Tuesday, February 19, 2008

Indiana's Proposed Response to Undocumented Immigrants (Update)

Several days ago I posted a long examination of Indiana Senate Bill 335. Yesterday, a committee of the Indiana House of Representatives revisited SB335 and proposed several amendments to the bill. The proposed amendments are fairly extensive and I have not yet had a chance to sit down and analyze the entire bill in light of those proposed amendments. However, one of the proposed amendments seems, at least to me, to go too far in the opposite direction from the problem that I described in my original post. Thus, this post.

As you may recall, the definition of "employee" in the version of SB335 passed by the Indiana Senate did not include an individual who worked less than 1,500 hours. (I queried whether this limit was per employee or per employer.) One problem with that limitation was that it excluded from the bill seasonal and part-time employees (and created a giant loophole that could be exploited). So, the Indiana House committee has adopted an amendment that elimintes this component of the definition of "employee".

Yet I'm not sure that doing so is an improvement. Now, an employer could run afoul of the immigration laws for employing an undocumented worker, however briefly. Moreover, and more importantly, this amendment to the bill would have the effect of having each of us constantly policing each other. What do I mean? Well, let's say that you hire a cleaning lady for 2 hours per week, or 104 hours per year. Under the bill, you are an employer because you have a license issued by a state agency (your driver's license, issued by the BMV). So now you have to sign up for the e-Verify program to be sure that your cleaning lady is legal. Some of you may say that this is a good thing, as "domestics" are frequently illegal (I'm not sure if evidence would really support that stereotype). But what about other limited employments? What if you hire a roofer to replace some missing shingles? What if you hire a tutor for your child? What if you hire a neighborhood child to rake your leaves or shovel your driveway? And what about your babysitter? I can just envision the scene now: The babysitter shows up, mom and dad are hurrying to make the movie, but then dad says, "Wait, we can't leave until we run an e-Verify check on Sally to be sure that she is in the US legally!" Of course, if Sally isn't 16, she probably doesn't have the type of photo ID required by the e-Verify system... And, if mom and dad don't run Sally through the e-Verify system (she's a blond-haired, blue-eyed cheerleader...), then mom and dad may have just violated the nondiscrimination provisions of the bill.

I will acknowledge that I haven't read the tax code to see if these sorts of "employees" fall within the scope of people for whom tax withholding is appropriate (the other limitation on the definition of "employee"). But do we really want to put ourselves in the position of having to verify the citizenship status of our neighbors and their children?

And before you say, "Well, that's not what the bill is all about; nobody will care if you don't run an e-Verify check on the babysistter," just remember that one of the principal reasons articulated by supporters of SB335 for why it is needed is the "rule of law". In other words, if we are creating a new statutory framework to recognize and enforce the rule of law, does it make any sense for that same statutory framework to create legal fictions and rules of law that will be routinely ignored?

Again, as I mentioned at the outset, I have not not reviewed the amendments in detail. However, this one change caught my attention and I felt the need to comment.

One further note: In my previous post, I offered some criticism of the e-Verify program. On Saturday, February 16, 2008, The Indianapolis Star included the article "Feds trying to fix system to screen out illegal workers" that discussed both SB335 and some of the problems with the e-Verify program.

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