Internal enforcement, e-verify, and the road to a national ID.

• Author: Harper, Jim

Successful "internal enforcement" of immigration law requires having a national identity system. If expanded, "E-Verify," the much-debated effort to control illegal immigration through access to employment, will become such a system, and it could easily be converted to controlling many dimensions of Americans' lives from Washington, D.C.

The neat congruence between expanded internal enforcement of immigration law and the national identification system necessary to implement it raises new questions about the advisability of worker background checks. A better approach than scouring the economy and society for people who illegally traversed the border might be substantive immigration policy reforms that are more consistent with liberty and prosperity for all.

What Is a National ID?

In past decades, gut feel and consensus have been decent barometers in debates about national identification, but it is worth defining the concept with at least some formality. Identifying people is a common and useful economic and social function, but there is a point at which the balance of power in an identity system shifts, and it no longer serves the individual's needs but binds the individual to the system by controlling access to economic, social, and political life. This is when an identity system works counter to individual liberty.

It may be possible for a private identity system to have these characteristics, but historically and in "all but the least likely future scenarios it is the coercive power of government that produces such an identity system.

The definition of "national ID" I have developed over time has three parts (Harper 2009): First, it is national. That is, it is used throughout the country and nationally uniform in the identifiers it uses and their formats. Second, its use is either practically or legally required. Things like credit cards are national, and some can be used to identify, but people can rotate among credit card systems or navigate the society without having any such card. The final part of a national ID is its use for identification. This is distinct from a national identifier such as the Social Security number, which merely attaches a number to a name. An identification system creates a high level of confidence that a particular individual, previously known to the system, has presented him- or herself once again (Harper 2006).

A system that is nationally uniform, practically or legally required, and identifying is a national identification system. In examining E-Verify and the policy trajectories of internal enforcement, the job is to watch for these three elements coming together.

The American polity has long resisted a national ID, but federal immigration policy has been trending in that direction for a couple of decades. In the 1980s, attorney general William French Smith advocated in a cabinet meeting that a national ID card should be instituted for illegal immigration control. President Ronald Reagan reportedly scoffed, "Maybe we should just brand all the babies" (Derbyshire 2001). But in 1986 immigration reform law took a modest step in the direction of a national ID with the debut of "internal enforcement" of immigration law.

A Short History of Internal Enforcement

Though many take it as a given, internal enforcement of immigration law through worker background checks is an experiment that is only a few decades old. So far, it has failed to yield much in the way of results.

The Immigration Reform and Control Act of 1986 changed the long-standing, natural rule that working in the United States depended simply on willingness and ability plus an employer willing to hire. IRCA made unlawful the knowing employment of workers who are not eligible to work in the United States under the immigration laws, and it required employers to perform cursory checks of workers' documents upon hiring them. All employers today are required to verify employees' work eligibility by collecting completed I-9 forms and by checking employees" documentation.

Ten years later, with illegal immigration continuing apace, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 sought to "improve on" the policy of internal enforcement. It required the Immigration and Naturalization Service to commence three pilot programs to test electronic verification of employees' work eligibility. Among them was the Basic Pilot Program. Basic Pilot--recently renamed the "employment eligibility verification" program, or EEV, and then renamed again, "E-Verify'--is the remaining effort to verify work eligibility electronically (Harper 2008).

E-Verify works as follows: After collecting 1-9 forms, participating employers enter the information supplied by workers into a government website. The system compares these data with information held in Social Security Administration and Department of Homeland Security databases. If the name and Social Security number pairs match to citizen data at the SSA, a worker is approved. The system compares information from noncitizens with DHS data to determine whether the employee is a naturalized citizen or immigrant eligible to work.

E-Verify electronically notifies employers whether their employees" work authorization is confirmed. Submissions that the automated check cannot confirm are referred to U.S. Citizenship and Immigration Service staff in the DHS, who take further steps to verify eligibility or to find the worker ineligible.

When E-Verify cannot confirm a worker's eligibility, it issues the employer a "tentative nonconfirmation." The employer must notify the affected worker of the finding, and the worker has the right to contest his or her tentative nonconfirmation within eight working days by contacting the SSA or DHS. When a worker does not contest his or her tentative nonconfirmation within the allotted time, the E-Verify program issues a final nonconfirmation for the worker and the employer is required to either immediately terminate the worker or notify DHS that it continues to employ the worker--confessing to a law violation.

The logic behind...