Rep. Lamar Smith of Texas, chairman of the House Judiciary Committee, is working fervently to pass an immigration bill.  One feature would require all employers to use E-Verify, the online employment verification system run by the Dept. of Homeland Security (DHS).  E-Verify tells an employer if a job applicant’s social security number or other document numbers match the name of the person to whom the government issued the social security number.  So if an illegal immigrant is using a fake social security number with a made up number, E-Verify would tell the employer that person is not authorized for employment.  Many illegal immigrants use fake documents and would be caught by E-Verify.  This, of course, is all to the good.

There are two major problems.  First, DHS is headed by Janet Napolitano, who would be in charge of enforcement of the new law.  She and her boss, President Obama, do not support it.  And enacting any law without the full commitment of the executive branch is likely to be a huge waste of time.  We already have the Immigration Reform and Control Act on the books, which requires employers to examine the social security cards and other employment verification documents presented by employees.  It is not well enforced.  The Obama Administration has announced its IRCA enforcement will be limited to selective audits of egregious violators.  Those have been rare, and the illegal workers are merely fired, not fined or deported.  As for the employers, I have seen no high profile indictments for hiring illegal workers.  Violations of IRCA are legion, and many small employers do not comply at all.  The administration could care less as it tries to appease the Hispanic lobby in advance of the 2012 election.

Enacting a new law with a mandate to crack down on illegal immigration will go unenforced.  The second problem is the law will also pre-empt states from enacting their own E-Verify laws, similar to Arizona’s, which was upheld by the Supreme Court.  At least some states, particularly Arizona, Alabama, Georgia and South Carolina, are stepping into the void.  We should encourage more of them to enact mandatory E-Verify laws which they can  and will enforce.  (Recently a federal judge in Alabama upheld this part of that state’s new immigration law.  The Obama Justice Department is appealing the decision to the Eleventh Circuit, which will almost certainly affirm that part of the decision and likely all of the others.)  Preemption is the bane of state-level immigration enforcement.  IRCA provides that states cannot pass their own laws prohibiting the employment of illegal aliens.  So the state laws do not do so.  Rather, they can do other things which are not pre-empted, such as requiring employers to use E Verify web services, arresting illegal immigrants for driving violations, prohibiting the enforcement of contracts made by illegal immigrants in court, etc.

Congressman Lamar Smith has been a great supporter of immigration enforcement.  He probably has good intentions, and perhaps anticipates a new president will be enforcing the laws in 2013.  But the downside of preemption is too great, and the risk that the new law will go unenforced, even by a new administration is significant enough that the matter should be left to the states.  Rep. Smith’s bill also would enact a new guest worker program for agriculture.  He realizes the vast majority of farm workers cannot pass E-Verify and needs to appease that industry.  We should not do so.  We already have the H-2A guest worker program which allows growers to use foreign workers when they are unable to find local workers.  Growers are never able to find legal local Americans to take their hard jobs at the minimum wage.  The solution is to let the market work.  We have 9% unemployment.  Many Americans need jobs and will take them for market wages.  Yes, this means the growers will have to pay more, but no more than other industries pay for American labor.   Some of them will choose to automate, like farmers in the Midwest, which rely on combines to pick their corn and soybeans rather than people.  This should have occurred decades ago in the West.  It hasn’t because the federal government has propped up the inefficient cheap-labor model by not enforcing the immigration laws.  Forcing growers to pay market wages may cause some of them to close down if their average cost of production exceeds the competition.  Let them go out of business.  Their business model is both criminal and inefficient.  Our economy is better off without them.