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Reading The Fine Print, Part 4: A Huge New Tax On Business

Sunday, May 20, 2007  |  posted by Hugh Hewitt

Title III contains the details of the promised crack-down on employers employing illegal aliens.

Title III has teeth. “Big pointy teeth that could mangle a man in a minute” as was said of the Killer Rabbit in Monty Python and The Holy Grail.

Section 302(e) (p. 116 of the draft released Friday night at just before midnight) spells out that each instance of hiring or continuing to employ an unauthorized alien will cost the employer $5,000. Employers previously fined for doing so fork over $25K per illegal alien, and three-strikers get hit for $75K each.

There are also record keeping violations of $1,000 per violation, which will send a shudder down the backs of honest employers who work hard to jeep the illegal aliens out of their workforce but who recognize in paperwork compliance penalties the ultimate blackjack for an out-of-temper bureaucrat.

Criminal penalties are available under 302(f) (p. 122) for employers engaging in a “pattern or practice of knowing violations.”

The ruse of using contractors to avoid the law is supposedly banished under Section 302(a)(3):

For purposes of this section, an employer who uses a contract, subcontract, or exchange to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (b)(1) with respect to performing such labor shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).

Much depends upon the standard applied to “knowing,” and I can’t figure that out on my first read. If there is any obligation to affirmatively check a contractors’ employees, vast changes are afoot in the U.S. labor markets.

At first glance the costs associated with this new workplace system are huge, and I would have expected the Chamber of Commerce and others to strenuously resist transfer of the costs of immigration enforcement from the federal government to the private sector. There are some significant penalties here that ordinary businesses will simply be stunned to discover especially in the paperwork department.

The willingness to go along suggests that there’s a loophole the size of a black hole hidden within the text, and again we are taken to the loophole of “probationary Z visas,” discussed in my first post on the bill’s fine print.

In Section 302(c) are listed the documents that will satisfy an employers’ burden, and there in 302(c)(1)(B)(iii) is the answer:

(B)Documents establishing both employment authorization and identity…

(iii)a temporary interim benefits card valid under section 218C9c) of the Immigration and Nationality Act, as amended by Section 602 of the Comprehensive Immigration Reform Act of 2007, baring a photograph and an expiration date, and issued by the Secretary to aliens applying for temporary worker status under the Z-visa.

Back to the immediate issuance of the probationary cards we go. The plan anticipates millions of probationary cards being issued in the immediate aftermath of the law’s passage subject to background checks which will at best be conducted months or years down the road, and possibly never. Employers will be quick to help their employees get their probationary cards and thus insulate themselves from the fines or even prosecution at least until the government catches up with its flood of probationary status applications, which as the previous post noted, isn’t likely to occur in a timely fashion, if ever.

I will leave it to software engineers to inspect the details of the proposed EEVS, but want to point out that the drafters employed some powerful language on page 107 in setting out the appeal procedures for liability determinations:

Notwithstanding any other provision of law (statutory or nonstatutory) including sections 1361 and 1651 of title 28, no court shall have jurisdiction to consider any claim against the United States…relating to a final nonconfirmation notice or to the EEVS except as specifically provided in this paragraph.

The specifics of the appeals process aren’t interesting. What matters is that the drafters used the magic language of “notwithstanding any other law” to sweep the path free of any other obstacles based on previous laws.

That’s exactly the sort of language the construction of the fence and the implementation of other border security measures requires, but which I have not yet found in the text.

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