PREPARED STATEMENT OF DAVID S. NORTH

Mr. Chairman, my understanding of these two days of hearings is that today's subject is whether or not a law should be passed making it illegal for an employer to hire illegal immigrants, i.e., should we adopt employer sanctions?

This is a question of national policy. Friday's hearings deal with the related question, if we are to have employer sanctions should such a program be supported by a worker identification system, and, if so, what

should it entail?

These are questions of tactics, as opposed to grand strategy. Since I will be a witness both days, let me discuss the policy question today, and the tactics on Friday.

My position on the issue is that employer sanctions are needed for two reasons: (1) to protect the interests of disadvantaged, legal workers from the adverse effects caused by the employment of illegal immigrants, and (2) as a matter of employer-employee equity.

The adverse effects on U.S. workers of substantial illegal immigrant employment is a point that Professor Briggs will cover more thoroughly during these hearings, so let me say briefly that my studies have indicated that when illegal immigrants cluster in a specific labor market, they tend to freeze wages and working conditions, causing adverse effects both to U.S. workers who work in those labor markets, and even more adverse effects to U.S. workers who are shouldered out of the labor market by illegal immigrant worker competition. Both of these effects are of concern, the indirect effect of depressing wages and working conditions for U.S. workers and the more obvious direct effect of worker displacement.

Secondly, there is the question of equity. If it is illegal for an illegal immigrant to work for an employer, it should be (as it is not now) illegal for the employer to hire that illegal immigrant worker. Currently the burden falls totally on the hapless illegal immigrant. If he is found to be working out of status, he is thrown out of the country, sometimes at considerable financial cost to him. The employer is merely inconvenienced he has to find another

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worker. The employer is not penalized for his part of a two-way arrangement (employment), and that is inherently unfair.

Since at least two of the other witnesses on this panel will be discussing labor market issues, Professor Briggs from a domestic U.S. point of view and Professor Miller from that of Western Europe (where most industrial democracies have adopted employer sanctions legislation), I should like to turn to two other, related subjects. First, I would like to discuss the underlying strategic thinking that is more often assumed than articulated by those supporting employer sanctions. Second, I will make some comments on how the Reagan Administration's support of at least a modest employer sanctions program fits with some of its other policy positions.

One reason those concerned with the labor market activity of illegal immigrants advocate employer sanctions is because they despair of controlling these adverse effects in any other way. This is probably correct, but it is a notion that warrants at least some consideration by this body. With this in mind, let us examine the strategic options within the broad field of immigration enforcement.

The broad objective of immigration law enforcement is to establish some

control over the movements across the borders of citizens of other lands.

Establishing such control is, of course, not free. It costs money to enforce any law, and, perhaps more important in immigration law enforcement are the non-monetary costs. One must devise a constant series of tradeoffs between enforcement, per se, on one hand, and concerns for international movements of people, on the other. Too much enforcement or ill-focused enforcement may hinder the tourist business, and, more importantly, violate the rights, or sensitivities if legitimate travelers, including legal U.S. residents.

There are four arenas in which the immigration law is enforced:

1) Enforcement within the tourist stream. Visas issued to nonimmigrant visitors, and those visitors flow through the ports of entry where they are subject to a truly mass-production decision-making process, the determination by the immigration inspector (or Customs colleague) to admit or not admit a candidate for admission.

2) Enforcement between the ports of entry. The Border Patrol seeks to
apprehend those crossing the border without appropriate papers.
Most of the million or so apprehensions made by INS are made at the
border. Activities 1 and 2 deal with flows of aliens passing
through the border areas. The other two enforcement modes deal
with populations of illegal immigrants within the nation.

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3) Enforcement in the communities in which the illegal immigrants live.
In the past INS agents would simply station themselves in a location
where they suspected there were illegal immigrants such as in
certain New York subway stations and question persons that met
the agents' profiles of likely illegal migrants. Homes, hotels, and
migrant camps were raided. This kind of enforcement, although not
unknown, is becoming less utilized, partially because of court
decisions and partially because of administrative decisions made within
INS.

4) Enforcement in the work place. INS agents have long used industrial
visits to enforce the immigration law within cities, and farm and
ranch checks to do so in the countryside. But the disadvantage has
always been that only the aliens are penalized no penalties are
assessed on employers, and hence there is no stimulus causing the
employer to change his hiring patterns.

Although I think that there are sound reasons for improving the level of law enforcement within the tourist stream and making such enforcement selffinancing, a subject I have covered elsewhere*, there are strong arguments against either limiting the number of visas that we provide to nonimmigrants, or carefully scrutinizing travelers at the ports of entry. Such activity may be seen as causing the U.S. to be less attractive to foreign visitors, and to create delays for returning U.S. legal residents. Similarly, there are objections, some sound, some less so, for substantially increasing enforcement between the ports of entry and within the U.S. community generally.

Advocates of employer sanctions, while not giving up on increased immigration law enforcement in other arenas, have adopted an overall strategy of seeking a new barrier to illegal entrants (at the employer's door) rather than seeking the same goal through enhanced enforcement in the other three arenas. They also argued that enforcement within the work place will be much more focused, and will be both more effective, and less intrusive on others, than enhancing immigration law enforcement elsewhere.

Let me close by noting an anomaly. This Administration has proposed a modest employer sanctions program, which will be helpful to disadvantaged workers. I find this interesting because the Administration has shown that its approach to disadvantaged workers is, shall we say, different from that

*David S. North, Enforcing the Immigration Law: A Review of the Options (Washington: New TransCentury Foundation, September 1980). Prepared under contract to the Select Commission on Immigration and Refugee Policy.

of the previous Administration.

Funding for CETA has been reduced, efforts

to secure. labor market equity for Blacks, Hispanics and women have been cut back sharply, income transfer benefits for the working poor have been slashed,

and so forth.

Meanwhile, the Administration has announced that it will do all in its power to reduce government regulation of business, and to reduce government expenditures. Here again, we find that the employer sanctions program would

add more reporting requirements for employers and cost money to administer. (The President, to continue the anomaly, announced last week a 12% across-theboard reduction for virtually all government agencies, but excluded INS from that reduction.)

Those who feel as I do, that the Administration is only a small step in the right direction, should bear in mind that what the Administration has found necessary in this field, immigration law enforcement, runs counter to its general philosophy of how the nation should be governed. I don't know how significant this analysis is, but it is reassuring to learn, I suppose, that this Administration, like its predecessors, is not a monolith.

Mr. Parker, please.

STATEMENT OF DOUGLAS L. PARKER, DIRECTOR, INSTITUTE FOR PUBLIC REPRESENTATION, GEORGETOWN UNIVERSITY LAW CENTER

Mr. PARKER. Thank you, Senator. My name is Douglas Parker. I am director of the Institute for Public Representation at the Georgetown University Law Center. I have approached the issues today from a rather different perspective from that of the other panelists. Our perspective is that of a group of attorneys who are concerned about civil rights advocacy, on the one hand, and issues of regulatory reform and cost-benefit analysis, on the other hand. I would like to highlight certain aspects of my written testimony, if I could, in light of some of the testimony that we have heard earlier today. There has been a lot of discussion on the question of employment discrimination. We have prepared a paper which I have submitted for the record which discusses a number of aspects of the relationship between employer sanctions and employment discrimination.

There are certain aspects of it which we have not discussed today, however. One is the question of whether imposing on employers the obligation to look into the backgrounds of persons who are coming to apply for a job creates a new sort of atmosphere of discrimination, a new relationship between the employer and the

job applicant, which we really have not had before. To some extent, such a procedure carves out an exception to the general prohibitions against discrimination in our hiring practices. That concerns me because there may be some spillover there into the rights not simply of Hispanic workers but also into the rights of other minorities, women, and the disabled. I think that the risk of creating a new sort of discrimination atmosphere is substantial.

The administration's proposal has not been very well received here today, and think for good reasons. Frankly, I cannot imagine that they are serious about proposing employer sanctions given the type of proposal that they have made. It seems to be simply the worst of all possible worlds as far as discrimination is concerned. I am not comforted at all by their assurances that they would attempt to enforce the antidiscrimination laws to make up for any discrimination they would create.

I know, Senator Simpson, you recognize the problems in the administration's proposals, and you have suggested, as have a number of other people, that the answer to possible problems of discrimination may be the creation of some sort of secure ID card. Let me address some of the ID card questions. I am not certain that the ID card is going to be sufficient to solve all of the problems of discrimination that we are dealing with here. Let us put aside for a moment the basic question of equality of access to an ID card system. I think there is some possibility that the very process of getting the ID card in the first place could have a discriminatory impact on, say, black young people who are trying to get an ID

card.

Second, I do not think there has been enough inquiry into the question of exactly what the employer is going to do with the ID card when he gets it. That is, when someone comes to apply for a job, we have said it is the employer's obligation to "check the ID card". I am not certain we know exactly what that means yet, and I think it is important that we define what the obligation of the employer is going to be to determine whether he has been presented with a valid ID card.

There is some talk about the card being noncounterfeitable. I am not certain how that is going to work. I am not certain how a small employer out in the Midwest someplace is going to really be able to determine whether or not an ID card that is presented has actually been counterfeited or not.

There has not been enough analysis of that particular question, and I hope that perhaps in your hearings on Friday there will be an inquiry into that both from the standpoint of whether something can really be counterfeited or not and also from the standpoint of what the employer's obligation is.

The other point that disturbs me about employer sanctions, and I think this is terribly important, is that you have said, and I think everyone has said, that you would not accept any kind of ID card system that did not require that card to be presented by every person who comes in; that is, that every person, black, white or whatever would have to present that ID card. There is, however, a difficult question of how you are going to enforce that.

If the enforcement turns on whether or not somebody has actually employed an undocumented worker, then there really is no in