Workplace Enforcement Workarounds
Lee, Stephen, The William and Mary Bill of Rights Journal
I. INTERIOR ENFORCEMENT TARGETS 553
A. "Exploitative Employers " 554
B. "Criminal Aliens " 557
II. WORKING AROUND WORKPLACE ENFORCEMENT 561
A. What Are Workarounds? 561
B. Workarounds in Interior Enforcement 564
C. Historical Analogues 567
III. UNDERSTANDING WORKAROUNDS IN INTERIOR ENFORCEMENT 570
For more than a quarter-century, immigration law's interior enforcement agenda has fixated on the workplace and the criminal justice system. Every hiring decision and every traffic stop transpires in the shadow of the immigration code. Within this far-reaching universe, employers and the police have reigned supreme. Each stands as a gatekeeper for their respective institutions - a recruitment pitch often opens one gate, a street encounter the other - and while much has been written about these agents of immigration law, they are typically treated as separate subjects of academic inquiry. This essay shows how these front-line immigration decisionmakers are coming together. Specifically, I argue that the Executive's workplace enforcement policy is being undermined by its growing use of criminal law actors for immigration purposes.
To start with, the Obama Administration has deprioritized the removal of immigrant workers. It has chosen instead to focus on the employers themselves,1 with a particular focus on "exploitative employers" - those who knowingly hire and exploit immigrant labor. A key part of this strategy has been constraining the ability of employers to report unauthorized workers to immigration officials as a way of avoiding liability for workplace violations.2 One of the ways President Obama has distinguished himself from past administrations has been by targeting bad actor employers through the creative use of the administrative state. Some of the regulatory innovations force immigration enforcement-related investigations to yield to labor enforcement-related investigations; others enable unauthorized workers to pursue workplace claims before being removed; still others allow unauthorized workers with such claims to avoid removal altogether.3 Moreover, agencies with a workplaceoriented mandate - like the Department of Labor (DOL) - have come to play a more prominent role in the enforcement of immigration laws. All of these workplace enforcement fixes rest on the same rationale: discouraging employers from engaging in the strategic reporting of immigration-related information will advance the goal of deterring employers from hiring and exploiting immigrant workers.
Meanwhile, the Executive has sent a different type of message to sheriffs and police officers, who have emerged as key figures in another major interior enforcement program: the pursuit of noncitizen criminals for removal.4 Having announced that the removal of "criminal aliens" is the Administration's top immigration enforcement priority,5 Immigration and Customs Enforcement (ICE) has undertaken an unprecedented effort to encourage and, in many cases, compel local police to share immigration-related information with federal immigration officials. Although there might be some instances where the Executive discourages such contact from local police,6 interior enforcement as a whole is evolving in a direction that relies heavily on the engagement of local police. In the vast majority of jurisdictions, local law enforcement officers are effectively required to share immigration-related information with ICE on every person they arrest.7 This is a recent development,8 and one that has come to define the Obama Administration's approach to immigration enforcement. Rather than utilizing the 287(g) program9 - an "opt-in" model of local enforcement where each jurisdiction decides whether to assist the federal government in identifying potentially removable immigrants - the Department of Homeland Security (DHS) has openly embraced the Secure Communities Program (S-Comm),10 which compels every jurisdiction to assist in this endeavor. …