DRAFT 2/11/13
Re: Immigration Reform that Does Not Deform Citizenship and Basic Rights
Dear President/Senator/Representative:
The U.S. needs workable and suitable immigration policies that address both authorized and unauthorized immigration in sensible ways. A reliable immigration program will strengthen American society and the American economy, but will also respect the rights of American citizens and those aspiring to become citizens. Any immigration “reform” plan that infringes on the civil rights and civil liberties of U.S. citizens and non-citizens, especially one that implements a biometric national identification card and universal electronic verification system, is not reform and violates the fundamental rights of a free society.
A. The Damage of the overly “Comprehensive” Scheme
We support immigration reform, but oppose certain “comprehensive” parts because they degrade the rights of American citizenship by creating an intrusive national ID and work permission system. Worker IDs and electronic verification depend on the government’s ability to remove a citizens’ right to seek and take employment and then ”give it back” as a privilege. That privilege is then only granted by the government when the citizen provides proper “proof.” Under schemes like federal biometric worker IDs and universal electronic “verification,” before a U.S. citizen or a legal immigrant could seek or take employment, he would be required to obtain a high-tech Worker/Social Security card embedded with biometric identifiers (like fingerprints). The card would then be checked against a national databank for “eligibility” to work. Under such schemes the long standing fundamental right to take employment becomes government-granted privilege alterable by government fiat at any time. Even worse, the mechanisms for both the issuance and verification of cards will be controlled by the government. If a citizen does not have this single official card, even if she had a passport, she cannot work.
B. Citizens’ Right to Employment
The right to employment has long been a fundamental feature of American citizenship. Since Butcher Union Co. v. Crescent City Co. in 1884, the U.S. Supreme Court has held that
The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase ‘pursuit of happiness' in the declaration of independence… This right is a large ingredient in the civil liberty of the citizen.”[1]
A government requirement that a citizen must provide proof of citizenship to work not only undermines one’s fundamental right to employment, but it also violates the principle that government is required to facilitate basic freedoms. In other words, the burden is on the government to prove that the individual cannot work here. Otherwise, citizenship in a democracy is upended from its proper relationship of consent from the citizen to the state to one in which the state gives or withholds permission on its terms and makes the right to seek and take employment into a conditional privilege.[2] The situation becomes worse when the only allowed forms of proof are government-issued or government-controlled. Both the “privilege” to work and the mechanism for enjoying the privilege lies within the government’s grip.
Worker ID and universal e-verification systems presume no one is a citizen. They assume no one (a citizen or otherwise) can work in the U.S. until she proves she has the privilege. Any American who does not have or provide “proper “government-issued documentation become “an illegal” and will not be allowed to take a job.
C. CIR and Biometric Citizen Green Cards
A biometric ID card also violates privacy because the government “captures” private pieces of persons for official purposes. As John Locke said in Two Treatises of Government, “every man has a Property in his own Person." The Thirteenth Amendment recognizes everyone’s rights over her own body and freedom. A biometric ID tied to a government-owned database extracts, marks, and takes “ownership” over individuals’ fingerprints or digital images. Such a card will likely say “property of the U.S. government,” even though citizens, persons, rights and information cannot “belong” to a democratic state.
The worker ID and electronic employment verification system (E-Verify) equate citizens with illegal immigrants and require citizens to be fingerprinted like criminals and to carry the equivalent of “green cards.” Instead of legal immigrants being freed from mandatory green cards once they become citizens, under “Comprehensive” Immigration Reform, citizens will have to carry worker cards that contain information about their bodies. If a citizen’s ID cannot be verified because the card itself has stopped working or because a government databank is faulty, he cannot work. Quite simply, Worker ID-with-E-Verify will be a National ID System—not just paper forms kept locally, but an integrated, constant, comprehensive tracking and privileging system of all employees and their work.
Uses of the Worker ID will proliferate. Like the Social Security card that once said “not for identification purposes,” a biometric worker card will become required everywhere for identification. Unlike the driver’s license that once proved people knew how to drive, Worker IDs will become “travel licenses” required for “federal purposes” like entering government buildings or flying on airplanes (which are now possible without ID.) Also, worker IDs connected to E-Verify will leave a “digital trail” for tracking everybody’s whereabouts 24/7. By tracking where everyone is officials can tell them where they can and cannot work or go.
D. The Costs of a Worker ID
While lost employment rights and privacy invasions are worker ID system’s greatest costs, such programs will also burden citizens with significant cash expenses. Like the costs of “free” voter IDs, many citizens will lose work time and income to get certified birth certificates and travel to government offices rather than earning money. A “comprehensive” worker ID system will cost taxpayers and businesses billions of dollars. Small to large companies fighting the recession will face machine and time expenses for e-verifying all workers and IDs. CIR will further draft business owners as unpaid federal immigration agents. It could require families to buy equipment to E-Verify babysitters and elder caregivers.
Tied to a Worker ID, an expensive E-Verify program could push some employers and workers toward the black market and avoiding taxes, losing $17 billion in government revenues a decade. Fully implementing E-Verify will cost employers, employees and households over $6 billion.[3] E-Verify will be infamous for database mistakes that keep citizens out of work and in limbo (1% errors make 2 million unemployed),[4] and worthless when employers don’t check it. It will also be valuable to hackers accessing the databases for identity theft.
E. Concluding against Worker ID and E-verification in CIR
In short, these “comprehensive” parts of immigration reform undermine citizens’ rights to employment and privacy at high costs. “Capturing” and storing fingerprint and facial images in a national database for universal e-verification eviscerate citizenship, invade privacy and invite identity theft. A biometric worker ID-With-E-Verify becomes a national ID and tracking scheme. It imposes burdens on rights and revenues. CIR’s collateral damage injures citizens and citizenship. Worker ID/E-Verify won’t work and are misleading diversions from valid immigration proposals. Immigration officials must not have power over citizens.
Because citizen freedoms are foundations for upholding rights for all persons, in “constitutional citizenship theory itself, citizenship is not just for citizens.”[5] Protecting the citizen right to employment helps everyone who wants to contribute to prosperity and become citizens here by maintaining citizenship as bedrock of freedoms. It keeps American citizenship as the gold standard, rather than a tarnished dream, for Americans and those seeking to enter America’s Golden Door.
Plans for E-verify and Worker IDs as All-American “green cards” in a National ID system need to be dropped. Real reforms, like expanding legal immigration, fair legalization, dream acts, and viable guest worker options,[6] do not deform citizenship and basic rights. The U.S. deserves Constitutional Immigration Reform that fosters productive immigration and economic development. We do not need worker IDs or E-Verify schemes that destroy the rights of American citizens and those aspiring to join them.
Sincerely,
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[1] Truax v. Raich (1915) and Board of Regents v. Roth (1972) hold “The right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.”
[2] Richard Sobel, “Citizenship as Foundation,” TriQuarterly, 2008.
[3] www.aila.org/content/default.aspx?docid=38990 . CBO letter, www.cbo.gov/ftpdoc/91xx/doc9100/hr4088ltr.pdf. .
[4] Westat, “Findings of the E-Verify Program Evaluation,” December 2009.
[5] Linda Bosniak, The Citizen and the Alien, 2006, 79.
[6] Douglas Massey and Karen Pren, “Unintended Consequences of US Immigration Policy,” Population & Development Review, March 2012.
Constitutional Alliance
Cyber Privacy Project
Defending Dissent Foundation
Liberty Coalition
Privacy Journal
Stop Real ID Coalition
Taxpayers Protection Alliance
It's also circulating to other contacts.
