771 May29,1990 3 congress made a serious mistake in the 1986 immigration reform and now apparently is attempting to compound it. If they have their way, some Democr ats and Republicans will be inching the nation closer toward Big Brother by requiring that every American have a national identification card or work pennit -issued by a federal bureaucracy.

The trouble started when the 1986 Immigration Reform and Control Act IRCA) sought to prevent illegal immigrants, principally from Mexico and other Hispanic countries, from finding work in the U.S. It sought to do this by imposing civil and criminal penalties against employers who knowingly hired such workers. When the 1986 law was passed, many immigiation experts, civil rights leaders, and a Heritage Foundation study argued that the law would prompt employers to discriminate against those foreigners legallyfesiding in this country and against U.S. citizens who appeared to-be foreign. These suspicions were confirmed late last March by a General Accounting Office GAO) study that documents a serious pattern of discrimination resulting from the employer sanctions provisions of the bill Missed Opportunity. Under special rule s contained in IRCA, once GAO uncovered such a pattern, Congress had thirty days to use a streamlined pro 1 Stephen Moore, Halting Illegal,I.pnigration: Employer Sanctions Are Not the Answer, Heritage 2 General Accounting Ofice, Invnigrorion Reform: Employ e r Sgnctions and the Question of Disuimhation r Foundationlssue, Bullefin No. 118, April 21,1985, pp. 1-2 March 1990.~ cedure, known as an expedited vote, to repeal the employer sanctions provisions. Though repeal made sense, Congress allowed this opportun ity to pass on April

29. Now to repeal sanctions Congress must go through the nor mal process of enacting a bill, further prolonging the discriminatory practices uncovered by GAO. Formal repeal legislation is being fashioned in the House by Representatives Bill Richardson, the New Mexico Democrat, and Edward Roybal, the California Democrat A similar measure will be intro duced in the Senate by Orrin Hatch, the Utah Republican.

Opposing repeal are some influential members of Congress, including.

Senators Alan Simpson, the Wyoming Republican, and Daniel Patrick Moynihan, the NewYork Democrat, who want to retain employer sanctions and strengthen the law by requiring all Americans to have a national iden tity card. They say that the seventeen different forms of identification, such as a passport, Social Security card, or birth certificate, that a prospe c tive employee can offer to prove his eligibility to work are too confusing and sub ject to counterfeiting. Supporters of a national ID card also claim that it would eliminate the discriminatory effects of the employer sanctions Expanding Use. This nationa l identity card in effect would be a federal work permit. The federal government would have it in its power to deny in dividuals the right to earn a living by denying them a card. While supporters of such a card claim its use would be limited, it takes lit t le imagination to see the government expanding its use in the future. For example, the government might allow the permit to be denied or revoked for alleged non-payment of taxes or to include other information of alleged importance such as whether a prosp ective employee had a criminal record or had AIDS or another infec tious disease.

Congressional failure to repeal the employer sanctions would be an affront to the thousands of Hispanics and Asians who are legal residents but whose civil rights have been v iolated because prospective employers have wanted to take no chance on hiring anyone who looks foreign or has a foreign-sounding name. The requirement of a national identity card would compound this damage and would be a step toward the Big Brother societ i es from which countries across the world have been retreating JIM CROW IMMIGRATION POLICY A Wall Street Journal editorial recently described IRCA, also referred to as the Simpson-Mazzoli bill after its principal sponsors, Senator Simpson and Kentucky Demo c ratic Congressman Romano Mazzoli, as the first legislation since Jim Crow where the government is so closely aligned with a process that produces di~crimination It is, added the editorial, the modem eras 3 Clocking Immigration Sandons, The Wall S&et Journ a l, April 16,1990, p. AB 2 Prohibition a misguided attempt to control the borders. The bill deputized all employers as immigration cops by requiring that they somehow make sure their employees are in the country legally Early Warnings. Yet, well before IRC A was passed, critics warned Con gress that discrimination would result. One year before passage of the bill, a Heritage Foundation study warned Elmployer sanctions would encourage employers to discriminate in their hiring practices against the six million legal Hispanics working in the U.S as well as against many of the 14 million foreign born Americans. To avoid risking stiff fines or even imprisonment, cautious employers would find excuses not to hire workers who appeared foreign whether or not the worke r s could verify their citizenship The civil rights of employers and legal alien worke meanwhile, would be impaired significantly. 5 Added Hoover Institution scholar Annelise Anderson: the employer sanctions approach is a snake-oil remedy. It addresses only a small portion of immigration policy, ignoring legal immigration and illegal immigration for purposes other than job seeking. There is also no reasonable grounds for assuming that it would be anything but a failure in fact, counterproductivf in accomplis hing its fundamental purpose.

By the time the bill passed, Congress had acknowledged the potential for discrimination, and included a provision prohibiting employers with four or more employees from discriminating on the basis of a persons national origin or citizenship status. In its final form IRCA presented the nations employers with a double bind: they could risk being penalized for discrimina tion or face criminal charges for hiring undocumented workers. Because penalties were higher for employing ill e gal aliens, and because discrimination is more difficult to prove, many employers have been choosing not to hire workers-who appeared foreign 4 aid 5 Moore, op. cit pp. 1-2 6 Annelise Anderson, IlIegal AIiens and EmpIoyer Sanctions: Solving the Wrong Prob l em (Hoover Institution Stanford University, April 1986 3 A SERIOUS PAITEXN OF DISCRIMINATION Critics of the Simpson-Mazzoli Act were vindicated this March 29 when the GAO found widespread discrimination against individuals who looked foreign or had foreig n -sounding names. According to the study, nearly 20 per cent or 891,000 of the nations 4.6 million employers used some form of discriminatory hiring practices as a result of the law; and this may be a low es timate admits the GAO. Hispanics and Asians suff e r most from this dis crimination states the GAO report. The hiring audit showed that the Hispanic testers [for jobs] were three times as likely to encounter unfavorable treatment when applying for jobs as were closely matched Anglo Studies conducted in Ca l ifornia and New York, two states with large Hispanic and Asian populations also found a widespread pattern of dis crimination Trhe New York 7hes quoted a New York official as saying What our report clearly demonstrates is that employers in New York State a re adopting practices that discriminate a ainst foreign residents, out of fear of penalties under the immigration law.Officials reported that 73 percent of the employers surveyed admitted they would at least delay hiring both American and foreign-born wor k ers who could not document their status im mediately. Moreover, a New York City civil rights group report in 1988 that some 22,000 New Yorkers were denied jobs as a result of IRCA Victims By Association. A study by the California Fair Employment and Housi n g Commission reports that IRCA is responsible for enormous per sonal and human costs to workers who are or appear to be foreign-born is estimated that more than 50 percent of all undocumented workers live in California. Thus many Hispanic and Asian citize n s have become victims by association. Californians who are authorized to work cant get jobs because they lack the necessary paperwork, reports the Commission. And well meaning but confused employers have denied jobs to eligible workers.12 One GAO finding i s particularly disturbing since it points to serious harm to Americas economy As a result of IRCA, smaller companies, those of 25 or fewer employees, tend to discriminate more frequently than larger com panies This is especially true of businesses with fo u r to 25 employees, repre senting nearly half of the 4.3 million employers in the GAOs survey. Firms of this size employ over 25 percent of the nations work force and tend to pro vide-a-large-share-of the-entry-level jobs,-the kind in-which young-people, a n d minorities in particular, develop the skills needed for successful careers. The I 910 It 7 GAO, op. cit p. 47 8 Marvine Howe, Immigration Laws Lead to Job Bias, New York Reports, The New York rimes, February 26,1990 9 Katherine Bishop, California Says L a w on Aliens Spurs Job Bias, The New Yo& Ties, January 12,1990 10 Ibid 11 Ibid 12 Ibid 4 discriminatory effects of the employer sanctions may well have an especially disparate impact on the future of young minorities THE NATIONAL IDENTITY CARD SOLUTION Sup porters of IRCA insist that the bill itself does not prompt discrimina tion. Rather, they say discrimination results from employers confusion over the seventeen different kinds of identification which can be used to prove work eligibility.

They are 2) Cert ificate of U.S. Citizenship (Issued by INS 3) Certificate of Naturalization (Issued by INS 4) A foreign passport that includes an authorization to work 5) Resident alien INS Form 1-551 6) Temporary Resident Card, INS Form 1-688 7) Employment Authorization Card INS Form I-688A 8) Social Security Card 9) Reentry Permit INS Form 1-327 10) Refugee Travel Document INS Form 1-571 11) Certificate of Birth issued by the State Department 12) Certificate of Birth Abroad issued by the State Department 13 An original o r certified copy of a birth certificate issued by a state 14) An employment authorization document issued by INS 15) Native American tribal document 16) U.S. Citizen Identification Card, INS Form 1-197 17) Identification card for use of resident alien in the U.S., INS Form 1-179.

Since many of these forms of identification are easily forged, employers are 1) U.S. Passport county, or municipal authority simply afraid that they will hire someone with forged documents. If they do even in good faith, they are subject to the laws penalties.Thus, Charles A.

Bowsher, Comptroller General of the United States, told the Senate Judiciary Committee in March that the government should reduce the num 5 ber of work eligibility documents and make them harder to counterfei t, there by reducing document fraud.13 Senator Simpson explains that mo protect the employer and the employee, we need some kind of a universal identifier which is presented only at the time of new employment. It is not carried on the person, it is not an internal passport, it is not used for law enforcement. It is presented at the time of new hire, and not just by people who look foreign, but by everyone. And it will say on it, Im authorized t work in the United States of America thats it l Simpson has in troduced legislation, The Employer Sanctions Improve ments Amendments of 1990 (S. 2446 which would require the Secretary of Health and Human Services to issue an Improved Social Security Card.

This new card would be counterfeit-resistant and would contain a photograph or other identiwg information which would allow a United States employer to determine with reasonable certainty that the bearer is not claim ing the identity of another individual. Alternatively, Moynihans bill, s. 214 proposes a plastic, cou n terfeit-proof Social Security card15 that would employ technologies that supply security features, such as magnetic stripes holograms and integrated circuits. The card, moreover, would contain fea tures allowing it to be utilized as a voter registration c a rd Simpsons Concern. Simpson is so concerned that the improved Social Security card will be thought of as a national identity card that his bill states in Section 3, paragraph (3 No National Identity Card. This card will not be required to be carried on o nes person not be required to be presented for any purposes other than [for worker identification purposes and the card cannot be withheld for any reason other th an that the person is not authorized to work in the United States.

Simpson maintains that the se measures will not lead the United States down the road to Big Brother totalitarianism. He says: Nearly all western na- tions, including Canada and Mexico, have employer-sanction laws And if youre going to classify countries that have a national ID card as a totalitarian government, how do you describe France and Germany? Because they do.16 13 Robert Pear, Simpler Plan Sought in Congress to Identify All Eligible for Work, The Nav Yo& Zimes, March31,lW 14 Car0 Poky Report, September/October 1986.Transcrip t of a debate between Alan Simpson and Annelise Anderson 15 Spencer Rich, Tamperproof Card Plan Rakes An Old Specter, The Washington Post, April 19,1990 16 hid 6 Simpson also points to a 1985 GAO study that he commissioned that found employer sanctions law s curtail illegal immigration in countries with stepped up enforcement.17 Inckased State Powers. What is ignored is that employer sanctions laws work only when there is a sharp increase in state powers and in the size of the bureaucracy wielding those powe r s. And in these countries that apparently serve as a model for sanctions advocates, more than a national work permit is required. Annelise Anderson reports that authorities have found it neces sary to close off access to housing as well as jobs; housing p e rmits are re quired as well as work permits. Some countries, for example, West Germany have landlord sanctions as well as employer sanctions.18 If employer and housing sanctions failed to curb illegal immigration, one could imagine the government expandin g sanctions to baxikers, retailers, and even grocers.

Before Congress passed IRCA, California, Connecticut, Delaware, Florida Kansas, Massachusetts, Montana New Hampshire, Vermont, and Virginia and the city of Las Vegas, had employer sanctions on the books . They had few results to show for their efforts. California and Florida, both with huge Hispanic populations, did not bother to enforce their laws, and onl five con victions resulted from enforcement in the other nine jurisdictions Los An geles is bypass i ng both the state and federal laws and has launched a program to help day laborers find jobs, though many of them may be undocumented idgrants. Because the city is acting as a job broker, leaving document checking to the employer, the program is technical l y within IRCA rules.The coordinator of the program calls it a local solution to a local problem it is not the jurisdiction of any office of this city to enforce immigration law.99m prevented illegal immigrants from entering this country and finding jobs, a nd there is little likelihood that a national identity card would succeed in doing so either. Rather, a federal work permit would drive undocumented workers further into the underground market and into more dangerous or less secure jobs. According to Wayn e A. Cornelius, the director of the Center for United States-Mexican Studies at the University of California at San Diego, Like the undocumented workers already here who didnt quala for amnesty, the new arrivals have not become unemployable in this country because of Swelling the Underground Market. Employer sanctions have not 17 General Accounting Office, Infomation on Selected Counbies Employment hhibirion Laws, October 28 1985 18 Anderson, op. eit p. 17 19 Bid, p. 7 20 Seth Mydans, La Angela Project Aids Illegal Aliens, In Challenge to U.S The New Yo& Tim, October 26,1989 7 employer sanctions. Its just that their range of job options may have been reduced somewhat.21 THE IDENTITY CARD NEEDS BIG BROTHER The American people correctly are jealous of their pe rsonal privacy. They resent the need to account for their actions and their lives to the government.

For example this year over 45 percent of the American households did not in itially return their census forms on time, feeling, as one Chicago woman summed it up, that 1 s too much personal information to give out to a government agency This is certainly a preview of the reception that awaits a national identity card.

The current IRCA provisions already have generated deep suspicion among many new legal imm igrants. Last year, hundreds of Laotians quit corn ing to work in New Jerseys blueberry fields because they distrusted IRCAs proof of eligibility requirement. They say, We are already legal to live in this country so why are they asking us for more inform a tion? said one rep resentative. Having fled a communist regime in their homeland, they are ap prehensive about authority figures and governments.23 IRCA supporters claim that a national identity card could be little more than a counterfeit-proof Social Se c urity card. Yet this or anything more ex tensive would require the federal government to solve the problem of the phony identifications already being used to acquire Social Security cards An improved Social Security card would require a huge data gatherin g bureau to cross-check every piece of identification This bureau presumably would have to record each individuals birth, job changes, address changes, and death, effectively charting every moment of Americans lives. The federal governments invasion of ind i vidual privacy would be vast to work permit, would deprive Americans of a fundamental freedom: the right to earn a 1iving.The federal government literally would have it in its power to deny individuals the iight to work. In recent decades the federal gove rnment increasingly has tied strings to grants and to other programs. It is thus realistic to assume that the government would attempt to attach other conditions or uses to a national identity card.

Congress, for example, could grant the Interxial Revenue SeMce the power to hold up or suspend an individuals work permit for allegedly not paying his a Government Strings. A national identity card, functioning as a federal right 21 Richard W. Stevenson, U .S. Work Barrier to Illegal Aliens Doesnt StopThem, The New Yo& Ernes October 9,1989 22 Barbara Vobejda, Americans Seen Lacking Time, Tolerance for Census Forms, The Washingon Post, April 18,1990 23 Robert Hanley, In Berry Fields, Fear on Immigration Rule , The Nav Yo& Ernes, July 20,1989 8 0 I or her full taxes. An outbreakiof infectious disease could bring calls to in clude an individuals health information on an identity card CONCLUSION Nearly a decade ago the national identity card concept first surface d .The idea was presented at a Reagan cabinet meeting in 1981 by then-Attorney General William French Smith. At first, no dissent was heard. Only the voice of Martin Anderson, then Assistant to the President for Policy Development stopped the idea dead. And e rson sardonically stated Mr. President, I would like to suggest another way that I think is a lot better. Its a lot cheaper. It cant be counterfeited. Its very lightweight, and impossible to lose. Its even waterproof All we have to do is tattoo an identif ication number on the in side of everybodys arm. Ronald Reagan then said, equally sardonically Maybe we should just brand all the babies. The national identity card proposal died there.

Potential for Abuse. As many predicted four years ago, the employee sa nc tions in IRCA have led to widespread discrimination against minorities. This suggests that Congress should repeal this provision of IRCA. The proposal for a national identity card would make a bad policy even worse. Such a card in effect a federal righ t to work permit, carries a potential for abuse too great to risk.

It is particularly disturbing that the attempt to deal with illegal immigrants can end up harming people who appear foreign, who are in the U.S. legally or even are citizens. And it is espe cially ironic that people fleeing the tyranny and poverty of socialist countries should face increased restrictions in the U.S Scott Hodge Policy Analyst 9