Friday, September 26, 2008
Although public law scholars have long addressed the problems of accountability generated by private decision-making and "privatization," they have largely ignored this phenomenon in the immigration context. Our ignorance is increasingly indefensible. Millions of employers - private parties - are required by law to screen their workers for unauthorized immigrants, and growing evidence suggests that they use their screening power to ignore workplace protections and to otherwise exploit these workers. This article is the first attempt to apply the insights generated by the privatization literature to immigration law. It argues that our nation's employers have emerged as private immigration screeners who, like airport inspectors screening for ineligible entrants and law enforcement officers screening for criminal noncitizens, assist the Department of Homeland Security in identifying unauthorized workers for removal. More than just agents of exploitation, reframing employers as private screeners demonstrates that they are also agents of the state. Borrowing analytical concepts developing in the privatization literature, I argue that the high risk of abuse and the lack of readily available mechanisms for reducing that risk raise troubling implications over the kind of power that employers wield as private immigration screeners in the workplace. Reframing our nation's employers as private screeners gives theoretical coherence to the discretionary decision-making authority they actually wield, and explains why they have used that authority to exploit workers - as private parties carrying out public duties, they are incentivized to serve their own interests instead of verifying the immigration status of their workers in good faith. Examining the problem of private immigration screening also forces us to reconsider two aspects about immigration screening generally. First, although immigration law tends to reward unauthorized immigrants who lay low and tends to punish those who draw attention to themselves, I suggest that we ought to rethink this logic at least in the context of the workplace. Because workplace violations committed by employers are typically enforced by private parties, punishing unauthorized immigrants who attempt to assert these rights and thus draw attention to themselves, only encourages workplace violations by employers and fosters a culture of lawlessness. Second, thinking about how decision-making authority within immigration law should be allocated between the public and the private contributes to the current conversation over how similar decision-making authority should be allocated between federal entities and local entities. Although questions of accountability have lingered in the backdrop of the immigration federalism debate, I suggest that scholars would be well served to foreground these questions and answer them head-on.