Some insight into the difficulties of interpreting immigration law that would confront employers can be obtained from the California experience in preparing for enforcement of its State employer sanctions law, enacted in 1971.27 Colleen M. Logan, area administrator for the Division of Labor Standards Enforcement of the California Department of Industrial Relations, testified at the Los Angeles open meeting that employers as well as the State enforcement agency were unsure of the proper method of verifying immigration status. As she put it, "I can't say that they did [understand what to screen for], because I really didn't understand it totally."28 She further testified that the response of some employers was to screen employees on the basis of "the color of their skin or their. . .speech accent."29 It was her considered opinion that the employer response to a Federal employer sanctions law would not be any different.30

The lack of expertise or understanding of the proper method to verify status might thus lead employers who wished to avoid violating the law to resort to discriminatory employment practices.

Recognizing the discrimination that might result from employers making determinations of citizenship and immigration status, President Carter, in submitting his employer sanctions proposal to Congress, stated: "to prevent any discriminatory hiring, the federal civil rights agencies will be charged with making much greater efforts to ensure that existing anti-discrimination laws are fully enforced." If employer sanctions legislation will result in increased employment discrimination (that is, in the violation of individual civil rights), any remedy provided for the redress of violations does not erase the primary offense. No after-the-fact remedy is ever adequate to compensate for discrimination that prevents some American citizens or legal resident aliens from the full enjoyment of and participation in our democratic society.

"Cal. Labor Code §2805 (West Supp. 1979). See n. 7 of this chapter for the relevant text of that statute. The law has not been enforced because of a permanent injunction against its enforcement entered in the still-unresolved case of Dolores Canning v. Milias, No. C-16928 (L.A. Cty., Cal. Super. Ct. filed Nov. 23, 1971). The U.S. Supreme Court held in DeCanas v. Bica, 425 U.S. 351 (1976), that enactment of the Immigration and Nationality Act by Congress did not preclude the State from regulating the employment relationship covered by the State statute in a manner that is consistent with Federal law, but neither the Supreme Court nor the California Court of Appeal reached the question of whether the statute violates the due process or equal protections clauses of the Constitution.

28 Colleen M. Logan, testimony, Los Angeles Open Meeting Transcript, p. 289.

Moreover, if an employer sanctions law is enacted, it is highly doubtful for several reasons that more than a small percentage of employment discrimination cases resulting from such a law would be redressed. Persons who would be affected by the proposed employer sanctions law, for the most part, would be citizens and legal residents who are racially and/or culturally identifiable with major undocumented immigrant groups and are applying for jobs which undocumented workers might typically seek. Members of those groups generally are the least informed as to what their rights are and how to seek redress for them. Second, substantial burdens are imposed on the victim of discrimination in pursuing administrative procedures, obtaining legal representation, and proving that employment discrimination occurred. Showing that an employer denied employment to a bona fide job applicant because he or she is racially and/or ethnically identifiable with undocumented workers would often be a very difficult task, even if the applicant persisted in the substantial investment of time and effort necessary to reach adjudication of his or her claim. Finally, Federal civil rights agencies may have difficulties in responding to such employment discrimination cases, for discrimination complaints arising from the proposed employer sanctions law would represent an additional workload on already overburdened agencies.

Even if such cases were handled on a systemic basis rather than an individual case basis, it might not redress a significantly larger number of employment discrimination cases. For example, the EEOC does have authority to institute a pattern or practice lawsuit against an employer who uses a hiring practice that systematically discriminates against otherwise bona fide job applicants. 32 Such suits have the potential of helping many more people than case-by-case resolution of individual complaints According to EEOC Vice Chair Leach, however, this type of litigation, which normally takes “2, 3

29 Ibid., p. 290.

30 Ibid., p. 291.

31 President's Message to Congress on Undocumented Aliens, Weekly Compilation of Presidential Documents, vol. 13, pp. 1170, 1172 (Aug. 4, 1977).

32 42 U.S.C. §2000e-6(e) (1976).

Our cases-under our new, what we call "systemic program," the way it's conceived is really to achieve the most impact in any case in a matter alleging a pattern or practice. "Impact," I suppose, in one sense means "bigness." So in effect, while hopefully targeting on a worst-first basis, that formula will also include targeting on the basis of where the end product is going to achieve the greatest results. And that really does mean, I suppose, looking at companies that are not classified as small businesses. 3

National Identity Cards

35

It has been suggested by some proponents of employer sanctions legislation that the possibility of such a law leading to employment discrimination could be cured by the development and implementation of a compulsory national identification card. A national identity card, they believe, would enable employers to identify with greater certainty persons who are not authorized to accept employment and thus reduce the potential employment discrimination which would result from an employer sanctions law. Some advocates of a compulsory identification system support the alternative of a compulsory national work permit system. The work permit would be required only for job holders and job seekers and would therefore be less costly than a system covering all citizens and resident aliens. Both proposed solutions, however, involve a compulsory identification document and a centralized data bank. Thus, the discussion on the merits of compulsory 33 Leach Testimony, Washington Hearing Transcript, p. 46. The EEOC further noted:

Discrimination complaints by their very nature often involve complex considerations (e.g., reviewing personnel tests of uncertain validity, technical degree requirements, and many other areas outside of antidiscrimination law) for which EEOC personnel now obtain the necessary training and expert assistance. It is my opinion that the immigration issue would be less complex than many issues that regularly confront EEOC personnel.

national identity cards which follows is equally applicable to compulsory work permit systems. There is genuine concern about the efficacy of national identity cards in solving this problem and their cost in terms of the loss of basic civil liberties.36

Those in favor of compulsory national identity cards argue that they would be effective because the technology exists for the creation of a tamperproof card. They allege that innovations such as a card which shatters when its plastic casing is removed would help prevent unlawful alterations of such cards. Affixing a photograph and signature, or even a fingerprint, to the card would further add to the difficulty of unlawful alteration and reduce the use of lost or stolen cards by persons other than the lawful holder. By making these technical improvements in the social security card or incorporating these features into the proposed identity card, greater assurance could be given to the card as proof positive of identity. Thus, proponents of national identity cards argue, employer concerns regarding the difficulty of verifying documentation would be answered.

However, the existence of technology to manufacture a more secure identification card would be unlikely to eliminate the black market in false documentation which exists. If the technology for improving the card is available to the government agency administering the compulsory identity card system, then it would likely be available to persons engaged in the unlawful duplication of identity documents. In fact, it could very well be argued that the market for false documentation, whether forged, lost, or stolen, would increase if a compulsory national identity card system is instituted and the possession of such a card is accepted as proof of the right to live and work in the United States. And thus, employers could still be plagued with difficulties in the verification of those new documents. national work permit system is of great concern to members of minority groups. As the Mexican American Legal Defense Fund stated in a letter to this Commission:

[W]e strongly oppose any national identity card for purposes of employment or any other purposes. Such a card is in itself a violation of our civil rights and civil liberties. In addition, any such card would as a practical matter be used only on or against Hispanics, Asians, and other national-origin and language minority persons. Whatever the professed requirements of card-carrying, 99% of Anglos would never be asked to produce it.

Morris Baller, attorney, Mexican American Legal Defense Fund, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Apr. 2, 1980.

The Federal Advisory Committee on False Identification,37 in rejecting in a November 1976 report the proposal for a national identification document, said:

Ifsuch a system were implemented despite these difficulties, it would be subject to defeat by imposters or counterfeiters taking advantage of careless inspection of documents or through corruption of officials. 38

Moreover, attempts to make the identity card. secure would increase its social and economic costs. As the Department of Health, Education, and Welfare concluded in a study which evaluated the use of the social security card as a standard universal identifier (SUI), "the bureaucratic apparatus needed to assign and administer an SUI would represent another imposition of government control on an already heavily burdened citizenry."39 The necessity of preparing such a card for every lawful resident of the United States (or even of every lawful resident in the labor force), and of updating the photograph frequently enough for it to be a reliable means of identification, would make the system an expensive and burdensome one. And while affixing a fingerprint to such a card would enhance the reliability of the identity card to a greater degree, it would only be truly effective if the machinery and personnel necessary for verifying fingerprints were maintained by the employer and/or the central data bank of the government agency responsible for administering the compulsory national identity card system. Of course, that would increase even more significantly the cost of the system. A recent study evaluating the expense of establishing a work permit system estimated that such a program, based conservatively on "The Federal Advisory Committee on False Identification was established by the Attorney General of the United States in November of 1974. That committee examined the criminal use of false identification and published a report which contained its findings on the problem and its proposed solution to effectively reduce the growing use of false identification.

The membership of the Federal Advisory Committee on False Identification included: Chairman David J. Muchow, Criminal Divison, Department of Justice (DOJ); Co-Chairman Douglas H. Westbrook, Criminal Division, DOJ; Secretary Emil L. Schroeder, Federal Bureau of Investigation; bureau chiefs, office heads, and other staff of the Departments of Health, Education, and Welfare (now Health and Human Services), State, Treasury, Commerce, Agriculture, Defense, Transportation, and Justice, and representatives of State and local governments, private corporations, professional associations, and trade associations. U.S., Department of Justice, Federal Advisory Committee on False Identification, The Criminal Use of False Identification (November 1976), pp. xxxii-xlvii (hereafter cited as The Criminal Use of False Identification).

38 Ibid., p. 75.

39 U.S., Department of Health, Education, and Welfare (now Health and Human Services), Secretary's Advisory Committee on on Automated Personal Data Systems, Records, Computers, and the Rights of Citizens (July 1973), p. 111 (hereafter cited as HEW Report). The members of the

While agreement is lacking on the efficacy of compulsory national identity cards in curbing the employment of undocumented workers and decreasing unemployment among citizens and resident aliens, the greatest controversy involves the invasion of privacy and the resulting effect this invasion. could have on the erosion of other rights, such as the rights to speech, assembly, and association. Proponents of identity cards say that a de facto system already exists and that the invasion of privacy and other rights would be minimal.

Current usage of the social security card and the driver's license lends support to the argument that a de facto system exists. Many businessess request the inspection of either of those documents before finalizing commercial credit transactions or payments made through personal checks. Other entities often ask for those documents as well for proof of identity. In fact, some States, though not all, use the social security account number as the driver's license number. Thus, it is argued that the creation of a national identity card or the conversion of the social security card into such an identifier would be merely the acceptance of current usage and the modern-day demands of society.

It is further argued that the creation of a national identity card or a social security card used as an standard universal identifier would have many beneficial aspects. Among those benefits would be the facilitation of easier and more accurate recordkeepSecretary's Advisory Committee on Automated Personal Data Systems were: Willis H. Ware, Rand Corporation, chairman; Lyman E. Allen, University of Michigan Law School; Juan A. Anglero, Commonwealth of Puerto Rico Department of Social Services; Stanley J. Aronoff, Ohio State Senator; William T. Bagley, California State Assemblyman; Philip M. Burgess, Ohio State University; Gertrude M. Cox, statistical consultant; K. Patricia Cross, Educational Testing Service; Gerald L. Davey, Medlab Computer Services, Inc.,; J. Taylor DeWeese, Philadelphia; Guy H. Dobbs, Xerox Computer Services; Robert R.J. Gallati, New York State Identification and Intelligence System; Florence R. Gaynor, Martland Hospital; John L. Gentile, Illinois Department of Finance; Frances Grommers, M.D., Harvard School of Public Health; Jane L. Hardaway, Tennessee Department of Personnel; James C. Impara, Florida Department of Education; Patricia J. Lanphere, Oklahoma Department of Institutions, Social and Rehabilitative Services; Arthur R. Miller, Harvard Law School; Don M. Muchmore, California Federal Savings and Loan Association; Jane V. Noreen, St. Paul, Minn.; Roy Siemiller, National Alliance of Bussinessmen; Mrs. Harold Silver, Denver, Colo.; Sheila M. Smythe, Associated Hospital Service of New York; Joseph Weizenbaum, Massachusetts Institute of Technology. Ibid., pp. xii-xiii.

40 David S. North, "Keeping Undocumented Workers Out of the Workforce: Costs of Alternative Work Permit Systems" (May 1979).

ing, the reduction of the duplication of information, and the elimination or reduction of multiple identification numbers. It is argued that there would only be a minimal invasion of privacy and the only information divulged to employers would be the individual card number and the possession of legal residency in this country.11

However, the presentation of social security cards or other documents to support credit or other privileges is wholly voluntary and, therefore, is not a reliable index of popular acceptance of a compulsory registration and identification system. Opponents of the use of the social security card as a national identifier further point out that, although it appears to have some de facto acceptance as a universal personal identifier, that was not the purpose for its development. Generally speaking, the social security system was developed to provide retirement income and other governmental assistance to ensure the economic security and personal welfare of American workers. The social security card was devised under that program to establish an account in which payroll tax contributions should be made and later to evidence the eligibility of that employee for participation in social security benefit programs.

The concerns over expanded usage of the social security card led the Congress to enact legislation curbing that abuse.42 During the Senate floor debates on that provision of the Privacy Act of 1974, Senator Charles H. Percy noted the problems that have been created by the use of the social security card beyond its intended purpose:

if you look at your own social security card, at the bottom, it reads:

For social security and tax purposes-not for identification.

The social security number was clearly not intended by its creators to become the universal identifier. But in the race to computerize every known fact stored by the Government about its citizens, the warning on our cards has been ignored. It is not so much that the social security number had to be used by the computer programmers and data collectors. It was there and it was convenient. Apparently no one gave thought 15 or 20 years ago to the possibility that massive computerization of personal data files

"Proof of eligibility for a social security card currently consists of proof of age, citizenship or alien status, and true identity. 20 C.F.R. §422.107 (1979).

on the basis of a single unprotected number could someday pose a problem.

That lack of foresight was unfortunate-for now hundreds of Government computer systems and thousands of private computer systems use the social security number in the indexing and identification of individuals. The possibility is growing that anyone with access to the proper computer terminal could type in a social security number and thereby order the computer to print out details concerning what cars we own, and what our driving record is like, how we spend our money and how we pay our bills, how we did in school, what we tell our doctor and what he tells us in return.43

Compulsory national identity cards, whether they evolve from the extension of the use of the social security card or the creation of a new document, also present potentially grave problems, as alluded. to by Senator Percy, of the infringement of individual civil liberties and the right to privacy. The establishment of a compulsory nationwide system of identification would mean the imposition of another substantial government program of data collection and information gathering on individual Americans. The concerns over the already significant amount of such data collection by the Federal Government were perhaps most aptly expressed by Professor Arthur Miller of the Harvard Law School:

Americans today are scrutinized, measured, watched, counted, and interrogated by more government agencies, law enforcement officials, social scientists, and poll takers than at any other time in our history. . . .The information gathering and surveillance activities of the Federal Government have expanded to such an extent that they are becoming a threat to several of every American's basic rights, the rights of privacy, speech, assembly, association, and petition of the Government. . .

I think if one reads Orwell and Huxley carefully, one realizes that "1984" is a state of mind. In the past, dictatorships always have come with hobnailed boots and tanks and machineguns, but a dictatorship of dossiers, a dictatorship of data banks can be just as repressive, just as chilling

42 Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896, 1909 (codified at 5 U.S.C. §552a note).

43 120 Cong. Rec. 36905 (1974) (remarks of Senator Percy).

and just as debilitating on our constitutional protections.44

The problems posed by a universal identification system are not limited, however, to the creation of information files on individual Americans or the types and amount of data collected by the Federal Government. There are also problems with respect to who has access to the data and their use of that information. Although the institution of a compulsory national identity card system raises some serious questions as to the potential access of employers to information which would be contained in an individual's file, the more obvious and greater concern would be the improper use of information collected by the government agency. This would not be a new problem for government data gathering. Congress has recognized this as a serious problem in its deliberations. And in enacting the Privacy Act of 1974, 45 Congress stated that such legislation was necessary due to the

illegal, unwise, overbroad investigation and record surveillance of law-abiding citizens produced in recent years from actions of some over-zealous investigators, and the curiosity of some government administrators, or the wrongful disclosure and use, in some cases, of personal files held by Federal agencies.46

The heightened concern of Americans over governmental intrusions into the right to privacy of individuals is reflected in decisions of the Supreme Court of the United States over the last decade. The Court has recognized that a right to privacy does exist." Although "[t]he Constitution does not explicitly mention any right of privacy," the Court has stated that it flows from the zones of privacy created by many constitutional guarantees.48 In an earlier era, Justice Louis Brandeis referred to this right as "the right to be let alone-the most comprehensive of rights and the right most valued by civilized men"49 and stated:

"S. Rep. No. 93-1183, 93d Cong., 2d sess. 7 (1974). 45 5 U.S.C. §552a(1976).

46 S. Rep. No. 93-1183, 93d Cong., 2d sess. 1 (1974).

47 Carey v. Population Services Intl. 431 U.S. 678, 684 (1977); Roe v. Wade, 410 U.S. 113, 152 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-84 (1965).

As the Court stated in Roe v. Wade, 410 U.S. at 152:

The Constitution does not explicitly mention any right of privacy. In a line of decision, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Courts or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding, 50

The development and implementation of a compulsory national identity card system would provide law enforcement officers and other governmental officials with a potentially "powerful weapon of intimidation" which could result from "the mere threat of official confiscation."51 The utility of a standard universal identifier or a compulsory national identity card would be in its presentation upon official request. Creating a compulsory national identity card system or elevating the social security card to the status of a national identifier would make it all the more likely that a variety of governmental officials (not involved in the administration of social security programs or employment programs) would demand inspection of that document and thus provide the potential for violations of individual rights.

These dangers have been noted in several studies. In July 1977 the Privacy Protection Study Commission, established by the Congress, in a report to President Carter, dealt with these fundamental issues in depth. In a chapter on the social security number, it reached this conclusion:

That the Federal Government not consider taking any action that would foster the development of a standard, universal label for individuals, or a central population register, until such time as significant steps have been taken to implement safeguards and policies regarding permissible uses and disclosures of records about individuals in the spirit of those recommended by the [Privacy Protection Study]

U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1,8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J. dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

49 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

so Id. at 479.

51 HEW Report, p. 111.