Virgil Goode

One of the most tired clichés of the immigration debate is that “immigrants do the jobs Americans won’t do.” With 16 million Americans out of work, this justification for not enforcing our immigration laws rings hollower than ever.

There are an estimated 7-8 million illegal aliens in the workforce. Virtually all of them are in unskilled sectors such as agriculture, food service and preparation, and construction; which also have extremely high levels of native born unemployment.

Freeing up those jobs for Americans should be common sense during a recession.

Hiring illegal aliens is already a crime under the 1986 Immigration Reform and Control Act, but neither George W. Bush nor Barack Obama enforced this law. Part of the problem is that it is easy for “undocumented” immigrants to get fake documents. Under the current system, an honest employer may be duped into hiring or an illegal, while unscrupulous businesses can intentionally look the other way and plead ignorance if they get caught.

In 1996, Congress created the E-Verify program to help close this loophole. E-Verify is an electronic system that allows an employer to enter the social security or alien registration number of a potential employee. This gets checked against a government database to confirm whether an employee is here legally within minutes. When I served in Congress I cosponsored a number of pieces of legislation to mandate E-Verify nationwide.

These bills never made it through Congress, so states and localities began to do the job the federal government wouldn’t do. In 2006, Hazleton, PA, under the leadership of their mayor Lou Barletta, passed the Illegal Immigration Relief Act. The next year, Arizona passed the Legal Arizona Worker Act (LAWA.) Following Arizona’s lead, Georgia, Alabama, Oklahoma, Indiana, North Carolina, South Carolina, Louisiana, and many other states passed their own E-Verify laws.

Predictably, the ACLU sued Hazleton and the Chamber of Commerce sued Arizona on the grounds that states were preempted from enforcing immigration law.

In May, the Supreme Court ruled that LAWA was constitutional in Chamber of Commerce vs. Whiting. The next week, they upheld the Hazleton law. This opens the door for even more states to pass E-Verify laws when they go back in session.

In the wake of all this momentum in favor of state laws and E-Verify, the Chairman of the House Judiciary Committee Lamar Smith (R-TX) introduced the H.R. 2164, The Legal Workforce Act in June. On the surface, the Legal Workforce Act is a great bill. It requires E-Verify for all new hires and improves the system to prevent identity theft. Unfortunately, the bill includes a preemption provision that will prevent States and localities from enforcing employer sanctions on illegal immigration unless the federal government acts first. This, in effect, will completely wipe out our victory in the Supreme Court.

By including the preemption section, Rep. Smith has won the support of the Chamber of Commerce and other business groups who lobbied against every previous piece of immigration control legislation because it restricts their supply of cheap labor.

However, he has lost the support of some conservatives. Lou Barletta, who is now a freshman Congressman (R-PA), opposes the bill. He claims, “If this bill becomes law, states and municipalities will be powerless without the federal government acting first. Waiting for the federal government to enforce its own immigration laws is how we got into this mess in the first place.”

Rep. Barletta is right. While E-Verify is an excellent program, if the federal government was serious about enforcing the laws on the book, it probably would not be necessary. At the same time, nothing will be accomplished by passing an E-Verify law if the federal government won’t enforce it. There are already states and localities enforcing the law, and taking away their right in exchange for the hope the federal government will act is a risky bargain.

As Arizona Senate President and SB 1070 author Russell Pearce wrote in a column for the Poltico, “It all boils down to one question: Whom do you trust to enforce the law: Obama or Arizona?” Rep. Barletta and Sen. Pearce are not alone in their concern over the Legal Workforce Act. Many conservative and immigration control leaders like Kris Kobach, Bay Buchanan, Phyllis Schlafly, and Tom Tancredo say the bill needs to be amended.

In a column in Townhall.com, Lamar Smith dismisses the concerns over states’ rights because “although the Legal Workforce Act preempts state E-Verify laws, it grants states and localities the right to issue or rescind business licenses based on the requirement that the employer use E-Verify as directed by federal law.” This misses the point. The problem is that it is unlikely that federal government will enforce the law. Allowing states to act only act after the federal government sanctions a business fails to address this concern.

Rep. Smith also argues that blue states with high illegal populations like New York and California are unlikely to pass statewide E-Verify laws, so unless we pass a nationwide law there would be nothing to keep illegals from getting jobs in those states. This may be true, but it once again assumes that the federal government will enforce the law at all. It also assumes we can’t pass an E-Verify bill without pre-emption.

As he notes in his column, a Rasmussen poll showed that 82% of Americans want mandatory E-Verify. With that level of support, why should we water down the bill?

I am not criticizing the preemption language to disparage Lamar Smith who I know is genuinely concerned about fighting illegal immigration. However, it is a huge mistake to sacrifice States’ Rights on immigration control in exchange for the slim possibility that the Obama administration will enforce our laws.


Virgil Goode

Virgil Goode represented Virginia’s 5th Congressional District from 1997 until 2009.