There is an effort in Texas, where I lived for a long time, to exclude children of illegal immigrants from going to public schools. It was in Texas that I got into this issue in the first place. There was an effort to try to help organize farmworkers in south Texas in the late 1960's. It was soon clear that there was no chance to do that as long as the borders were wide open. The effort was completely decimated.

I think it is an extremely serious issue. And I might also add that I think that the numbers are far greater than what the Select Commission reported. By relying upon the average figures cited by the Census Bureau-an average that was simply a median of studies done back in the mid-1970's, which placed the number of illegal immigrants somewhere between 3.5 and 6 million persons, it did a disservice. I think that is a wonderful report, but that this range of numbers has been picked up by many people in the public without understanding that all those studies were done way back in the mid-1970's and all the Bureau did was strike a median of all the figures in the reports. They did nothing original themselves. So the actual number in 1981 is certainly much larger.

Senator SIMPSON. Mr. North.

Mr. NORTH. Senator, I think it is a serious problem, and I think it requires serious steps. I know that there are plenty of people, including many witnesses, who worry about the tradeoff between seeking to solve the problem and creating other problems in the course of seeking that solution.

I would suggest that in addition to the problem which has been mentioned earlier about the labor market, which I have written about at some length, there also is the question of the almost invisible, very serious but very difficult to measure, impact on the Treasury.

I am thinking about particularly the most difficult of those impacts to measure, which is what happens to the legal resident worker who is eligible for various income transfer programs who is actually shouldered out of a job in the U.S. labor force. It does not happen every time an illegal is employed, but it happens often enough to be of concern. That legal resident of the United States is eligible for and generally seeks unemployment insurance, later on perhaps food stamps, later on perhaps AFDC. That is a very real problem.

Mr. PARKER. Senator, I am not an economist, so I would not be able to answer your question in terms of effect on the economy. I think illegal immigration is a serious problem. I think it has created, or around it has been created, an atmosphere of panic and hysteria that I am very concerned about. I think I am almost as concerned about that as I am about whatever the economic effects would be.

There is a real risk of claiming, "My God, we have to do something." We have heard that, I think, today, and we have heard it for a year or so. People say here is a serious problem and here are all these foreigners coming in, coming in with boats and everything, and the feeling is that somehow we have to do something. That troubles me to the extent that illegal immigration creates that atmosphere of hysteria. I think that we are trading off a great deal. I think I would be very careful about that.

Senator SIMPSON. Your responses are thoughtful and quite firm. I appreciate that. I perceive that the conditions are now present to assure that something will be done. That is why I and the chairman of the House committee want to harness this energy to be sure that what is done is right, whatever that may be.

Never have the constituencies been so clearly formed, where you have for the first time in many years the labor movement wanting to do something, blacks wanting to do something, other minority groups wanting to do something, people wanting to do something for the very worst reasons, people wanting to do things for the very best reasons, environmental groups suddenly alert to the situation. Indeed, our purpose is not so much to see that something gets done-because it is going to get done, something is going to happen, some legislation is going to go on the books. The purpose of this subcommittee is to be sure that what is done is done for the right reasons and by appropriate means.

I was interested, Professor Miller, in your international viewpoint. Why were employer sanctions originally enacted in Germany and France and other countries? And why has Germany recently proposed to increase the amount of the fine? I would be interested in that. Was there any public opposition to the enactment of those policies in those countries? Has there been opposition or resentment by either employers or individuals alleging discrimination since the enactment of employer sanctions? I would be interested in that as you perceive it. How is that for a loaded one?

Mr. MILLER. In 1 minute?

Senator SIMPSON. Yes; you have 30 seconds in which to answer that.

Mr. MILLER. First of all, I think there are three factors that can explain why employer sanctions came into force in the mid-1970's. One is the recruitment halt caused by a souring of perceptions of the guest worker programs which had been instituted earlier, but also by the general economic depression.

Two was the passage by the International Labor Organization of the convention concerning migrants in abusive conditions, convention 143 in 1975. The European governments generally have been responsive to that convention.

And the third factor was a politicization of foreign worker policies in virtually all Western European states.

Now, concerning opposition to employer sanctions, no. There is a broad consensus in European societies that this is the way to go. Even the employer groups backed employer sanctions.

And concerning the third factor-has this resulted in additional discrimination against minority groups-I know the French situation quite well, where there is a large citizen minority group made up of citizens of North African, Caribbean, and sub-Saharan African descent. And there are serious problems of discrimination and racism in France, but it does not appear that employer sanctions have resulted in additional discrimination against these disfavored minorities in French society.

Senator SIMPSON. Thank you very much. I was interested in that. I seem to come to the conclusion that if an employer is engaged in discrimination and doing that and in his known or unknown ways, regardless of what we put on the books, he is going to continue to

do that. That is my view, although if we provide a secure way for applicants to show their work authorization, employers would certainly not be able any longer to use uncertainty about work authorization as an excuse. In that sense discrimination might even decrease.

Mr. MILLER. Senator, the French see employer sanctions in a different view than we do here in the United States. I think that most labor representatives, for example, see employer sanctions as lessening discrimination, the discrimination which employers wield over illegal aliens. The French feel that if they can stem this illegal alien problem, then this will lessen discrimination in their society.

Senator SIMPSON. Professor Briggs, you testified that there must be, you used the phrase "sufficient penalties" imposed upon employers who would violate employer sanctions laws. What do you regard as "sufficient penalties," meaningful penalties?

Mr. BRIGGS. Well, I think that the minimum would be $1,000 per alien. If I understand what the Carter administration proposed in their reform message, I think that was their minimum. In this regard, I was doing some recent reading about the Alien Contract Labor Act of 1885. The penalty then was $1,000 for each violation of the act per person. That was 100 years ago. I think if one applied a price index on what Congress thought it was severe enough to impose $1,000 in 1885, the comparable figure would at least be $25,000 now. I think the principle of the act is somewhat similar to what is being proposed. The penalty has got to be severe. I feel this because I worry about whether the legal system will take employer sanctions seriously or not. And I elaborate on that more in my testimony.

My greatest fear with employer sanctions is that even if we pass it, the legal system will simply say, "We are going to ignore it. We are not going to penalize employers," or "We have overcrowded court dockets that are filled with murders and rapists and everything else to deal with," and this is going to be very low on the agenda of action.

Unless the penalties are strong enough to make prosecution seem worthwhile to get involved in, I think they are likely to just ignore it. So I would certainly say $1,000 as a minimum. But I am not a lawyer to know how that fine would be relative to other commensurate types of crimes.

Senator SIMPSON. We are going to pursue that. There has been some testimony and some materials presented stating that the first two penalties should be civil in nature, in the form of fines, and then for a persistent pattern and practice, if we can get this defined properly, these could be criminal penalties. So that is a possibility. We have to be cautious there.

Mr. North, you are perceptive enough to know that there are certain portions of the administration's program that I have difficulty with and, you know, we are going to proceed. We have permission here to do Congress' pitch on immigration and refugee policy reform.

Certainly, the administration personnel that we have dealt with in the State Departmment and particularly in the Department of Justice, have been more than helpful and cooperative and under

stand where we are headed and understand the political realities of our congressional impetus. Part of their program consist of additional INS and Labor Department investigators. And I inquire, how much more effective will be their sanctions program which utilizes existing documents, than use of a program with the increased number of investigators but no sanctions?

Mr. NORTH. Well, if you did increase labor law enforcement, which I think probably is a good thing, and if you interior or labor market enforcement of the immigration law, what you would need is not more legislation but simply more appropriations. So perhaps it is attractive from that point of view.

Second, what would be done in terms of labor law enforcement presumably would be to make it a little less profitable for some employers of illegal aliens to continue to employ them at below minimum wages. There is a substantial body of evidence that suggests that the majority of the illegal immigrants are being paid at or above the minimum wage.

The continued displacement of legal resident workers from legal jobs, above minimum wage jobs, by illegal aliens would not be affected at all by improving the enforcement of the Fair Labor Standards Act. FLSA enforcement is a good thing in and of itself, but it does not meet this particular problem.

The additional enforcement of the immigration law itself by more labor market investigations, more farm and ranch checks, would be helpful. But it would not take care of the problem of equity in the labor market that I mentioned before, in that the illegal immigrant employee would be the only one penalized.

I welcome one or both of those steps, but I am not sure that that is all that is necessary.

Senator SIMPSON. Mr. Parker, you have stated that there may be a problem of access for certain legal workers if the card-if we go to a card-is an upgraded counterfeit-resistant, tamperproof social security card. How would a problem of access develop with use of that method?

Mr. PARKER. I think what you would need to address, Senator, is how does someone get that card in the first place. I, for example, do not have my social security card anymore, but I suppose I could come up with something if I needed to get a card and prove that I was here legally.

A young kid applying for a card might not have any of those things. That conceivably could have a disparate impact on people who are at the lower economic strata of our society. I think the question that has never been addressed is how do you get into that system, who do you go to? Do you go to the INS? Do you go to the Department of Labor, the local employment service, or whoever? What procedures are there to prevent the use of forged documents to obtain a nonforeable ID card.

The question, I think, is whether we are going to have people go and say to the D.C. Government if they live in the District to get one of these cards. And thus someone who is a middle-class white college student has a better chance of getting one of those cards than someone who is a lowerclass black unemployed person who is out of school.

It seems to me there is a preliminary assumption behind that whole card system that we just have not addressed yet. And I think you are quite right in thinking that the card system has got to be explored. There are some obvious problems with it, but I am not sure we have really gotten to all the subsidiary problems that it raises.

I would agree, incidentally, with Professor Briggs' comment about the questions of enforceability. My testimony deals with that to some extent. There is a whole series of questions, whether we have a system like the administration's or a system with the card, about burdens of proof, warrants to get in to inspect an employer's place of business, what sort of standard of liability you would have. Those are difficult questions, and I think even if we assume that people come here to get jobs, and even if we assume some of the other problems that may exist in illegal immigration, we cannot necessarily assume that an employer sanctions system is going to prevent all those bad things from happening. There are a lot of other things to address.

Senator SIMPSON. Well, this is very true. As you have heard— and we will conclude here in a just a moment-how quickly we come back to doing something with the existing social security card. That seems to be something that we seem to gravitate toward. Indeed that may be what we will ultimately come up with. Interestingly enough, the Social Security Administration system is not exactly overenthused about that.

But before benefits are paid there comes sitdown time when workers actually go to a live human being employee of the Social Security Administration and produce work records and history of employment and so on. At that point the weed-out comes-thank heavens-because that is when the payoff comes. That is the benefit system.

I think that I am convincing some of them, or hope to, that even though it is true, that they do not have to be too deeply concerned about social security cards, the real issue is that that card has become a talisman of authenticity in America, and in that sense is being terribly, terribly abused.

You are very important parts of the continuing process, as you have been in the past, and we appreciate your being available and your diversity of opinion. And we thank you.

That will conclude the hearing today. We will have a hearing Friday on employer-employee identification systems, verification systems, identifiers. That should be spirited.

Thank you very much for your participation.

I would say that members of the subcommittee will be presenting written questions to you, and if you would, please respond to those in an appropriate fashion. And I will have some additional written questions not only for this panel but previous panels and wish the record to so disclose.

Thank you for your participation.

The hearing is concluded.

[Whereupon, at 5:00 p.m., the subcommittee adjourned, subject to the call of the Chair.]