Earlier this year, advocates of the Senate's ill-fated
immigration reform offered a quid pro quo: Grant amnesty and
trillions in government benefits to some 12 million illegal aliens,
and we'll agree -- finally -- to beef up security at the border,
close loopholes that encourage employers to hire known illegals,
and require criminal aliens to leave the country.
Backed by a torrent of support from millions of angry constituents, conservative senators led by Jeff Sessions (R-Ala.), Jim DeMint (R-S.C.), and John Cornyn (R-Texas) wisely rejected this deal. After all, they reasoned, the proposed amnesty and its costs would be the only sure thing in this lopsided bargain. Bestowing citizenship is irrevocable. Once a citizen, forever a citizen.
But the enforcement provisions, they understood, would be subject to endless assaults. Liberal lawmakers would devise loopholes or simply cut funding. The ACLU and immigrant advocacy groups would file dilatory lawsuits. Businesses accustomed to hiring illegals would seek to soften these provisions. Sympathizers in the media would join the chorus, accusing pro-enforcement conservatives of racism and other ghastly crimes.
To his credit, President Bush learned one important lesson from the failure of the Senate immigration bill. A government that couldn't deliver on its repeated promises to secure the border and enforce existing immigration laws shouldn't be trusted with the daunting responsibilities envisioned in the comprehensive Senate bill. Even Sen. John McCain (R-Ariz.), the failed bill's leading advocate, eventually acknowledged that: "The comprehensive approach to immigration failed because the American people do not ... trust ... the government. We said we would secure the borders, but Americans didn't believe us."
So on Aug. 10, the Bush administration unveiled an ambitious and creative package of 26 initiatives using existing legal tools to secure the border, remove fugitive aliens from the U.S., and increase cooperation with state and local law-enforcement officials.
By far the most controversial of these proposals concerns so-called "no-match" letters -- letters the Social Security Administration routinely sends to notify employers of discrepancies between an employee's name and social security number. Homeland security officials estimate that 90% of these discrepancies are attributable to illegal workers using contrived social security numbers or engaging in identity theft by misappropriating existing ones.
Under federal law, it's unlawful for employers "to hire ... an alien knowing the alien is ... unauthorized" or "to continue to employ an alien ... knowing the alien is (or has become) ... unauthorized ... with respect to such employment." But, with a nod and wink, immigration officials allow employers to sidestep this requirement by requiring them to accept virtually any identity document, so long as it "appears to be genuine."
Now the feds are finally clamping down. They want to send letters to 140,000 employers with large numbers of "no-match" employees reminding them of their responsibility to correct these discrepancies and that they could face criminal penalties or fines as high as $10,000 per illegal worker if they do not do so within 90 days.
On cue, lawyers for the ACLU and AFL-CIO sued. Unfortunately, they convinced Maxine Chesney, a liberal federal judge in San Francisco, to issue an order that prevents officials from mailing the letters pending further legal proceedings. Enforcing this federal law, the ACLU alleges, would jeopardize the jobs of legal employees, increase off-the-books employment, disrupt the workplace, lead to job losses, and even increase consumer prices. They forgot to mention global warming.
Employer groups immediately chimed in. The International Franchise Association predicted this new get-tough policy would lead to "turmoil in the nation's workforce." A top official of the Western Growers Association, which represents firms that produce 90% of the fresh fruits, vegetables and nuts grown in California, not only acknowledged that these companies break the law but argued they should be above it, too. "We know and have told the government," he said, "that much of agriculture's workforce is falsely documented" and "illegal." Rather than comply with existing law, these employers "have the right to expect the U.S. Congress to ... resolve these vital issues."
Meanwhile, our immigration system is still broke. The prospects for Congress re-entering the treacherous waters of immigration reform, moreover, are nil unless we rediscover the principle of "rule of law." Under it, the only legitimate exercise of government authority comes when it is in accordance with written law and established procedure. It is our ultimate safeguard against arbitrary governance and ensures that we live under, as John Adams wrote, "a government of laws and not of men."
Our courts, lawmakers, employers and advocacy groups forget this at their peril.
Michael G. Franc is vice president of government relations for The Heritage Foundation.
First appeared in Human Events