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The Militarization of the Southwest Border

As part of the U.S. Border Patrol’s (USBP) “Prevention Through Deterrence” strategy, in 1990 the Attorney General authorized the construction of a 14-mile-long fence that would extend outward from the Pacific Ocean along the San Diego section of the border.¹⁰⁵ Built 10-feet-high from welded steel, this “primary fence” was part of a larger effort by the USBP to lower illegal entries by concentrating resources and agents at high population centers.¹⁰⁶ Limited by this physical barrier as well as the targeted efforts of border agents, smugglers would initiate mass charges, where fifty migrants at a time would dash across the border at the San Ysidro port-of-entry. During these sprints, men, women, and children would dodge busy traffic, leading officials to call them “Banzai runs.”¹⁰⁷ With various politicians such as Patrick Buchanan warning of an “alien invasion” in the early 1990s and footage of “Banzai runs” broadcast on national news stations across the country, a clear message was sent to the American public: America’s immigration controls had fallen into disrepair and border security was at the heart of the problem.

Federal and state government officials had to respond or else risk political suicide. For many decades, politicians had passively tolerated or actively facilitated a constant flow of cheap Mexican labor. Unsurprisingly, beginning after the economic recession of the late 1980s, key political figures, including Governor Pete Wilson of California and President Clinton, decided to jump on a larger ideological bandwagon that portrayed America’s southern border as “under siege.” When announcing in July of 1993 that he had asked Congress for an additional $172.5 million in funding for border security initiatives, President Clinton remarked, “[I]t is certainly plain to anybody with eyes to see that the Border Patrol is drastically understaffed, breathtakingly understaffed.”¹⁰⁸

The American people’s and politicians’ focus on security services administered at the border were reflected in subsequent federal budget proposals and the new powers that would soon be given to the Attorney General. Customs and Border Protection (CBP), which “is responsible for security at and between ports-of-entry along the border,” has seen its budget more than quadruple between FY 1993 and 2006, growing from $1.5 billion to more than $6.7 billion.¹⁰⁹ The CBP is the largest law enforcement branch of the federal government and has more officers that are authorized to bear arms and make arrests than any other federal agency. It carries on the functions of its legacy Immigration and Naturalization Services (INS) bureau, which was abandoned in March of 2003, and between FY 2005 and 2006, its funding increased nearly 5 percent. A substantial part of the additional financing went to augmenting the border patrol staff; in FY 2006 the number of USBP agents increased by 8 percent from 11, 265 to 12,349.¹¹⁰ And overall, under President George W. Bush’s tenure, border security funding has more than doubled from $4.6 billion in FY 2001 to $10.4 billion in 2006.¹¹¹

Since the first primary fence was completed in the San Diego sector in 1993, other primary fences were constructed in Yuma, Tucson, El Centro and El Paso. In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, among other things, conferred upon the Attorney General the authority to construct barriers along the border and instructed him to strengthen the primary fencing in the San Diego sector by adding a secondary layer.¹¹² Citing environmental concerns, the California Coastal Commission (CCC) and various public interest groups managed to stall this project for several months in late 2005. Pursuant to the REAL I.D. Act, however, the Secretary of the Department of Homeland Security (DHS) gained the right to waive any and all laws that impede the construction of border barriers.¹¹³ As an all too foreseeable consequence of this seemingly endless “border barrier buildup,” President Bush signed the Secure Fence Act in 2006, ordering DHS to construct hundreds of miles of fences and vehicle barriers along the southern border.¹¹⁴

Despite public sentiment, few individuals outside academia have taken the time to adequately analyze the efficacy of all of these budgetary increases. If nothing else, President Bush, amidst a security-conscious post-9/11 climate, has certainly managed to provide an image of profoundly well-defended borders. During the signing of the Secure Fence Act, the President named a laundry list of purportedly beneficial immigration control initiatives that had been implemented by his administration. These included deploying the National Guard to support the Border Patrol, building fences and vehicle barriers, doubling the border security budget, and adding thousands of new beds in detention facilities.¹¹⁵ For the undiscriminating eye, any of these initiatives would seem to be a resounding achievement, a worthy endeavor that bolstered national security. Undoubtedly, both Clinton and Bush’s immigration control policies gave many Americans enough peace of mind to believe that the “alien invasion” had been effectively abated. But even though the public may think that the expanding immigration control initiatives at the southern border have successfully managed migrant flows, this disillusioned feeling of security has been about the only achievement of post-IRCA, Mexican-American border security policy.

The USBP claims that its strategy of concentrating resources and agents at population centers causes border crossers to reroute to more remote locations where patrol officers have a tactical advantage over their adversaries. Although border enforcement funding has more than doubled between 2001 and 2006, the Mexican-born population in the U.S., both legal and illegal, has continued to grow at an average rate of 500,000 per year over the last decade.¹¹⁶ Between 2000 and 2005, America’s undocumented population increased by 24 percent, from 8.4 million to 11.1 million; and at the end of the 1990s and continuing into this decade, the pace of unauthorized new arrivals began to accelerate, averaging 850,000 per year.¹¹⁷ Indeed, increased enforcement at certain sections of the border has rerouted illegal crossers to less fortified areas, but USBP has had no more success apprehending illegal entrants in 2005 than it did in 1996 (see Figure 1 below), and the flow of unauthorized migrants has marginally increased in recent years. These observations were confirmed in December of 2006 by Blas Nuñez-Neto and Stephen Viña in their CRS Report for Congress:

While the San Diego fence, combined with an increase in agents and other resources in the USBP’s San Diego sector, has proven effective in reducing the number of apprehensions made in that sector, there is considerable evidence that the flow of illegal immigration has adapted to this enforcement posture and has shifted to the more remote areas of the Arizona desert. Nationally, the USBP made 1.2 million apprehensions in 1992 and again in 2004, suggesting that the increased enforcement in San Diego sector has had little impact on overall apprehensions.¹¹⁸

Additionally, in sections where fences have been constructed, numerous breaches and tunnels were discovered. Despite the Secure Fence Act’s failure to appropriate any future funding, under the dubious assumption that more than 700 miles of fencing will eventually be completed along America’s southwestern border, “[i]t stands to reason that [...] the incidences of fence breaches and underground tunnels would increase.”¹¹⁹

Certainly, considering that migrant apprehension statistics are somewhat misleading, insofar as they represent events but not total individuals apprehended,¹²⁰ a discussion of government spending in the context of border security initiatives should not be based solely on these figures. Since the number of migrants attempting to cross the Mexican border for a given time period is difficult to measure, and since apprehension statistics only characterize events, estimating a correlation between the number of people attempting to gain unauthorized entry via the southwest border and the number of individuals apprehended by the USBP is problematical. Still, the U.S. has experienced relatively constant increases to its Mexican-born undocumented population over the last decade, providing a strong indication that escalating border security endeavors have been unsuccessful (or at the absolute least not commensurately successful) at both deterring and apprehending undocumented Mexican migrants. Moreover, apprehension statistics “remain the most reliable way to codify trends in illegal immigration along the border.”¹²¹

An important metric of how well tax dollars are being spent at the border is the marginal cost of apprehension, or in other words, the ratio of the USBP budget to the volume of undocumented migration. Using data collected by the Mexican Migration Project, Massey notes, “The cost [to tax payers] per entry went from $80 in 1993 to $260 in 1997 [...].”¹²² Considering that the USBP budget has more than quadrupled since 1993 while total apprehensions for FY 2005 remained around 1.2 million,¹²³ between 1997 and today, the marginal cost of apprehension has skyrocketed. Similar to the statistics presented above, these figures demonstrate that despite increased government spending on various border security efforts, USBP has not seen a parallel increase in the efficiency or efficacy of its operations.

While USBP has effectively rerouted migrants to more remote locations, it also has caused the rate of border-crossing deaths to soar. As more and more resources are concentrated in high population centers, migrants have been forced to attempt entry in barren deserts between heavily fortified ports-of-entry; in these areas temperatures range from over 100 degrees to well below zero.¹²⁴ Border crossers often die from exposure, heat exhaustion, dehydration, or drown in the strong current of canals and rivers while attempting to avoid the scorching desert sun. Estimates of border crossing deaths vary, but all unequivocally conclude that the death rate at least doubled between 1995 and 2005 while some find that it had more than tripled.¹²⁵ A Government Accountability Office (GAO) report released in August of 2006 found that over the past decade, the death rate has more than doubled, with more than three-fourths of the deaths along the southwest border occurring in the Arizona desert.¹²⁶

In a sense, the U.S. and Mexican governments are passively allowing Mexican nationals to play Russian roulette, where success is often little more than long hours working under terrible conditions at a sub-minimum wage salary. Of course some amount of death is inevitable. However, based upon the undocumented entry and apprehension statistics presented above, the USBP likely could have had a similar deterrent impact throughout the last decade as it does today if border security funding was left at an early 1990s level. Consequently, responsibility for causing the death rate at the southwest border to spin out of control falls squarely upon the U.S. government.

Adding unnecessarily to the migrant death toll is not the only adverse outcome of myopic U.S. policy. As noted above, in 2005 the Secretary of DHS gained the right to waive any law that impedes DHS’s ability to construct fences and roads along the border. In pertinent part, the REAL I.D. Act reads, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such secretary, in such secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads [...].”¹²⁷ This section of the Act came as a backlash to the lawsuits environmentalists lodged against the government, which claimed that if the triple-layered fence was completed along the last three miles of the southwestern border closest to the coast, more than 2,500 acres of federally protected wetlands would be destroyed.¹²⁸ DHS’s construction plan includes filling in Smuggler’s Gulch with more than 2 million cubic yards of dirt to make way for a patrol road and using an underground pipe to reroute the Tijuana River tributary that currently flows through the area.¹²⁹ Many environmentalists believe that redirecting the tributary will lead to widespread erosion, overburdening water treatment plants and causing sediment to devastate the ecosystem of the nearby Tijuana Estuary.

Although DHS disputes the claims of environmentalists, the underlying issue concerning the Secretary of DHS’s ability to circumvent judicial review still remains. The REAL I.D. Act, which was hidden within an $82 billion emergency defense appropriations bill, was signed into law without any formal discussion in either the House or Senate chambers.¹³⁰ Not only was this Act formed as a result of devious political bullying, but the Secretary of DHS’s new authority contravenes the spirit and legislative intent at the bill’s foundation. The REAL I.D. Act was originally introduced in Congress to implement some of the 9/11 Commission’s recommendations, including tighter asylum laws and forgery-resistant identification cards.¹³¹ At the House-Senate conference committee hearing to resolve discrepancies between the House and Senate’s version of the bill, House supporters for the REAL I.D. Act made a strong push for its inclusion in the final draft.¹³² As a result, the Act was signed into law largely unmodified.

Still, regardless how it came into being, many scholars argue that such an expansive waiver provision strikes at the heart of the judicial process and could represent a terrible omen for other parties who file suit against DHS. Doris Meissner, a former INS Commissioner and a current senior fellow at the Migration Policy Institute in Washington advocates for waivers only on a “case-by-case basis.” She comments, “I think it’s very dangerous to be suspending laws like this, using blanket waivers. You don’t come to an accommodation by simply abandoning laws.”¹³³

Government misdeeds and misuses of power trickle down from Congress and infect the entire immigration bureaucracy, a series of bureaus that have historically been more prone to corruption than any other government agency. As the Dallas Morning News explained in 1994, “No agency of the government is more vulnerable to corruption than the INS, where front-line workers, paid little more than the minimum wage, give out green cards and other coveted documents that are worth thousands on the black market.”¹³⁴ The Inspector General’s 2006 year-end report was largely devoted to documenting the transgressions of Immigration and Customs Enforcement (ICE) employees. Since ICE officers, like most other enforcement agents of immigration services, are allowed considerable discretion in deciding which migrants to prosecute and which to release, their working environment inherently incentivizes abuses of power. In the 2006 Inspector General’s report, documented misconduct involved everything from bribery to the selling of fraudulent identification documents to serious civil rights violations.¹³⁵

The incentives for corruption have only become exacerbated by the escalation of border security resources and projects. Up until the early 1990s, in response to an increasing supply of border smugglers or “coyotes,” the coyote use rate had been on a general decline since about 1965. After 1965, the growth of transnational transportation networks, free entry into the industry by experienced migrants, and the expansion of the illicit drug trade all contributed to the increasing supply of coyotes and a subsequent drop in their rental fees.¹³⁶ With the onset of rapidly expanding border security efforts after 1992, however, the demand for smugglers as well as their use rates began to increase exponentially. In particular, unauthorized migrants were forced into more remote and dangerous regions of the desert and IIRIRA legislation in 1996 increased criminal penalties for smuggling. Thus, for example, as noted by the GAO in 2000, between FY 1997 and 1999, “the number of apprehended aliens smuggled into the United States increased nearly 80 percent.”¹³⁷ And on average, the coyote use rate swelled from a historic low of $150 in 1990 to $525 by 1998.¹³⁸ As a logical following, with the costs of illegal migration rising in tandem with the continuing escalation of border fortification, in the future, it is reasonable to expect unauthorized entrants and coyotes to be willing to offer larger bribes to immigration enforcement officers.

But higher migration costs imply more than increased incentives for corruption; they also reduce the probability that an undocumented Mexican resident will return home. As we have already discussed, people from developing nations, including Mexico, often desire to gain a reasonable amount of capital in a developed country such as the U.S. and then afterward return to their homeland. Stated more simply, most Mexican migrants ideally want to move and/or work in America only temporarily. While the continuing militarization of the border does not increase the cost of migration to the point where it is uneconomical, it does increase it “both in practical and monetary terms.”¹³⁹ First, since 1993 the probability of being seriously injured or killed during the trek northward has more than doubled. Secondly, the more heavily fortified border has forced more people to seek the aid of coyotes, driven up coyote use rates, and made navigating the relatively more difficult desert terrain longer in duration, all of which increase the out-of-pocket costs of border crossing.¹⁴⁰ These two factors have profoundly influenced the probability of Mexican return migration. For example, “By 1998 the annual probability of return migration had fallen to just .10, some 70 percent below the 1990 figure.”¹⁴¹ At least in this respect, the expanding efforts of the USBP have done a better job at keeping unauthorized entrants in the country than forcing them out. Rather than return to Mexico after a period of work in the U.S., as numerous unauthorized immigrants had done for decades before the early 1990s, many would now rather remain in the country than have to brave a dangerous and uncertain repeat journey.

For all of the political success some government officials have experienced by campaigning on a platform predicated on bolstering border security, the public debate over how best to impede the “alien invasion” has missed the more fundamental issues almost entirely. While terms such as “immigrant flood” or “alien invasion” have helped to fabricate an “immigration crisis,” such rhetoric represents a vast misinterpretation of the problem. Although a concentration upon visibly fortifying our borders addresses the center point of the unauthorized immigrant supply, it also inhibits policymakers from recognizing the relatively more important demand side of the equation. Moreover, it has caused the political conversation to completely gloss over the “push” factors present in migrant sending societies. In the words of Peter Andreas, “Left out of [the immigration debate is] the anemic condition of workplace controls, the economic reliance of key sectors of the California economy (particularly agriculture) on illegal foreign workers, and the fact that 40-50 percent of the authorized immigrants in the country [have] not entered illegally but simply overstayed their visas.”¹⁴²

If America plans on maintaining its commitment to help Mexico merge with the rest of the developed world, then politicians are going to have to realize that free trade and tight migration controls are mutually exclusive. In essence, short of sacrificing diplomatic relations and completely militarizing all of its borders, the U.S. will ultimately remain an open society. If someone of reasonable means wants to enter the country desperately enough, he or she will probably gain entry. Hence, for America to simultaneously pursue its economic and security interests, some type of temporary worker program will have to be created, and technologically innovative internal security measures will need to be implemented.

Workplace Enforcement and Labor Laws: The Tragedy of Employer Sanctions

Under IRCA, employers who fail to obey the employment verification process are subject to audits as well as civil and administrative fines. Employers must properly complete, retain, and if necessary present for inspection, employment verification (Form I-9) for each of their workers, or else face fines ranging from $110 to $1100 per mishandled I-9 form.¹⁴³ Pursuant to the enactment of IIRIRA in 1996, however, so long as employers put forth a good faith attempt to properly handle their employees’ I-9 forms, they will not face administrative or criminal penalties.¹⁴⁴ Subsequently, employers no longer need to inspect the authenticity of documents, and thus they bear minimal risk when hiring illegal immigrants. Even though IIRIRA greatly limited ICE’s ability to prosecute employers for improperly managing the employment verification process, ICE can still sanction employers who knowingly hire or continue to employ undocumented residents. Businesses can face fines up to $11,000, and employers who engage in a pattern of hiring or continuing to employ unauthorized alien workers can be held criminally liable.¹⁴⁵

One of the main problems plaguing the employment verification process is its vulnerability to fraud, which, in part, is the result of the IIRIRA provision that only requires employers to put forth a “good faith” effort to comply with statutory and administrative procedure (henceforth referred to as “the ‘good faith’ clause”). Employers have little incentive to ensure the authenticity of documents, and both workers and employers often become confused when determining if all of the required documentation has been provided. A second reason for the difficulty stems from the immense number and variety of documents accepted to establish identity and work eligibility. In accordance with a 1997 interim rule that amended IRCA, workers have the ability to choose from a registry of 27 documents acceptable for employment verification. From the list of acceptable forms, applicants can choose to present one document which establishes both work eligibility and identity (e.g., U.S. passport), or they can submit two documents, one establishing work eligibility (e.g., Social Security card) and one establishing identity (e.g., driver’s license).¹⁴⁶

Both the U.S. Commission on Immigration Reform and Richard M. Stana, Director of Justice Issues at the GAO, have noted the widespread availability of fraudulent documents.¹⁴⁷ For example, between October 1996 and May 1998, “INS data showed that about 50,000 unauthorized aliens [...] used 78,000 fraudulent documents to obtain employment.”¹⁴⁸ While some unauthorized residents commit identity fraud (misappropriation of valid documents), most purchase counterfeit documents from local distributors (document fraud). In 1997 a major supply source for fraudulent papers was discovered in Los Angeles, resulting in the seizure of more than two million counterfeit documents, including INS permanent resident cards and Social Security cards, all headed for various distribution points around the country.¹⁴⁹ As a price reference, Richard Rogers, head of the INS in Los Angeles, reported in 1997 that a packet containing a Social Security card and permanent resident card, one sufficient for an employer to use as verification, could be purchased on the street for as little as $50 or $75.¹⁵⁰

Under IRCA’s antidiscrimination provisions, employers are prohibited from demanding a prospective employee to present specific documents from the list of 27 acceptable identification forms. In light of this stipulation, IIRIRA’s “good faith” clause, and the large number and variety of documents acceptable for employment authorization, the U.S. government has created enormous demand for phony papers. Alien workers can easily and cheaply obtain counterfeit or stolen employment documentation that will likely be accepted by most employers.

In general, the government needs a more reliable mechanism for verifying a person’s employment eligibility. In order to reduce identity theft and document fraud, it would seem that the number of forms that job applicants can utilize to establish work eligibility must be reduced. If undocumented immigrants continue to have the ability to acquire employment in the U.S., then large incentives for Mexican nationals and other residents from developing nations to emigrate illegally will remain. Even if, in accordance with the arguments presented in this work, some type of large-scale temporary worker program is instituted, its effectiveness will be reduced if migrants maintain the ability to circumvent bureaucratic procedures for employment authorization.

It has long been readily apparent that the current system of employer sanctions and work authorization is broken. ICE does not have a formal interior enforcement strategy but rather has assumed the broad, objective-based approach practiced by INS (see Appendix I).¹⁵¹ The bureau within ICE that is responsible for auditing and investigating employers is called the “Office of Investigations” (OI). It has six primary objectives, which include: “deterring, dismantling, and diminishing the smuggling and trafficking of aliens; responding to community complaints about illegal immigration; minimizing immigration benefit fraud; and removing employers’ access to undocumented workers.”¹⁵² Of all of OI’s responsibilities, it ranks its program to deal with work authorization and employer sanctions as the least important. Furthermore, after the terrorist attacks of September 11, 2001, OI shifted its resources and investigatory practices toward the targeting of critical infrastructure sites, which include such entities as power plants and airports.¹⁵³ Undoubtedly, this was more of a national security measure and less of an effort to deter the unauthorized migrant flow.

In FY 2007, President Bush requested a measly $1.5 billion in appropriations for OI’s budget,¹⁵⁴ a pittance in comparison to the $10.4 billion spent in FY 2006 on border security initiatives. A substantial portion of the funding will go towards the Compliance Enforcement Unit, a division of OI that is responsible for identifying, locating, and apprehending aliens who have violated the terms of their admission.¹⁵⁵ As a result of this and OI’s numerous goals, resources are spread thin, and worksite investigations will subsequently receive very minimal funding.

OI consistently completes only a small number of worksite inspections and rarely implements any penalty on employers. In FY 1998, for example, before the government shifted towards auditing critical infrastructure sites with greater frequency, INS completed only 6,500 worksite investigations, “which equated to about 3 percent of the estimated number of employers of unauthorized aliens.”¹⁵⁶ By 2003 this figure had dropped to slightly above 2000 audits, and of those employers who were investigated, only 124 of them received a fine (see Appendix II).¹⁵⁷ Thus, what John Shaw, the assistant INS commissioner for investigations, commented in 1993 seems equally applicable today: “There are 7.2 million employers out there. In their lifetime, they’re never going to see an immigration officer unless they stand up and scream that they’ve got a factory full of illegal aliens.”¹⁵⁸ Given the ineffective use of audits and fines by ICE, the ease of attaining employment with fraudulent documentation, and the concomitant increase in unauthorized migration in recent years, the employer sanctions regime has done nothing to rein in the influx of undocumented migrants.

But the enforcement of employer sanctions is only half of the story. Employer sanctions and labor laws are intimately intertwined. Any discussion of the former would be incomplete if it did not mention the exploitation of unauthorized workers at the hands of crooked employers.¹⁵⁹ Under IRCA’s antidiscrimination provisions, an employer with four or more workers cannot make an adverse employment decision based upon a person’s “real or perceived citizenship or immigration status.”¹⁶⁰ So long as job applicants complete their I-9 forms and present identification and work eligibility documentation in accordance with IRCA, all candidates for employment must be treated equally. Surely an employer could notify ICE if he suspects one of his employees has presented fraudulent documentation, but the employer cannot wield his suspicions in the form of threats, blackmail, or discrimination.

The employer sanctions regime codified by IRCA, and amended by IIRIRA’s “good faith” clause, creates large incentives for employers to hire low-skilled, undocumented residents who are subsequently paid sub-minimum wage salaries. Businesses hire unauthorized immigrants in order to reduce their costs of doing business; these workers will often accept an hourly rate below minimum wage and will rarely complain when working conditions, including safety standards, are of poor quality. By requiring firms to fill out and retain I-9 forms for all of their employees, IRCA emplaced upon employers a “significant paperwork burden that dramatically raised the costs of hiring.”¹⁶¹ As a result, a portion of these costs are often transferred to employees, citizens and noncitizens as well as the documented and undocumented, in the form of lower wages.

IRCA also caused many of the industries characterized by high turnover, including agriculture and construction, to move to a pattern of indirect hiring through labor subcontractors.¹⁶² Subcontractors are little more than middlemen who, in exchange for a fee, remove employers’ burdensome paperwork requirements and thereby insulate them from liability under the law. In theory, subcontractors help workers obtain employment by contractually linking them to employers for a set period of time at a predetermined wage. But since workers are technically employees of the subcontractor and not the firm, employers are immune from sanctions by ICE. As indirect hiring increasingly became the norm in some industries, “it was imposed on all workers regardless of legal status or citizenship.”¹⁶³ The end result has been reduced wages and poorer working conditions for employees in industries such as agriculture, gardening, construction and custodial services.¹⁶⁴ Undocumented workers saw their average wage decline from $4.10 per hour in 1980 (before IRCA) to $3.90 per hour in 1993 (after IRCA). Similarly, the averages wage for documented workers declined from about $6.75 per hour in 1980 to approximately $4.00 per hour in 1993.¹⁶⁵

But even when employers knowingly hire undocumented migrants, it is easy for them to demonstrate to ICE officials that they put forth a “good faith” effort to comply with the employment verification process. These unscrupulous managers will frequently mistreat their unauthorized workers, exerting abusive control over them by continuously threatening to notify ICE of their unlawful presence in the U.S. As Jennifer Gordon comments:

In practice, employer sanctions empower employers to terrorize their workers. Frequently, employers in the underground economy ignore sanctions or accept false documents when they hire their workers. Later, when immigrants attempt to organize or otherwise defend their rights, employers suddenly "realize" that they must comply with employer sanctions, and fire anyone who cannot provide valid documents to fill out an I-9 form. If the immigrants press matters any further, employers often threaten to turn them in to the Immigration and Naturalization Service.¹⁶⁶

Similar to the practices of certain other industries, employers of unauthorized migrants are willing to absorb fines as part of their normal operating costs of doing business.¹⁶⁷ But considering that it is easy to appear in compliance with IRCA while still knowingly hiring undocumented residents, and given the breathtakingly low number of audits and fines administered by ICE, it would seem that IRCA unwittingly welcomes and incentivizes corruption and exploitation.

These perverse incentives are codified and reinforced by U.S. case law. In Hoffman v. National Labor Relations Board (NLRB), the Supreme Court condoned the right of employers to retaliate against the unionizing efforts of their undocumented workers by means of laying them off and notifying ICE.¹⁶⁸ Under the National Labor Relations Act (NLRA), an employer cannot terminate an employee’s contract in response to his or her unionizing activity.¹⁶⁹ The typical remedy for a worker who has suffered as a result of unfair labor practices is back pay or reinstatement.¹⁷⁰ In delivering the majority opinion in Hoffman, Justice Rehnquist asserted “that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA.”¹⁷¹ According to Sure-Tan, INC., v. NLRB, undocumented workers are still afforded limited coverage under the NLRA,¹⁷² but even if their termination resulted from violations of the NLRA, they have no legal entitlement to back pay or reinstatement. More importantly, pursuant to Hoffman, ICE still retains the right to deport unauthorized workers it has located solely through the “self-reporting” of employers. In other words, in response to the unionizing efforts of undocumented workers, a business will often inform ICE of its own unauthorized workforce. Even though this still violates the NLRA, at worst, “the employer would be required to post a notice to employees stating that the employer violated the NLRA.”¹⁷³

Although Justice Rehnquist believes that allowing the NLRB to award back pay to undocumented residents would “trench upon” IRCA, the Hoffman decision only further incentivizes unauthorized migration. Many employers, at little risk to themselves, can now reduce their bottom line by paying sub-minimum wage salaries to undocumented workers; both the American and foreign-born labor force suffer as a result. While domestic workers are crowded out of low wage occupations by foreigners, undocumented migrants are left susceptible to exploitation. In discussing IRCA, the House Judiciary Committee made it abundantly clear that its intention was not to leave undocumented workers vulnerable to abuse:

It is not the intention of the Committee that the employer sanctions provisions of the bill be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by existing law.¹⁷⁴

In a similar vein, Justice Breyer recognized the possible confluence of labor and immigration law in his dissenting opinion in Hoffman. Rather than interfere with the implementation of immigration policy, a limited right to back pay for unauthorized immigrants “reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent,” he comments.¹⁷⁵ Without a reconciliation and overhaul of labor law and immigration law, undocumented migration will continue in its current, largely unregulated form, and unauthorized workers will remain vulnerable to unscrupulous employers.

Employers will always be able to exercise a considerable amount of control over their workers, and thus, it is the government’s responsibility to ensure that all businesses maintain working environments that meet applicable legal standards. In this pursuit, there is simply no replacement for worksite inspections that analyze working conditions and employers’ labor practices. Nonetheless, even if worksite inspections stimulated many firms’ business procedures to measure up to the law, the employee verification process would still remain vulnerable to fraud. Currently, since employers are the “first line” of authority screening a prospective worker’s employment eligibility, they retain perverse incentives to exploit their employees. One way to help remedy the fraud and worker exploitation problem would be to find a more technologically sophisticated and reliable manner in which to verify a person’s eligibility for employment. Ideally, this system would prohibit employers from participating in the employment verification process, subsequently removing their ability to discriminate against unauthorized workers. Furthermore, the quintessential verification system would streamline current procedures while adequately negotiating the tradeoff between privacy and reliability.

Already, the Basic Pilot Program, a project implemented by IIRIRA, has shown considerable promise. The Basic Pilot Program was one of three voluntary pilot programs launched under IIRIRA mandate to test electronic means for employers to verify the employment eligibility of their employees.¹⁷⁶ Due to “technical difficulties and unintended consequences,” the other two pilot programs–the Citizen Attestation Verification Pilot Program and the Machine-Readable Document Pilot Program–were terminated by DHS in 2003.¹⁷⁷ In accordance with a 2002 Congressional order, DHS expanded the Basic Pilot Program to be available in all fifty states.¹⁷⁸

The Basic Pilot Program works by having employers query a website with information obtained from an employee’s completed I-9 form, such as name and social security number.¹⁷⁹ Information is then electronically matched against Social Security Administration (SSA) databases, and if necessary, DHS databases. Employers are electronically notified if their employee’s work authorization was confirmed, and if the individual could not be electronically verified, his or her information is compared by USCIS staff to other DHS databases. For an employee who was not verified either electronically or by USCIS staff, an employer is issued a tentative non-confirmation, and the employee has the right to contest the non-confirmation within eight business days. During the eight-day period, employers cannot take any adverse action against the non-confirmed employee. If, at the end of the period, the worker remains unverified or has failed to contest the non-confirmation, the employer must either immediately terminate the employee or notify DHS of his or her continued employment.¹⁸⁰

The Basic Pilot Program is certainly not perfect. In particular, the SSA estimates that approximately 4.1 percent (17.8 million) of its files contain some type of discrepancy.¹⁸¹ This means that that the electronic system might produce false negatives (e.g., incorrect determinations of ineligibility for employment authorization) for some individuals. While the program can identify if an employee has provided counterfeit documents, it cannot yet detect identity fraud.¹⁸² Furthermore, permitting employers access to a system with sensitive information could create a new black market for identity theft, incentivize violations of individuals’ privacy rights, and result in widespread discrimination based upon tentative non-confirmations.¹⁸³ Finally, without significant modifications that would make the database more accurate and reliable, the estimated annual cost to implement the program nationally could be as high as a hefty $11.7 billion.¹⁸⁴

Of course, no employment verification system will be failsafe, and while these difficulties may seem insurmountable, with sustained effort and increased funding for the Basic Pilot Program, each could be more or less resolved. For system reliability to increase, SSA must undergo the tedious process of gathering information from individuals whose files contain a discrepancy and then update the system. Ideas to guard against identity fraud include adapting the program to include digitized photos.¹⁸⁵ And most importantly, employee discrimination and the incentives to commit identity theft would be significantly reduced if the electronic verification process were moved outside the jurisdiction of employers.

In other words, immediately after being hired for a job, a worker would be required to provide pertinent information to a third party who managed the electronic verification system. Then, a certain number of days later, over a secure, possibly encrypted network, DHS would provide the employer with either a final confirmation or non-confirmation for each applicant.¹⁸⁶ If the employer did not receive verification from DHS within the given time frame or received a final non-confirmation, then he or she would be required to discharge the employee or notify DHS of the worker’s continued employment. By franchising the process out to a third party, employers would no longer be able to knowingly hire undocumented immigrants and afterward claim otherwise. And since employers would not be able to remain complicit in the hiring of unauthorized residents, workers who presented fraudulent documents for verification would encounter a greater risk of having their immigration status discovered by DHS. Thus, not only would the demand for undocumented workers be significantly curtailed, but employers would be hard pressed to find workers who they could exploit with impunity.¹⁸⁷

Although all of these suggestions require further cost and feasibility analysis, the current employer sanctions and employment authorization system is little more than a bureaucratic charade and waste of government resources. It is burdened by rampant document fraud and presents an inconsequential obstacle to migrants seeking to gain employment in the U.S. It has crowded out domestic workers from certain unskilled occupations and has resulted in the exploitation of myriads of undocumented residents. A modified version of the Basic Pilot Program, if applied on a mandatory basis in all fifty states, could help to solve some of these problems. Yet, as the National Immigration Law Center correctly points out:

Any mandatory employment eligibility verification system has no real chance of succeeding unless it also is accompanied by (1) a comprehensive opportunity for currently undocumented noncitizens to earn legal status; (2) a realistic opportunity for future immigrant workers actually to be covered by the same employment rights that apply to other U.S. workers; and (3) vigorous, status-blind enforcement of our nation’s labor and employment laws for all workers.¹⁸⁸

If immigration reforms continue to be executed in piecemeal fashion, any new policy will likely suffer from the same, dreadful results as IRCA. The restructuring of the employment eligibility verification system, like other proposals for reform, should not occur in a vacuum.

For more than a century, Congress’s narrow-minded analyses have remained unable to recognize both the “push” and the “pull” factors that characterize transnational migration. Consequently, legislative and executive policies have been improperly and detrimentally directed towards the southwest border. Still largely left out of the Congressional debate over comprehensive immigration reform is (1) the skyrocketing death toll at the border, (2) the failure of ever-increasing border security efforts to curb unauthorized migration, (3) USCIS corruption, (4) the expansion of the black market in smuggling, (5) the counter-productiveness of employer sanctions, and (6) the poor protection of the labor and employment rights of all workers.

The undocumented migrants with a record of long-term residence in the U.S. have established deep and intricate social networks and familial ties during their time in the country. Importantly, well-reasoned social, moral, and economic arguments favor their emergence from “the shadows.” Moreover, a strong case for “strategic amnesty” can be made by reflecting upon the wholly deficient Congressional legislation that has resulted in wasted money, wasted lives, exploitation, and corruption. While these insular policies took on their most virulent form during the first half of the twentieth century, the immigration laws of today remain poorly constructed. Seemingly counter-intuitive, to reduce the migratory flow in the long-term, some type of large-scale temporary guest worker program should be launched in the (relatively) short-term. If Congress would take the time to understand that its negligent analyses and compartmentalized reforms have only addressed symptoms of the “immigration quandary” but not its root causes, then maybe it could repair our broken immigration system in a way that was consistent with the interests of all international actors.