negative social effects. -6 Since such enforcement will impose on an employer the costs which he seeks to avoid by violation of the laws, his incentive to hire undocumented workers will be significantly reduced. 3/ It must be conceded that employer sanctions will be effective to some extent in deterring the employment of those undocumented aliens who work under conditions identical to those of legal workers. However, unless this section of the undocumented population is truly substantial, employer sanctions may represent an overbroad and costly solution. There is, finally, a total failure in the Final Report to consider the factors which may account for the hiring of undocumented workers when the employer does not intend to exploit them by paying illegally low wages. Further consideration is needed of the extent to which such factors will prevail, in an employer's business judgment, over the duties imposed by an employer sanctions law. (b) The "Underclass" Problem Unable to establish the effects of illegal immigration on the labor market, the Commission concludes that nevertheless, large scale undocumented immigration causes harm by encouraging the development of an "underclass". The Commission plausibly reasons 37 This option is described below in Section II. -7 that the existence of such an underclass has pernicious effects on U.S. society by breeding disregard for immigration and labor laws and leading to the exploitation of its members. However, there is a serious risk that the Commission's proposals will not only not eliminate such an underclass, but will actually expand it. The Select Commission's recommendation of employer sanctions is premised on the assumption that undocumented immigrants are attracted to this country by job opportunities. Therefore, reasons the Commission, the penalizing of employers who provide job opportunities will effectively deter such immigration. However, as indicated by a range of research on the question, this is a dangerously one-dimensional analysis of the dynamics of international migration. Research suggests that economic incentives for migration also arise from the lack of economic opportunity at the source of migration. This "push" factor will often work regardless of the availability of jobs at the migrant's destination. (This is certainly apparent in the migration from countryside to city within developing countries). Thus, even if job opportunity in the U.S. were to be totally closed to undocumented immigrants, one could expect illegal immigration to continue. 47 See, e.g., Appendices to Testimony of American Friends Service -8 Illegal immigration will also continue because of "pull" factors in the U.S. which are unrelated to job opportunities.. Quasi-economic incentives to migrate are found in the social and standard-of-living benefits of life in the U.S. which an undocumented worker will perceive. To one fleeing landlessness or bare subsistence in a third world village or city, even a marginal existence in the United States will pose an attractive alternative. One must also reckon with the impulses provided by family ties which induce illegal immigration and provide, along with cultural organizations, an expectation of aid and comfort in confronting an unwelcoming society. If any of these factors is important in encouraging continued illegal immigration, then it is necessary to reassess the Commission's claim that its proposal will eliminate an "underclass" of undocumented workers. If employer sanctions are successful in closing off a significant portion of the job market, 57 Studies of such "push" and "pull" factors have just begun in Mexico in some of the source-places of migration to the United States. These studies, to be conducted under government auspices, should establish much more clearly than the Select Commission's speculations the causes of migration from Mexico. Some information is already available which suggests that inability to find employment will not be a dispositive factor in decisions about whether to migrate. See Stanley L. Friedlander, Labor, Migration, and Economic Growth, (Cambridge, Mass.: MIT Press, 1965), which notes that higher unemployment in the United States (and particularly New York, the actual destination) than in Puerto Rico, occupation by occupation, did not deter migration. "The Puerto Rican migrants seem to be moving not in response to employment opportunities .. in fact, they are moving to worse employment opportunities ... but in response to significantly greater absolute and relative earning differentials from prospective jobs." Friedlander, supra. Page 128. -9 but unsuccessful in controlling illegal immigration, the presence of an unemployable population will have either or both of the following effects: 1) An outlaw economy will develop, rife with abuses, exploitation and violations of labor laws, as lawless enterpreneurs aspire to a high return on investment to compensate them for the risks of hiring undocumented workers; 2) The bulk of the unemployable population will turn into a pariah population deprived of legitimate jobs, with little recourse but crime or delinquency and with no way to maintain its health and other social welfare. This population will include not only new arrivals, but also the 40% of the undocumented aliens already in the U.S. which the Commission estimates will be excluded if its legalization program is based on a two year residency requirement. The disastrous effects of this on general social order and community health are apparent. Thus, employer sanctions will threaten the creation of precisely the "underclass" which the Commission proposes to elimi nate. (2) Will the Recommendations Work? Even if the Commission's recommendations were carefully tailored to address particular problems associated with illegal 6/ The problem will be further aggravated if, as has been proposed In some quarters, the legalization program is not implemented until employer sanctions are effectively in place. -10 immigration, there remains a serious question about the practical viability of those recommendations. (a) Employer Sanctions There is considerable question about how effectively an employer sanctions scheme of the kind proposed by the Commission can be enforced. Much of this uncertainty arises because of the lack of specificity in the Commission's recommendations. For example, they do not clearly recommend a standard of liability for the employer. Assuming that the standard of liability will be "knowing employment of an undocumented alien", it is not clear what will constitute a showing of knowledge. It is also unclear whether only civil penalties will be imposed, or whether these will be accompanied by criminal penalties in egregious cases. Finally, the Commission makes no precise recommendations on the nature of an ID system to establish eligibility for employment. Yet these are precisely the kinds of details which will determine the effectiveness (and the costs to social values) of any employer sanctions scheme. Without such details, it is impossible to determine how the sanctions proposal would be enforced. For example, the Commission suggests targeting larger businesses for enforcement efforts. However, it makes no attempt to show that this would be an effective targeting of enforcement resources. Similarly, the Commission failed to consider whether, in criminal prosecutions, one may expect overburdened U.S. Attorneys to exercise considerable prosecutorial discretion in decisions about when and whom to prosecute. The effect of this factor on the scheme's effectiveness may well be radical. It is also important to consider how juries will |