Texas has sued the Biden administration over its order to immigration agents to prioritize undocumented immigrants convicted of felonies rather than deport all undocumented immigrants.
Texas argues that federal immigration law requires the government to deport every undocumented immigrant. The Biden administration says it doesn’t have the resources to deport the country’s estimated 11 million undocumented immigrants, so it must develop priorities.
The controversy reminds me of something that happened 30 years ago.
Child labor laws bar 14-year-olds from working past 7pm on school nights. Weeks before I became the US secretary of labor, in 1992, a vigilant labor department investigator discovered that the Savannah Cardinals, a Class A farm team of the Atlanta Braves, had hired 14-year-old Tommy McCoy to be their batboy. On balmy evenings extending beyond sunset, Tommy selected each player’s favorite bat and proudly delivered it to him in the batter’s box. Next morning, Tommy went to school.
The investigator threatened the team with a stiff fine. The team did what it had to do: it fired little Tommy.
Tommy liked being a batboy. His parents were proud of their son. The team was fond of him. The fans loved him. As long as anyone could remember, every kid in Savannah had coveted the job. Tommy did well in school.
But now little Tommy was out of a job.
Well, you can imagine the furor. It seemed as if the whole city of Savannah was up in arms. The Cardinals were staging a “Save Tommy’s Job Night” rally, featuring balloons, buttons, placards and a petition signed by the fans demanding that Tommy be rehired.
ABC News was doing a story on the controversy, which is how I first heard about it. ABC wanted me to do an on-camera interview that evening, explaining why Tommy couldn’t be a batboy.
What was I to do? ABC couldn’t wait to show America the stupidity of the government (and its new secretary of labor).
The labor department’s chief inspectors, sitting around a large round table in my office, didn’t want me to back down. After all, they said, the law was clear: Children under 14 could not work past 7pm on school nights. Besides, child labor was a serious problem. Children were getting injured working long hours.
“If you back down, it will look like you’re caving in to public opinion,” one of the chief inspectors told me.
“But,” I asked, “isn’t it the public whom we’re here to serve?”
“The Savannah team broke the law and it was our responsibility to enforce the law.”
“But who says the law has to be enforced this way?” I asked. “Don’t we have some discretion over how we enforce the law? We have only a limited number of inspectors. Shouldn’t we have priorities? I can understand hitting a building contractor who’s hiring kids to put on roofing, but why are we going after batboys and girls?”
They warned me that if I didn’t support the department’s investigators, the staff would become demoralized.
“Good! If they become demoralized and stop enforcing the law nonsensically, so much the better,” I said.
They warned that if I backed down, the labor department would lose credibility.
“We’ll lose even more credibility if we stick with this outrageous decision,” I said.
They said there was nothing we could do. The law was the law.
“Nonsense,” I said. “We can change the regulation to make an exception for kids at sporting events.”
But that would invite all sorts of abuses, they argued. Vendors would exploit young kids on school nights to sell peanuts and popcorn, stadiums would hire young children to clean the locker rooms, parking lots would use children to collect money.
“OK,” I said, “so we draw the exemption tighter, and limit it to batboys and batgirls.”
I was getting nowhere. In minutes I’d have to appear on World News Tonight and defend the indefensible.
Then it hit me, like a fastball slamming into my thick head: I was secretary of labor. I could decide this by myself.
“I’ve heard enough,” I said, standing.
I turned to my assistant, “We’re going to tell the Savannah team they can keep Tommy. We’ll change the regulation to allow batboys and girls. Put out a press release right now. Call the producers for World News Tonight and tell them I’ve decided to let Tommy keep his batboy job. Tell them our investigator was way off base!”
“But World News Tonight is already on the air!” my assistant said.
“Call them now!”
I turned on the TV in the corner of my office. Peter Jennings was reading the news from his monitor. Within moments he said:
The United States Department of Labor has decided that a 14-year-old named Tommy McCoy cannot serve as batboy for the Atlanta Braves farm team in Savannah, Georgia. The decision has provoked outrage from the fans. Here’s more from …
As he turned it over to ABC’s Atlanta correspondent, Jennings appeared to be smirking.
I was dead, politically.
I looked around the table at the inspectors. Did they understand that in 7m living rooms across America people were now saying to each other “How dumb can government get?”
After two excruciating minutes during which ABC’s Atlanta correspondent detailed the story of little Tommy, it was back to Jennings:
But this tale has a happy ending.
My heart skipped a beat.
The labor department reports that Tommy will get his job back. Secretary of Labor Robert Reich has decided that the department was – quote – off-base in invoking child labor regulations under these circumstances.
I was still alive, politically.
But the inspectors sitting around my table were dismayed.
I tried to explain to them exactly what the Biden administration is now trying to explain to the courts and to Republicans in Congress.
Laws cannot be enforced without setting priorities for enforcement. Inevitably – intentionally or unintentionally – the people in charge of enforcing laws determine which cases merit their attention and resources.
So enforcers must use common sense. Prioritize targeting employers who are hiring young children and putting them in dangerous jobs over, say, a farm team hiring a kid as a batboy.
Prioritize undocumented immigrants convicted of felonies over, say, a Dreamer who was brought to America as an infant and has been hardworking and law-abiding for her whole life.
Robert Reich, a former US secretary of labor, is professor of public policy at the University of California, Berkeley, and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
