Document Type

Article

Publication Year

2008

Journal Title

Georgetown Law Journal

Abstract

To be sure, the lion's share of immigration enforcement still rests with government authorities. But there is a growing trend to shift some enforcement responsibilities onto private parties. With the passing of the Immigration Reform and Control Act of 1986 (IRCA), Congress took the significant step of requiring employers to check the immigration status of all employees in order to verify their work eligibility. For the first time nationwide, private parties were required to deny a benefit--here, employment--based on immigration status. In effect then, IRCA required employer's to enforce the employment provisions of federal immigration laws. medical care providers, and charities.

In Part I of this Article, I define private enforcement and explore the expansion of private enforcement laws into different sectors, studying the circumstances motivating the expansion. Private enforcement occurs when private parties, acting under a requirement of law, check for legal immigration status before granting applicants access to a restricted benefit. Effectively beginning with federal employer sanctions in 1986, private enforcement has spread into the housing and transportation areas, with proposals for expansion into the medical, educational, and charitable areas.

In Part II, I examine the effectiveness of private enforcement laws, drawing from the experience of federal employer sanctions. Finding that federal employer sanctions have not decreased illegal immigration or punished private employers benefiting from illegal immigration, I suggest that the main benefit of sanctions has been to establish that hiring undocumented workers is indeed illegal. But weighed against the increased discrimination that sanctions have created toward job applicants who look or sound foreign (discrimination attributable, in large part, to employers' misunderstanding or confusion about the sanctions' requirements), I conclude that employer sanctions have not been an effective immigration law policy. Because other private enforcement laws depend on a similar enforcement mechanism, I conclude that the benefits of private enforcement laws are mostly symbolic, sending tough messages about the importance of immigration law enforcement, while the costs in increased discrimination are real and serious.

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