Worksite Raids and Immigration Norms: A 'Sticky' Problem
Marquette University - Law School
May 21, 2009
Marquette Law Review, Vol. 92, p. 591, 2009
Marquette Law School Legal Studies Paper No. 09-21
In devising an effective immigration regulation strategy, it is critical to distinguish the ends from the means. Adam Cox and Eric Posner identify two distinct issues that shape immigration regulation. The first are policy decisions, so-called “first-order” issues. Here, the government makes decisions regarding the quantity and type of admissible immigrants, as well as the terms of their admission. Next are the institutional design questions, or “second-order” issues. Here, the government makes decisions regarding the institutional and regulatory systems that count, sort, and screen immigrants. Too often, however, the government fails to distinguish between first- and second-order issues; that is, the ends become blurred with the means. The consequences of this perceptive failure are cyclical. First, second-order design flaws go unnoticed, or at least, under-analyzed. Instead, the government equates a lack of results with lax enforcement. The government inevitably “solves” this problem with more aggressive or intrusive enforcement of the flawed second-order systems. The resulting “solutions” do not remedy the real second-order design flaws, but instead perpetuate or even aggravate the existing ones. Indeed, such a perceptive failure is likely occurring today with the government’s employer sanctioning laws. Widespread failures are attributed to fraud and “remedied” with aggressive enforcement practices.
This Comment suggests that one of the unnoticed design flaws of the current employer regulation regime is that it runs counter to social norms. For years, the government has considered fraudulent documents to be the greatest cause of unauthorized employment in America, but perhaps they are not. Because of fraudulent documents, many employers cannot follow the law even if they want to because they cannot tell legal workers from illegal ones. Perhaps the more significant reason is that many employers have adopted pro-illegal immigrant norms. Such norms would undermine the enforcement of immigration laws in several ways. Critically, they could fuel a backlash against an aggressive antifraud campaign, which is exactly the direction in which current policy is headed.
Number of Pages in PDF File: 26
Keywords: immigration, illegal immigrant, immigrant, document fraud
JEL Classification: K19, K29, K31, K42Accepted Paper Series
Date posted: May 22, 2009
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