Every October the University of Chicago Legal Forum, a student journal, holds a symposium on a cutting-edge policy issue. This year the subject was immigration. All morning and afternoon, lawyers and students listened to papers in which a dominant theme was the policy and humanitarian disasters brought on by the government’s new Bureau of Immigration and Customs Enforcement (ICE)–the Department of Homeland Security unit that does the work of the now-defunct Immigration and Naturalization Service. ICE, as the recent immigration raids at Swift Meatpacking plants which saw entire families incarcerated in detention camps suggests, has largely transformed the regulation of immigrants’ pursuit of the American Dream into a function of criminal law enforcement. Thus the lawyers assembled in the mock courtroom were eager to hear what the conference’s keynote speaker would have to say about it all. She was ICE’s chief administrator, Julie Myers.
“In order to have a better America,” Myers pronounced, ICE was busy catching undocumented immigrants before they could commit “criminal and in some cases even terrorist acts.” She praised Alabama’s introduction of law-enforcement officers into the process of applying for driver’s licenses in that state and excoriated “sanctuary cities” like Houston and Chicago. Her prosecutorial mien surprised no one.
Then came something startling. As labor unions increasingly provide representation for undocumented workers, she said, “we need to look at” unions’ violations of the boundary between “charitable assistance and the unlawful employment of aliens.” Several lawyers were soon on the phone with labor officials trying to figure out what she meant. Is an ICE crackdown on labor organizing drives imminent? Was one already under way? Were unions harboring undocumented immigrants in violation of the law?
ICE spokesman Dean Boyd seemed a bit taken aback when reached by The Nation for clarification. “There is a fine line between organizing individuals, um, which is perfectly legal; however, once you cross that line where you might be involved in knowingly hiring illegal aliens, that’s a problem.” Then he reached for a bizarre analogy: mob lawyers. “We have had cases in the past, unfortunately, of attorneys doing the same thing,” Boyd said. “Lawyers who knowingly accepted laundered drug money as payment for their legal services–going so far as accepting large plastic bags of cash.” He compared that to a union “knowingly recruiting illegal aliens to join a company.”
That makes no sense. The 1986 Immigration Reform and Control Act (IRCA) specifically made companies criminally liable for knowingly hiring anyone in the country illegally. It exempts unions–who come in to organize workers after they are hired. Meanwhile, actual enforcement has proven so infrequent, and the rare penalties so negligible, that IRCA ended up creating a perverse incentive: Companies seek out workers without green cards as the most efficient way, as Yale law professor Michael Wishnie pointed out at the Chicago conference, to insure “union-free, OSHA-free, Title VII-free workplaces.” You just have to threaten workers who make a fuss with deportation. (Wishnie found that 54 percent of worksites raided by immigration authorities had active labor disputes.) If anything, the existence of unions makes it harder to hire undocumented workers.