Tuesday, December 09, 2008

Personnel Issues

Generally, I stay away from news involving Customs and Border Protection personnel behaving badly. There is no point in covering it as it does nothing to explain customs law and could conceivably make a bad situation worse for someone I might have to deal with in the future. So, it works both ways: its polite and it prevents future hassles for me.

I'm going to make a general exception here, without going into details. The first reason is that a loyal reader tipped me to the story. This indicates that it has some level of interest in the community. Second, it illustrates that the reality of compliance is often not the same as the government's abstract notion of compliance.

The story is that a CBP employee has been charged with employing an undocumented worker to clean her home. It is pretty clear that the CBP employee knew the legal status of the worker because the CBP employee advised the worker not to leave the county and try and re-enter. Here is the full story.

In the first year of law school, you have to learn torts. Intentional torts are the large and small attacks we face. Battery, for example, is the intentional, unauthorized, and offensive touching of another. (See, Prof. Trubow, I was listening.) So battery might be a punch in the face or a shoulder brush in the hall (assuming it could reasonably be considered offensive for some reason). What happens to first year law students is that they start to see battery, trespass, libel, and and other torts in perfectly normal human interactions. It takes a while for students to figure out that technical torts (or crimes for that matter) are not always pursued by the victims or authorities because they don't really matter and aren't worth the resources.

Sometimes, people find supposedly principled reasons for failing to comply. Ask any kid with a bunch of illegal music downloads why he or she should not pay damages to the copyright holder. You will get a bunch of tired justifications. "Information should be free," for example, or "the record labels make enough money."

The immigration laws in this country are very similar. At the retail level, where individuals hire baby sitters, housekeepers, and landscapers, the cost of compliance is high. Verifying status is not easy for individual employers and authorized workers are likely to be significantly more expensive. I am not making an excuse to justify it, just pointing out a fact. Large employers with resources and expertise should absolutely be held accountable. All I am saying is that human nature may well dictate that going 55 on the highway is not really expected when everyone around you is doing 70.

In her personal life, this CBP employee was acting like most Americans. Of course, when that behavior comes into direct conflict with her government position, the outcome will not be good. The real question, it seems to me, though, is whether the law needs to be aligned with the realities of modern America.

Does this apply to customs compliance? Should giant importers be given a pass in the name of trade facilitation. While there certainly may be circumstances in which CBP should exercise discretion, in the ordinary course, probably not. But, what about the new or unsophisticated importer? I hope CBP keeps them in mind when drafting regulations and rulings. I hope someone is looking out for the individual or small company who is, in all likelihood, just acting like a regular person.

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