Apparently I’m Not Eligible to Run for Office as a Republican; How About You?

So the Republican National Committee is considering a “purity test” to determine which candidates will get party support in the 2010 elections. For those who’ve missed this, here is the full text of the resolution (sponsored by Indiana über-conservative James Bopp):

Proposed RNC Resolution on Reagan’s Unity Principle for Support of Candidates

WHEREAS, President Ronald Reagan believed that the Republican Party should support and espouse conservative principles and public policies; and

WHEREAS, President Ronald Reagan also believed the Republican Party should welcome those with diverse views; and

WHEREAS, President Ronald Reagan believed, as a result, that someone who agreed with him 8 out of 10 times was his friend, not his opponent; and

WHEREAS, Republican faithfulness to its conservative principles and public policies and Republican solidarity in opposition to Obama’s socialist agenda is necessary to preserve the security of our country, our economic and political freedoms, and our way of life; and

WHEREAS, Republican faithfulness to its conservative principles and public policies is necessary to restore the trust of the American people in the Republican Party and to lead to Republican electoral victories; and

WHEREAS, the Republican National Committee shares President Ronald Reagan’s belief that the Republican Party should espouse conservative principles and public policies and welcome persons of diverse views; and

WHEREAS, the Republican National Committee desires to implement President Reagan’s Unity Principle for Support of Candidates; and

WHEREAS, in addition to supporting candidates, the Republican National Committee provides financial support for Republican state and local parties for party building and federal election activities, which benefit all candidates and is not affected by this resolution; and

THEREFORE BE IT RESOLVED, that the Republican National Committee identifies ten (10) key public policy positions for the 2010 election cycle, which the Republican National Committee expects its public officials and candidates to support:

(1) We support smaller government, smaller national debt, lower deficits and lower taxes by opposing bills like Obama’s “stimulus” bill;

(2) We support market-based health care reform and oppose Obama-style government run healthcare;

(3) We support market-based energy reforms by opposing cap and trade legislation;

(4) We support workers’ right to secret ballot by opposing card check;

(5) We support legal immigration and assimilation into American society by opposing amnesty for illegal immigrants;

(6) We support victory in Iraq and Afghanistan by supporting military-recommended troop surges;

(7) We support containment of Iran and North Korea, particularly effective action to eliminate their nuclear weapons threat;

(8) We support retention of the Defense of Marriage Act;

(9) We support protecting the lives of vulnerable persons by opposing health care rationing and denial of health care and government funding of abortion; and

(10) We support the right to keep and bear arms by opposing government restrictions on gun ownership; and be further

RESOLVED, that a candidate who disagrees with three or more of the above stated public policy position of the Republican National Committee, as identified by the voting record, public statements and/or signed questionnaire of the candidate, shall not be eligible for financial support and endorsement by the Republican National Committee; and be further

RESOLVED, that upon the approval of this resolution the Republican National Committee shall deliver a copy of this resolution to each of Republican members of Congress, all Republican candidates for Congress, as they become known, and to each Republican state and territorial party office.

Chief Sponsor:
James Bopp, Jr. NCM IN
Sponsors:
Donna Cain NCW OR
Cindy Costa NCW SC
Demetra Demonte NCW IL
Peggy Lambert NCW TN
Carolyn McLarty NCW OK
Pete Rickets NCM NE
Steve Scheffler NCM IA
Helen Van Etten NCW KA
Solomon Yue NCM OR

I don’t want to waste time discussing whether a purity test is a smart idea or a bad idea; hey, it’s their party. But I do want to take on each of the ten themes expressed in the test itself.

(1) We support smaller government, smaller national debt, lower deficits and lower taxes by opposing bills like Obama’s “stimulus” bill;

OK. I get that Republicans were opposed to the stimulus bill. The problem is, I don’t recall hearing many Republican ideas to help prevent the economy from taking a nose dive into a true depression. One thing that Republicans don’t seem to grasp right now is that there is a huge difference between being opposed to something and offering up a viable alternative. Think of it this way: If you suggest eating Chinese for dinner, I could say, “Gee, I don’t feel like Chinese; why don’t we go for Italian, instead.” From there, we could have an open and honest debate about which would be a better meal choice. On the other hand, if I was a Republican, my response would be more like this: “Gee, I don’t feel like Chinese (after all, they’re communists!); so we’ll just skip dinner tonight.”

I also fail to understand the constant mantra about “smaller government” as if by simply making government “smaller” we make it better. I’m less worried about the size of the government than I am with the effectiveness of that government.

As to the national debt and deficits, I seem to recall these going up, not down, under a Republican administration. It seems that Republicans are firmly opposed to debt and deficits except for debt and deficits that they like. Finally, I’d like to be certain what Republicans mean when they say “lower taxes”; lower taxes on whom? The wealthiest Americans who can easily afford to pay a bit more from the money that they’re parking in illegal offshore bank accounts? Why is it that I doubt that “lower taxes” means repeal of regressive taxes like sales tax.

(2) We support market-based health care reform and oppose Obama-style government run healthcare;

First, does that mean that Republicans will support an end to the anti-trust exemption for insurance companies? After all, an anti-trust exemption doesn’t really seem consistent with market-based insurance reform. Second, when Republicans talk about “Obama-style government run healthcare” does that mean that they oppose Medicare, Medicaid, the VA, and military healthcare? Those programs are, of course, all government run. What about the insurance provided to members of Congress? Finally, what type of reform do Republicans support? Remember that the plan offered by Senate Republicans didn’t prohibit exclusion based on pre-existing conditions (among a host of other failings). We’ve had a largely “market based” system (with anti-trust exemptions) for years and look where that’s gotten us. And how exactly do Republicans plan to handle the millions of uninsured Americans? Insuring a measly 3 million additional Americans over 10 years (while leaving 30-50 million uninsured) doesn’t really seem to be a solution to the problem. Then again, so long as the “solution” is merely opposition and obstruction…

(3) We support market-based energy reforms by opposing cap and trade legislation;

I wonder how many Republicans can actually explain what cap and trade legislation means. And, for that matter, I wonder how many of the Republicans who oppose cap and trade also believe that global warming is a myth. The funniest part of this is that cap and trade is a market-based reform. That is the whole idea; allow the market to put a value on the right to pollute and provide cost incentives for reducing emissions. And again, note that as usual, what Republicans oppose is spelled out clearly (Obama’s stimulus bill, Obama-style government run healthcare, cap and trade) but what Republicans support is much, much more nebulous (smaller and market-based). Again, it is easy to be opposed to a particular, narrowly-defined policy; it is much more difficult to articulate an alternative.

(4) We support workers’ right to secret ballot by opposing card check;

In all honesty, I don’t know enough about card check to really get into this discussion. I will note, however, that it seems strange, in the entire universe of issues for Republicans to focus on, that card check makes the top ten.

(5) We support legal immigration and assimilation into American society by opposing amnesty for illegal immigrants;

This point is one of the most insidious of all of the points on the Republican purity test. Why? Did you note that Republicans don’t just support legal immigration, but also support assimilation? In other words, Republicans are telling immigrants to come in legally, but once here, they had better jettison their cultural (and religious?) heritage and assimilate into American society. And why is that I suspect that the Republican version of “American society” is the same thing as Glenn Beck’s “white culture”?

In addition, I’m not quite sure how supporting legal immigration and assimilation is accomplished “by opposing” amnesty. What does one have to do with the other? More importantly, what precisely is the Republican plan to deal with illegal immigration and the illegal immigrants who are already here? Again, they oppose a particular policy (amnesty) without offering a solution to the existing problem.

(6) We support victory in Iraq and Afghanistan by supporting military-recommended troop surges;

First, who doesn’t support “victory in Iraq and Afghanistan”? Do Republicans really think that either President Obama or Democrats support “defeat”? It seems to me that the real question is the definition of “victory”. More importantly, I find it quite odd that when the Republican purity test finally gets around to specific things that Republicans are supposed to support, the focus is on a particular strategy advocated by the military. The last time I checked, the military was overseen by civilian leadership. It is important to remember that the issues being looked at by military planners are almost exclusively military. We don’t ask or expect military planners to look at diplomatic consequences of a particular policy, the cost to implement that policy (what about that support for a smaller national debt…?), the cost in lives or impact upon military families (I suppose that the military might factor this in to the calculation, but I don’t really know), or the desire of the American electorate to engage in the particular military operation. I suspect that generals recommended attacks on the Soviet Union during the Cold War, but we allowed civilian leadership to decide what was in the best interest of the country. So too should civilian leadership decide what is in the best interests of America when it comes to Iraq and Afghanistan. If that means a surge, then so be it; but the decision needs to be made on the basis of all known information and should take into consideration all relevant matters, not just the matters relevant to the battlefield itself. Military strategy options should be developed by military planners but decisions regarding those strategic options should be made on the basis of national interest, not just military necessity.

(7) We support containment of Iran and North Korea, particularly effective action to eliminate their nuclear weapons threat;

This one leaves me a bit puzzled. First, the use of the word “containment” harkens back to the Cold War and fears of Soviet expansion. I suspect that the real issue being “supported” is limits on the ability of North Korea or Iran to export nuclear technology or terrorism. And again, who doesn’t support those ends? Do Republicans really think that President Obama or Democrats oppose “containment” of Iran or North Korea? More problematic is the phrase “effective action to eliminate their nuclear weapons threat”. What precisely does this mean. Again, I doubt that anybody supports ineffective actions. The real question, of course, is what action would be effective? So, for example, are harsh sanctions “effective”? Maybe I’m wrong, but when I read this particular point of the purity test, I take it to really be referring to military action as the “effective action”. Maybe I’m wrong. But if not, I’m troubled by the idea that Republicans are being asked to support a military action without necessarily considering either alternatives or consequences. Forget Iran for the moment; what would be the consequences of the use of force against North Korea? Do we really want to elect leaders who want war on the Korean peninsula?

(8) We support retention of the Defense of Marriage Act;

I’m not going to take the time in this particular post to explain why I oppose the Defense of Marriage Act (and why I believe it might be unconstitutional) or to explain why I support same sex marriage (or at least domestic partnerships that have all of the benefits and obligations of marriage). Instead, I’ll simply note that of the items that Republicans apparently view as the litmus test for whether a candidate is worthy, opposition to same sex marriage counts for 10%. I still don’t understand how the issue of whether a loving, committed couple can be allowed to enjoy the benefits of “marriage” can rise to this level of importance. And, for the record, I note that those states that have allowed same sex marriage have neither imploded, been struck by wave after wave of natural disasters, nor sunken into the bowels of the earth; moreover, I note that in those states the institution of heterosexual marriage remains alive and well.

(9) We support protecting the lives of vulnerable persons by opposing health care rationing and denial of health care and government funding of abortion; and

I’m glad that Republicans oppose health care rationing. I’m curious to know how they plan to stop insurance companies from continuing to ration care or, for that matter, how they intend to stop the effective rationing for those people who can’t afford health insurance. Republicans also oppose the denial of health care. That seems like a pretty clear blanket statement; yet last time that I checked, Republicans were set against health care for illegal immigrants (remember Rep. Joe Wilson’s “you lie” moment?). And recall, once again, that the Republican health care reform proposal did not prevent insurance companies from denying coverage based on pre-existing conditions.

With regard to the funding of abortions, first I note that it is a blanket opposition. There is no nuance or exception for matters of rape, incest, or life of the mother. “Gee, sorry, that you’re gonna die ma’am, but if you can’t pay for the abortion on your own, we can’t help you!” Talk about compassionate conservatism. I also have a problem with enshrining certain types of moral issues into federal funding policies. Why, for example, are Republicans opposed to funding abortion but not drugs for erectile dysfunction or hair replacement? More importantly, why are Republicans opposed to funding abortion but not opposed to funding the death penalty, wars, torture, and illegal wiretaps? If every issue to which a large group of voters objected on moral grounds were excepted out of government funding, I suspect that very little would be funded (then again, I suppose that Republicans would view that as good, so long as the military was still fully funded). I also have a problem with the exception for abortion given that other religious traditions come to the issue of abortion with a different understanding and mindset. Thus, while the denial of funding may satisfy a conservative Christian worldview, it may also run directly contrary to a Jewish understanding of when abortion is acceptable. If my religious tradition has a different understanding of the issue, why should someone else’s religious understanding determine how federal spending impacts upon my religious beliefs? (For a more in depth discussion of religious views of abortion, see my post Keep Your Religious Doctrine Out of My State’s Laws from January 2008). I get that conservatives don’t want their tax dollars to pay for abortions; I don’t want my tax dollars to pay for torture. Republicans will do almost anything to protect the “unborn”; but once a child is born, don’t look to the Republicans for help or protection, no sir!

(10) We support the right to keep and bear arms by opposing government restrictions on gun ownership;

Like abortion, I’ve written before about my thoughts on gun control and the Second Amendment and I won’t belabor the point here. But I do want to point out the fact that the opposition to “government restrictions on gun ownership” is another blanket statement. There is no exception for children, the mentally ill, or felons (or terrorists for that matter) and there is no exception for assault rifles or armor piercing bullets or rocket-propelled grenades (or nuclear weapons…). So it would seem to me than any Republican who supports even modest gun control legislation would not pass the party’s proposed purity test.

And what happened to honoring the tenets of this recitals from the preamble of the proposed resolution:

President Ronald Reagan also believed the Republican Party should welcome those with diverse views

Somehow the notion of welcoming diverse views doesn’t seem to come through in the proposed purity test.

As a counterpoint to the Republican purity test, take a look at this purity test for Democrats proposed by Devilstower on Daily Kos:

(1) We support the rights extended to Americans extended under the Constitution. All the rights. For all Americans.

(2) We support thoughtful, pragmatic solutions that protect American lives, American standards, and American pocketbooks. This includes finding solutions that don't require bombing anyone.

(3) We support an America that has diversity in race, thought, background, and religion not out of some hazy idealism, but because it is our nation's greatest strength.

(4) We oppose torture in any form, in any place, at any time, for any reason.

(5) We support American business, and recognize that an unregulated market is an unfair market, an unstable market, and a market doomed to failure.

(6) We support American workers, and know that when workers are allowed to organize they make their jobs, their companies, and their nation stronger.

(7) We believe that the reputation of our nation is valuable and must be zealously guarded against those who place expediency ahead of law.

(8) We believe in spreading democracy and human rights to the rest of the world by vigorously upholding those ideals here at home.

(9) We believe that access to our government is not for sale. Not in the courthouse, not in the White House, and not in the legislature.

(10) We believe that the health of our planet is not a zero-sum game, not a game of "you go first," and not a game.

What is interesting is that I don’t necessarily completely agree with each and every point in this “purity test” either (for example, I’m very hesitantly willing to consider torture in a true ticking time bomb case). Nevertheless, I think that the ideals espoused by this purity test are certainly worth considering, at least as a comparison to the proposed Republican purity test. Read both sets of positions and then ask yourself in which version of our country would you rather live?

Finally, ask yourself whether a purity test like that proposed by the Republicans makes sense. Which would you prefer: (a) party that has pre-determined how its members must think and how they must vote on certain issues; or (b) a party that tells its members to think for themselves, honor their ideals and values, and represent the voters that elected them, rather than the party to which they belong.

Oh, one more thing, as long as I’m looking at purity tests and lists of values and ideals. Charles Johnson, the founder of the right-leaning blog Little Green Footballs has announced that he is parting ways with the right because of:

1. Support for fascists, both in America (see: Pat Buchanan, Robert Stacy McCain, etc.) and in Europe (see: Vlaams Belang, BNP, SIOE, Pat Buchanan, etc.)

2. Support for bigotry, hatred, and white supremacism (see: Pat Buchanan, Ann Coulter, Robert Stacy McCain, Lew Rockwell, etc.)

3. Support for throwing women back into the Dark Ages, and general religious fanaticism (see: Operation Rescue, anti-abortion groups, James Dobson, Pat Robertson, Tony Perkins, the entire religious right, etc.)

4. Support for anti-science bad craziness (see: creationism, climate change denialism, Sarah Palin, Michele Bachmann, James Inhofe, etc.)

5. Support for homophobic bigotry (see: Sarah Palin, Dobson, the entire religious right, etc.)

6. Support for anti-government lunacy (see: tea parties, militias, Fox News, Glenn Beck, etc.)

7. Support for conspiracy theories and hate speech (see: Alex Jones, Rush Limbaugh, Glenn Beck, Birthers, creationists, climate deniers, etc.)

8. A right-wing blogosphere that is almost universally dominated by raging hate speech (see: Hot Air, Free Republic, Ace of Spades, etc.)

9. Anti-Islamic bigotry that goes far beyond simply criticizing radical Islam, into support for fascism, violence, and genocide (see: Pamela Geller, Robert Spencer, etc.)

10. Hatred for President Obama that goes far beyond simply criticizing his policies, into racism, hate speech, and bizarre conspiracy theories (see: witch doctor pictures, tea parties, Birthers, Michelle Malkin, Fox News, World Net Daily, Newsmax, and every other right wing source)

And much, much more. The American right wing has gone off the rails, into the bushes, and off the cliff.

I won’t be going over the cliff with them.

I disagree with Charles Johnson on many issues, but I’ve always found him to be reasonable and fair minded. When he takes a position, he almost always backs it up. Ever since I came across Little Green Footballs during the Israel-Lebanon war in 2006, I’ve found his site to be a destination to see what the rational right is thinking. As Johnson has frequently noted over the last several months, too often what the right is thinking isn’t rational at all.

So anyway, it looks like I won’t be eligible to run for office as a Republican in 2010. Shucks.

Recap of Interesting News Items

Several items in today's issue of The Indianapolis Star caught my eye and prompted me to offer at least a few (notice that I did not say "brief") thoughts on each:

Censorship

First, was the editorial "The trouble with judging a book by its cover" by Kathleen Parker about a student/employee at Indiana University Purdue University Indianapolis (IUPUI) who was apparently censured for reading a book about a confrontation between students and Notre Dame and the Ku Klux Klan in 1924. A co-worker who only saw the cover of the book thought that it was racially insensitive and should not be read in public and filed a complaint against the student/worker. IUPUI censured the student/worker for his choice of reading material. Then, just recently, IUPUI reversed its position and rescinded the censure because the University could not make a determination as to whether the reading material or the choice to read that material was "intentionally hostile". Today's The Indianapolis Star also has an article on this story that relays these same basic facts: "IUPUI withdraws reprimand of worker". For the record, it is worth noting that the issue may have been more about the student/employee's behavior toward other employees and less about the book, but, nevertheless, the letter of censure appears to be directed toward the choice of reading material:

We conclude that your conduct constitutes racial harassment in that you demonstrated disdain and insensitivity to your co-workers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence.

Several things about this story prompted me to write. First, while I read the paper every day, this was the first time that I've heard about this story, even though it concerns events here in Indianapolis. (I admit that I might have missed it earlier, but it seems like the type of story that I would have noted.) Yet, the editorial is from a Washington Post columnist. How is it that this story was picked up by the national press and ignored here in Indianapolis? Second (and much more importantly), the very notion that a person's choice in reading material, especially historical reading material, could be racially insensitive borders on the ludicrous. I suppose that an employee reading a book extolling the virtues of the KKK or something similar might cross that line, but history is history and the mere fact that someone is interested in history should not subject that person to criticism for racial insensitivity. What is even odder is that the book appears to be an anti-racism book about the beginnings of the decline of the importance of the KKK in Indiana (a state with a government once dominated by the KKK). And finally, of all places for a complaint like this to have arisen, it would seem that a public university would be the least likely to challenge a student's reading material. I can recall reading some pretty strange things when I was a student (which, it should go without saying, does not necessarily mean that I approved of the text or ideas of that material; rather, reading that material was a part of the learning process). I can't fathom my university (and I attended a private school) telling me not to read something because someone else might be upset. While it may be acceptable for a private employer to intervene in how an employee acts during his breaks, it is troubling to think that a public university would intervene to such an extent that an employee who is also a student could not freely choose what to read.

I think that this entire matter, from the conduct of the student/employee, to the conduct of the employee(s) making the complaint, to the University's administrators who issued the letter of censure should be the subject of an investigation. If the student/employee engaged in conduct that was hostile or racially insensitive, then he should be punished, but that conduct must be more than reading a book others may disapprove of (especially if they don't really know what the book is about). Might the employee have been subject to sanction for reading the Koran if another employee was an Iraq war veteran or a 9/11 survivor? By the same token, however, if the complaining employee was not on firm ground in making his complaint, then that employee should be punished. And, most importantly, the author of the letter sanctioning the student/employee for his choice in reading material should, in all likelihood, be shown the door as it does not seem to be the role of anyone in a public university to criticize, let alone censure, a student for choosing to learn about history.

Environment & Presidential Authority

The next article that caught my eye was "Bush overrules EPA ozone rule" by Juliet Eilperin (The Indianapolis Star, March 14, 2008, page A5; for some reason not available on IndyStar.com). According to the article, the Environmental Protection Agency was prepared to issue new Clean Air regulations. Yet, before the EPA could do so, President Bush stepped in and, perhaps illegally, told the agency to weaken the regulations:

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and ... ordered the agency to increase the limit....

In the opinion of John Walke, clean air director for the National Resources Defense Council:

It is unprecedented and an unlawful act of political interference for the
president personally to override a decision that the Clean Air Act leaves
exclusively to EPA's expert scientific judgment.

Even US Solicitor General Paul Clement recognized that President Bush's action presented a problem, as the new rules "contradicted the EPA's past submissions to the Supreme Court".

But then this is not the first time that President Bush has ignored advisers. He has previously forced changes in a report on global warming that he disagreed with and changed generals in Iraq to get a general that advocated a strategy endorsed by the President. So, we shouldn't be surprised. But we should be troubled.

Immigration

Finally, for those of you who have been reading this blog over the last month or so know, I've expressed repeated concerns over Indiana's proposed immigration legislation. I am quite pleased to see that the bill (originally SB335 then amended into SB345) appears to be dead for the 2008 legislative session (see "Immigration bill appears dead"). Once again, I want to be clear: I am not necessarily opposed to immigration reform or to some of the broad concepts set forth in the draft legislation. However, as the cliche goes, the devil is in the details, and SB335 (and its offspring and siblings) had too many problems in the details (leaving aside such large details as constitutionality...) to be adopted as law.

I am sure that this issue will again be before our legislature next year; hopefully in the long session, without the property tax crisis dominating all other issues, and in a non-election year, the General Assembly will be able to give much more careful consideration to whether state-based immigration reform is appropriate and what form such reform should take. I've previously highlighted a number of concerns with the draft legislation (as, of course, have others). Perhaps if more of these concerns are understood and addressed, viable and appropriate legislation will be possible. But for now, I'm pleased to see that neither SB335 nor SB345 will become the law of the State of Indiana in 2008.

One final note on the defeat of the immigration legislation. Sen. Mike Delph, the bill's primary author and sponsor, has been the target of much criticism during the legislative process. The criticism directed at him with regard to the specifics of the bill or his appearance with a uniformed soldier to endorse the bill was appropriate; however, some of that criticism devolved into charges of racism which I don't believe were appropriate (although I do think that some supporters of the bill have been racially motivated). I disagreed with some of Sen. Delph's ideas, but I do not question that his motives were good and I do not think that his ideas were racially motivated.

That said, however, some of Sen. Delph's comments, quoted in today's The Indianapolis Star did bother me. According to "Immigration bill appears dead" by Dan McFeely, Sen. Delph said of the legislative process that lead to the "killing" of the immigration bill: "It's corruption. And you can quote me on that". Just as I'm sure Sen. Delph does not appreciate the charges of racism, I'm sure that legislators who had legitimate concerns with SB335/SB345 would not appreciate being charged with corruption. Frankly, I think that it is blatantly irresponsible of Sen. Delph to make such a charge without evidence. Political and policy disagreements do not corruption make. It appears that Sen. Delph believes that if he doesn't get his way, it must be because of corruption in the system. Perhaps, Senator, the bill died because many people had concerns with its provisions, not the least of which would be its constitutionality.

Sen. Delph is also quoted as saying "I think this has been a well-orchestrated effort, bipartisanly [sic] from both leaderships, to try to kill the bill .... Unfortunately, the will of the people is losing now and it's a shame." Again, while the effort to kill the bill may have been "well-orchestrated", there is nothing nefarious going on. While many people may have supported the bill, many others did not. The business community, the Chamber of Commerce, immigrant groups, and religious groups all expressed opposition or concern about the legislation. So, the suggestion that the leadership prevented "the will of the people" from becoming law is not based on real facts. Sen. Delph often cites his constituent survey and notes that 87% of his constituents favored his bill; however, it is worth noting first that his survey was conducted before the actual text of the bill was introduced and before anyone had a chance to comment on its flaws. Second the language of the survey is just the type of pre-determinative language that makes reliance upon survey results so dangerous:

Illegal immigrants' unfunded use of local government services adds to demands on local property taxes. Would you support or oppose a bill that would get tough on illegal immigration and those who profit from such activity.

I can't imagine anyone saying no to that sort of statement. The problem, of course, is that the basic premise of the "question" is, at least partially, false.

I look forward to participating in an open and honest discussion of these issues in the future. I hope that our legislators and concerned citizens will participate as well. But, I hope that such participation is done in good faith and with an open mind and without the name calling, racial overtones, and refusal to think about competing viewpoints that has plagued discussion of the issue this year.

Indiana's Proposed Response to Undocumented Immigrants (Update 2)

I haven't written much about the pending immigration legislation since my previous posts last month. The bill (and the revised version that has been grafted onto another bill) has been the subject of much debate and has been in the press quite a bit. The bill, grafted onto Senate Bill 345 has now been passed by the Indiana House and sent back to the Indiana Senate for approval. Some of my initial concerns with SB335 have been addressed in SB345; however, I continue to have grave concerns with the proposed legislation, both in terms of its aims and the means by which it seeks to achieve those aims.

Unfortunately, I don't have the time (or, for that matter, the inclination) to get into the detailed specifics of my continued concerns with the bill. However, I did want to take a moment to commend The Indianapolis Star for the editorial position taken in the March 5, 2008 edition. In the editorial "Election-year rush job would be big blunder", the editorial board of The Indianapolis Star concludes:

Take time to address the constitutional issues at stake. Work with business leaders to draft a plan that protects companies from being forced to use a flawed system. Give the federal government another chance to take care of its obligations.

But don't rush, in the passion of an election year, into enacting a law that would violate the Constitution, harm workers here legally and punish businesses unnecessarily.

Hopefully, the Indiana General Assembly will follow this suggestion. For, as the editorial also recognizes, adopting the proposed immigration bill, even with its noted flaws, "may be good politics, but it's not a responsible way to set policy".

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.

Indiana's Proposed Response to Undocumented Immigrants

On Friday February 8, 2008, I had an opportunity to participate in a conversation regarding Indiana Senate Bill 335 (SB335). This bill, which has been passed by the Indiana Senate, aims to address the "problem" of undocumented immigrants in Indiana. While I put the term "problem" in quotes, I don't necessarily disagree that illegal immigration is a problem; however, I'm not sure that the alleged problem that SB335 seeks to address is the same problem caused by illegal immigration, generally. Perhaps, a more thorough discussion of the overall issue of illegal immigration and undocumented aliens would be a good topic for an essay, but I'll (mostly) leave that for another day.

Anyway, during last week's discussion, I and several others asked questions or raised issues concerning SB335. A supporter of the bill with whom we were speaking told us that the bill did not provide for or prohibit some of the things that we raised as concerns. I acknowledged that I had not read SB335 and promised to do so. So, as a follow-up to my promise, I printed out the version of SB335 that passed the Indiana Senate and is now before the Indiana House of Representatives. (Information about the current status of SB335 as well as the current text of the bill can be found on the Indiana Legislative Services Bill Info page for SB335.) Thus, the following is simply my reaction to the contents of the bill as I read through it. Generally, I have not endeavored to elaborate on broader points concerning immigration reform and have, instead, mostly limited my comments to this specific bill and to specific provisions within the bill. That said, I suspect that many of my comments can be extrapolated to the immigration issue in general; however, any such extrapolation should be done with care as I have not endeavored to synthesize my overall thoughts on immigration issues (other than a very brief conclusion related more to SB335 than to immigration reform in general).

(Note that SB335 adds some sections to the Indiana Code and revises others; for the sake of simplicity, I will refer to provisions by the statutory section identified in the current version of the bill.)

Indiana Code §§ 5-2-18-2(3) and (4) would prohibit any governmental body (for example a city government) from restricting another governmental body (specifically including a law enforcement officer) from "maintaining information" or "exchanging information" with other governmental bodies. What I read this provision to really mean is that a city could not set itself up as being "friendly" to or a "sanctuary" for undocumented aliens. Thus, if Bloomington wanted to direct its police officers not to enforce the provisions of the sB335 within Bloomington, this provision would prevent that. On one hand, the idea of uniformity in laws and enforcement of laws is a good thing; on the other hand, I thought that Republicans preferred to give as much local control as possible.

Indiana Code § 10-11-2-21.5 would require the superintendent (I'm not sure if this is a single state officer or a position for each police force; I didn't research the meaning of the term elsewhere in the Indiana Code) to "negotiate the terms of a memorandum of understanding" with the Justice Department or the Department of Homeland Security. The bill goes on to say what is supposed to happen once this memorandum of understanding is negotiated. Oddly, however, the bill never explains what the memorandum of understanding is supposed to say or what the parameters of negotiation are for the superintendent to follow.

Indiana Code § 22-4-14-9 would require a person applying for unemployment benefits to be screened through the federal Systematic Alien Verification of Entitlements (SAVE) program (which, I believe, is now actually referred to as the e-Verify program, as discussed below). At present, I don't know much about the SAVE program. However, a quick review of some literature online, reveals some concerns with the SAVE program. According to The Washington Post:

Reviews of the pilot program have found that though it has the potential to limit illegal immigration, it suffers from serious deficiencies. A Government Accountability Office report issued in August criticized it for its inability to catch identity fraud, for flaws in the databases and for the possibility that employers will abuse the system.

[Tyler] Moran [policy analyst with the National Immigration Law Center] said she is especially concerned by the relatively high error rates when it comes to legal immigrants. Nearly one in three noncitizens the electronic system cannot initially verify are later cleared based on a manual search of the records, according to government statistics.

Even some citizens have had trouble. Fernando Tinoco, a 51-year-old Mexican immigrant, has been working in the United States for three decades and has been an American citizen since 1989. But when he reported for his new job at a Tyson Foods Inc. factory in Chicago in March, an automated search of government records raised questions about his status. Two hours into his first day of work, Tinoco was fired.

In addition, according to a report by the Government Accounting Office entitled "Coordinated Approach to SSN Data Could Help Reduce Unauthorized Work", the program does not include the so-called "earnings suspense file" which includes nearly 250 million entries and which might be more effective for targeted enforcement. Perhaps the SAVE program has been improved since those reports from 2006. I don't know. But I am troubled with relying on a system with a high rate of false positives (or would that be false negatives?) which could deny benefits to people entitled to those benefits or lead employers to fire people who are eligible to be employed. I am also troubled with relying on a system that does not appear to include the best set of data to allow for targeted enforcement.

Indiana Code § 22-5-1.5-1(a) would provide that the provisions of the chapter (to be discussed next) only apply to an employee that is hired after September 30, 2009. I guess that means that employers can stock up on undocumented workers before October 1, 2009. I'm not sure that I understand the purpose of this grace period. I suspect that it is either to allow time for undocumented workers to leave Indiana or to allow employers time to be ready to make use of the new verification systems. If you are undocumented worker and you want to stay in Indiana, you need to be sure that you have a job before October 1, 2009.

Indiana Code § 22-5-1.5-1(b) would exempt certain employers from the provisions of the chapter, including public utilities, hospitals, and nonprofit corporations. So, if I'm reading § 1(b) correctly, public utilities, hospitals, and nonprofit corporations can hire undocumented workers while the for-profit sector cannot. First, I'm not sure that I understand the reasoning for the exclusion. Second, doesn't this simply force undocumented workers who want to stay in Indiana to become hospital workers or employees of nonprofits? It seems to me that hospitals and nonprofits (especially houses of worship) that view compassion among their missions, will find ways to hire undocumented workers who want to stay in Indiana. Do we really want a law that practically forces churches, synagogues, and mosques to become sanctuaries for undocumented workers?

Indiana Code § 22-5-1.5-3 would provide the definition of "employee" for use in Indiana Code § 22-5-1.5. The odd thing about Section 3(a) is that the definition of "employee" is limited to an individual who "works or is hired to work for at least one thousand five hundred hours (1,500) hours during a twelve month period". This definition has several problems. First, if the goal is really to punish employers who hire undocumented workers, why is the hour limit so high? Assuming 52-week year (with no vacations), an undocumented worker could still work over 28 hours per week and not be an employee. Said another way, assuming a 40-hour work week, a person could work 37 weeks without being deemed to be an employee under the bill. Thus, only true "full time" employees would appear to be covered by the bill. I'm not sure how many hours seasonal farm workers, gardeners, or construction laborers work, but my guess would be less than 1,500 (at least in that particular job).

Which raises another issue. The definition does not make clear whether the 1,500 limit is for all work done by a particular employee during the year or only for the work done for a particular employer. If the former, the statute should certainly be clear on this; otherwise, it is just asking for a legal challenge on this point. If the latter, then seasonal employees and employers would appear to be exempt. So to, I imagine, would be businesses that operate through franchises or separate corporate structures for each business establishment. Consider for a moment an undocumented restaurant employee. If the 1,500 is per employer rather than per employee, then the restaurant could probably transfer the employee to another restaurant for half the year, so long as that other restaurant is technically owned by a different owner. (So far as I am aware most chain restaurants are franchised, so that each restaurant is actually a separate business.) Similarly, I can conceive of very easy ways for construction companies to avoid the statute by simply shuffling employees back and forth between related entities.

Whatever the intent of the this provision of the bill may be, it should certainly be clarified so that questions such as those set forth above are addressed before passage rather than being a "loophole" for employers and/or workers to jump through or a dispute to be resolved through costly litigation.

Indiana Code § 22-5-1.5-4(a)(1) would limit the definition of "employer" to a person that a "has a license issued by an agency". Do all business in Indiana need to have "a license issued by an agency"? Off hand, I don't know. If not, I'd be curious to know whether the exclusion of those businesses was intentional or not and, if intentional, why. It may be that, given that the enforcement of the statute relies upon suspending or revoking a license, it might do no good to include non-licensed businesses within the definition.

Indiana Code § 22-5-1.5-4(b) would extend the definition of the "term" (I presume that the "term" in question is "employer" but the drafting of this provision leaves much to be desired) to include "the state, a political subdivision ..., and a self-employed person." Thus, apparently, the license revocation provisions at the center of the bill would also apply to the state, towns, and cities. I'm curious to know how exactly the state enforces this provision against itself. More importantly, the bill also includes "a self-employed person" as an employer. Thus, even small "mom & pop" operations will fall within the scope of the bill.

Indiana Code § 22-5-1.5-5 would provide that the term "knowingly" would have the same meaning as Indiana Code § 35-41-2-2, which, in turn (in part (b)), provides "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." Given some of the issues discussed above and below, the "high probability" standard may be difficult to apply.

Indiana Code § 22-5-1.5-6(b) would provide that the term "license" does not include an occupational or professional license. Thus, it would appear that doctors, lawyers, architects, pharmacists, and others with such licenses could hire undocumented workers without coming within the scope of the bill. I'm not sure what sorts of business have "occupational" licenses (and not business licenses), but it would be interesting to know.

Indiana Code § 22-5-1.5-9 would provide that the term "unauthorized alien" would have the same meaning as in 8 U.S.C. § 1324a(h)(e) which provides:

As used in this section, the term "unauthorized alien'" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

What I found somewhat odd when looking up this definition was that 8 U.S.C. § 1324a(a) already makes it illegal to "hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien". If we already have federal law on the subject, it would certainly seem to me that Indiana's proposed law would be overstepping the Constitutional limit on the powers of the state in relation to the powers of the federal government.

Indiana Code § 22-5-1.5-10 appears to be the core provision of the entire bill: "An employer shall not knowingly employ an unauthorized alien." Oddly, while "employee" is defined (as discussed above), "employ" is not. Thus, the question is whether or not the employment must meet the criteria of "employee". It seems that this core provision of the bill should be much more closely linked to the term "employee" (if that is the intent) to avoid just these sorts of questions. Also, is the "employment" of a person as a independent contractor considered to be employment under the bill? If not, that would appear to leave a gaping whole in the entire legal scheme.

Indiana Code § 22-5-1.5-11(a) would specifically provide that the obligation of the Indiana Attorney General to investigate a complaint that an employer hired an unauthorized alien would be "[s]ubject to the availability of funds". One thing that proponents of SB335 have claimed is that the bill is all about "the rule of law" yet this limitation on enforcement seems to reduce the validity of that claim. We don't tell the Attorney General that the obligation to enforce other laws is subject to the availability of funds, so I'm not sure that I understand the inclusion of that limitation here, other than to address the suggestion that the state is created an unfunded mandate upon itself.

Finally we come to Indiana Code §§ 22-5-1.5-13 to -25, the actual enforcement provisions of the bill.

Indiana Code § 22-5-1.5-13 would provide the situations under which the Attorney General could notify U.S. Immigration and Customs Enforcement (ICE, the successor to INS) or the county prosecuting attorney. Essentially, it becomes the responsibility of the Attorney General to investigate to determine whether the employer has "knowingly employed an unauthorized alien" and whether any of the statutory defenses available to the employer apply. Two things about this provision cause me some concern: First, remember that § 11(a) limits the obligation of the Attorney General to conduct an investigation on the basis of the "availability of funds". Second, recall the discussion above about the definition of "employee". This provision uses the term "employed". As I mentioned previously, the question becomes whether or not the employment must meet the criteria of "employee". And, once again, does hiring an undocumented worker as an independent contractor qualify as "employed"?

Indiana Code § 22-5-1.5-15 would allow a court hearing an action brought by a county prosecutor against an employer to hold an expedited hearing. While this may sound like a good idea, it is important to recognize that if one hearing is scheduled on an expedited basis, it means that other matters before the court must be given a lower priority. Thus, while the court prioritizes a hearing against an employer for hiring an undocumented worker, other matters before that court, including things like criminal cases, child custody disputes, probate matters, and all other types of legal actions, may be forced to be shuffled on the court's calendar. While immigration may be a critical issue, is an action against the employer so critical that it should trump other matters properly before a court?

Indiana Code § 22-5-1.5-16(a) sets forth the remedies that can be imposed against an employer found to have knowingly employed an authorized alien. Included in the list of remedies is the possibility of ordering the employer to terminate the employment of all unauthorized aliens employed by the employer (§ 16(a)(1)(A)). Does this give the court the power to order an employer to fire an unauthorized alien who is not an employee (for example, a part-time worker)? Does this give the court the power to order an employer to fire an unauthorized alien hired before October 1, 2009 (recall that the provisions of the bill only apply to employees hired after September 30, 2009)? This provision would also allow the court to order the employer to file a quarterly report with the Attorney General regarding each new "individual" (and why is that the word used, rather than "employee"?) the employer hires (§ 16(a)(1)(A)). I presume that someone at the Attorney General's office will need to review these reports; talk about a drain on governmental resources. Finally, § 16(a)(2) would allow the court to order the suspension of the employer's business license for 10 business days. While this may prove to be a deterrent to employers, imagine where the real hardship will fall when this remedy is imposed. I suspect the employer will be in a much better position to weather a 10-day business interruption than will be the employer's legal employees. Query how would you would handle the situation if your employer was forced to cease business operations for 10 days. Could you go 10 days without salary or wages, especially if you had not planned on taking "time off"?

Indiana Code § 22-5-1.5-19 is the real "hammer" of the bill. Under that section, if an employer is found to have knowingly employed an authorized alien for a third time within a ten-year period, the employer's licenses can be permanently revoked. Yet it does not appear that anything in the bill would prevent the employer from simply starting a new business with a new (even slightly different name) and starting over again. Imagine a contractor (John Smith Contractor, Inc.) who gets a third strike and loses its business license. Nothing would appear to stop Mr. Smith from starting a new business (John Smith Contractor II, Inc.) and "continuing" business under that name (John Smith Contractor II, Inc. d/b/a John Smith Contractor, Inc.). A really crafty employer might have a series of successor entities established, licensed, and ready to go, "just in case".

Indiana Code § 22-5-1.5-20 would require a state agency that learns of a court order to suspend or revoke a license to suspend or revoke the license "immediately". Why is this a problem? What about the possibility of an appeal? Is the license suspended or revoked before the employer has had an opportunity to appeal the "conviction"? And what about the suspension or revocation of a license while the employer appeals the constitutionality of the statute, potentially all the way to the U.S. Supreme Court? We may put convicted criminals in jail pending appeal (although it usually depends on the nature of the crime), but we certainly don't execute them before they've had a chance to exhaust their appeals.

Indiana Code § 22-5-1.5-22(a) would provide one of the most problematic provisions of the entire bill (emphasis added):

In determining whether an individual is an unauthorized alien for purposes of this chapter, a trier of fact may consider only the federal government's verification or status information provided under 8 U.S.C. § 1373(c).

What is wrong with § 22(a)? First, just consider for the moment the mere possibility that the federal government's information could be wrong or incomplete. Has the government ever made a mistake? Of course. Yet, according to § 22(a), only the government's information, even if wrong, could be considered. Just imagine an employer brought into court for allegedly hiring an unauthorized alien and bringing to court that alien's validly issued visa or work permit (or, worse yet, proof that the "unauthorized alien" was, in fact, a citizen). But if the bureaucrat who originally entered that data into the federal government's database made a typo so that the government's database did not verify that employee, then the employee will be fired and the employer sanctioned. Shouldn't the court and/or jury be able to consider all of the evidence? Just to add to the confusion that this could all cause, § 22(b) says that the information which is the only information that may be considered creates a "rebuttable presumption"; yet, if that information is the only information that can be considered, how can the presumption be rebutted?

Indiana Code § 22-5-1.5-23 would provide a safe harbor to employers who verify an employee's eligibility with the SAVE program or the e-Verify system (to be discussed below). In other words, so long as the employer checked the employee with e-Verify and received verification, then the employer cannot be sanctioned in the event that it turns out that the e-Verify information was incorrect. I find it odd that the bill explicitly recognizes the possibility of a false positive (that is, a person who is verified by the system but who is not actually eligible for employment) while not allowing for the possibility of a false negative (that is, a person who is not verified by the system but who is eligible for employment). In my opinion, the false negative is a far worse problem (as it would unjustly prevent the employment of a legal alien or citizen) than the potential to accidentally employ someone who is not properly authorized. The bill provides a safe harbor for employers without a corresponding safety net for workers.

I believe that the e-Verify system (also called the "pilot program") is the same program as the SAVE program referred to above, but I'm not entirely clear on this. It is my understanding that the SAVE program has simply been re-branded with the "e-Verify" moniker, but I will readily acknowledge some confusion on this (and that I did not spend too much time researching the issue). Some states, most notably Arizona, have adopted immigration laws that rely upon the e-Verify system. On the other hand, Illinois, has passed legislation that essentially prohibits employers from relying on e-Verify out of concerns about the reliability of the data in the system. The Department of Homeland Security and the State of Illinois are currently litigating this dispute.

Illinois is not alone in expressing concerns about e-Verify. Consider, for example, the following (from the report "E-Verify System: DHS Changes Name, But Problems Remain for U.S. Workers" prepared by the Electronic Privacy Information Center in July 2007 [internal footnotes omitted]):

A broad expansion of E-Verify has severe implications for national and individual security, civil liberties and privacy. At a Congressional hearing in June 2007, the Government Accountability Office detailed the many problems associated. The system is vulnerable to employer fraud or misuse. The databases used by E-Verify are error-filled. Expansion would create enormous backlogs. Also, the cost would be enormous.

By mandating that more than 200,000 federal contractors use E-Verify, DHS will increase the number of employers using the system by more than 1,076 percent. Such a massive expansion would likely overwhelm the system, which is already backlogged by the 17,000 employers currently registered to use the program. Further, only 8,863 registered employers are "active users," defined by DHS as "employers who have run at least one query in fiscal year 2007." This new mandate would effectively increase the number of active users by 2,157 percent.

In August 2005, Citizenship and Immigration Services officials told the Government Accountability Office that a substantial expansion of the program would create significant backlogs in employment verification, in part because of the staff and resources that would be needed for manual verifications and investigations into "nonconfirmations." With 8,863 active users of E-Verify, the Social Security Administration says that "for every 100 queries submitted to the System, SSA field offices or phone representatives are contacted three times," and SSA expects a corresponding increase in workload under a program expansion.

Currently, about 8 percent of queries require manual verification by DHS or SSA. In fiscal year 2006, there were about 1.74 million verifications, which can take up to two weeks to resolve. Imagine the number of manual verifications and "tentative nonconfirmation" investigations that will occur when the number of active users is amplified by 2,157 percent.

DHS estimated that nationwide mandatory use of E-Verify could cost Customs and Immigration Services "$70 million annually for program management and $300 million to $400 million annually for compliance activities and staff," and "costs associated with other programmatic and system enhancements are currently unknown." The cost to SSA of such an expansion is unknown. Currently, SSA spends $5 million to $6 million on E-Verify, but the cost of expansion "would be driven by the field offices' increased workload required to resolve SSA tentative nonconfirmations."

The majority of such "tentative nonconfirmations" occur because of another problem in the E-Verify system: Information in the databases queried is incorrect or untimely, according to DHS and SSA. These databases have high error rates in determining work eligibility status, causing these verification problems and backlogs. In a 1997 report and a 2002 follow-up review, the Inspector General of the Department of Justice found that data from the Immigration and Naturalization Service (the predecessor of U.S. Citizenship and Immigration Services), which E-Verify queries, was unreliable and "flawed in content and accuracy." In August 2005, the Government Accountability Office investigated and found errors in information from Department of Homeland Security databases.

A December 2006 report by the Social Security Administration's Office of Inspector General also found accuracy problems in databases of Citizenship and Immigration Services and Social Security Administration. SSA's Numerical Identification File ("NUMIDENT") is used to check employment eligibility status, but the Inspector General estimated that about 17.8 million records in NUMIDENT have discrepancies with name, date of birth or death, or citizenship status. About 13 million of these incorrect records belong to U.S. citizens. About 15.3 percent of the U.S. workforce is foreign-born, according to the Bureau of Labor and Statistics.

Such erroneous records could lead to "tentative" or "final nonconfirmation" notices for affected employees. These errors have profound consequences for U.S. citizens and documented immigrants. In June, the Government Accountability Office explained that E-Verify still "is vulnerable to employer fraud that diminishes its effectiveness and misuse that adversely affects employees ... such as limiting work assignments or pay while employees are undergoing the verification process." These problems have been highlighted since 2002, yet they remain unresolved.

In 2002, the Immigration and Naturalization Service (now U.S. Citizenship and Immigration Services) commissioned an independent analysis of the employment eligibility verification system. The analysis found that mistakes in the system led to "false negatives," where workers eligible for employment were deemed ineligible. For example, out of a sample of employees who received "final nonconfirmation" notices, 42 percent were "false negatives" and were eligible to work. The report also found that "employers do not always follow Federally mandated safeguards for the ... program." The researchers found that employers took adverse action against an employee because of a "tentative nonconfirmation," though it is illegal.

Thirty percent of pilot employers reported restricting work assignments while employees contest a tentative nonconfirmation. Among the 67 employees who decided to contest a tentative nonconfirmation, 45 percent reported one or more of the following adverse actions: were not allowed to continue working while they straightened out their records, had their pay cut, or had their job training delayed.

Current law also prohibits employers from pre-screening job applicants before making a hiring decision, yet some employers were doing just that. In December 2006, the Social Security Administration's Office of the Inspector General reviewed the employment eligibility verification system and found that 42 percent of employers used the program to prescreen employees, and 30 percent of employers used the program to verify the employment eligibility of their existing workforce. In 2002, the independent analysis found that, "[a]mong a sample of individuals classified on the transaction database as unresolved tentative nonconfirmations, 28 percent said that they did not receive a job offer from the pilot employer." Also, these job applicants were not informed they were being pre-screened through the employment eligibility verification system, and "[c]onsequently, they were denied not only jobs, but also the opportunity to resolve any inaccuracies in their Federal records."

This problem ties in with another found by the researchers; though "procedures were also designed to protect employee rights to resolve verification problems . . . not all employers inform their employees of verification problems." The report stated that, "73 percent of the employees who should have been informed of work authorization problems were not." Because they did not know about the "tentative nonconfirmations," the employees were not able to contest the "tentative nonconfirmation" notices. A failure to contest a "tentative nonconfirmation" results in a "final nonconfirmation" decision against the affected employee. Employers are required to terminate the employment of any individual who receives a "final nonconfirmation."

Eligible workers are not compensated for wages lost because of an incorrect "tentative nonconfirmation" determination. This certainly a nightmare scenario – a person is rejected for a job she was qualified for because the government made a mistake, and she might never learn of this problem. This illustrates the fundamental problem with E-Verify: workers are presumed unauthorized for employment unless they prove otherwise. Currently, the Social Security Administration's Inspector General databases have an error rate of at least 4.1 percent. If each of the 5.9 million employers nationwide used E-Verify for a different employee, then the error rate suggests more than 240,000 eligible workers would receive incorrect "no match" designations. There are about 143.6 million authorized workers nationwide, according to the Bureau of Labor Statistics. Even a one percent failure rate would affect millions of people.

Assuming, for the moment, that the general concepts of SB335 are sound, I am uncomfortable with relying upon government data that may be prone to errors that could jeopardize the ability of people to obtain jobs to which they are entitled. So long as the possibility of a false negative (a nonconfirmation) remains more than a remote possibility, I am troubled by the notion of requiring employers to rely upon that information as a basis for deciding when an employee must be fired.

Indiana Code § 22-5-1.5-24 would give the employer the right to prove that the employer acted in good faith in accordance with the provisions of 8 U.S.C. § 1324a(b). But shouldn't it really be the job of the government to prove that the employer did not act in good faith? Why are we putting the burden on the employer and not on the state. The last time that I checked, we generally don't require people to prove their innocence; rather, as the old cliche goes, in America we are innocent until proven guilty. It seems as if this bill flips that notion of justice on its head.

Indiana Code § 22-5-1.5-25 would require the Attorney General to post on the web information about employers who were sanctioned. While those sanctions may be a matter of public record, do we really want to treat employers, especially employers who may have made a mistake or who may be appealing a sanction, in the same way that we treat convicted sex offenders?

Indiana Code § 22-5-1.5-26 is an odd provision. It states that the bill "does not require an employer to take any action that the employer believes in good faith would violate federal law." Yet the statute does not appear to exempt the employer from prosecution for taking that action. Query whether a court order issued under the immigration bill ordering an employer to fire unauthorized aliens could be enforced if the employer, in good faith, believes that the order violates federal law because of a good faith belief that federal immigration law preempts state law and/or that firing the unauthorized alien would violate a civil rights statute.

Indiana Code § 22-5-1.5-27 is also a slightly odd provision. § 27 requires employers to use the e-Verify system for all employees commencing October 1, 2009. What is odd about the provision is that it requires the employer to use the e-Verify system after hiring the employee. Shouldn't the employer use e-Verify (presuming it is an acceptable verification method) before hiring the employee. Well, it turns out that the e-Verify program itself is, under federal law, not to be used until after an employee is hired. I'm still not sure that I understand why that is.

Indiana Code § 22-5-1.5-30, the last provision in this chapter, is one of those provisions that appears sound on its face, but is, in reality, very problematic. The provision provides that the immigration laws "shall be enforced without regard to race or national origin." What about religion? Sex? Disability? Just imagine the enforcement of the immigration laws only against Muslims. That would not violate the provisions of § 30 but it would still be wrong.

Indiana Code § 22-5-1.7 applies to public contracts for services. It is largely a subset of the provisions of Chapter 1.5 and I elected not to spend any real time examining that part of the bill.

Following these provisions, the bill next addresses offenses that individuals could commit with regard to "Illegal Aliens" (Indiana Code § 35-44-5). Query why the criminal components of the bill refer to "illegal" aliens rather than "unauthorized" aliens as in Chapter 1.5.

Indiana Code § 35-44-5-1 would exempt from the criminal provisions of the law churches or religious organizations, those providing assistance for health care for the treatment of an emergency, a health care provider providing health care services, an attorney providing legal services, or the spouse, parent, or child of an "alien". At least the bill offers a glimmer of humanity by allowing emergency medical attention and allowing "illegal" aliens to obtain health care and legal services without jeopardizing those who provide such services.

Indiana Code § 35-44-5-2 would provide that the term "alien" would have the same meaning as in 8 U.S.C. § 1101(a) which provides that the "term 'alien' means any person not a citizen or national of the United States." Unless I am mistaken, it would then appear that the criminal portions of the bill are not limited to "unauthorized" or "illegal" aliens, but, rather, to any person in the United States that is not a "citizen or national of the United States." In other words, it appears that the criminal provisions of the bill will subject people to possible punishment for their actions with regard to a resident alien, a person in the U.S. on a student or work visa, a tourist, or others who may not be citizens, but who are in the U.S. legally. Again, I query why one part of the bill uses the federal definition of "unauthorized alien" while another portion of the bill uses the federal definition of "alien".

Indiana Code § 35-44-5-4 would criminalize transporting or moving an alien for the "purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in United States in violation of law". It seems obvious that this statute is aimed at those who intentionally transport illegal aliens (so called "coyotes"). Yet the bill, as written, seems much broader. For example, would Greyhound be in violation if they transported an alien who was illegal? One might argue that there was "reckless disregard" if Greyhound didn't check whether the person was legally in the U.S. before transporting that person. Another technical flaw in the bill is the phrase "come to, entered or remained". In other words, if a person transports an alien that the person knew came to the U.S. illegally, even if that alien was now here legally, then that person would have committed the crime. Certainly that is not what the law is designed to do. Also, I wonder about the decision to exempt church or religious organizations from this portion of the bill. Isn't that just asking for the establishment of religious organizations whose sole purpose is to transport aliens (the Church of the Holy Transport, for example, with its place of "worship" in an old school bus)? One other concern comes to mind with regard to this provision: If a police officer pulls over a van with 15 Hispanic people crammed into the back, that officer may very well look into the immigration status of those people, perhaps to see if the driver is violating the provisions of this bill. Yet would that officer look into the immigration status of the passengers if they were not Hispanic? That sort of profiling, even if unintentional, worries me.

Indiana Code § 35-44-5-5 would criminalize concealing, harboring, or shielding from detection an alien. The provision uses the same language quoted above in the discussion of § 4. At least the bill exempts parents, children, and spouses from being required to turn each other in to authorities, but it does not expand the exemption to larger family units (grandparents and siblings, for example).

So there you have it. The substance of SB335. Allow me to offer a few concluding thoughts (again without getting into a full-blown discussion of whether immigration reform is necessary or what such reform should look like). Apart from the concerns expressed above, several other potential problems worry me, several of which can be demonstrated through a series of examples.

Consider the following scenario: Husband and wife live together in Indianapolis. Husband is here illegally, while wife is a resident alien. Husband and wife have two children, one 12 and one 4. The 12 year old is also here illegally, but the 4 year old was born in the U.S. and is, therefore, a citizen. In addition, wife's brother, a resident alien and his wife, a citizen, and their children reside with husband and wife. All of the adults are employed, but they need all of their collective income to make ends meet. It appears that SB335 is only aimed at husband and the 12-year old as only they are here illegally. But let's look at what the bill could really do in a scenario like this. First, brother and sister-in-law are not exempted out of the criminal provisions of the statute. Thus, if the authorities were to discover that husband was here illegally, brother and sister-in-law could be prosecuted for harboring an illegal alien. But, you say, they weren't harboring husband for commercial advantage or private financial gain. Oh? Weren't they? If husband is deported, won't that adversely impact the ability of the family to pay their bills? A zealous prosecutor could easily argue that brother-in-law and sister didn't report husband because they needed his income -- a private financial gain. Second, if brother-in-law were to drive husband to a job (as husband probably can't get a driver's license), could brother-in-law be convicted of "transporting" husband (and if you think the answer to that is no, ask whether your answer changes if husband shares with brother-in-law the cost of gas)?

Now, let's move forward to a date after October 1, 2009, and husband needs to get a new job. When he is run through the e-Verify system, it becomes evident that he is illegal. So he is fired. Now, husband is not employable. Well, that is what the bill seems to want as a result. But consider the unintended consequences. If husband is not employable, I guess that he needs to leave the U.S. But that will create a single-parent family. Do we really want to split up families? Should husband take the 12-year old with him? And what happens if wife goes to get a new job and the e-Verify system says that she is not eligible, even though she is legal? Now, she too is not employable. Sure, she can appeal, but query how exactly an unemployed person can afford to appeal while remaining unemployable. Should she be forced to leave the country and take the 4-year old, an American citizen, with her? On the other hand, perhaps husband can convince employer to hire husband to work just 1499 hours a year. As written in the bill, husband, in that situation, would not be an "employee" and employer would appear to be on safe ground.

And what if an employer was sympathetic to their problem or didn't really care and only wanted to make a bigger profit and, therefore decided to hire husband illegally. When employer is caught, employer will be punished. But won't employer's other employees suffer as much, or worse, including employees who did nothing wrong and who aren't here illegally? How is an employee supposed to protect himself from a sympathetic or unscrupulous employer?

It appears to me that immigration reform is probably necessary. But it also appears to me that any immigration reform must be national in scope, not piecemeal and different from state to state. And, to the extent that states are going to enact and enforce their own immigration laws, we really need to be sure that those laws are narrowly tailored to really attack the problem, not cause unintended harm. I'm worried that SB335 will cause far more harm than good.

I think that discussion of the issues that gave rise to SB335 as well as the issues raised by SB335 is good and healthy. I hope that Indiana can continue to discuss those issues. But I don't think that SB335, at least as written, is the best way to address those concerns.

Update: The Indiana House of Representatives heard testimony on SB335 on Wednesday February 13, 2008. During that hearing, many of the concerns that I discuss above were raised. It appears as if the bill may be amended and brought back for another hearing next week. One of the amendments that may be included is a reduction in the number of hours in the definition of "employee" (perhaps reducing the number from 1500 to 500).