was gone, and worksite duties had been assumed by the newly formed ICE, which included former customs agents who were openly scornful of immigration enforcement. They preferred to go after cybercrime, money laundering, and drug trafficking.

Such hard facts about soft enforcement presented a problem of political staging for the Bush administration's support of reform legislation, which was sponsored in the Senate by John McCain and Ted Kennedy. And so, starting in April 2006, ICE agents conducted a dozen major worksite operations, arresting several thousand unauthorized workers and some managerial personnel. Bush took the PR lead, striking the presidential pose of Horatius at the bridge as he declared that "a comprehensive reform bill must hold employers to account for the workers they hire." The Washington Post cast doubt on the president's commitment, observing that the administration had "virtually abandoned such employer sanctions before it began pushing to overhaul U.S. immigration law." The reform bill was routed after a massive outpouring of populist opposition, which was revved up by such conservative talk-radio opponents as Rush Limbaugh, Sean Hannity, and Michael Savage.

Barack Obama began his presidency in 2009 with a set of immigration positions reflecting the competing concerns that made the issue so fraught. He had written that while the "huge influx of mostly low-skill workers provides some benefits to the economy as a whole, ... it also threatens to depress further the wages of blue-collar Americans and put strains on an already overburdened safety net." But he also advocated a sweeping amnesty — which he called "earned legalization". And while he criticized worksite raids as excessive, he favored an overhaul of the notoriously defective verification program, which remained in place because of the power of those who benefited politically, economically, or ideologically from the fecklessness.

ICE under Obama continued the pattern of targeting only the most egregious scofflaw employers. As reported in Nation's Restaurant News, a trade publication, ICE pursued cases that involved "evidence of mistreatment of workers, trafficking, smuggling, harboring, visa fraud, document fraud, and other violations." And so the word went out that the Obama administration had kept the de facto threshold for enforcement well above the de jure standard Congress had established so ineffectively in 1986.

Shortly before the 2012 election, Obama announced his program to suspend deportation and grant work permits to the most sympathetic group of illegal immigrants, the "Dreamers", who had come to the United States as children. He said his hand had been forced by congressional inaction on comprehensive reform. The following year, however, the Senate passed a bipartisan bill and Obama repeated the Bush administration's strategy of ramping up worksite enforcement to demonstrate that he was serious about enforcement. The preferred Obama enforcement tactic was audits of employers' records. Even though in 2013 ICE performed six times as many audits as it had done under the Bush administration in 2008, these 3,127 audits represented only a minuscule fraction of the nation's seven million–plus employers.

The story of IRCA's protracted failure leaves no doubt that the worksite reform that is most urgently needed is a credible verification system. In 2013, Sens. Rob Portman (R-Ohio) and Jon Tester (D-Mont.) sponsored an amendment to an immigration-reform bill before the Senate that would strengthen E-Verify, an online verification system, by mandating a process in which employers would match a photo submitted by new hires with a digital photo stored in a government database of authorized workers. Lamenting the long history of failed verification, Portman pointed to the "unholy alliance" of the left–right coalition whose dubious legacy is IRCA's failure, and warned his colleagues that the immigration-reform bill, which eventually passed the Senate, would not work. Senate Majority Leader Harry Reid did not permit a vote on the Portman-Tester amendment.

In 2007, immigration scholar Nathan Glazer, noting consistent public support for immigration limits, issued a warning about the yawning gap between what the public wants and what the federal government delivers. This "disconnect", he wrote, "raises a problem for democracy whose resolution may well be very disturbing."

Donald Trump became president, in large measure, because he understood the public frustration with unchecked immigration. He validated that frustration and inflamed it. Now the fraught, angry, polarized, and paralyzed immigration debate confirms Glazer's prescience.

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