Illegal Aliens and Employer Sanctions: Solving the Wrong Problem

Annelise Anderson

Annelise Anderson is a Senior Research Fellow at the Hoover Institution, Stanford University. She was Associate Director for Economics and Government, Office of Management and Budget, from 1981 to 1983. This essay was originally published in The Hoover Essay Series in 1986.

Our brains do appear to be programmed to the following extent: we are inclined to partition other people into friends and aliens . . . We tend to fear deeply the actions of strangers.

Edward O. Wilson
On Human Nature, 1978

      Some time in 1986 the U.S. Congress, for the fourth successive year, will consider immigration reform legislation. The current Senate version of the legislation was passed September 19, 1985, with the support of the Reagan administration. The House version was introduced into that body July 25, 1985, but has not yet been acted on by the Judiciary Committee or the full House.
      The driving force behind this proposed legislation is concern about illegal immigration, primarily from Mexico and other Spanish-speaking countries. Its basic approach is to try to deny to illegal immigrants to the United States what they presumably find most attractive - access to the U.S. labor market, or the possibility of workÄby making it illegal for employers to hire them.

      Legislation similar to the 1985 Senate bill, known as the Simpson-Mazzoli bill after its sponsors, Senator Alan Simpson (R., Wyoming) and Congressman Romano Mazzoli (D., Kentucky), failed in House-Senate conference committee in the fall of 1984, in the waning days of the 98th Congress. The essential approach of this bill also was to stem the flow of illegal immigrants to the United States by closing off their access to jobs. The central employer sanctions provision of the bill proposed penalties on employers who knowingly hire illegal aliens. As a necessary corollary, the bill also contained worker identification provisions, to provide employers with a means to show they had tried to comply with the law by checking the identification of all potential new workers to determine whether or not they were eligible, under the new law, to work. Finally, it proposed an amnesty for illegal immigrants who had been in the United States since 1980, so that they could remain here without threat of deportation, be able to change jobs, and become U.S. citizens.

      Every major provision of the bill was objectionable to one group or another. Amendments designed to meet the concerns of one or more interested parties created problems for others. There were no easy ways to resolve the conflicts, no simple differences to split. Not only were the concerns of special interest groups at stake, but also fundamental values:

     Whether the federal-government's coverage of state costs resulting from amnesty should be open-ended or capped was the final unresolved issue that defeated the conferees, in spite of the strenuous efforts of supporters of the bill to reach acceptable compromises. Even had they resolved this issue, it is unlikely the conference report could have been passed on the floor of the House; initial House passage was achieved only by strenuous efforts by the legislative affairs staff of the Department of Justice with House Republicans.

     The current Senate and House bills differ somewhat from the legislation that failed in 1984, but the inherent problems and conflicts remain.1

Rationale for the Legislation

     Supporters of the legislation view illegal immigration as a serious problem, in fact a crisis: we must do something. They cite the presumably large number of illegal aliens who have crossed the border and decided to remain here and the annual flow of illegal entrants who add to this stock, and the consequences. Governor Richard Lamm (R., Colorado) warns that if the United States fails to stop illegal immigration, "we shall leave a legacy of strife, violence, and joblessness for our children." Senator Lawton Chiles (D., Florida) says that "if we do not regain control of our borders . . . I think that within ten years, we will not recognize the United States as the United States we see today."2 Proponents champion the employer sanctions approach as the only possible solution, one that presumably will work and will bring benefits that greatly outweigh whatever undesirable consequences it may have.

     What is unsettling about the argumentation of the proponents (and its repetition in the press) is the high incidence of language that appeals to passion or prejudice rather than reason, the casual use of numbers, and the logical inconsistency of many of the contentions. The rhetoric of the public debate deserves attention in itself.

     Supporters of the legislation, including the administration, have long claimed that we have lost control of our borders. This implies a time when we had control of our borders. In fact there has never been such a time; nor is there likely to be, short of militarization of the kind practiced on the border between East and West Berlin. "The first duty of a sovereign nation is to control its borders," says Senator Simpson, thereby setting up a false analogy between crossing the border illegally to obtain work and invading a sovereign nation with hostile intent.3 The sovereign duty to which he alludes is that of providing for the common defense, not preventing people looking for work from crossing the border without formal entry documents. Entry without a visa or acceptable entry documents was not even made an offense against the United States until the 1920s.4

     Senator Simpson's analogy is encouraged by use of the term illegal alien. Although an alien is simply a foreign-born person who is not a citizen, the term has overtones of the use we make of the word as an adjective: strange, incongruous, adverse, different in nature, perhaps even extraterrestrial. And illegal can suggest criminal. Illegal alien, while technically correct, is thus much stronger than, say, undocumented (or improperly documented) entrant, someone from another country who enters the United States to look for work without going through the required immigration procedures.

     The final irony is that employer sanctions are not a means of controlling the border, but rather an admission that we are unable to do so, at least with means that we are willing to employ at the present time.

     Although crossing the border illegally in search of work is considered the major problem in immigration policy today, there seems to be an almost willful effort not to know what the facts are. The Select Commission on Immigration and Refugee Policy, which was established by the Congress in 1978 and issued its final report in March 1981, decided early in its deliberations "not to spend money on what would be a fruitless effort to count the number of illegal aliens, since there was no prospect of improving on existing data already available, unreliable as it was, in the time permitted the Commission." It did so in spite of the "full realization of the desire of Congress and the public for a precise estimate of the number of illegal aliens in the United States."5

     A prime source of information on the number of aliens in the country legally - the alien registration form - was dropped in 1981 because the information was not considered good enough, even though comparison of the number of legal aliens with the total alien population as estimated from surveys by the Bureau of the Census is an important means of estimating the number of people here illegally.6 Total ignorance seems to be preferable to imperfect statistics.

     In spite of their ignorance, proponents of the legislation have produced any number of "estimates" of the number of illegal immigrants who have chosen to remain in the United States as well as the annual number of new illegal entrantsÄboth the stock and the flow, in technical terms. These estimates are almost always conjectures that are higher than estimates made by researchers in the field. A recent National Research Council study of immigration statistics characterizes these estimates, including a recent one of 6 to 12 million resident illegal aliens, as "coming out of the blue," "cumulated out of the blue," or "averaged out of the blue."7

     Dr. Jeffrey S. Passel of the U. S. Bureau of the Census identifies several major speculative estimates of the number of undocumented aliens in the country - ranging from 4 to 12 million for various years and several estimates of the annual increase in the undocumented population - one of 600,000 persons per year - none of which distinguishes among permanent settlers, temporary workers, and commuters. "The speculative estimates are not well-grounded in the available data; indeed, that is what makes them speculative. Nor do they square very well with the analytical estimates."8 He notes that the numbers game is still being played: "Press accounts continue to refer to the rising tide of illegal immigration' and the flood' of undocumented immigrants overwhelming the country. Yet, evidence cited in support of such claims is often nonexistent and seldom more than speculation based on impressionistic data.' This situation is unfortunate."9

     The most recent player in the numbers game is the Commissioner of the Immigration and Naturalization Service, Alan Nelson, who has come up with a "startling surge" of illegal aliens entering the country from Mexico. The greatly enlarged INS border patrol (up 33 percent over last year) is expected to make 40 percent more apprehensions at the border than it did last year. Nelson uses a "got away" ratio for speculating on the number of border crossers - for every apprehension two or three get through - even though this ignores the obvious fact that an enlarged border patrol should make more apprehensions and even though INS has no way to count the people it apprehends more than once.10

     In spite of the speculations and conjectures, some good analytical estimates are available. The best ones come from the National Academy of Sciences and the U.S. Bureau of the Census. In 1982 the National Research Council (NRC), the research arm of the National Academy of Sciences, established its Panel on Immigration Statistics at the request of the INS. Reporting in August 1985, the NRC rejected conjectural estimates and instead analyzed carefully those studies based on some empirical evidence. The report concludes that "a population of 1.5 to 3.5 million illegal aliens in 1980 appears reasonably consistent with most of the studies . . . the only available data on recent trends, INS records of locations of deportable aliens, in fact suggests that the population has increased little if at all since 1977."11 (Summary statements in the report use an estimate of 2 to 4 million for the number of illegal resident aliens.)

     In recent testimony on work taking place at the U.S. Bureau of the Census, Dr. Jeffrey S. Passel reported on research concluding, in agreement with the NRC study, that the undocumented resident population was in the range of 2.5 to 3.5 million persons in 1980. The number of undocumented aliens is calculated by taking the difference between the number of resident aliens, legal and illegal, counted in the 1980 census, and the number of legally resident aliens as determined by the Immigration and Naturalization Service through its alien registration program (since abandoned), after these numbers have been adjusted for error. The 1980 census counted just over 2 million illegal residents; Passel concludes that 2.5 to 3.5 million illegal residents is a likely range consistent with other data, such as the 1980 Mexican census.12

     Passel does not agree, however, that there is no evidence for growth in the illegal resident population. On the basis of comparisons of data from the April 1983 and November 1979 Current Population Surveys and data from the 1980 census, he concludes that the illegal population increased between 1980 and 1983 by 100,000 to 300,000 persons per year.13 Even if all illegal residents were in the labor force, they constitute only 3 to 4 percent of the total labor force, or 4 to 5 percent if the temporary entrants - those commuting across the border or staying for relatively short periods of time - are included.14

     Furthermore, in terms of historical comparisons, some portion of the illegal population is illegal simply as a matter of definition. Between 1942 and 1964 the United States had a temporary worker program of considerable magnitude, the Bracero program. Some of the features of that program are in retrospect considered undesirable. Nevertheless, the program admitted on a temporary and legal basis several hundred thousand Mexican workers in some years. In 1960, for example, 447,207 temporary foreign laborers were admitted, 427,240 of whom came from Mexico.15 The 1965 amendments to the 1952 Immigration and Nationality Act, which ended the Bracero program but not the annual migration of Mexican citizens to take temporary work in the United States, redefined this flow as illegal.16 In late 1985 another rationale was increasingly being emphasized to justify passage of the legislation: a possible backlash against newcomers. "We could have a terrible backlash, a terrible period of repression," says Rev. Theodore Hesburgh, who chaired the Select Commission on Immigration and Refugee Policy. The only way to check the "living scandal" of the flood of undocumented aliens is to slap stiff penalties on employers who knowingly hire them, he claimed in congressional testimony the week of June 17, 1985. Alan Nelson, commissioner of the Immigration and Naturalization Service, says, "Eventually a public rebellion is likely if we don't do something. So why don't we do it now and prevent trouble later on."17 Congressman Peter Rodino (D., New Jersey), who introduced the bill in the House in this session of Congress, claims, "It is a mistake to let this problem go unaddressed. What's going to happen if we don't act is that a psychology will develop that says, Don't let anybody in.'"18 And again from Senator Simpson, the original sponsor of the bill: "Illegal immigration endangers a fair and generous policy of legal immigration."19 And Senator Pete Wilson (R., California) who opposed the legislation in 1984, voted for it in 1985, commenting, "the American people are clamoring for a response" to the problem of illegal immigration.20

     Strife, violence, joblessness, loss of control of our borders, living scandal, flood, rising tide, startling surge, backlash, repression, public rebellion. These are strong words, even frightening ones. Given the quality of the rhetoric and the willful ignorance about data, it is fair to conclude that supporters of the legislation are trying to scare the public and may well be succeeding. The "rising tide" rhetoric encourages the idea that we are being inundated by foreigners and may indeed lead to a more general xenophobia, one brought on by the proponents of the legislation themselves: a self-fulfilling prophecy that could encourage acceptance of the legislation in spite of its many undesirable features and questionable effectiveness.

     A final quotation, from representatives Daniel E. Lungren (R., California) and Hamilton Fish, Jr. (R., New York): "We have worked on this issue for many years and are painfully-aware of the fragile coalition that must be forged if this nation is ultimately to take effective control of its borders . . . no one has yet suggested a device other than employer sanctions that will reduce the flow . . . if we fail to act before the end of this year, in our judgment, we will be setting the stage for repressive legislation in the future. The American people will not long stand for ever-increasing numbers entering by land or sea. Public perception will lump legal immigrants and refugees with illegal entrants."21

     Here again is the implication that federal employer sanctions legislation is critical and will be effective. Congressmen Lungren and Fish come from two of the five states wherein over 80 percent of the illegal aliens in the country are thought to reside.22 On June 20, 1984, when the legislation came to a vote in the House, the California delegation voted 33 to 12 against the legislation; the New York vote split 17 to 17. In the other three states involved, Texas voted 23 to 3 against; Illinois 12 to 10 for; and Florida 17 to 2 for.23 Furthermore, both California and Florida have state employer sanctions laws on their books, as do nine other states (Connecticut, Delaware, Kansas, Maine, Massachusetts, Montana, New Hampshire, Vermont, and Virginia) and one city (Las Vegas). The California law, passed in 1971 (the others are all later enactments), was tested in the Supreme Court and declared a legitimate exercise of state legislative authority in the area of immigration.24 Nevertheless, as of 1983 neither California nor Florida had prosecuted any cases under their respective laws, and only five convictions had been attained throughout the country in the eleven jurisdictions having employer sanctions legislation. In 1982 both the Illinois and New Jersey legislatures considered but failed to pass such legislation.25 Apparently the states, our laboratories of democracy, do not find it desirable to pass such legislation or to enforce it if they have passed it.

     Furthermore, a General Accounting Office survey of twenty countries with laws penalizing employers of illegal aliens concluded that the laws were not an effective deterrent to illegal employment. This was the case even when fines and possible jail sentences were far higher than they are in the legislation under consideration in the United States. Wayne Cornelius of the Center for U.S.-Mexican Studies at the University of California, San Diego, concludes that "there is not a single documented case of successfully using employer sanctions laws to reduce the population of illegal immigrants anywhere in the world."26

     One wonders how we got into this situation. Ineffective legislation is being promoted with rhetoric appealing to passions rather than reason to solve a problem that has been vastly overblown and distorted. One of the reasons is that problems of illegal immigration that have nothing to do with whether or not employer sanctions exist may nevertheless have motivated the development of policy. The Select Commission on Immigration and Refugee Policy, which followed the Carter administration in proposing the triad of employer sanctions, worker identification, and amnesty, was making policy decisions at a time of heightened public concern about illegal immigrants: Castro sent 125,000 Cubans, many of them criminals, to the United States via the Mariel boat lift in the fall of 1980, and during 1980 and 1981 boatloads of Haitians were also arriving on our shores illegally. The president's statement on immigration of July 30, 1981, noted the Select Commission's conclusion that "the Cuban influx to Florida made the United States sharply aware of the need for more effective immigration policies."27 But the legislative proposals for dealing with illegal immigration by attempting to deny illegal entrants access to the U. S. labor market are not relevant to the Cuban or Haitian situations, which were addressed by the administration in other ways. For most countries, illegal immigration to the United States is a small fraction of legal immigration. Other than the border state of Mexico, countries where illegal immigrants equaled or outnumbered legal immigrants as of the 1980 census provide a partial list of the world's political trouble spots: Haiti, El Salvador, Guatemala, Iran.28

     Another reason for-the present dilemma is that legislative proposals tend to have a life of their own, remaining on the agenda and sometimes becoming law long after the problems that inspired them are over.29 Having been pregnant for so long, the sponsors and supporters want to have the baby. Even if it is not the most beautiful of babies and will become even less appealing as it matures, it will nevertheless be their baby. Those who worked on it have a vested interest, as may the special interest groups who stand to benefit. Some support may-also come from those who are not particularly concerned about the problem with which the proposals purport to deal - in this case, illegal immigration - but with the supposedly secondary aspects, such as the development of more rigorous means of personal identification. This is almost irresistible to law enforcement officials, who always seek better tools for doing the jobs the public wants done. Finally, the legislation seems to address public concerns about a problem (concerns heightened by sponsors and supporters), even though it may not work and the problem it addresses is not the real problem.

Solving the Wrong Problem

     The work of the Panel on Immigration Statistics and the Bureau of the Census does not square with the statements of politicians about the extent of illegal immigration, nor does it square with the perception of many citizens. This does not mean that their estimates are wrong; it may simply mean that what we are perceiving (encouraged by the public rhetoric) is an increase in foreigners among us. The perception is a consequence of total immigration, mostly legal but some illegal (including illegal immigration that is entirely unrelated to the proposed legislation, such as the Cuban arrivals in the 1980 Mariel boat lift)      The perception of an increase in foreigners among us is therefore a correct perception, providing fertile ground on which the claims of a rising tide of illegal aliens can fall. Nevertheless:      The number of immigrants admitted legally to the United States has increased considerably since 1950, as Table 1 and Chart 1 show. The 1981-1990 decade total will be 5.7 million persons if 1985-1990 admissions continue at the 1981-1984 rate. Hispanic immigration has increased as well, as Table 2 and Chart 2 show.31

     Immigrants from Asia are, however, the fastest increasing legal group, as Table 3 and Chart 3 demonstrate. The decade total will be 2.8 million Asian-born immigrants by the end of fiscal 1990 at current rates of admission.

     Table 4 and Chart 4show the total number of Asians and Hispanics admitted legally in the last several decades. These admissions do much to account for our increasing perception of foreigners among us, especially given the concentration of these immigrant populations in certain areas of the country. David Heer notes that of the people born in Latin America and residing in the United States as of the 1980 census, 28.0 percent were in the Los Angeles area, 10.9 percent in the Miami area, and 15.6 percent in the New York City area.32

     All four tables are based on data on legal immigration compiled by the Immigration and Naturalization Service. Chart 5 shows legal immigration as a percentage of the U.S. population.

     Not all the people admitted legally during a ten-year period are still part of the population at the end of the decade; some leave the country and some-die. Because the United States has little information on who leaves the country, surveys of the Bureau of the Census are important in determining how many people have remained. The 1980 census counted 14.1 million foreign-born U.S. residents, including about 2 million who had entered illegally. This is 6.2 percent of the 1980 population, up from 4.8 percent in 1970 - but less than half the 1910 percentage. Furthermore, about half of them were already U.S. citizens.

     Given the conclusions of the National Research Council and the Bureau of the Census, the U.S. Congress appears to have under consideration legislation born of crises it does not address - the Mariel boat lift, illegal Haitian immigration, and illegal immigration from other countries that is motivated by political as well as economic concerns. The legislation is designed to deal with a problem whose major dimensions have been misunderstood: a problem not of too many illegal aliens but of a substantial numer of immigrants - some illegal but primarilu legal - with foreign languages and cultures that are increasingly Hispanic and Asian. For geological and demographic reasons, this situation is likely to continue well into the future. In its July 8, 1985, special issue on immigration, Time magazine claimed that xenoghobia is not the force behind efforts to regorm immigration legislation; but that seems to be the sentiment the public rhetoric is designed to activate.33

     What we may well need, then, is not a policy to address illegal immigration, but an immigration and naturalization policy that will serve us well in the decades to come. Instead, we have chosen as a major issue the problem of illegal immigration, as though shutting off the flow of illegal aliens, assuming it could be done, would protect our language and culture from whatever it is we fear of Asian and Latin American influence. We have furthermore chosen illegal immigration for the purpose of looking for work as the policy focus, as though closing off access to U. S. labor markets would end the effort to escape repressive regimes abroad. It is like trying to prevent cancer by refusing to have a diagnostic X-ray, when the X-ray delivers only a tiny fraction of the radiation we get by spending an hour in the sun.

Problems with the Solution

     The work of the NRC and the Bureau of the Census should at least cause us to pause and reconsider whether it is desirable to undertake the substantial and probably irreversible changes employer sanctions legislation involves, given the substantial and systematic distortions political leaders have used in defining the problem and defending their solution. There is a strong possibility that employer sanctions legislation, even were it to work as its supporters envision, would not address national concerns and would easily prove to have costs far in excess of the benefits it is purported to offer. The legislation is questionable on both principle and practicality. Many would reject it as a way to deal with the problem of illegal entry, even if this problem were our major immigration problem.

     It has already been mentioned that an employer sanctions policy requires worker identification and amnesty as well. The following paragraphs review some of the problems with each of these components of the policy.

     Employer sanctions.      Supporters of employer sanctions find it preposterous that employers can hire illegal aliens with impunity; others object to the concept of placing the burden of law enforcement on employers. Unquestionably there would be paperwork. A more fundamental issue concerns our relationship with Mexico. Mexico is our continental neighbor on the south, a country of 70 million people growing at a rate that will double its population in 20 or 25 years. Long-term good relations with that country, which has been under considerable economic stress for the last several years, are clearly in our interests as well as theirs. Under current arrangements Mexicans come to work in the United States when jobs pay enough to make the costs of the trip worthwhile. Most return to their homeland, usually in less than a year. If they come to the attention of the authorities because they become public charges or are not law-abiding, they can be sent back to Mexico. When apprehended, almost all return to Mexico voluntarily, without imposing costly deportation hearings on the system, in part because they can try to cross the border again with relatively good chances of success.

     This is not such a bad state of affairs, given the circumstances. The arrangements are flexible in accommodating responses to both the U.S. demand for labor and problems in the Mexican economy, such as the recent drop in oil prices and the Mexico City earthquake. By contrast, the proposed legislation sends the message that we wish to shut down this flexible access to the U.S. labor market. But it cannot make our labor markets less attractive - it can only raise the price of access by making it more costly to obtain false documentation. At the same time it provides perverse incentives for further illegal immigration and would encourage lengthy adjudication procedures that would vastly increase the burden on a system already overloaded.34

     An employer sanctions policy implicitly acknowledges that we cannot control our borders and must instead deprive potential illegal entrants of what is presumably their major reason for coming to the United States: the opportunity to work. Nevertheless, this is only one reason for illegal immigration. In some countries where employer sanctions have been tried, the authorities have found it necessary to close off access to housing as well as jobs; housing permits are required as well as work permits. Some countries, for example, West Germany, have landlord sanctions as well as employer sanctions.35

     Worker identification.     Regardless of compromises made in an effort to make the proposed legislation more palatable to civil libertarians, employer sanctions require worker identification. Placing the burden of identifying workers "not eligible" to work on employers requires that they have some means to determine eligibility other than, presumably, discrimination on the basis of looking or sounding foreign. To build into law an economic incentive to discriminate is contradictory to the thrust of what the country has tried to achieve in equality of opportunity over the last several decades. The only possible way to do this is to require each and every job applicant to produce identification.

     The attraction of the U.S. labor market to Mexicans and citizens of other Latin American countries is considerable. Wage differentials are great and are likely to remain so in the foreseeable future. The willingness to pay for access to this labor market - the tariff - is therefore quite high. A worker identification requirement is thus likely to lead to a strong demand for fraudulent documents and the development of sophisticated and widespread fraudulent document mills.

     The documents in use in the United States today as identifiers, including social security cards and drivers' licenses, can be obtained fraudulently. A critical problem is that the underlying documents on which these identifiers are based - birth certificates and death records - are themselves unreliable and are not handled centrally in the United States. Thus it is possible, for example, for an individual to get a birth certificate belonging to someone with a similar birth date now dead. This is why the Senate version of the legislation introduced in the 98th Congress originally required that within three years the president establish a "secure" system of identification - one that ensures that the individual is not claiming the identity of another, and is also tamper-resistant and counterfeit-proof.

     This language has more specific implications than a quick reading might suggest. To be tamper-resistant any photographs or fingerprints must be difficult to change; a seal such as that used on passport photos is one approach. Counterfeit-proof requires that the materials involved be hard to duplicate, thus requiring special paper, inks, and engravings such as those used for currency or, again, a passport. Ensuring that the individual is not claiming the identity of another suggests some means of cancelling the validity of identification on the death of the holder and also seeing to it that a birth certificate being presented does not belong to another person, living or dead, who is the true holder. This cannot be done without establishing a centralized birth and death registry - one covering those not in the work force as well as those who are - and an information center for employers to call to verify the validity of identification.

     The Senate bill introduced in the last Congress did not call this "secure system" a national identity card, but there is no other way to meet its demands. It is difficult to imagine a more rigorous set of requirements for an identification system than those specified in the original Senate bill. The Reagan administration opposed the establishment of a national identity card system both in its initial statement on immigration policy and also in a letter from William French Smith, then attorney general, to Senator Strom Thurmond (R., South Carolina), then chairman of the Senate Judiciary Committee. That letter objected to the language of the Senate bill on the grounds that requiring "a secure system to determine employment eligibility" could be read to require a national identity system, especially given the characteristics specified for such a system. In its various stages, the immigration legislation has repeatedly been specific about the lack of intent to create a national identity card or system, but this appears to be pure rhetoric. The actual language of the bill as introduced specified the criteria for such a system, and the likely course of events - the defeat of the objectives of the legislation through the use of Fraudulent documents - suggests that the demand for such a system would increase.

     Finally, the use of a national identification system for purposes other than the determination of eligibility to work is virtually inevitable - or rather, just plain inevitable. Supporters of the legislation point to provisions limiting the use of any employee identification to employment eligibility. But one Congress cannot bind another Congress. It is easy to imagine a future Congress, seeking to deal with terrorism, gun control, civil disturbance, tax evasion, draft evasion, failure to pay child support, voter fraud, welfare fraud, spies, communicable diseases, multiple drug prescriptions, or whatever, extending the power to use the national identification system to deal with the crisis of the moment. Our own history, as well as that of other countries, shows that governments tend to use the powers, information, and tools available to them to deal with the problems of the day, sometimes because the public demands, in the heat of the moment, that they do so, without fully considering the consequences. Thus Congress authorized the use of Bureau of the Census records to round up Japanese Americans during World War II, and more recently permitted the use of information from social security records to track down evaders of draft registration. To control this tendency, we define and limit the powers we permit our government to exercise; this is what the Constitution is all about.

     A centralized national identity system is an extraordinarily powerful tool to give to a government. No totalitarian government operates without one. It requires a naivete based on a total absence of historical perspective to believe that we can allow the government to establish such a system and at the same time prevent its eventual use for purposes that we would today consider totally unacceptable. The problem of illegal immigration does not warrant such a risk.

     The 1985 Senate bill attempts to deal with the sensitivity of the issue by making record keeping voluntary, and thus allowing the employer to decide whether or not to take the risk of having the documentation available to provide a defense against an accusation of hiring an illegal alien.

     The current House version makes record keeping mandatory, but also perhaps in anticipation of compromises with the Senate in conference - establishes a new right of alienage: the right not to be discriminated against in favor of a U.S. citizen in hiring decisions. This right would apply only to legal resident aliens who had taken the necessary steps to demonstrate their intent to become citizens (how an employer would determine whether or not they had indeed applied for citizenship at the earliest possible opportunity is not addressed).

     The concern of members of the House demonstrates well the peculiar and knotty problems created by employer sanctions. The problem is not that people are inclined to discriminate in employment on the basis of alienage, that is, whether or not the applicant is a U.S. citizen. In fact, the question of the need for employer sanctions is based on obvious willingness of employers to hire people regardless of their legal status as the government sees it. Discrimination on the basis of alienage is not a problem in this country, even though there may be a few employers who prefer to hire U.S. citizens. Rather, employer sanctions create a problem of discrimination not on the basis of alienage, but rather on the basis of looking or sounding foreign, whether or not the individual is a citizen, a legal resident alien, or an illegal entrant. It is this problem of an incentive to discriminate to avoid problems with the enforcement authorities that the new right of alienage is intended to address, complete with a new unit in the Department of Justice to have jurisdiction over at least some of the complaints brought.

     Amnesty.     Instituting employer sanctions for hiring anyone ineligible to work would mean that those who entered the country years ago and have not obtained fraudulent identity papers would be unable to work. Whatever their number, these people are important in the labor force in some sectors of the economy; they may own houses or have children who are U.S. citizens. Providing them with legal status so that they are not suddenly ineligible to work (at least for a new employer) is a necessary corollary of employer sanctions. It is also the trade-off Hispanic groups are sometimes willing to make in return for accepting the threats that employer sanctions pose.

     Once a date for eligibility is chosen, a major problem with amnesty is determining whether or not claims of eligibility are valid. The problems of denying amnesty on the basis of inadequate records are extraordinary. What kinds of records could we possibly expect people to have kept - especially records that are not readily counterfeitable? A few rent receipts or telephone bills, a reference from an employer who may have gone out of business or moved? The problems with amnesty are its extraordinary unfairness to those who have not entered illegally but have instead waited patiently in line in Mexico City or wherever; its attraction to those who anticipate an amnesty in the future; and fraudulent claims for eligibility.

     Getting in on the amnesty program and getting employed and documented before those doors close again may actually attract people to the country who would not otherwise come at this time, or it may encourage people to stay who would otherwise return to their countries of origin knowing that they could come again sometime. The employer sanctions package may make things worse: we may have more illegal entrants (legitimized by amnesty or not) in, say, five years than we would have without the legislations plus a thriving illegal documents industry and ever more strident calls for national identity cards.
A Conclusion About the Problem

     It may be fair to conclude that the problem masquerading as illegal immigration is simply today's version of a continuing American - in fact, human - condition, namely xenophobia. The history of our immigration policy shows this characteristic with respect to southern and eastern Europeans and Orientals in previous times; today it is simply "too many Mexicans" or "too many Hispanics."

     The general xenophobia about foreigners has been nurtured by political rhetoric. The public has been persuaded that there is a crisis, that this crisis is specifically a crisis of too many illegal immigrants crossing the border to look for work, and that this crisis will change the nature of our society and culture. The triad of employer sanctions, worker identification, and amnesty is proposed as the solution to the crisis.

     But the employer sanctions approach is a snake-oil remedy. It addresses only a small portion of immigration policy, ignoring legal immigration and illegal immigration for purposes other than job seeking. There are also no reasonable grounds for assuming that it would be anything but a failure - in fact, counterproductive - in accomplishing its fundamental purpose. The employer sanctions approach also has damaging side effects.

     If employer sanctions will not work and do not address the major issues, what should we do? We can begin by recognizing that Mexico is there, our borders are long, there are routes by air, by sea, by land; and political turmoil in Latin America is likely to continue. That a great deal more Hispanic immigration and influence in the United States is inevitable is the only realistic assumption on which to formulate policy. It is also realistic to assume that world events will affect future immigration to the United States. We may want, for example, to open our doors to a considerable number of people from Hong Kong as the date of communist Chinese control approaches.

     We may be able to control only marginally the flow of Mexican and other Latin American immigrants across our borders, but we do have the power to choose the terms on which we permit them to stay and become eligible for citizenship.

     A prime objective of policy should be long-term good relations with Mexico, including the continuation in Mexico of a pro-American anti- communist government. The problem of illegal immigration is thus fundamentally a foreign policy problem, and the safety-valve feature of Mex ican immigration is a matter of considerable importance. The employer sanctions approach was developed and adopted by the current administration well before August 1982, when the extent of Mexico's economic problems first became apparent, and should be reconsidered given the changes in circumstances. Our awareness of the importance of good relations with our neighbors on this continent is already amply demonstrated in our policies. We don't shoot illegal border crossers and we are far from adopting any of the measures taken to secure the border between East and West Berlin. And we are often sympathetic with the plight of those who have entered illegally to escape political persecution.

     The other major policy objective should be the economic and political health of the nation. This health is served best by immigrants - legal or illegal - who come to work rather than take advantage of our generous public assistance programs.36 We want entrants interested in the job market, not the dependency market. Employer sanctions that attempt to close off access to our labor markets are contradictory to this objective. So is general amnesty subject to abuse. But regulations and enforcement to limit social support services to illegal residents are consistent with this objective, as is a more purposeful naturalization policy.

Recommendations for Policy

1.  The employer sanctions approach should be abandoned. Employer sanctions would encourage discrimination against those who look or sound foreign. Employer sanctions are wrong in principle, would fail to accomplish their purpose, and are contradictory to long-run objectives of foreign policy. The approach further distracts us from more realistic assessment of immigration problems.

2.   Worker identification would lead inequitably to a centralized, national identification system. It constitutes a threat to civil liberties and should be rejected. Requirements for worker identification would encourage a fraudulent documents industry and create pressures for centralized control and tracking of birth and death records. The resulting system would be available to the authorities to use for a variety of purposes for which it was not originally intended - terrorism, civil disturbance, whatever. The historical evidence suggests that governments do use the powers available to them. Setting in motion forces that are likely to lead to a national identification card or system is thus a step of extraordinarily serious magnitude for which there is no current justification.

3.  A general amnesty is unconscionable and unnecessary. Legalization of those now in the United States illegally would encourage entry to become eligible for this or future amnesties, and is clearly unjust to those who have not violated our immigration laws. The framework of employer sanctions, worker identification, and amnesty is unnecessary for addressing problems that may exist as a result of illegal immigration, such as the need for emergency medical care.

     Illegal immigration does not create a permanent underclass, as proponents of amnesty claim, but rather a temporary circumstance of ineligibility for government-funded social services. This circumstance is furthermore a matter of choice, a preference over conditions in the country of which the individual is a citizen. There are at least some means of regularizing status: in addition to numerically restricted immigration giving preference to families of U.S. citizens and permanent resident aliens, current law permits numerically unrestricted immigration for spouses of U.S. citizens and parents of adult U.S. citizens (as well as unmarried minor children of U.S. citizens). Current law also provides for an adjustment of status after seven years of "squatting" in hardship cases, a provision that could be used more liberally without turning to the employer sanctions triad.

4.   Entry into the United States without appropriate documentation should continue to be illegal, and the Immigration and Naturalization Service should continue to improve its efforts at border enforcement.The fact that border enforcement is not absolute is not a cause for dismay; illegal entry and exit will vary with economic and political conditions elsewhere and the demand for labor in the U.S. economy. The illegal status of those who succeed in crossing the border provides grounds for deportation in the event they come to the attention of the authorities as violators of criminal law or public charges. The INS should, however, stop using border apprehensions as a measure of illegal entry, since there is no necessary relationship between these numbers. The Department of Justice and the Immigration and Naturalization Service also have enforcement powers that have been shown to be effective on a limited basis in the interior of the country; problems in any community can be managed.

5.   Those who enter illegally and become employed should be expected to pay the same taxes other residents pay. Whether or not they will ever become eligible for the benefits that are supposedly funded by specific payroll taxes is beside the point; benefits to other workers are not directly related to taxes paid either.

6.  Illegal entrants should be denied access to public assistance and welfare benefits, not the U.S. labor market.Where a state or locality provides federally supported aid to illegal entrants, the federal government should reduce its grants-in-aid for the program. Los Angeles County has had considerable success in controlling welfare expenditures by denying aid to those who cannot prove legal status. This approach should be used in other jurisdictions where the level of expenditures is large enough to make it worthwhile. Access to U. S. welfare benefits should not become a drawing card for illegal entrants or their families. Those here illegally who are apprehended for criminal activity should also be deported or punished.

7.   Naturalization policy should place increased emphasis on competence in the English language and knowledge of the U. S. economic and political system.A need for bilingual ballots represents a failure of naturalization policy. Language education should be directed toward competence in English, as language is a fundamental means of communication and a basis of culture. Naturalization policy is especially relevant given that the U.S. birthrate is well below replacement. The United States should continue its historic respect for diversity and tolerance for difference; but it should also emphasize what has always been U.S. law, that those who become U.S. citizens be competent in the English language. The policy of the government should be to appreciate the diversity of cultures and encourage people to retain their unique heritage, but alongside enough Americanization to be competent citizens.

8.   Legislation now on the books - the Fair Labor Standards Act - should be enforced to prevent employers from exploiting foreign labor, legal or illegal. Concerns about exploitation of undocumented workers can be addressed by the Fair Labor Standards Act. The FLSA protects all workers, legal and illegal, and can be enforced by the Department of Labor to minimize employer exploitation of all workers.

9.  Consideration should be given to special policies with respect to Canada and Mexico. Canada and Mexico are our neighbors on this continent and are therefore especially important to our long-run security. Our policies with respect to these countries can be justifiably different from our policies with respect to countries with whom we do not have borders. This principle can be applied, for example, in determining the number of legal immigrants or guest workers. An even more extensive application of the principle would be the establishment of open borders between Canada, the United States, and Mexico. If it involved capital as well as the movement of people, it might have greater attraction for the United States. If it also encouraged Mexico to limit the flow-through of immigrants from other countries, it would perhaps help us with the part of our illegal immigration problem that is non-Mexican. The open border option Has the potential for an extraordinarily strong long-term alliance, and its costs and benefits in comparison to the costs and benefits of the triad of employer sanctions, worker identification, and amnesty would be an enlightening exercise.


1.  The current attempt at legislation passed in the Senate with amendments by a vote of 69 to 30. Employers would face penalties of $100 to $2,000 for each illegal immigrant employed, rising to $10,000 per worker and finally six months in jail for a pattern of repeated offenses. Keeping records on worker identification would be voluntary, but would provide those who did so with a positive defense against alleged violations. To accommodate growers of perishable fruits and vegetables, Senator Pete Wilson's amendment was adopted to allow farmers to bring 350,000 foreign workers into the United States for a maximum of nine months each, a program that would expire after three years unless Congress voted to continue it. In addition, farmers could continue to employ illegal entrants as seasonal workers but would be required to phase this employment out over three years. The amnesty would be delayed for three years. It would apply to those who had been in the United States since January 1, 1980, and would provide legal temporary status for two and one-half years, permanent resident status thereafter, and eligibility for citizenship after five years as a permanent resident. During the first six years of this time period those accepting the amnesty would be ineligible for federal welfare, Medicaid, and food stamps, but not for state aid: the states would receive up to $3 billion from the federal government over the six years to compensate them for the costs of state benefits and law enforcement.

     The House version of the bill, introduced July 25, 1985, by Congressman Peter Rodino, chairman of the House Judiciary Committee, is more generous and immediate on amnesty. It also makes it illegal for employers to discriminate against noncitizens in favor of citizens, if the noncitizens are legal resident aliens intending to become citizens; and it sets up a new bureaucracy within the Department of Justice to handle compliance. The House is also likely to differ with the Senate on its seasonal worker program, and on provisions to prevent or remedy discrimination against minoritie - especially Hispanics - flowing from employer sanctions. The 1985 Senate version goes some way toward meeting the concerns of various groups about one or another feature of the legislation, but places itself in greater conflict with the House by doing so. The differences remain.

2.   "The Changing Face of America," Time, July 8, 1985, p. 48.

3.   Christopher Simpson, "Flood of Illegal Aliens Threatens Immigration System, Simpson Says," Washington Times, September 12, 1985.

4.   Wayne A. Cornelius, Mexican Migration to the United States: Causes, Consequences, and U.S. Responses (Cambridge, Mass.: Massachusetts Institute of Technology, Center for International Studies, 1978), p. 3.

5.    Staff Report of the Select Commission on Immigration and Refugee Policy, U. S. Immigration Policy and the National Interest, April 30, 1981, pp. xii-xiii.>

6.   Daniel B. Levine, Kenneth Hill, and Robert Warren, eds., Immigration Statistics: A Story of Neglect (Washington, D.C.:National Academy Press, 1985), pp. 235-38.

7.   Levine, Hill, and Warren, Immigration Statistics, p. 226.

8.    Jeffrey S. Passel, "Statement," U.S. House of Representatives, Committee on Post Office and Civil Service, Subcommittee on Census and Population, U.S. Department of Commerce, Bureau of the Census, October 10, 1985, p. 12.

9.   Passel, "Statement," p. 8.

10.    Philip Shenon, "Startling Surge Is Reported in Illegal Aliens from Mexico," New York Times, February 21, 1986, p. 1.

11.   Levine, Hill, and Warren, Immigration Statistics, p. 226.

12.   Passel, "Statement," pp. 7, 13-15.

13.    Passel, "Statement," p. 8.

14.   Based on data from Economic Report of the President, 1986 (Washington, D.C.; U.S. Government Printing Office, 1986), table B-31, pp. 217, 288-89.

15.  Statistical Abstract of the United States: 1985, 105th ed. (Washington, D.C.; U.S. Government Printing Office, 1984), p. 90.

16.  Pastora San Juan Cafferty, Barry R. Chiswick, Andrew M. Greeley, and Teresa A. Sullivan, The Dilemma of American Immigration: Beyond the Golden Door (New Brunswick, N.J.: Transaction Books, 1983), p. 103.

17.   "Trying to Stem the Illegal Ode," Time, July 8, 1985, p. 48.

18.   "Rodino to Propose Immigration Bill in House," New York Times, July 19, 1985, p. 9.

19.  "Trying to Stem the Illegal Tide," Time, July 8, 1985, p. 48.

20.  Robert Pear, "Senate Votes Bill Designed to Curb Illegal Immigrants," New York Times, September20, 1985.

21.  "Employer Sanctions Are Key to Immigration Reform," Daniel E. Lungren and Hamilton Fish, Jr., Letter to the Editor, New York Times, February 11, 1986.

22.   Passel, "Statement," pp. 16-17.

23.  98th Congress, 2nd Session . . . 1984 (Washington, D.C.: Congressional Quarterly, 1984), pp. 72-H, 73 H.

24.  Carl D. Schwarz, "Employer Sanctions Laws: The State Experience as Compared with Federal Proposals," in Wayne A. Cornelius and Ricardo Anzaldua Montoya, eds., America's New Immigration Law: Origins, Rationales, and Potential Consequences (San Diego, Calif.: Center for U.S.-Mexican Studies, University of California, San Diego, Monograph Series 11, 1983), pp. 83, 86.

25.  Schwarz, "Employer Sanctions Laws," pp. 84-85, 96.

26.  Wayne A. Cornelius, "Simpson-Mazzoli vs. the Realitles of Mexican Immigration," in Cornelius and Montoya, America's New Immigration Law, pp. 142-44; and U.S. General Accounting Office, "Information on the Enforcement of Laws Regarding Employment of Aliens in Selected Countries," August 31, 1982.

27.  "Statement by the President:" the White House, Office of the Press Secretary, Washington, D.C., July 30, 1981, p. 1.

28.  Passel, "Statement," p. 15.

29.  Antirecession legislation is sometimes passed after the recovery begins, and may have its maximum impact at the peak of the subsequent recovery. Public works bills responding to the 1974-1975 recession were passed in 1976 and 1977.

30.  Economic Report of the President, 1986, pp. 288-89.

31.  Hispanic immigration includes immigrants whose countries or areas of birth are Mexico, Cuba, the Dominican Republic, and Central and South America, thus including, inappropriately, small numbers of people from Suriname and French Guiana in South America and Belize in Central America.

32.  David M. Heer, "Latin American Immigration to the United States Since World War II," Hoover Institution, Stanford, Calif., September 1985, tables 6a, 6b, 6c, pp. 42-44, mimeo.

33.  See Edward O. Wilson, On Human Nature (New York: Bantam Books, 1979), pp. 122-23, for the human tendency to fear strangers. Although the public responds to the rhetoric about the flood of illegal aliens, people remain sympathetic to the plight of individuals and families. The sanctuary movement for Salvadorans is a specific example.

34.  See Edwin Harwood, "Can Immigration Laws Be Enforced?" Public Interest, no. 72 (Summer 1983), pp. 107-23, for a discussion of the problems of enforcement.

35.  Charles Duryea Smith and Juan Ernesto Mendez, "Employer Sanctions and Other Labor Market Restrictions on Alien Employment: The Scorched Earth' Approach to Immigration Control," North Carolina Journal of International Law and Commercial Regulation6: 1 (Winter 1980), pp. 50-51.

36.  A survey by the Council of Economic Advisers of the effect of immigrants on U.S. labor markets concludes that "evidence currently available does not suggest that native-born American workers experience significant labor market difficulties in areas that have attracted immigrants . . . the presence of immigrants in labor markets is associated with increased job opportunities overall, including job opportunities for native-born minority groups." Although some studies find reduced wages for unskilled workers in areas with a high proportion of unskilled immigrant workers, others find higher earnings for native-born minority workers (Economic Report of the President, 1986, p. 223).


Recommendations for Policy

     1.  The employer sanctions approach should be abandoned. Employer sanctions are wrong in principle, and would fail to accomplish their purpose.

     2.   Worker identification would lead inevitably to a centralized, national identification card or system. It constitutes a threat to civil liberties and should be rejected.

     3.  A general amnesty is unconscionable and unnecessary.

      4.   Entry into the United States without appropriate documentation should continue to be illegal, and the Immigration and Naturalization Service should continue to improve its efforts at border enforcement.

      5.   Those who enter illegally and become employed should be expected to pay the same taxes other residents pay.

      6.   Illegal entrants should be denied access to public assistance and welfare benefits, not the U.S. labor market.

      7.   Naturalization policy should place increased emphasis on competence in the English language and knowledge of the U.S. economic and political system.

      8.   Legislation now on the books the Fair Labor Standards Act should be enforced to prevent employers from exploiting foreign labor, legal or illegal.

      9.   Consideration should be given to more liberal policies with respect to Canada and Mexico, our continental neighbors.