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July 14, 2011
The National Association of Former Border Patrol Officers is keenly aware of the leadership consistently demonstrated by Chairman Smith in seeking to improve national immigration policy. We believe that H.R. 2164, Legal Workforce Act, is yet another legitimate initiative in that regard and that implementation of selected provisions of the bill would greatly enhance immigration enforcement capabilities in the interior of the United States. Most notable is the requirement for the mandatory use of E-Verify.
We also believe that under Congressman Smith's guidance, H.R. 2164 may be the most significant immigration-related bill to be introduced in the 112th session. It is for these reasons that NAFBPO is grateful to have the opportunity to share our collective experience and thinking.
With regret that NAFBPO cannot support H.R. 2164 as written. In NAFBPO's view it contains two major flaws and several minor ones. One major flaw we find fatal; that flaw can be remedied with additional, simple language. The other, while serious, will not preclude NAFBPO's endorsement of the bill but it does bear mentioning because it defeats a desirable result of this bill: creating jobs for American workers now.H.R. 2164 contains much that is good, things that NAFBPO would like to see in place. Since we have complete confidence in Congressman Smith's good intentions, an explanation is due.
NAFBPO came together as a group four years ago when a small cadre of retired immigration officers realized there is no other organization with our personal and institutional recollection of what has gone before in immigration. Our knowledge is not narrowly focused solely on border issues since our membership includes retired officers who worked in every aspect of immigration enforcement and administration at every level short of Deputy Commissioner of the old INS. We recall what worked and what failed and why. Furthermore, we have absolutely no agenda beyond what we see as the national interests and those of the American people. We bring that knowledge and that attitude to this issue.
Our thinking here is shaped by what we saw in 1985 and 1986 with respect to the Immigration Reform and Control Act of 1986 (IRCA.) Hard, but seemingly-balanced compromises were struck to pass that bill. One addressed the needs of our nation for immigration enforcement (the "employer sanctions" provision,) and the other the desire to legalize an estimated one million illegal aliens. For a variety of easily-foreseen reasons the employer sanctions never proved to be the tool for control it was expected to be. However, the amnesty came to pass. It actually legalized nearly three million people by the time the last case was adjudicated, and as many as 30 percent of them gained their benefit through fraud. We all watched its passage and many of us were personally involved in its implementation. That law led to the illegal immigration debacle we now suffer from. We see a potential for parallel here.
The unacceptable flaw in this bill is the preemption language in Section 6.
''(2) PREEMPTION.-The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, insofar as they may now or hereafter relate to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens." It goes on to allow states, etc, to withhold business licenses for non-participating employers.
This language appears straightforward. One would not think, in light of the "insofar as" phrase, that it could interpreted or twisted to permit preemption of all state efforts to control the activities of illegal aliens within their borders. However, having long experience with anti-immigration control forces and the Federal courts around the nation we are not so sanguine in our views. NAFBO believes that we would soon see court cases decided calling for broad preemption of all state efforts to do what the federal government has for forty years failed to do, that is, control illegal immigration for the benefit of the people of the U.S. Those state efforts are what will eventually bring this situation under control.
NAFBPO's opposition to this bill can be resolved by including specific language saying what it does not do, that is, it specifically does not preempt any other efforts by the states to control the presence or activities of illegal aliens in their jurisdictions. There must be no room for any other interpretation of Congressional intent.
As an aside, we note the call by the U.S. Chamber of Commerce for federal preemption to provide a uniformity of law across the country in this respect. Their stated desire is that it be so for the sake of their members who operate in several states. This argument appears to be a straw man, or at least it does not stand up to analysis. Any company that wants a common policy can adopt one that will satisfy every state, that is, run all new hires through the E-Verify system.
Our other grave reservation about this bill is that it does not call generally for verification of persons already employed on the effective date of the law. Couple that with the long lead times for implementation and there is a huge (now) and growing population of illegal aliens who will not be reached by the law's effect. They will continue to occupy jobs that ought to be opened up for American workers now, or at least as soon as possible.
The bill acknowledges the need for some sort of check of existing employees. It calls for the Social Security Administration to begin issuing "no-match" letters to employers where there is an apparent mismatch between the Social Security number submitted with a wage statement and the name of the legitimate holder of the account. That provision appears to deal neatly with the problem of illegal aliens working with improper numbers. However, NAFBPO believes that in short order there would be lawsuits and that, as has happened before in exactly this connection, a Federal judge sympathetic to the arguments in opposition would enjoin the practice of no-match letters. Thus the existing and enlarged population of illegal aliens would remain immune to detection.
NAFBPO believes that if the existing schedule for implementation of the law were adjusted to be a schedule for verifying all employees who have not been run through the E-Verify system yet we would see a rapid creation of job openings as illegal aliens left the workplace on their own. American workers would fill those jobs, as has been demonstrated at nearly every place Immigration and Customs Enforcement has conducted an employer sanctions operation. The long period permitted for verifications of existing workers would have the additional advantage of gradualism in replacing the illegal workers weeded out and those who leave on their own.
We close by saying that this bill induces a strong sense of déjà vu in all our members; we see 1985 all over again. While NAFBPO does not doubt its good intentions H.R. 2164 contains the seeds of failure of implementation, and there is too much riding on its success to gamble that it will fail.
If we seem suspicious, even fearful, we are. Should H.R. 2164 become law it can be offered up by the administration as "proof" that the magnet of jobs has been removed from the reach of illegal aliens, and thus the interior of the country is under control. That, coupled with this administration's demonstrable false claims that the border, too, is now under control lays the groundwork for a move to legalize the many millions of aliens here illegally. Because this bill is so fundamental to the success of the overall issue of immigration control it must be ironclad against being eviscerated by a hostile administration, bureaucrats, and courts. It is not yet there.
NAFBPO thanks the Congressman and the committee for giving us the opportunity to contribute to the debate.