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Whatever its recommendations, the Commission should specifically

refer to the following concerns:

1) There is a high likelihood that employers will, in the absence of a system of worker identification, protect themselves from liability by denying employment to members of certain minorities; 2) The systems of worker identification which have hitherto . been proposed either require an employer to exercise discretion in scrutinizing a job applicant and his identification or do not. In that they do, they provide either a pretext to discriminate, or an incentive to do so in order to avoid liability. In that they

do not they are either impossible to enforce effectively or require stringent recordkeeping and detailed centralized information storage and retrieval which raises civil liberties concerns;

3) There is some likelihood that, in the determination and certification of the right to work, there will be particular placed upon people who, by virtue of their economically or socially marginal status, do not possess the full range of documentary proof; and

4) The introduction of any system of employer sanctions will create an adverse climate for all members of certain ethnic and racial minorities. It will do this by creating a climate of opinion which disfavors the employment of "foreigners" ́(in the context of a lack of sophistication about distinctions between various kind of "alien" status). It will also provide a further pretext for extra scrutiny and harassment of Hispanics, Asians, Blacks and others by both INS enforcement officials and by local police.

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In conclusion, any such scheme raises serious concerns about civil liberties and equal employment opportunity. The primacy of these values in our society demands no less than that they be constantly borne in mind and that lawmakers be scrupulous to preserve them even as they attempt to deal with pressing social and economic problems.

Eric Glitzenstein
Amit Pandya

Douglas L. Parker

Institute for Public

Representation.

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The Institute for Public Representation is a public interest law firm affiliated with the Georgetown University Law Center. has carried out analysis and advocacy in the areas of immigration, administrative procedure reform, civil rights, the administration of the courts and the legal profession, and corporate responsibility. It is particularly committed to fostering rational and well-informed decisionmaking at all levels, and to the preservation of civil rights, civil liberties, and economic opportunity and security. These concerns establish the perspective from which the Institute has undertaken this analysis of current proposals for preventing the immigration of undocumented aliens into the United States. analysis was prepared as part of a thorough study of immigration and refugee issues undertaken by the National Forum on Immigration and Refugee Policy, in which the Institute is a participant.

The

(i)

Illegal Immigration: An Alternative Perspective.

Summary

Much of the current discussion of immigration issues in the United States has focused on the need to devise new enforcement procedures as a means of deterring illegal immigration.

Such an

approach to illegal immigration, which emphasizes enforcement options rather than a systematic approach which would consider the economic and social determinants of pressures to migrate, is fundamentally flawed. There are limits to the extent to which a complex international phenomenon is susceptible to purely domestic solutions. Moreover, enforcement mechanisms are unlikely to be successful in preventing illegal immigration and its consequences. Further, they will also certainly impose high financial and social costs and therefore must be rejected because they are not cost

effective.

The proposal of legislation to make the hiring of undocumented aliens illegal ("employer sanctions") rests upon inadequately examined assumptions about the nature and extent of the impact of illegal immigration upon American society and upon a simplistic notion of the causes of this illegal immigration. There is therefore no assurance that employer sanctions will have the intended results. Rather than having any beneficial effect, such legislation is likely to exacerbate existing social problems, such as employment discrimination and the existence of an "underclass" of persons who suffer exploitation and ill health and who

(ii)

may add to public assistance costs or resort to crime. Such legislation also threatens to create significant new strictures upon the mobility of labor, the autonomy of employers and employees, and the civil liberties of all citizens.

Employer sanctions legislation will also impose substantial new financial costs upon government and upon employers. The cost to the government of attempting to enforce such legislation will be substantial, even though there are considerable reasons for believing that it cannot and will not be effectively enforced. Employers will be required to spend considerable time and money complying with the reporting, record-keeping and monitoring which will inevitably be imposed upon them.

We con

This paper examines employer sanctions, as well as the other options which have recently been proposed. The detailed analysis which follows the introductory overview (see Section II) explores the successes and limitations of a pilot Department of Labor program to enforce protective labor legislation as a means of curbing illegal immigration and its social consequences. clude that such a program, if expanded and modified to improve effectiveness and reduce discrimination, offers one effective approach to mitigating some of the adverse consequences of illegal immigration. Such an approach does not threaten to foster discrimination against members of racial or ethnic minorities.

Indeed,

in addition to being an effective instrument of immigration policy, it will benefit all American workers. It deserves more emphasis than it has been accorded in discussions of the subject.

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