By William Kovacs
When I started writing Part II of “Learn from the Left”, it was a theoretical article explaining how citizens concerned with illegal immigration could use existing law to reduce it. Then when the horrific murder of a college student in Iowa by an illegal immigrant occurred, the article went from theoretical to suggesting legal ways in which citizens can push government into addressing illegal immigration and perhaps even prevent another murder. The focus must be on the employer who accepts fake documents. While federal law allows employers to merely look at the face of the document without questioning it, we citizens can petition the federal government to impose, by regulation, the E-Verify system that requires the employer to check an applicants’ credentials against a federal data base to determine if the applicant is authorized to work in the United States, something that was not done by the employer in Iowa.
The business community detests having to use the E-Verify data base since it eliminates cheap labor, which is the sole reason E-Verify is not mandated by the immigration laws.
This article will focus on how ordinary citizens, who believe that lives are more important than profits, can impose E-Verify on the business community without disturbing a worthless Congress. Part I of this series illustrated how the Left, over decades expanded the reach of our environmental laws without Congressional action by using the courts and petitioning agencies to expand existing statutes and create new laws.
If citizens are concerned about the current open borders crisis due to a sham immigration law, they need to learn from the Left how to use the courts and the agencies to make law without Congress’ involvement.
Between 1986 and 1996 Congress enacted three immigration laws that set a pathway for citizenship for the 2.7 million illegals already in the country and enacted a weak law regarding the future employment of illegal aliens or “unauthorized workers” as the statute calls them. Specifically, Congress established a statutory scheme for the regulation of unauthorized workers that contains civil, criminal and administrative penalties. While the congressional scheme requires employers to verify the identity and employment authorization of each person hired after November 6, 1986, it only requires the employer to undertake a facial review the applicants’ documents, i.e. if the document looks real on its face, the employer does not have to examine it further, and in fact cannot examine it further or ask for additional documents for fear of being sued by the worker for discrimination.
In the Iowa murder the employer did just what the law demanded, he did not question fake documents and did not check with E-Verify. Therefore, in the real world of employers wanting cheap labor our federal laws allow them to hire unauthorized workers that provide documents that appear to be issued by some government agency.
It is within this context Americans can take a few simple actions to move a calcified government. Citizens need to put pressure on the system to protect us. The New York Times, provides guidance in a March 20, 2017 editorial which states “…the strongest magnet that has drawn millions of immigrants, legal or not, to the United States for generations: jobs.” A few paragraphs later it tells us where to apply the pressure:
“The main reason: Employer enforcement has been spotty, giving rise to the institutionalization of a wink-and-nod approach to hiring unauthorized workers. The government has sanctioned and prosecuted relatively few employers, because proving that employers willfully hired undocumented workers is hard and because powerful industries have pushed back on initiatives to hold employers accountable.”
This is the roadmap! Since employers get the economic benefits from hiring illegal workers, any effort to change the system requires pressure be applied to the employers. And the law allows us to impose that pressure. Options include petitioning for new regulations and bringing lawsuits against employers that rely on unauthorized workers.
Citizens can petition the Department of Justice for new regulations that will prohibit the use of certain documents if the Attorney General finds the documents are being used fraudulently. According to the Washington Times the alleged Iowa murderer used a driver’s license and a Social Security card, two documents that can easily be created by teenagers wanting a beer. And still it is not even known what name was on these documents.
Citizens need to demand the Attorney General initiate a rulemaking that determines the reliability of the documents like a driver’s license or Social Security card to prove identify and work status. If they are not reliable then the Attorney General can require, by rule, employers to do more than undertake a facial examination of the documents. If the Attorney General finds such documents can be falsified, he or she can mandate the use of documents more difficult to falsify.
Second, citizens should demand the President use his authority under immigration laws to monitor and evaluate the degree to which the employment verification system provides a secure system to determine employment eligibility. If the President’s review finds the current process for determining unauthorized employees is not secure, the President can change the rules by converting E-verify from pilot to a permanent solution by reporting the changes to Congress and seeking appropriations to implement the changes.
Also, the immigration laws allow citizens and entities to file written complaints respecting potential violations of the Act and the Attorney General is required to investigate those complaints that have substantial probability of validity. Government needs to work for us and the entire business community, at a minimum. should adopt EVerify. Finally, the Racketeer Influenced and Corrupt Practices Act (“RICO”), authorizes persons injured in their business, through a pattern of two or more racketeering activities, which affect commerce, (including fraud relating to identification documents, procuring citizenship unlawfully, reproduction of citizenship documents, false statements in citizenship applications, misuse of visas), to file a lawsuit against an employer that knowingly accepts false documents and seek treble damages, court costs and reasonable attorneys’ fees.
This path may seem ruthless but if businesses using American workers have to compete with businesses hiring cheaper unauthorized workers, we should use RICO to take on businesses that put profits over American lives.
The Left uses these tactics on a regular basis, it is now time ordinary citizens start to fight for their rights. If our government will not protect us, we need to challenge it and the business community, to protect our lives and legal rights as citizens.
William L. Kovacs was active in national policy issues for over forty years, serving as a senior vice president for environment, technology & regulatory affairs for a major business trade association, a chief counsel on Capitol Hill, chairman of a state environmental board and a partner in several Washington, DC law firms.