Monitoring Immigration Enforcement

Abstract

More than two-thirds of the unauthorized immigrant population - roughly eight million out of 11.2 million - is in our nation’s workforce, and growing evidence suggests that unauthorized workers are more likely than their authorized counterparts to experience workplace-related violations. Although scholars have begun shifting their focus to the agencies empowered to regulate immigrants in the workplace, important questions remain unanswered. Why, for example, has the Department of Labor (“DOL”), our nation’s top labor enforcement agency, struggled to protect unauthorized workers against this exploitation despite the scope and seriousness of the problem? And why has Immigration and Customs Enforcement (“ICE”), our nation’s top immigration enforcement agency, resisted taking into account the labor consequences of their actions? Our ignorance is becoming increasingly indefensible given that agencies often have the final word within an immigration universe characterized by legislative stasis. A closer look reveals a peculiar dynamic: ICE has relatively little interest in regulating the relationship between employers and unauthorized workers, while the DOL has a relatively high interest but lacks the autonomy to effectively do so - a dynamic that tends to foster interagency conflict, ultimately enabling the problem of labor exploitation to persist. What is the way out? Borrowing the insights of administrative law scholars, this Article argues that increasing the ability of the DOL to monitor immigration enforcement decisions can help minimize the externalities that ICE actions ordinarily force the DOL to absorb. This monitoring framework constrains the ex ante stage of decision-making, complements existing immigration scholarship (which has tended to focus on ex post remedies like expanding the ability of the DOL to issue temporary visas), and pushes back on ICE’s law enforcement culture (which has traditionally resisted the incorporation of labor norms). Moreover, the monitoring framework is able to track evolving problems of coordination and to identify emerging vulnerabilities as the Executive’s immigration enforcement authority continues to grow and outpace the development of adequate constraints on the exercise of that authority.