Preserving Citizen Rights for Present and Future Americans Under Immigration Reform

by Richard Sobel

In pursuit of good public policy, immigration reform needs to be based on fairness, enforcement of existing laws, increased legal immigration limits, an appropriate guest worker program, and clear paths to citizenship. It should not be the excuse for imposing a national identification and surveillance scheme on all Americans, mainly through what is called “E-Verify.”

Recognition of the beneficial aims in the immigration debate must not obscure that “E-Verify” constitutes what  Hoover senior fellow John Cochrane calls the  monster lurking in proposed immigration reform.”[1]  Reform must address immigration without deforming the rights of citizens and those who aspire to join them in a free society.

Since  95% of the U.S. labor force are American citizens and permanent residents, the focus on enforcement needs to be on the workplace and the 5% who might be “undocumented” (half  of whom were admitted legally, hence “documented,” and overstayed their visas).  A national ID and surveillance system meant to find an undocumented 2-3% should not be imposed on the 100%, almost all of whom are American citizens. That vast violation of rights also produces a monstrous waste of resources.[2]

Yet national ID and surveillance systems are embedded in Comprehensive Immigration Reform (CIR) in both the Senate bill and House equivalent. Shorthand for the real monster is E-Verify as a mandatory electronic permission scheme. Under its rules, every American will be forced to ask the federal government for approval in order to work.

The bills actually creates three types of national identification systems, linked to international data sharing networks.

The first part requires American citizens to have their digital photographs in a Department of Homeland Security database. Capturing passport photos and state driver licenses pictures, the DHS database copy would have to match the ID photo on the original document, using an expensive facial recognition “photo tool” employers would likely have to buy. A second provision for immigrants and permanent residents requires additional biometrics, like a fingerprint, in the DHS database. These pictures and finger prints all have to be digitized for “interoperable” transmission to both national and international governmental and intelligence agencies.[3]

Third, the bipartisan comprehensive Senate bill (S 744) and House Democratic counterparty (HR 15) mandates a high tech Social Security card system,  with a biometric photos for citizens and immigrants likely. Moreover, standalone bills like the Legal Workforce Act (HR 1772) or Accountability Through Electronic Verification (S. 202) impose E-Verify universally without any immigration reform.  So even if the immigration part failed, Americans could still be permanently bridled with a national identification  system through a national labor ID card.

After a myriad of database breaches, government website hackings, and the failures of the Affordable Care Act’s insurance exchange launch online– meant to service tens of millions of individuals — citizens will have to ask themselves: Are they confident in the federal government’s ability to run an employment verification system that repeatedly checks on a labor force of over 150 million American workers? A one-percent error rate could leave 1.5 million Americans out of work for an indefinite period.

Such identification systems are broadly unconstitutional.  American citizens have among their privileges and immunities the inalienable right to take employment without government permission.  Since  the nineteenth century the U.S. Supreme Court has affirmed “occupation as a fundamental right of citizenship,” and “the right to follow any of the ordinary callings of life” as “a distinguishing privilege of citizens of the United States.”[4]  No verification system can be permitted to destroy that right.

Comprehensive immigration reform undermines federalism, too, by imposing E-Verify and Real ID national driver’s licenses on the half to two-thirds of the states that have refused to participate in either or both programs. Illinois even outlawed the use of E-Verify until the federal government sued. Like the standalone E-Verify bills and “Pass-ID” proposals, CIR resurrects these two moribund ID systems many states have rejected.  Similar to  the expansive provisions in the Patriot Act, NSA surveillance, and TSA background “pre-checking,” the E-Verify monster Cochrane decries will mission creep into a bureaucratic morass, verifying or denying far more than work rights.[5]

Comprehensive reform, E-Verify, and Real ID would also undermine religious accommodations for millions of the faithful who oppose mandatory biometrics like digital photos on their licenses as contrary to Scripture.  At a time when states are providing driver’s licenses for undocumented residents, CIR would remove the non-photo license religious exemptions in over 20 states for a range of denomiational adherents, many of whom believe that the Biblical punishment for biometric enrollment  is eternal damnation. A previous attempt to create a national ID through immigration reform and control was derailed when Hoover senior fellow Martin Anderson reminded President Reagan of the religious ramifications of the misguided effort.[6]

While occasional op-eds and articles have identified parts of the national ID system in CIR,[7] most media, politicians, and some civil liberties organization have ignored or underplayed the threats. Few newspapers and no networks have reported on these national and international ID systems. And no article or series has yet adequately covered the details or implications of these major ID systems and threats. Entrepreneurial editors and reporters need to correct this lapse quickly and widely at award-winning quality.

The sponsors of the Senate bill have underplayed the unpalatable nature of these systems. Gang of 8 member Senator Richard Durbin (who earlier opposed Real ID) acknowledged in Chicago in July that particular provisions are unpalatably  objectionable: “Parts of this bill that I would never vote for individually, but if the alternative is to put the bill down, OK, I’ll swallow hard and do it.”[8]

E-Verify as a  “comprehensive” part of immigration reform is unconscionable. E-verify as a substitute for immigration reform is incomprehensible. E-Verify passed fast to “do something” about immigration is reprehensible.

The simple solution is to get national ID systems out of any  bills and to focus on the effective and humane reform of immigration policy. The intrusions and constitutional infirmities of these ID schemes subvert the bases of democracy and freedom. National ID systems replace “government by consent” with the federal government bestowing or  denying permission to exercise fundamental rights.

Not only is E-Verify constitutional deficient, it does not constitute immigration reform. Instead, the elements of effective reform need to include legal options to address workforce supply and demand through reasonable legal immigration levels and fair-to-all guest worker programs.[9]  Enforcing the Fair Labor Standards Acts at the workplace can keep jobs decent for everybody and prevent employers who would ignore any electronic verification anyway from exploiting documented or undocumented workers. Legislation like the Dream Act can provide quicker paths to citizenship for those contributing to society.  A fair and viable guest worker program can complement long-term paths to citizenship with reasonable border security.

Reforming immigration and targeting enforcement reduce the imperative for employer verification. Simpler and constitutional forms are low tech and local.  Citizens can be asked to attest to their citizenship.  As in previous citizenship attestation programs, a citizen offered a job can take it directly. Someone falsely attesting would face serious sanctions.[10]

As the Wall Street Journal reported, legislators know there are also low tech, low cost, and local alternative to national ID systems for immigrants. Forms could ask “questions about previous addresses or other details” like employment histories that can be checked through public sources.[11]  Those who cannot provide past records can be asked for more details. The forms would be kept at the workplace subject to audit, not centralized into an international identification system.

Media opinion makers, political leaders, civil liberties advocates, and other Americans need to speak up that national ID systems, cannot be part of any immigration (or any other) bill. Ignoring the E-Verify monster, which could require even citizens  to have the equivalent of a “green card,”  or pretending it isn’t part of an expansive international surveillance system won’t make it better. Vociferous criticism —from liberals to libertarians–can remove national ID systems from the bills, and force the creation of beneficial and constitutional alternatives. Anything less will demean the constitutional imperative to “preserve the benefits of liberty to ourselves and our posterity.”

Immigration reform is an important and attainable goal.  But it must be based on targeted and effective policy, and not include national or global ID schemes that demean citizenship to second class status for both present and future Americans. Universal E-Verify, DHS Databases, and National IDs—from Worker IDs to Social Social and Health Care Security cards–must all be rejected.  Advancing free society, upholding American ideals, and sustaining U.S. citizenship must remain the mighty milestones on the road to any reform.

Richard Sobel is a A visiting scholar at the Hoover Institution , and an associate of Du Bois Institute at Harvard, and director of Cyber Privacy Project, Richard Sobel works at the intersection of international relations and domestic policy, particularly constitutional issues. His recent publications include Public Opinion and International Intervention and “The Right to Travel: A Fundamental Right of Citizenship.”