Comment by Linda Sue Johnson
A major congressional battle ended on November 6, 1986, when President Reagan signed the Immigration Reform and Control Act (IRCA or the Act). Although the Act is the product of six grueling years of debate, its exact interpretation remains uncertain. One of the Act's sponsors, Senator Simpson (R-Wyo.), acknowledged the uncertainty regarding IRCA's interpretation, stating that ‘the bill could cause terrible administrative problems but is sure as hell a lot better than what we have now.’
The Act fundamentally changes the United States immigration law. Although affecting many aspects of immigration, IRCA revolves around two basic principles: the imposition of civil and criminal sanctions against employers who hire undocumented aliens, and the establishment of a legalization program for certain aliens. The controversial nature of these two principles led to many compromises during the course of drafting the Act.
One of the most serious concerns was that IRCA would promote employment discrimination against ‘foreign looking and sounding’ individuals. To quell this concern, provisions were added to discourage this kind of discrimination. Although the resultant discrimination section is replete with ambiguities and flaws, it is better that IRCA was passed with the section than without it. Yet, as with the entire Act, the future and strength of this section will depend on court interpretation.
Two camps have divergent opinions regarding the operation of the antidiscrimination section. One camp, led by the Reagan Administration, vehemently opposes the provision. The other camp, composed primarily of the section's sponsor, Representative Barney Frank (D-Mass.), and various organizations, supports the operation of the section. This Comment will probe the strengths and weaknesses of IRCA's antidiscrimination section. After a brief history of United States immigration law prior to the enactment of IRCA, this Comment will provide a general overview of the employer sanctions scheme and legalization program to assist the reader in understanding how the antidiscrimination section should operate. Next, the antidiscrimination section itself will be analyzed. Following a review of the arguments made both for and against its inclusion in IRCA, the analysis will focus on the classes of people protected by the section, the procedures for bringing an IRCA action, the standard of proof necessary to prevail, the penalties levied for violation of the section, and finally, the section's termination mechanism.
About the Author
Linda Sue Johnson.
Citation
62 Tul. L. Rev. 1059 (1988)