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Illegal Immigration and Driver's License

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					   Texas Conservative Coalition Research Institute
       Illegal Immigration Task Force Report



State Approaches to Illegal Immigration
                           October 2006




   PO Box 2659 -- Austin TX 78769 -- 512-474-6042 -- www.txccri.org
                                   Acknowledgments
We would like to acknowledge the efforts of all those who have participated in the Texas
Conservative Coalition Research Institute’s State Approaches to Illegal Immigration Task
Force. This document is the result of many months of research and discussion on the part
of the task force members, their legislative staffs, and the TCCRI. We would like to thank
all of the individuals and groups who have supported our work and come to meet with the
task force over the past ten months. In particular, we thank our task force Chairman,
Representative Linda Harper-Brown, as well as the other members of the task force,
Representative Brian Hughes, Representative Bill Keffer, Representative Debbie Riddle,
Representative Larry Taylor, and Representative Corbin Van Arsdale. We also thank Cari
Christman, Jon English, Michele Moore, and Erin Sanders for their contributions to the
task force, as well as John Colyandro, Brent Connett, and Tom Aldred for coordinating the
task force and taking primary responsibility for authoring and editing this report.




          The contents of this document do not represent an endorsement from any individual
        member of the Board of Directors of the Texas Conservative Coalition Research Institute,
       any individual member of the TCCRI Illegal Immigration Task Force. There may be some
          policy recommendations or statement of philosophy that individual members may be
       unable to support. We recognize and respect their position and greatly appreciate the work
                                of everyone involved with the task force.




                                                                                                    2
                              Table of Contents

Executive Summary                                 5

Summary of Recommendations                        8

Part I: Voting, Citizenship, and Identity         12
      Laws without Meaning                        12

      Opening the Door to Fraud                   14

      The Right to Vote                           16

      Proposals to Verify Citizenship             18

      Recommendations                             20

      Answering Anticipated Objections            24

      Conclusion                                  27


Part II: Denying Benefits to Illegal Immigrants   29
      The Philosophy of Denying Benefits          31

      Medicaid                                    33

      TANF and Food Stamps                        35

      CHIP                                        36

      Section 8 Housing Choice Voucher Program    37

      Recommendations                             38

      Conclusion                                  43




                                                       3
Part III: Employer Sanctions                         44
       The Dynamics of Illegal Immigration           44

       An Economic Benefit to America?               45

       Exploring Employer Sanctions                  47

       Recommendations                               48

       Conclusion                                    49


Part IV: Ending Bilingual Education Programs         50
       The Californian Experience: Proposition 227   50

       Assimilation                                  51

       The Benefits of Ending Bilingual Programs     52

       Bilingual Education in Texas                  53

       The Cost of Bilingual Education               53

       Enrollment of English-Speaking Students       54

       Recommendations                               55

       Conclusion                                    55

Part V: Border Security and Local Law Enforcement    56

Appendix A: Texas Voter Registration Application     58

Appendix B: USCIS Civic Flash Card                   59




                                                          4
                                  Executive Summary
The domestic debate over illegal immigration is radicalized. Large-scale demonstrations in
March and April 2006 were organized to oppose proposed criminal sanctions against
migrants and those individuals and organizations, such as the Central American Resource
Center, which aid them. Meanwhile grassroots organizations, such as the Minuteman
Project, have formed to patrol the vast, unprotected desert regions of California, Arizona,
New Mexico and Texas to prevent illegal border crossings. As one extreme seeks to fortify
the entire US/Mexico international boundary to prevent more Mexicans from entering the
United States, the other faction seeks blanket amnesty (and expedited citizenship) for all
illegal aliens.

Regardless of party affiliation, income, or ethnicity, public attitudes on the issue have
become increasingly intense, even hostile, toward immigrants (illegal and legal) in recent
months One poll found that 91 percent of people surveyed think the illegal or
undocumented immigration situation in the United States today is a "very" serious (63
percent) or "somewhat" serious (28 percent) problem.1 A USA Today/Gallup Poll found
that nearly half of all Americans believe that the level of immigration to the United States
should be “decreased” [down only slightly from the high water mark in the immediate
aftermath of the terrorist attacks of on September 11, 2001] and that an overwhelming
majority of people (81%) expressed the view that “illegal immigration to the United States is
out of control.”2

Specifically, the American public is concerned, by wide margins, that illegal immigrants
"overburden government programs and services" (87%), “lead to an increase in crime”
(75%) and “take jobs away from U.S. citizens” (66%).3 Remarkably, 66% of all those
polled believe that illegal immigrants “lead to an increase in terrorism;”4 though several “9-
11” terrorists entered the United States legally. However, in fiscal year 2005, 155,000
people “Other Than Mexicans” (OTMs) were apprehended along the southwest border of
the United States. Some were from nations with active terrorist networks including Syria,
Jordan, and Pakistan. So far in FY 2006, over 50,000 OTM's have been apprehended on
the southwest border.5

The estimate of the number of illegal aliens in the United States varies. A generally
accepted figure seems to be 11 million people.6 The figure is imprecise because of
limitations of the enumeration process. The Immigration and Naturalization Service
estimated, based on the 2000 Census, that 7 million “unauthorized immigrants resided in
the United States as of January 2000” identifying “Mexico as the largest source country for

1
  Opinion Dynamics Corporation conducted the national telephone poll of 900 registered voters for FOX
News on April 25-26.
2
  USA Today/Gallup Poll. April 7-9, 2006. N=1,004 adults nationwide. MoE ± 3.
3
  FOX News/Opinion Dynamics Poll. April 4-5, 2006. N=900 registered voters nationwide. MoE ± 3.
4
  Ibid
5
  Office of Congressman Lamar Smith.
6
  “Not criminal, just hopeful,” The Economist, Global Agenda, April 13th, 2006


                                                                                                        5
unauthorized immigration to the United States.”7 The INS also reported that “Mexico’s
share of the total unauthorized resident population increased from 58 percent in 1990 to
69 percent in 2000.”8

That the number is large and growing seems beyond dispute, but the question that is
infrequently asked is what are Mexican nationals running from and what are they running
to? The short answers to those questions are these: they are running from extreme
poverty to the promise of higher wages and public benefits. They flee for a legitimate
purpose -- a better life – and are, for the most part, willing to work to achieve that goal
when they get here. Indeed, these are the people that we should be all too happy to
welcome to our country. The problem is that regardless of their character, or the risks that
they are prepared to take to get here, illegal immigrants are illegal. They know perfectly
well there is a process in place which requires them to apply for entry into the United
States. Scenes of Mexican nationals and other Latin Americans scaling walls, wading rivers,
traversing deserts, and stealing a ride in tractor-trailers are all tragic and depressing. But
talk of amnesty and “paths to citizenship” is falderal. There are plenty of people who come
to the United States legally every year, having completed an arduous, bureaucratic, and
expensive process. Those who fail to live up to the bargain – to legally gain entry into our
country and learn our language – degrades the value of citizenship and undercuts the rule
of law: a disruption that all too many people in the private sector are too willing to aid and
abet.

The acknowledgement that Texas invites illegal immigration through lax enforcement of
the citizenship requirements to enroll in public benefit programs, abundant employment
opportunities for illegal immigrants, a public school system that will teach students entirely
in Spanish, and the presence of active political movements that advocate for and on behalf
of illegal immigrants (to name but a few of the factors), is the basis upon which effective
immigration reform should be based.

The Texas Conservative Coalition Research Institute’s Illegal Immigration Task Force
began its work with the objective of offering practical policy solutions that address the
incentives that draw immigrants to Texas illegally. To this end, the TCCRI’s Illegal
Immigration Task Force has focused its work in four key areas:

           Voter identification;
           Access to state and federal welfare programs;
           Employer sanctions; and,
           Bilingual education in public schools.

By laying out the fundamental problems in each of these areas, the Task Force is able to
offer lawmakers not only a map for evaluating these issues, but also specific legislative
recommendations to address illegal immigration in Texas. Despite the fact that federal
regulations govern immigration policy, there are clearly many policy options at the state
level that can provide solutions to the problems posed by illegal immigration. For border

7
    http://www.uscis.gov/graphics/shared/aboutus/statistics/2000ExecSumm.pdf
8
    Ibid


                                                                                             6
states, such as Texas, this acknowledgement must drive legislators to enact meaningful
reforms that will reduce illegal immigration and will give state agencies and officials the
tools they need to effectively enforce both state and federal regulations.




                                                                                              7
                 Executive Summary of Recommendations

1). Voting, Citizenship, and Identity
a). Place Citizenship Status on Driver’s Licenses and Texas Identification Cards

       Amend Transportation Code, Chapter 521, by adding “citizenship status” as a
       feature that a Driver’s License must include.
       Amend Transportation Code, Chapter 521, Subchapter R, to provide Driver’s
       License and Texas Identification Card fee waivers for the indigent.

b). Require Voters to Present a Driver’s License or Texas Identification Card at their
Polling Place

       Amend Election Code §63.001(b) so that, on offering to vote, a voter must present
       the voter’s voter registration certificate and a valid, unexpired Texas Driver’s
       License or a valid, unexpired Texas Identification Card that proves the voter is a
       United States citizen.

c). Secure Applications for Early Voting Ballots-by-Mail

       Amend Election Code §84.002 by adding the requirement that an application for
       an early voting ballot include the applicant’s telephone number and either a
       Driver’s License number or Texas Identification Card number.

d). Cross-Check Voter Rolls against Death Records

       Amend Election Code §18.061 by adding subsection (f) to require the Secretary of
       State to conduct a semi-annual cross-check of the statewide computerized voter
       registration list against death records maintained by the Department of State Health
       Services.

e). Allow Responses to Jury Summons to Immediately Disqualify Voters

       Amend Election Code §16.0332 so that the voter registrar shall immediately cancel
       a voter’s registration upon receipt of a returned jury summons that lists non-
       citizenship as an excuse.

f). Increase Funding to the Attorney General to Investigate Election Fraud

       The Special Investigations Unit (SIU) in the Office of the Attorney General
       currently assists local officials in investigating and prosecuting election fraud. The
       Legislature should appropriate funds to the SIU for the investigation and
       prosecution of illegal votes cast by non-citizens.



                                                                                                8
g). Prohibit State Agencies from Accepting Matricula Consular Cards as Evidence of
Identity

       Amend Transportation Code §521.142 and add Chapter 2057 to the Government
       Code so that no state agency in Texas is permitted to accept a Matricula Consular
       card as evidence of a person’s identity, a person’s immigration status, or as a
       secondary or supporting proof of a person’s identity.


2). Denial of Benefits
a). Restrict Birthright Citizenship by Passing a Resolution in Support of H.J.R. 46

       H.J.R. 46, by Congressman Ron Paul (R-TX), proposes an amendment to the
       Constitution that declares:

       “Any person born after the date of the ratification of this article to a mother and
       father, neither of whom is a citizen of the United States nor a person who owes
       permanent allegiance to the United States, shall not be a citizen of the United States
       or of any State solely by reason of birth in the United States.”

b). Base Eligibility for the CHIP Prenatal Care Program on the Immigration Status of At
Least One of the Child’s Parents

The 2006-2007 General Appropriations Act (Article II, Rider 70) utilized a provision
made by the Centers for Medicare and Medicaid Services, allowing states to provide CHIP
benefits to unborn children.

In Texas, the eligibility for the subsequently-created CHIP Prenatal Care Program should
be restricted to the unborn children of U.S. citizens or legal residents.

c). Require Disclosure of Citizenship When a Child Enrolls at a Public School

       Amend the Texas Education Code (Section 25.002) so that disclosure of a child’s
       residency status is required at the time of enrollment in a public school.

d). Revise the “Emergency Medical Care” provision in EMTALA

       Pass a resolution supporting the re-definition of “Emergency Medical Care” in the
       Emergency Medical Treatment and Labor Act of 1986 (EMTALA), so that only
       the rarest births which genuinely pose a threat to the life of the mother or child are
       handled in emergency rooms.

e). Deny Illegal Immigrants Access to Punitive Damages

       Amend Texas Civil Practices and Remedies Code (Chapter 41) so that illegal
       immigrants cannot receive punitive damage in civil lawsuits.


                                                                                                9
f). Impose a Fee on Remittances Sent to Mexico or Central or South America

       Add Chapter 279 to the Finance Code to impose an 8% fee on each transmission
       of money from Texas to a destination in Mexico or in Central or South America.

g). Repeal In-State Tuition for Illegal Immigrants

       Education Code (Section 54.052) should be amended so that in order to qualify for
       in-state tuition, an individual must be either a U.S. citizen, or a legal resident, who
       meets the other existing criteria under Chapter 54 of the Education Code.


3). Employer Sanctions

a). Penalize Employers Found to be Knowingly Employing Illegal Immigrants

       Insert a Chapter in the Labor Code that details a monetary penalty, equal to the
       amount that was paid by the employer to illegal immigrants during the financial
       year, to be paid to the state by any business found to be employing one or more
       illegal immigrants.
       Amend Chapter 62 of the Labor Code so that the act of paying wages or any other
       compensation constitutes an admission by the employer that they have confirmed
       that the employee is authorized to work in the U.S.
       Amend the gross margins tax created by House Bill 3(79S3) to include an
       additional tax penalty equal to ten percent of their tax liability for each
       undocumented employee a company is found to be employing.
       End property tax exemptions for any business or individual found to be employing
       “unauthorized aliens.”
       Prohibit any business that is found to have employed “unauthorized aliens” for
       three out of any five years from conducting business in the state for a period of six
       months.

b). Require Employers to Attest that they have not Employed Illegal Immigrants

       Certificates of formation for all businesses filing with the Secretary of State should
       be accompanied by an affidavit stating that the company will not hire “unauthorized
       aliens.”
       Amend the gross margins tax created by House Bill 3(79S3) so that each taxable
       entity is required to declare that it employed no “unauthorized aliens” when
       submitting its reports to the Comptroller for each tax year.




                                                                                           10
4. Bilingual Education

a). Remove the Bilingual Education Mandate in the Education Code

       Amend §29.053 of the Education Code so that school districts are no longer
       mandated to offer bilingual education or a special language program to their limited
       English proficiency students.

b). Exclude English-Speaking Students from Bilingual Programs

       Remove §29.058 of the Education Code so that students who do not have “limited
       English proficiency” are no longer permitted to participate in bilingual education
       programs.



5. Border Security and Local Law Enforcement

a). Increase Funding for Border Security

       Border sheriffs should be provided with increased funding and resources. State-led
       initiatives such as Operation Laredo have decreased border crime by at least 65%
       in border counties.

b). Enable Local Law Enforcement to Detain Illegal Immigrants

       A resolution supporting the passage of House Resolution 6095 through the United
       States Congress should be passed. H.R. 6095 affirms that local law enforcement
       officials have the inherent authority to arrest and detain aliens in order to assist in
       the enforcement of federal immigration laws.

c). End Sanctuary Cities

       House Amendment 1139 (by Congressman John Culberson [TX-7]) to House
       Resolution 5672 blocks federal law enforcement funding for cities and counties that
       have adopted “sanctuary policies.” A resolution in support of House Amendment
       1139 is recommended.




                                                                                            11
                                                Part I

                        Voting, Citizenship, and Identity
Background

The animated and well-publicized debates over illegal immigration have been dominated
by talk of amnesty, guest-worker programs, and border walls. The sheer number of illegal
aliens in our nation warrants the attention of lawmakers. A March 2006 report by the Pew
Hispanic Center estimates the “unauthorized migrant” population at 11.5 to 12 million9.

However, enforcing existing immigration laws and securing our borders have drowned out
another, equally important aspect of the immigration debate -- the need to secure our
elections against voting by non-citizens.

The most paramount of our democratic rights, the right to vote, is guarded indifferently.
Federal and state laws are clear in their intent: only citizens may vote. In practice, however,
our polling places are just as porous as are our borders.

In fact, the U.S. Department of State will not accept a voter registration as proof of
citizenship when applying for a passport10. That healthy skepticism is justified because of
significant gaps in Texas election law and enforcement procedures.

Laws without Meaning

The United States Constitution does not provide an affirmative voting right. However, the
15th, 19th, 24th, and 26th Amendments to the Constitution, ratified over the course of more
than 100 years, all contain the same phraseology: “the right of citizens of the United State
to vote…” The intent of these amendments to the U.S. Constitution is crystal clear and
substantiates a view since the founding: only citizens have the right to vote. Similarly,
Article 6, Section 2 of the Texas Constitution grants the right to vote only to U.S. citizens
who are residents of Texas:

        “Every person subject to none of the disqualifications provided by Section 1 of this
        article [under age 18, mentally incompetent, persons convicted of felonies] or by a
        law enacted under that section who is a citizen of the United States and who is a
        resident of this State shall be deemed a qualified voter.” [emphasis added]

Voting is a right reserved only for U.S. citizens. However, the lack of any explicit statutory
mandate and procedural requirement to verify the qualification of voters leaves voting


9 Jeffrey S. Passel, Pew Hispanic Center, “The Size and Characteristics of the Unauthorized Migrant
Population in the U.S.” http://pewhispanic.org/files/reports/61.pdf
10 U.S. Department of State, “How to Apply in Person for a Passport”;
http://travel.state.gov/passport/get/first/first_830.html


                                                                                                      12
booths wide open to illegal aliens and other non-citizens [and other forms of fraud],
stripping constitutional protections of any real value.

Sections 11.002(1) and (2) of the Texas Election Code list the top two qualifications for
voting: age (18 or over) and citizenship (United States). The application to register to vote,
available online through the Secretary of State website, begins with the following questions:




                              [Please see Appendix A for the full application]

Applicants who check “yes” to the citizenship question are taken at their word; there is no
verification of citizenship by state, local, or federal authorities.

The Office of the Secretary of State, which oversees the administration of elections
confirms that citizenship verification goes no further than the honor system. In a June 15,
2006 letter, the Secretary of State’s office states:

        “[U]nder current Texas voter registration guidelines, there is no formal verification
        of an applicant’s citizenship status... Texas relies on the applicant to provide
        accurate/truthful information on his or her voter registration application. To the
        extent that an applicant must sign the application verifying that he or she has met
        the qualifications to register (one of which is U.S. citizenship) and that he or she has
        provided accurate/truthful information, the application is processed on those
        merits.”11

That admission alone is sufficient basis for legislative action. However, the gaps in election
law are significant.

Pursuant to the Help America Vote Act (HAVA), the Texas Secretary of State checks voter
registration applications against Driver’s License and Social Security databases12. While
such a measure may serve to verify the name and address of an applicant, it does not
prevent foreign nationals from registering to vote since both Social Security Numbers
(SSN) and Driver’s Licenses are available to non-citizens. In fact, the Transportation Code
contains an entire section (§521.0305) dedicated to agreements with foreign countries
under which the Department of Public Safety (DPS) may issue Driver’s Licenses to foreign
nationals.

Importantly, the DPS does not record the citizenship status of the Driver’s License
applicant, meaning that even if an applicant for a Driver’s License provides a permanent
resident card (green card) or visa as proof of identity, DPS does not record that the
11
  Ann McGeehan, Director of Elections, Secretary of State; letter dated June 15, 2006
12
  Help America Vote Act of 2002, Section 303(a)(5)(A)(i), Page 116 STAT. 1711
http://www.fec.gov/hava/law_ext.txt


                                                                                             13
applicant is a non-citizen13. Therefore, when the Secretary of State cross-checks a voter
registration application against DPS Driver’s License records, the agency cannot determine
the citizenship status of the applicant.

A non-citizen, however, need not have a SSN or Driver’s License in order to vote. The
Voter Registration Application continues:




Note the two boxes labeled “Check if you do not have a…”; even without a Driver’s
License, Texas Identification Card number, or SSN, an applicant may still be registered to
vote. HAVA and the Texas Election Code make special provisions for persons without
either a Driver’s License or SSN so that applicants without either of those forms of
identification remain eligible to vote14. Driver’s Licenses, Texas Identification Cards, and
SSN’s are all available to non-citizens. However, an illegal alien need not go so far as to
obtain one of those identifying documents since federal and state laws make them
completely unnecessary for voting.

The list of identification acceptable in lieu of a Driver’s License or SSN includes utility
bills, bank statements, and pay checks. However, delivery of electricity and gas service for
an apartment or home are not predicated on citizenship. Indeed, any person with the
financial wherewithal, including an illegal alien, can obtain utility service. Similarly, a
foreign national with or without a permanent resident card or visa can work and earn a pay
check. The items acceptable as ID in lieu of a Driver’s License or SSN have nothing to do
with the citizenship status of the applicant.

Opening the Door to Fraud

While the citizenship status of registered voters goes unchecked, fraud is taking place. The
long history of vote fraud in Texas, most notably the theft of the 1948 race for U.S. Senate,
should give any high-minded public servant cause enough to act. But vote fraud in Texas
and other states is not relegated to near ancient history. Fraud continues to this day.



13
   Claire McGuinness, Senior Staff Attorney, Drivers License Division, Texas Department of Public Safety;
Submitted Friday, June 2, 2006; response received Tuesday, June 13, 2006.
14
   Help America Vote Act of 2002, Section 303(a)(5)(A)(ii); See also: Texas Election Code §13.002(c)(8)


                                                                                                      14
Investigations into the 1996 election contest in California’s 46th Congressional District
between then-incumbent Congressman Bob Dornan and challenger Loretta Sanchez
showed that illegal immigrants were registered and fraudulently voted. The investigation
centered on Hermandad Mexicana Nacional (Mexican National Brotherhood). The
California-based organization noted in its Articles of Incorporation that its primary purpose
is “to provide non-profit, low-cost legal services to undocumented immigrant workers and
their families and other low-income families15.” However, investigations by the U.S. House
of Representatives Committee on House Oversight16 and The Los Angeles Times17 found
that the group illegally registered non-citizens, including illegal aliens, to vote in the 1996
Congressional election.

While no indictments were brought, it is possible that illegal aliens swayed the election.
Former Representative Dornan lost the election by 979 votes to the challenger, now-
Representative Sanchez. The U.S. House Resolution issued at the conclusion of the
Congressional investigation of the election notes that the “investigation was repeatedly
hindered and delayed by the lack of cooperation by the Department of Justice, the
Immigration and Naturalization Service, and key witnesses18.”

More recently, the problem of illegal immigrants voting in elections was illustrated by June
1, 2006 comments made by Francine Busby, the Democratic candidate for California’s 50th
Congressional Seat in San Diego. In response to a question from a Spanish-speaking
member of an audience about how he might help her campaign, Busby was taped saying,
“Everybody can help, yeah, absolutely, you can all help. You don't need papers for voting,
you don't need to be a registered voter to help19.” Unfortunately, Ms. Busby is correct.
Given the lack of verification in the current election system, “papers” are optional. At best,
Ms. Busby was encouraging illegal aliens to participate in her campaign; at worst, the
Congressional candidate was relying on the failure of our election system to verify
citizenship in the hope that illegal aliens might vote for her.

Furthermore, the book Stealing Elections offers a shocking example of non-citizens taking
advantage of the honor system: eight of the nineteen September 11th hijackers registered to
vote in either Virginia or Florida20.

The integrity of voter rolls in Texas is highly questionable. On June 22, 2006, Harris
County Tax Assessor-Collector and Voter Registrar Paul Bettencourt testified before the
U.S. House Administration Committee that in 2005, he identified at least 35 foreign



15
   Ira Mehlman, National Review, “Funding Fraud – Hermandad Mexicana Nacional”, March 24, 1997;
http://www.findarticles.com/p/articles/mi_m1282/is_n6_v49/ai_19254701
16
   105th Congress, 2d Session, Committee on House Oversight, House Report 105-416, “Dismissing The
Election Contest Against Loretta Sanchez”; http://thomas.loc.gov/cgi-bin/cpquery/z?cp105:hr416
17
   Peter M. Warren, Los Angeles Times, “Noncitizens Say They Voted in Key O.C. District”, December
27, 1996;
18
   105th Congress, 2d Session, H. RES. 355 [Report No. 105-416]; February 12, 1998;
http://thomas.loc.gov/cgi-bin/query/D?c105:1:./temp/~c105UzSDNg::
19
   Dani Dodge, San Diego Union-Tribune, “Busby on Defense, Says She Misspoke”, June 3, 2006
20
   John Fund, “Stealing Elections: How Voter Fraud Threatens Our Democracy”


                                                                                                     15
nationals who either applied for or received voter registration cards21. Mr. Bettencourt told
the Committee that a Brazilian woman registered, had her registration cancelled, re-
registered claiming to be a citizen, and had her registration cancelled again. While
registered, she voted at least four times in general and primary elections. Since 1992, Mr.
Bettencourt’s office has cancelled 3,742 registered voters for non-citizenship; 683 of those
non-citizenship cancellations have occurred from the year 2000 to present22. Following the
2004 election, from December 2004 to June 2006, thirty-four non-citizens were removed
from the Harris County voter rolls23.

Recently, the Harris and Bexar County have discovered non-citizens on the voter rolls
because of the cooperation from their respective district clerks. The Harris County District
Clerk, Charles Bacarisse, was receiving returned jury summons with a unique excuse:
people were admitting that they were not citizens to avoid serving on a jury. The list of
potential jurors, however, is culled from the list of registered voters pursuant to
Government Code §62.001.

In a public information request, the Texas Conservative Coalition Research Institute
learned that between 2003 and 2005, 303 people were removed from the voter rolls in
Bexar County because they were not citizens. The majority of these people were removed
because they had rejected jury summons on the grounds that they were not citizens.24
These figures, together with those described above in Harris County, indicate that the
problem of non-citizens being registered to vote must be addressed.

The illegal alien population in Texas is estimated to be over 1.6 million25, second in size
only to the illegal alien population of California. That estimated illegal alien population
accounts for over 7% of the total state population of 22,859,96826. With such sizeable
numbers of illegal aliens residing in the state, their potential impact on election outcomes is
too serious to ignore.

The Right to Vote

The gravity of the right to vote is highlighted by the U.S. Citizenship and Immigration
Services (USCIS) in flash cards [see Appendix B] available to immigrants undergoing the
naturalization process. One of the cards asks, “What is the most important right granted to
United States citizens?” The answer: “The right to vote.” The hard fought battles for


21
   Testimony of Paul Bettencourt Before Committee on House Administration, June 22, 2006;
http://www.hctax.net/forms/testimonyofPaul.pdf
22
   Voter registration records provided by the Harris County Voter Registration Department
23
   Voter registration records provided by the Harris County Voter Registration Department
24
   Public information requests were also filed with Tarrant County, Travis County, Dallas County, Jim
Wells County and Collin County. Tarrant County refused to provide the information. Dallas and Jim Wells
counties failed to respond. Collin and Travis counties responded, but to date, the requested information has
not been received.
25
   Federation for American Immigration Reform, “Extended Immigration Data for Texas”, 2005 FAIR
estimate; http://www.fairus.org/site/PageServer?pagename=research_research2891
26
   U.S. Census Bureau, “State & County QuickFacts; Texas”;
http://quickfacts.census.gov/qfd/states/48000.html


                                                                                                         16
universal suffrage and equal rights over the past two centuries are undermined by a
disregard for the integrity of elections.

Following the ratification of the 13th, 14th and 15th Amendments to the United States
Constitution, African-Americans were legally recognized as citizens and guaranteed the
right to vote. The woman’s suffrage movement, led by Elizabeth Cady Stanton and Susan
B. Anthony, began prior to the Civil War. In 1920, the 19th Amendment to the United
States Constitution was ratified, declaring that “[t]he right of the citizens of the United
States to vote shall not be denied or abridged by the United States or by any State on
account of sex.”

Despite ratification of the 15th Amendment, African Americans remained disenfranchised
by the efforts of some states. Once literacy tests27 and all-white primaries28 were ruled
unconstitutional, some states relied on a poll tax to disenfranchise African Americans. In
1964, however, the 24th Amendment to the U.S. Constitution was ratified, making poll taxes
unconstitutional. The Supreme Court later ruled that poll taxes are unconstitutional in the
1966 case, Harper v. Virginia Board of Elections29.

Furthermore, two U.S. Supreme Court rulings in the 1960s, Baker v. Carr and Reynolds v.
Sims, both aimed to ensure that equal protection of the right to vote is achieved in our
national and state governments; “one man, one vote” became the rule in apportionment.
For example, in Reynolds v. Sims, Chief Justice Warren, writing for the majority, pointed
out that:

         “[I]f a State should provide that the votes of citizens in one part of the State should
         be given two times, or five times, or ten times the weight of votes of citizens in
         another part of the State, it could hardly be contended that the right to vote of those
         residing in the disfavored areas had not been effectively diluted.”30

Later that decade, the Voting Rights Act of 1965 required Texas and other states to pre-
clear changes to their electoral systems with the Department of Justice to ensure that
minority votes had equal weight to all others cast31. More than forty years later, the
Supreme Court and federal government still take an active role in guarding the “one man,
one vote” rule, as evidenced by the June 28, 2006 ruling League of United Latin American
Citizens v. Perry32. Therein, the Supreme Court ruled that the Texas Legislature’s 2003
redistricting map diluted the votes of some Latinos.

The League of United Latin American Citizens (LULAC) issued a statement touting the
Supreme Court’s decision in LULAC v. Perry, illustrating its unbalanced concern regarding
voting rights. Their statement reads: “the old [District] lines are the only sure way of

27
   Guinn v. United States, 238 U.S. 347 (1915)
28
   Smith v. Allright, 321 U.S. 649 (1944)
29
   Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)
30
   Chief Justice Earl Warren, Reynolds v. Sims, 377 U.S. 533 (1964), Part III
31
   Voting Rights Act of 1965, Section 5; http://www.usdoj.gov/crt/voting/sec_5/about.htm
32
   League of United Latin American Citizens, et al. v. Rick Perry, Governor of Texas et al., Part III, Section
C, Page 33


                                                                                                           17
ensuring that every citizen’s vote will be given its true equal weight33.” The group is
conspicuously silent, however, on national and state proposals to end fraud by requiring
voters to show identification at the polls. The group’s platform is additionally silent
regarding election fraud that negatively impacts not only Latinos, but all voters. The
platform reads:

        “LULAC aims to assure that voters’ rights are safeguarded on election-day by
        preventing potential voting rights violations, such as intimidation at the polls,
        unworkable voting equipment, and other civil rights violations.”

LULAC ignores the fact that legal Latino votes are as diluted by non-citizens’ votes as they
are by racially-motivated gerrymandering. From the 1960’s rulings to the 2006 ruling in
LULAC v. Perry, the Supreme Court, the Department of Justice, and state legislatures have
taken painstaking measures to ensure that our system results in “one man, one vote”.

The assiduous attention given to apportionment of representation is completely absent in
verifying that the citizenship qualification for voting is strictly enforced. Nevertheless,
fraudulently cast votes by illegal aliens or other non-citizens have the same, deleterious
effect of diluting citizens’ legitimately cast votes. The Supreme Court’s case history on
“one man, one vote” is primarily concerned with preserving the voting rights of minority
and urban voters. The dilution that occurs when non-citizens vote, however, impacts all
voters.

Proposals to Verify Citizenship

The potential for non-citizens voting has not been completely ignored. Several proposals
to verify the vote have been made at the state and national level.

During the May 2006 U.S. Senate debates on legislation to address illegal immigration,
Senator Mitch McConnell (R-KY) proposed amending the REAL ID Act of 200534 to
require that all state Driver’s Licenses and Texas Identification Cards note whether the
licensed driver is a United States citizen. The McConnell amendment to the Senate
immigration bill35 would have mandated that each state require individuals voting in federal
elections in person show valid photo identification that proves their citizenship. As the
Senator put it:

        “[C]onsider whether the protection of each and every American’s franchise – a right
        at the core of our democracy – is important enough to accord it equal treatment to
        getting a library card or joining Sam’s Club. Last I checked, the constitutional right
        to rent a movie or buy motor oil in bulk was conspicuously absent. However, the


33
   League of United Latin American Citizens, Press Release, “Hispanic Voters Vindicated in LULAC vs
Perry Texas Redistricting Case.”, June 28, 2006; http://www.lulac.org/advocacy/press/2006/perry1.html
34
   Public Law 109-13, Division B, Title II (109th Congress, H.R. 1268); http://thomas.loc.gov/cgi-
bin/bdquery/z?d109:HR01268:@@@D&summ2=m&
35
   109th Congress, 2d Session, S.2611 ES, “Comprehensive Immigration Reform Act of 2006”, passed in
the Senate on May 25, 2006;


                                                                                                        18
        Constitution is replete, as is the U.S. Code, with protections of the franchise of all
        Americans.”36

Senator McConnell’s proposal mirrored one made by the bi-partisan Commission on
Federal Election Reform, chaired by former president Jimmy Carter and former Secretary
of State James Baker. In its final report, the Carter-Baker Commission notes that “[p]hoto
IDs currently are needed to board a plane, enter federal buildings, and cash a check.
Voting is equally important.” 37

Despite the fact that the proposal came from a bi-partisan commission, Senator Barak
Obama (D-IL) labeled Senator McConnell’s amendment “a solution without a problem.”
Senator McConnell’s amendment ultimately failed.

A bill by Representative Henry Hyde (R-IL) takes a similar approach to securing elections
against fraud. The Federal Election Integrity Act of 200638 would amend the National
Voter Registration Act of 1993 (also known as the Motor Voter Law) so that applicants who
register or re-register to vote must prove their citizenship. Under Rep. Hyde’s proposal,
applicants to register to vote must provide a photocopy of a document that proves the
applicant is a U.S. citizen. The bill also requires voters to provide current and valid photo
identification. Harris County Tax Assessor-Collector and Voter Registrar Paul Bettencourt
testified before the Committee on House Administration that Rep. Hyde’s bill “…would
help my office ensure that only U.S. citizens are allowed to vote in federal, state and local
elections.” 39

In November of 2004, Arizona voters approved a statewide ballot initiative, Proposition
200, requiring all applicants to register to prove their citizenship and requiring that voters
present identification at polling places. Importantly, the United States District Court for
the District of Arizona upheld Proposition 200 in a June 2006 ruling40, reading in part:

        “[D]etermining whether an individual is a United States citizen is of paramount
        importance when determining his or her eligibility to vote.”41

Lastly, the State of Georgia has made two recent attempts to verify the citizenship of its
voters. First proposed in March of 2005, Georgia passed a law requiring voters to present
digital identification cards in order to vote42. In order to obtain a card, only available at
Department of Motor Vehicles offices, a voter would have to present an original birth
certificate and pay $20 (the fee would have been waived for those who attested to being

36
   Senator Mitch McConnell, “Statement Of U.S. Senator McConnell On His Amendment To Require A
Photo ID To Vote”, May 24, 2006; http://mcconnell.senate.gov/record.cfm?id=256023&start=21
37
   Report of the Commission on Federal Election Reform, “Building Confidence in U.S. Elections”,
September 2005; http://www.american.edu/ia/cfer/report/full_report.pdf
38
   109th Congress, 2d Session, H.R. 4844, “Federal Election Integrity Act of 2006”
39
   Testimony of Paul Bettencourt Before Committee on House Administration, June 22, 2006;
http://www.hctax.net/forms/testimonyofPaul.pdf
40
   Maria M. Gonzalez, et al. v. State of Arizona, No. CV 06-1268-PHX-ROS
41
   Ibid., Page 9
42
   Georgia General Assembly, H.B. 244, http://www.legis.state.ga.us/legis/2005_06/pdf/hb244.pdf


                                                                                                   19
indigent). In October of 2005, the U.S. District Court, Northern District of Georgia,
struck down the Georgia law, in part, on the grounds that the fee for the digital ID cards
amounted to an unconstitutional poll tax43. On July 12, 2006, Georgia’s revised version of
the same law44 was also overturned in federal court45, despite the fact that the Legislature
tailored the new law to address the concerns of the same federal judge.

Recommendations

Where courts have struck down the Georgia General Assembly’s attempts to verify the
identity of voters, the Texas Legislature could succeed just as the Arizona Legislature did.
Efforts to increase voter turnout, such as the Motor Voter law and HAVA, are exercises in
futility if the primary qualification to vote – citizenship -- is not guarded. Following are
policy recommendations to be considered by the 80th Legislature.

Place Citizenship Status on Driver’s Licenses and Texas Identification Cards

Pursuant to the REAL ID Act of 2005 and the rules drafted by the U.S. Department of
Homeland Security, the Texas Driver’s License application process will change. By 2008,
the Department of Public Safety will be required to verify the citizenship or legal residency
status of all applicants for a Driver’s License or Texas Identification Card. While the
REAL ID Act lists certain fields that must appear on the new identity cards, the Act does
not require the cards to list citizenship status. Senator McConnell’s amendment to the
Senate immigration bill would have done this. The Senate immigration bill was passed
without Senator McConnell’s amendment, meaning that the onus is on the Texas
Legislature to require that DPS list on all Driver’s Licenses and Texas Identification Cards
whether or not the holder of the card is a United States citizen, just as it does with the
height, weight and eye color of each person. Non-citizens who can prove they are in Texas
legally will still be able to obtain a Driver’s License or Texas Identification Card, but it will
label them as non-citizens in order to prevent them from voting.

An applicant for a U.S. Passport must provide a birth certificate, naturalization papers, or
other limited documents that prove citizenship. The standard for receiving a Driver’s
License or Texas Identification card should be no less. House Bill 1300 (79R) by
Representative Joe Nixon provided a framework for implementing these reforms:

        Amend Transportation Code §521.101 by adding Subsection (c-1) to read: “The
        department shall on the face of a personal identification certificate a statement as to
        whether the holder is a citizen of the United States.”
        Amend Transportation Code §521.121(a) so that a Texas driver’s license must
        include “a statement as to whether the holder is a citizen of the United States.”

43
   Darryl Fears, Washington Post, “Voter ID Law is Overturned”, October 28, 2005;
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/27/AR2005102702171.html
44
   Georgia General Assembly, S.B. 84 http://www.legis.state.ga.us/legis/2005_06/pdf/sb84.pdf
45
   Errin Haines, Associated Press (printed in The Washington Times), “Ga. Judge Blocks Voter ID Law
Enforcement”, July 13, 2006;
http://hosted.ap.org/dynamic/stories/G/GEORGIA_VOTER_ID?SITE=DCTMS&SECTION=HOME&TE
MPLATE=DEFAULT


                                                                                                 20
           Add Subsection (i) to Transportation Code §521.142 so that the following are
           accepted by the Department of Transportation as proof of an applicant’s United
           States citizenship:
                   “(1) a driver's license or personal identification certificate, or a comparable
                   document, issued by an agency or department of another state that states on
                   its face that the holder of the driver's license, personal identification
                   certificate, or comparable document is a United States citizen;
                   (2) a certified photocopy of the applicant's birth certificate that verifies
                   United States citizenship to the satisfaction of the department;
                   (3) a valid United States passport issued to the applicant or a certified
                   photocopy of the pertinent pages of a valid United States passport issued to
                   the applicant that identify the applicant and show the passport number;
                   (4) the originals of the applicant's United States naturalization documents
                   or the number of the certificate of naturalization issued to the applicant; or
                   (5) any other document or method of proof established under the federal
                   Immigration Reform and Control Act of 1986.”46
           Add Subsection (j) to Transportation Code §521.142 so that:
                   “If under Subsection (i)(4) an applicant provides only the number of the
                   applicant's certificate of naturalization, the department shall request the
                   United States Citizenship and Immigration Services to verify that the
                   certificate of naturalization was issued to the applicant. The department
                   may issue a driver's license to the applicant only if the United States
                   Citizenship and Immigration Services provides the verification.”47

Additionally:

           Transportation Code, Chapter 521, Subchapter R should be amended to provide
           Driver’s License and Texas Identification Card fee waivers for the indigent.
           Indigence should be verified by objective measures such as whether an individual
           qualifies for the Lone Star Card.

Require Voters to Present a Driver’s License or Texas Identification Card at their Polling
Place

In order to vote, the Legislature should immediately require each voter to present a photo
ID at their polling place.

As Senator McConnell, Mr. Bettencourt, and others have argued, Americans are
frequently asked to show identification for even the most mundane daily activities:
       to rent a DVD,
       to check out a library book,
       to board an airplane,
       to buy alcohol or tobacco
       to belong to bulk retail clubs such as Sam’s Club.

46
     House Bill 1300 (79R), by Representative Nixon.
47
     Ibid.


                                                                                               21
Additionally, with the passage of House Bill 164, the 79th Legislature required that products
containing ephedrine or pseudoephedrine (most commonly known as Sudafed) be sold
from behind the counter only. Furthermore, in order to purchase the cold medicines, the
person making the purchase must show a Driver’s License or other photo ID indicating the
person is over sixteen years of age.

In each of those instances, an individual must present ID. The right to vote trumps all in
importance. A worker at a polling place should be able to verify the identity of a voter just
like a clerk at Blockbuster Video should be able to discern the identity of a person renting
a movie. Additionally, workers at polling places must be sufficiently armed with the tools
necessary to turn away non-citizens. A photo ID which lists citizenship status is the best
means to achieve that end.

        Amend Election Code §63.001(b) so that, on offering to vote, a voter must present
        their voter registration certificate and a valid, unexpired Texas Driver’s License or a
        valid, unexpired Texas Identification Card that proves the voter is a United States
        citizen.

Increase Funding to the Attorney General to Investigate Election Fraud

The Special Investigations Unit (SIU) in the Office of the Attorney General currently
assists local officials in investigating and prosecuting election fraud. The Legislature should
appropriate funds to expand the activities of SIU beyond the investigation and prosecution
of illegal votes cast by non-citizens, into areas such determining whether there are
organized attempts to register voters in violation of the law. The sheer number of non-
citizens removed from the voter rolls in Harris County warrants an investigation of the
voter rolls in other counties. Such an investigation can and should be undertaken by the
SIU.

Direct the Office of the Secretary of State to Undertake a Study of Fraudulent Voter
Registration

In the light of the number of individuals who have been removed from the voter rolls in
Harris and Bexar counties, the Office of the Secretary of State should perform a statewide
audit of voter rolls in order to verify the citizenship of all voters in Texas. The names of
those who are found to be fraudulently registered should be turned over to county
prosecutors in order for perjury proceedings to be initiated.

Secure Applications for Early Voting Ballots-by-Mail

Requests for early voting ballots are handled much the same way as are voter registration
applications: the veracity of the applicant is assumed and the request is processed on those
merits. Requiring absentee voters to put a phone number on their absentee ballot request
will give local officials a necessary tool to verify the request for an absentee ballot is actually
being made by the person in question. Additionally, with voters providing either a Driver’s
License or Texas ID number, local officials will be able to verify the citizenship of all
voters, as opposed to just those who vote in person.


                                                                                                22
        Amend Election Code §84.002 by adding the requirement that an application for
        an early voting ballot include the applicant’s telephone number and either a
        Driver’s License number or Texas Identification Card number.

Cross-Check Voter Rolls against Death Records:

The Department of State Health Services maintains a computer database of all birth and
death records. Similarly, the Office of the Secretary of State maintains the master list of
registered voters. Texas Election Code, Section 16.001 requires “local registrars of deaths”
to share death records with voter registrars monthly. However the statute does not
command the voter rolls be expunged. The two should be cross-checked twice a year, and
all deceased persons should be immediately removed from the voter rolls.

        Amend Election Code §18.061 by adding subsection (f) to require the Secretary of
        State to conduct a semi-annual cross-check of the statewide computerized voter
        registration list against death records maintained by the Department of State Health
        Services for the purposes of expunging the voter rolls.

Allow Responses to Jury Summons to Immediately Disqualify Voters

The Harris and Bexar county voter registration officials discovered non-citizens on their
voter rolls based on responses to jury summons. The Legislature should ensure that if a
person returns a jury summons because he is not a citizen, he is automatically stricken
from the voter rolls.

        Amend Election Code §16.0332 so that the registrar shall immediately cancel a
        voter’s registration upon receipt of a returned jury summons that lists non-
        citizenship.

Prohibit the Use of Matricula Consular Cards as a Form of Official Identification

The Matricula Consular is a card issued to Mexican citizens by Mexican consular offices in
the United States and elsewhere. The card is available to any Mexican citizen living outside
Mexico, and is especially popular among illegal immigrants since the card is issued without
taking immigration status into account.48 The reliability of the Matricula Consular card as a
dependable form of identification is often called into question. The Office of
Congressman Gary Miller (R-CA) reported in September 2004 that:

        “According to the FBI, Matricula Consular cards are almost exclusively used by
        illegal aliens. Anyone here legally has valid identity documents they can present to
        open a bank account, such as driver's licenses, Social Security numbers, or
        passports.”49

48
 “Consular I.D. Cards: Mexico and Beyond,” Kevin O’Neil, Migration Policy Institute, April 2003.
49
 Matricula Consular Cards: Myth and Facts Behind the Mexican I.D. Cards, Office of Congressman Gary
Miller, September 16, 2004.


                                                                                                 23
Indeed, in his testimony before the House Judiciary Subcommittee, Steve McCraw,
Assistant Director of the F.B.I.’s Office of Intelligence, and current Texas Homeland
Security Director, pointed out that:

        “[T]he Government of Mexico issues the card to anyone who can produce a
        Mexican birth certificate and one other form of identity, including documents of
        very low reliability. Mexican birth certificates are easy to forge and they are a major
        item on the product list of the fraudulent document trade currently flourishing
        across the country and around the world…It is our belief that the primary reason a
        market for these birth certificates exists is the demand for fraudulently-obtained
        Matricula Consular cards.”50

Given that the Matricula Consular card is clearly an unreliable form of identification, no
state agency in Texas should be permitted to accept the card as evidence of a person’s
identity, a person’s immigration status, or as a secondary or supporting proof of a person’s
identity.

        Legislation similar to House Bill 326 (79R) by Representative Tony Goolsby is
        recommended. Specifically, Section 521.142 of the Transportation Code should
        be amended, and a chapter should be added to the Government Code to prohibit
        the acceptance of Matricula Consular cards by state agencies.

H.B. 326 declared that any agency of the state that offers a public benefit or service,
including the Texas Department of Transportation, and all applications for employment by
a state agency:

        “[M]ay not accept, recognize, or rely on an identity document issued to the
        applicant by a consular office or consular official of another country, including a
        Matricula consular issued by a consular office of the United Mexican States located
        in this country, as primary, secondary, or supporting evidence of the identity of an
        applicant.”51

Answering Anticipated Objections

The Texas House of Representatives has already debated the essence of this proposal on
May 2, 2005. House Bill 1706 would have required voters to identify themselves at polling
places with either one form of photo ID or two forms of other identifying documents,
including a utility bill or library card.

HB 1706 would not, however, have given officials the means to verify the citizenship of
voters since most of the identifying documents are available to non-citizens. Nevertheless,
the bill passed the House by a vote52 of 78-67. Legislators preparing for the 80th Regular


50
   Testimony of Steve McGraw before the House Judiciary Subcommittee, June 26, 2003.
51
   Text of H.B. 327 (79R) by Representative Goolsby,
52
   79th Legislature, May 3, 2005, House Bill 1706, H- 473 Third Reading and Final Passage


                                                                                             24
Session should take note of the arguments made against HB 1706, as many of them will
likely be repeated.

Texas legislators can further benefit by examining arguments made against similar
proposals made in other states. For example, one major objection is likely to be the cost of
obtaining proof of citizenship (i.e. the cost of a registered birth certificate). Driver’s
License fees are $24 and the fee for a Texas ID Card is $15. Opponents will likely label
the law an unconstitutional poll tax. For example, the American Civil Liberties Union
(ACLU) argues that asking voters to identify themselves at a polling place has them “jump
through unnecessary hoops to exercise their constitutionally-guaranteed right to vote53.”
The ACLU arguments against the Georgia voter ID law reads in part:

     “The racially disparate impact of the economic obstacles to obtain photo identification
     stemming from the cost of certain documentation, including certified copies of birth
     certificates, as well as the cost of taking time off work and traveling to obtain photo
     ID.”54

The response to the ACLU argument: without minimal “hoops”, such as an ID
requirement, the constitutionally-guaranteed right to vote is no longer guaranteed if a
citizen’s vote is cancelled by a fraudulent vote. When fraudulent votes are cast, the
legitimate votes of citizens are diluted.

First, Driver’s License fees are currently waived for disabled veterans55, meaning that at least
one narrow class of citizens should face absolutely no economic impact in obtaining a
Driver’s License. That waiver could be expanded to the indigent. Furthermore, to fully
counter the ACLU argument, counties could waive fees for certified copies of birth
certificates.

Recall that the 2005 Georgia voter ID law carried a provision under which the indigent
would be given a free identification card. However, the Georgia law did not define
“indigent.” Instead, the law allowed applicants for the ID to attest to their indigence.
Despite the exemption for indigent voters, U.S. District Judge Harold L. Murphy struck
down the law as an unconstitutional poll tax.

In Texas, several public social programs are designed to assist the indigent. Temporary
Assistance for Needy Families (TANF), for example, gives aid to families earning 14% of
the Federal Poverty Line (FPL)56. The Lone Star Card, used by the state to deliver food
stamps and TANF assistance, is available to a family of four which nets no more than



53
   American Civil Liberties Union, “ACLU Challenges Albuquerque Voter ID Law” November 2, 2005;
http://www.aclu.org/votingrights/access/21256prs20051102.html
54
   American Civil Liberties Union, “Civil Rights Groups Urge Department of Justice to Block New Georgia
Photo ID Law”, March 29, 2006; http://www.aclu.org/votingrights/er/24774prs20060329.html
55
   See Transportation Code §521.426, Disabled Veteran Exemption
56
   Health and Human Services Commission, Temporary Assistance for Needy Families;
http://www.hhsc.state.tx.us/programs/TexasWorks/TANF.html


                                                                                                    25
$1,613 in monthly income57, or nearly 100% FPL. The Legislature need not create a new
determination of indigence by which the Driver’s License fee may be waived. Instead, the
fee waiver can and should be linked to one of those government programs, which provide
for a generally-accepted measure of the indigence of the applicant for an identity card. By
basing the ID fee waiver on an existing program, the indigence of those receiving the waiver
would not be based on the honor system, but would be verifiable.

Even without a waiver, however, the fee does not constitute an unjust barrier to the right to
vote. For example, people of all income levels drive despite the fact that each county in
Texas charges between $60 and $70 annual vehicle registration. The indigent marry and
form families, despite the fact that counties charge between $30 and $40 for marriage
licenses. Importantly, as of July 1, 2006, the federal government requires all applicants and
recipients of Medicaid to prove their citizenship with a birth certificate, passport, or limited
other documents. Furthermore, many citizens retain copies of their birth certificates,
meaning that in those cases the cost to prove citizenship would be zero. For a citizen who
has already obtained a passport, the cost to prove citizenship for voting purposes would be
zero. Insuring our elections against fraud will not come without some cost, but the return
on the investment is confidence that citizens’ votes are not diluted by those of non-citizens.

Additionally, the following table compares the number of registered voters against the
number of Driver’s Licenses and Texas ID Cards:

                       Registered Voters (Nov, 2005)58      12,577,545
                       Age 18+ Driver’s Licenses (fy2005)59 14,429,377
                       Texas ID Cards (2006)60              3,960,249

In fiscal year 2005, there were 14.4 million valid unexpired Driver’s Licenses issued to
Texans of voting age. In November of 2005, however, there were only 12.5 million
registered voters. With 1.8 million more Driver’s Licenses held by the voting age
population than there are registered voters, the argument that the voter ID proposal will be
a barrier to voting is a fallacy. Add in another 3,960,249 unexpired Texas Identification
Cards in the state as of April, 200661 and 87% of the total state population (all ages) has
some form of government identification card.

Another objection is based on the inconvenience of having to acquire a voter identification
card. This objection is best illustrated by the Southwest Voter Registration Education
Project (SVREP). On November 2, 2004, Arizona voters passed Proposition 200 which
requires that persons registering to vote prove their citizenship. SVREP openly opposed
the Arizona effort to verify citizenship of voters. In a release on its website, the group lists

57
   Health and Human Services Commission, The Food Stamp Program;
http://www.hhsc.state.tx.us/programs/TexasWorks/foodstamp.html
58
   Office of the Secretary of State; http://www.sos.state.tx.us/elections/historical/70-92.shtml
59
   Department of Public Safety, Driver’s License Division, review of Federal Highway Administration
reports
60
   Department of Public Safety, Driver’s License Division
61
   Claire McGuinness, Senior Staff Attorney, Drivers License Division, Texas Department of Public Safety;
Submitted Thursday, July 13, 2006; response received Monday, July 17, 2006.


                                                                                                      26
those who will be disenfranchised by the Arizona law. Non-drivers, people who have
changed addresses, senior citizens, and disabled persons will all face “obstacles to
registration”, according to the SVREP62. The SVREP specifically argues that “[m]any
senior citizens no longer drive cars and may have an expired driver’s license63.” That
argument is based on the assumption that all elderly people are decrepit and all disabled
people are completely dependent. The Attorney General of Texas and a long-serving State
Representative are both disabled (Greg Abbott and Paul Moreno are wheel-chair bound)
and one of the state’s leading corporate executives is aged (T. Boone Pickens is now 78
years old and going strong as head of BP Capital Management).

Additionally, requiring voters to show a Driver’s License or Texas ID Card at the polls can
take effect immediately while the citizenship verification is phased in. Almost all Driver’s
Licenses held by the 18 year old and over population expire every six years, meaning that
seven years after placing citizenship status on the Driver’s Licenses, election workers will be
able to verify the citizenship of all voters. In short, existing expiration dates for Driver’s
Licenses need not necessarily be invalidated by the citizenship verification requirement.

Nevertheless, to address the concerns of inconveniencing voters, notices can be sent to all
registered voters as soon as the Governor signs the voter ID law. Assuming the 80th
Legislature passes this proposal, and assuming the Governor signs the law in June 2007,
voters would have well over one year to obtain the necessary identification for voting before
the 2008 presidential election.

Expecting a Driver’s License or other government identification from voters is not a barrier
to voting. Granted, a handful of individuals may not have a government-issued ID. But
elections are planned far in advance, giving the statistically few people without an ID plenty
of time to obtain one. In Texas, early voting extends 14 days before the actual election
date. Additionally, 87% of the total Texas population (which includes all ages) has either a
Driver’s License or Texas Identification Card.

Voting is the most important right in America, but it is also a responsibility. The
government requires voters to register before receiving a ballot, therefore verifying the
information they provide on their registration application is not a measure designed to
prevent any citizen from voting. It is instead a measure designed to keep illegal aliens, non-
citizens and people otherwise not qualified from voting and diluting the legitimate votes
cast by citizens.

Conclusion

With an estimated 500,000 illegal aliens entering the United States each year64, Texas
cannot afford to leave its election system susceptible to their fraudulent votes. Voting is the


62
   Voter Registration Education Project, “Harsh Voter Provisions in Arizona Proposition 200 Will Reduce
Voting”; http://www.svrep.org/press_room/press_releases/06/prop_200_probs.html
63
   Ibid.
64
   Jeffrey S. Passel, Pew Hispanic Center, “The Size and Characteristics of the Unauthorized Migrant
Population in the U.S.” http://pewhispanic.org/files/reports/61.pdf


                                                                                                     27
most paramount right of our representative democracy, and must be reserved strictly for
citizens of the United States.

Requests for identity are increasingly common: to buy alcohol or purchase tobacco; to
board an airplane; to buy Sudafed; to buy certain paints or glues; to rent a movie or a
library book. Requesting identification of voters is a simple measure that will greatly abate
illegally cast votes by non-citizens. Additionally, the Texas Department of Public Safety will
have to amend the Driver’s License pursuant to the federal REAL ID Act. This gives the
state a unique opportunity to verify the citizenship status of individuals at polling places,
giving real meaning to the litany of laws mandating that only U.S. citizens may vote.

Whatever efforts are made to prevent illegal aliens from penetrating our borders, the state
should amend its election law and practices so that illegal aliens are prevented from
entering the voting booth.




                                                                                           28
                                                Part II

                   Denying Benefits to Illegal Immigrants
Background

The Federal Deficit Reduction Act of 2005 purportedly imposes a requirement that
Medicaid applicants must prove that they are U.S. citizens in order to enroll in the
program. The goal of the legislation is to ensure that any Medicaid coverage which should
only be provided to US citizens, and other qualifying legal residents, is not received by
undocumented immigrants or those who are unable to prove their citizenship. The proof-
of-citizenship requirement in the Federal Deficit Act does not apply to other government
programs such as Temporary Assistance for Needy Families (TANF), Food Stamps, the
Children’s Health Insurance Program (CHIP), or the Housing Choice Voucher Program
(known commonly as Section 8 Housing). Enrollment in most of these programs is
typically restricted to citizens and certain eligible non-citizens, although the processes by
which citizenship is verified are often deficient.

The new Medicaid requirement comes as concerns about the costs of illegal immigration
continue to increase. It is hard to accurately determine the cost of illegal immigration in
terms of how much state and federal money is spent on illegal aliens who unlawfully enroll
in government programs. In Texas, the only figure which is a reliable indication of a
portion of what the state spends on illegal immigrants relates to the cost of incarceration.
In its 2006-07 legislative appropriations request, the Texas Department of Criminal Justice
sought over $31 million to fund the incarceration of illegal aliens.65 At the national level,
the Center for Immigration Studies estimated in 2004 that illegal aliens enrolled in
Medicaid cost the federal government $2.5 billion, and that illegal aliens enrolled in Food
Stamps and other food-assistance programs cost the federal government $1.9 billion.66

Denying benefits to illegal immigrants remains controversial, not least because many illegal
immigrants contribute to state and federal programs through taxes paid on their earnings,
sales taxes, and other consumption taxes. Those who argue against denying benefits to
illegal immigrants hold that undocumented workers pay into the system through their taxes,
and that they therefore cannot rightfully be denied access to the government programs that
their tax dollars have helped to fund. This social-justice argument is extended, notably, by
prominent Catholic bishops, who argue that the U.S. government should deal
“compassionately with the millions of undocumented aliens in the United States.” 67



65
   Texas Department of Criminal Justice, Fiscal Year 2005 Operating Budget and Fiscal Years 2006-2007
Legislative Appropriations Request, August 23, 2004; http://www.tdcj.state.tx.us/publications/finance/lar-
fy2006-7-short.pdf
66
   The High Cost of Cheap Labor: Illegal Immigration and the Federal Budget, Center for Immigration
Studies, August 2004; http://www.cis.org/articles/2004/fiscal.html
67
   Cardinals Visit White House, Hill on Immigration Reform, United States Conference of Catholic
Bishops, April 2006; http://www.usccb.org/mrs/cardinalsvisit.shtml


                                                                                                        29
Philosophical arguments have also been made that access to government benefits and
programs is an intrinsic right for anyone who lives in that country. Ruling on whether
children who enter the country illegally with their parents have the right to public
education, in Plyler vs. Doe, the U.S. Supreme Court held that:

        “[L]ike all persons who have entered the United States illegally, these children are
        subject to deportation. But there is no assurance that a child subject to deportation
        will ever be deported…a State cannot realistically determine that any particular
        undocumented child will in fact be deported until after deportation proceedings
        have been completed. It would be most difficult for the State to justify denial of
        education to a child enjoying an inchoate federal permission to remain.” 68

Holding the same view, Owen Fiss, Sterling Professor at Yale Law School argues that
barring illegal immigrants from enrolling in any basic welfare program represents an act of
subjugation, which places illegal aliens at a disadvantage in society:

        “[E]xcluding illegal aliens…severely disadvantages them economically and
        socially…we can well understand why the antisubjugation principle should reach
        beyond education and guard against exclusion from all manner of state programs,
        food stamps, public housing, or medical treatment. Illiteracy is a severe disability in
        modern society, but perhaps no more so than being malnourished or homeless or
        sick and in need of medical attention. The state routinely responds to these needs
        of its citizens, and against this background, the exclusion of immigrants has a
        severely subordinating effect upon them.” 69

In addition to the philosophical arguments in favor of granting benefits to illegal aliens, the
case is also made that illegal aliens should have access to benefits on the basis of the various
benefits, tangible and intangible, that they bring to America. Pia Orrenius, a senior
economist at the Federal Reserve Bank of Dallas, recently pointed out some of the
economic benefits, suggesting that:

        “[A] large influx of immigrants into an area tends to encourage an inflow of capital
        to put them to use…[a]t the same time, the native labor supply is changing. We
        have fewer and fewer low-skilled workers, largely because older workers, who are
        more likely to lack a high school degree, are retiring and leaving the labor force. In
        that way, low-skilled immigrants are filling a disappearing niche in our native labor
        force.” 70

It should be pointed out, however, that Orrenius’ argument applies at least as well to legal
immigrants as it does to illegal immigrants. The economic benefits that immigrants bring,
in terms of filling a niche in the labor market, in no way derive from immigrants being

68
   Justice Brennan delivering the Opinion of the Court, Plyler vs. Doe, 457 U.S. 202 (1982), §IV;
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=457&invol=202
69
   The Immigrant as Pariah, Owen Fiss, The Boston Review, October/November 1998;
http://bostonreview.net/BR23.5/Fiss.html
70
   A Conversation with Pia Orrenius: The Economics of Immigration, Southwest Economy, March/April
2006; http://www.dallasfed.org/research/swe/2006/swe0602e.html


                                                                                                    30
illegal. There is no intrinsic benefit that comes from an immigrant worker being illegal per
se. It may be true that illegal immigrants’ willingness to work for lower than average wages
is a benefit to employers, but it is the minimum wage law, rather than the illegal status of
the workers, that creates this situation. All of the economic benefits that illegal immigrants
bring would exist just as well if they were legal.

The Philosophy of Denying Benefits

Despite the arguments which are sympathetic towards offering government benefits to
illegal aliens, the case against offering benefits to illegal immigrants is far more compelling.
The first part of the argument is based on the acknowledgement that illegal immigrants
have come here illegally and that their very presence here is a violation of federal law. This
argument was articulated succinctly by U.S. Senator Jim DeMint (R-South Carolina) in May
2006, when he asked “Why in the world would we endorse this criminal activity with
federal benefits?”71 In part, there is a supply-and-demand equation at work. As long as
federal and state governments continue to supply generous benefits to those who have
entered the U.S. illegally, people will continue to come (even if access to benefits isn’t the
chief reason they come). Just as many people enter the U.S. illegally to find work that is
offered to them by unscrupulous employers, many others, including the families of those
who come to find work, will come in order to take advantage of the welfare system.
Evidence of this has been well documented for many years; as far back as 1995, the
General Accounting Office recorded 24,594 Medicaid-funded births to undocumented
aliens in Texas72. Similarly, according to The Houston Chronicle (September 24, 2006), in
2005, administrators at Houston’s Ben Taub General Hospital and Lyndon B. Johnson
General Hospital, reported that as many as 80% of the two hospitals’ 10,587 births were to
“undocumented immigrant” parents.73

Denying benefits to illegal immigrants is as much about helping stop illegal immigration as
it is about doing what is right and just. The Legal Action Center reports that “federal law
imposes a lifetime ban on anyone convicted of a drug-related felony from receiving
federally-funded food stamps or cash assistance,”74 which demonstrates that simply being a
resident of the U.S. does not confer upon an individual permanent eligibility for
enrollment in all public programs. Those who engage in criminal activity, whether it be
drug-related offenses or entering the country illegally, should be denied access to
government programs on the basis of that activity.

The second part of the argument in favor of denying benefits to illegal immigrants becomes
apparent through the following question: to whom does the U.S. government owe its
primary responsibility? The U.S. government is primarily responsible, of course, for U.S.
citizens. Any welfare benefits that the U.S. government offers are created to help U.S.

71
   Illegals Granted Social Security, The Washington Times, May 19, 2006;
http://www.washtimes.com/national/20060518-114132-2456r.htm
72
   Undocumented Aliens: Medicaid-Funded Births in California and Texas, General Accounting Office,
May 1997; http://archive.gao.gov/paprpdf1/158747.pdf
73
   “’Border Baby’ Boom Strains South Texas,” The Houston Chronicle, September 24, 2006.
74
   Opting Out of Federal Ban on Food Stamps and TANF; Legal Action Center;
http://www.lac.org/toolkits/TANF/TANF.htm


                                                                                                     31
citizens. It is absolutely clear that the U.S. government is not responsible for helping
people who come here illegally. Anyone who enters the country illegally shows a blatant
disregard for our laws. They enter the country without the government’s knowledge or
permission, and to expect that the government should then offer the same benefits as it
does to citizens either shows our own disregard for our laws or our irrationality.

Those who argue that welfare programs should be expanded to include many or all of the
illegal immigrants who live in the U.S. must know that such an expansion will dilute the
scarce resources with which welfare programs operate. Stretching these resources to
accommodate illegal immigrants can only ensure that everyone enrolled in these programs
will receive less assistance. Those who advocate the expansion of government welfare
programs, such as the Center for Public Policy Priorities (CPPP), are usually critical when
rising costs cause welfare programs to be cut back. In February 2006, CPPP opposed
federal Medicaid funding reductions because “65,000 individuals would lose Medicaid
coverage entirely.”75 Yet research by the Center for Immigration Studies (CIS) conducted in
2005 revealed that nationwide, Medicaid enrollment among legal and illegal immigrant
households is almost 40% higher than enrollment among “native” households.76 According
to the analysis by CIS, 24.2% of the 35 million legal and illegal immigrants residing in the
U.S. are enrolled in Medicaid – almost 8.5 million people. If just one percent of these
Medicaid enrollees are illegal immigrants, then 85,000 people are enrolled illegally; which
is higher than the 65,000 people CPPP complained would lose coverage in Texas when
federal cuts were made. Allowing illegal immigrants to enroll in government programs
because of lax citizenship-verification procedures undermines the extent to which the
programs can deliver services to eligible enrollees. If the government has the authority to
deport people, it has a right to deny them benefits.

Additionally, certain welfare programs, such as TANF, require enrollees to participate in
“work activities” such as voluntary work, job training, or even simply searching for a job, in
order to wean them off welfare programs. Illegal immigrants cannot fully participate in
these work programs because any employer that hires them, even on a voluntary basis, is
breaking the law.

Essential to the process of ensuring that illegal immigrants do not receive benefits to which
they are not entitled is the method by which the citizenship of welfare applicants is verified.
It is clear that, in Texas, citizenship-verification procedures for a variety of programs,
ranging from Medicaid to Section 8 Housing, often lack the appropriate level of scrutiny.
The following sections highlight some of the most obvious flaws in how the citizenship of
applicants for Medicaid, TANF, Food Stamps, CHIP, and Section 8 Housing in Texas is
verified.




75
   Last Chance to Oppose Federal Medicaid Cuts, CPPP, February 2006;
http://www.cppp.org/files/3/Last%20Chance%20to%20Oppose%20Federal%20Medicaid%20Cuts.pdf
76
   Immigrants at Mid-Decade: A Snapshot of America’s Foreign Born Population in 2005; CIS, December
2005; http://www.cis.org/articles/2005/back1405.html


                                                                                                 32
Medicaid

Despite the clear need for close inspection of applicants’ citizenship status, scrutiny of the
Texas Health and Human Services Commission’s guidance on how Medicaid applicants
must prove their citizenship reveals that the documentary requirements are not nearly as
stringent as they should be. Documents that the Health and Human Services Commission
(HHSC) indicates can be used to prove citizenship are77:

         U.S. birth certificate,
         U.S. citizen identification card,
         Report of birth abroad of a U.S. citizen,
         Religious record of birth recorded in the U.S. or its territories,
         Hospital record of birth in one of the 50 states or affiliated territories,
         Northern Mariana or American Indian identification card,
         Affidavit from 2 blood-related individuals of the applicant, who have personal
         knowledge of the events establishing the applicant’s claim of U.S. citizenship.

This guidance means that Medicaid applicants who cannot provide appropriate
documentary evidence of their citizenship, such as a birth certificate, can have their
application approved if two family members simply attest to their citizenship. There is no
indication of how or if HHSC officials are expected to verify the relationship between the
applicants and their sponsors, or that the sponsors must themselves be U.S. citizens and if
so, how this is verified.




77
  Health & Human Services Commission, Texas Works Bulletin 06-13;
http://www.dads.state.tx.us/handbooks/TexasWorks/res/Bulletins/06-09-06.htm


                                                                                            33
Above is an excerpt from the sample affidavit78 that HHSC suggests can be used by
Medicaid applicants who are otherwise unable to prove their citizenship. In addition to the
information shown above, the affidavit must be signed by the affiant and must be notarized
by a public official. A letter sent by HHSC to all Medicaid clients to advise them of the
new citizenship requirement informs the clients that:

        “If you want to provide an affidavit to prove citizenship and identity, you can get a
        form at your local HHSC benefits office or online at www.hhsc.state.tx.us. An
        affidavit must be notarized. Free notary services are available to you at your local
        HHSC benefits office.”79

Despite federal guidelines issued by the Centers for Medicare and Medicaid Services,
which specify that affidavits must only be used in rare circumstances “when the state is
unable to secure evidence of citizenship from another listing,”80 HHSC fails to clearly
indicate to clients that the affidavit can only be submitted as a last resort, and only if there is
no other way for the client to prove their citizenship. Instead, the affidavit is promoted as a
way for clients who do not have the appropriate documentation, such as a birth certificate
or passport, to prove their citizenship. This is despite the obvious deficiencies of using a
document that requires the affiant to provide only their name, where they live, and their
signature, in order to “verify” the citizenship of the applicant. Again, although federal
guidelines indicate that “for the affidavit to be acceptable the persons making them must be
able to provide proof of their own citizenship and identity,”81 HHSC fails to explain that the
affiant must be a citizen, and much less how this can be verified if the affiant is only
instructed to provide their name, address, and signature.

HHSC’s performance measures as set out in its Strategic Plan 2003-07 are revealing and
perhaps suggest why citizenship verification procedures are poorly enforced. One of
HHSC’s “output measures” is “average number of aliens receiving emergency medical
services.”82 The strategic plan indicates that this measurement should only include patients
who meet all Medicaid eligibility criteria, but notes that due to data limitations “these
persons are non-immigrants, undocumented aliens, and certain legal permanent resident
(LPR) aliens.”83 Having performance measures that specifically include “undocumented
aliens” among those who are counted towards output targets creates perverse incentives for
HHSC administrators. Introducing a performance measure that counts the number of
Medicaid applicants who are turned down on the grounds of citizenship or immigration
status would reverse these incentives and prompt administrators to forcefully uphold
eligibility criteria.
In short, the process of verifying a Medicaid applicant’s citizenship is severely
compromised by the potential for fraud that is presented by the use of affidavits such as the

78
   Full affidavit is available on HHSC’s website: http://www.hhs.state.tx.us/medicaid/Affidavit_Adult.pdf
79
   HHSC letter to clients, June 2006; http://www.hhs.state.tx.us/medicaid/engApp.shtml
80
   Medicaid Fact Sheet issued by US Department of Health and Human Services, Centers for Medicare and
Medicaid Services, July 6, 2006;
http://www.cms.hhs.gov/MedicaidEligibility/Downloads/Citizenshipfactsheet.pdf
81
   Ibid.
82
   HHSC Strategic Plan, 2003-07; www.hhsc.state.tx.us/StrategicPlans/SP03-07/SP03-07_AppD.pdf
83
   Ibid.


                                                                                                      34
one that is suggested for use by HHSC. The verification process is compromised both
because the affidavit itself requires that only the bare minimum amount of information be
provided by the affiant, and because the affidavit is promoted by HHSC as a way to prove
citizenship.

If an affidavit is to be used at all, it must primarily be used as a last resort, and as such, it
should not be advertised to clients when they are first asked to prove their citizenship.
Since Federal rules require that HHSC must accept an affidavit when other forms of
identification are unavailable, it is clear that the document must be more detailed than the
one currently suggested by HHSC, so that information about the applicant and the affiant
can be verified against existing state and federal records. The applicant and affiants should
also be required to attend a face-to-face meeting with HHSC administrators in the
appropriate field office, so that all the relevant documentation can be presented, and
HHSC can verify the identity and citizenship status of all three parties.

TANF and Food Stamps

HHSC guidance on how administrators should verify the citizenship of TANF and Food
Stamp applicants is even more deficient than the new processes to be followed for
Medicaid applicants. HHSC’s Texas Works Handbook permits citizenship to be verified
by documents ranging from a U.S. birth certificate or passport, to a hospital birth record or
certificate of citizenship. A voter registration card is acceptable as proof of citizenship for
the Food Stamp program only, which is notable because the card can be obtained without
the applicant having to do anything other than indicate that he is a citizen; no supporting
evidence is required 84. Furthermore, the US Department of State specifically indicates that
a voter registration card is not an acceptable proof of citizenship when applying for a
passport85. Yet providing a voter registration card is sufficient evidence of citizenship for
the HHSC to enroll an individual in the Food Stamp program.86 This is a clear loophole,
which must be addressed. Other evidence that can be submitted by TANF or Food Stamp
applicants to prove citizenship includes: baptismal records, Indian census papers, and local,
state, or federal records showing a US place of birth.87

If the applicant cannot provide documentation to prove his citizenship, HHSC
administrators are instructed to “obtain an affidavit signed by someone who knows the
applicant’s history…the affidavit must state that the signer: is a US citizen; knows that the
applicant is a U.S. citizen; and may be fined, imprisoned, or both if he gives false

84
   In a June 15, 2006 letter, Ann McGeehan, Director of Elections, Secretary of State’s Office states:
“…under current Texas voter registration guidelines, there is no formal verification of an applicant’s
citizenship status... Texas relies on the applicant to provide accurate/truthful information on his or her voter
registration application. To the extent that an applicant must sign the application verifying that he or she
has met the qualifications to register (one of which is U.S. citizenship) and that he or she has provided
accurate/truthful information, the application is processed on those merits.”
85
   How to Apply in Person for a Passport, US Department of State guidance;
http://travel.state.gov/passport/get/first/first_830.html
86
   HHSC Texas Works Handbook, Section 350, Item 358;
http://www.dads.state.tx.us/handbooks/TexasWorks/A/300/358.htm
87
   HHSC Texas Works Handbook, Section 350, Item 358;
http://www.dads.state.tx.us/handbooks/TexasWorks/A/300/358.htm


                                                                                                             35
information.”88 Unlike Medicaid applicants, TANF and Food Stamp applicants are
required to obtain an affidavit from only one person, and the person need not be a blood
relative. When these facts are coupled with the more general deficiencies of HHSC’s
suggested affidavit (as outlined above), severe doubts about the ability of HHSC to
accurately verify the citizenship of its TANF and Food Stamp applicants arise.

CHIP

A similarly slipshod citizenship verification process exists for the Children’s Health
Insurance Program (CHIP), which is also administered by HHSC. Any child enrolled in
CHIP must be a citizen or legal permanent resident89, but the parent or guardian who files
the application on a child’s behalf is not required to provide his own immigration status.
Even if parents do provide this information, they are informed that it “cannot be used to
deny you admission to the US, to harm your permanent residency status or to deport
you.”90 This provision is derived from federal guidelines governing “public charge”, that
were announced in May 1999. The Center on Budget and Policy Priorities points out that
the guidance:

        “Narrowly limits the situations in which receipt of public benefits is relevant to a
        “public charge finding”…the receipt of any non-cash benefit, with the sole exception
        of institutionalization for long term care at government expense is never a factor in
        public charge determination… Thus, immigrants can accept Medicaid, food stamps,
        WIC, housing benefits, child care subsidies or other non-cash benefits without
        endangering their immigration status.”91

The CHIP application form92 requests information about the citizenship status of each
child for whom coverage is being sought:




Space on the form is also provided for the Social Security Number (SSN) of each child,
although the HHSC Texas Works Handbook notes that “undocumented aliens are not
required to apply for an SSN.”93
88
   HHSC Texas Works Handbook, Section 350, Item 351.2;
http://www.dads.state.tx.us/handbooks/TexasWorks/A/300/351.2.htm
89
   Texas Health & Human Services Commission, CHIP/Children’s Medicaid eligibility;
http://www.chipmedicaid.com/english/qualify.htm
90
   Application Information for Children’s Medicaid and the Children’s Health Insurance Program, HHSC;
http://www.chipmedicaid.com/files/CHIP_TexCare_Application_Eng.pdf
91
   The INS Public Charge Guidance: What Does it Mean For Immigrants Who Need Public Assistance?,
Center on Budget and Policy Priorities, January 7, 2000; http://www.cbpp.org/1-7-00imm.htm
92
   http://www.chipmedicaid.com/files/CHIP_TexCare_Application_Eng.pdf


                                                                                                    36
The HHSC also confirms that there is no process by which the citizenship of CHIP
applicants is verified, meaning that the system must rely solely on the honesty of those
completing application forms, since applicants are not asked to prove the citizenship of the
children for whom they are applying.

Furthermore, the CHIP Prenatal Care Program specifically extends prenatal care benefits
to illegal immigrants. HHSC’s draft program description describes the Prenatal Care
Programs’s purpose as the following:

        “To extend CHIP services to unborn children of non-Medicaid eligible women
        below 200% FPL who are ineligible due to income or immigration status.” 94
        [Emphasis added.]

The Prenatal Care Program provides 12 months of continuous coverage for children.
Therefore, if an unborn child was enrolled in the third month of a pregnancy, the child
would receive 6 months of prenatal care and a further 6 months of CHIP enrollment after
birth. HHSC makes clear that “the unborn child, not the mother, is being enrolled for
benefits.” 95

Section 8 Housing Choice Voucher Program

Section 8 Housing provides rental assistance to low-income families and individuals and is
administered locally by public housing agencies under the supervision of the Texas
Department of Housing and Community Affairs (TDHCA). Illegal immigrants are
permitted to live in Section 8 Housing - the only requirement is that one member of the
household must be a legal resident. Rental payments are then pro-rated in accordance with
the number of eligible immigrants in the household.96 The US Department of Housing
and Urban Development reports that:

        “Eligibility for a housing voucher is determined by the PHA [Public Housing
        Agency] based on the total annual gross income and family size and is limited to US
        citizens and specified categories of non-citizens who have eligible immigration
        status.”97

In a May 2004 report, the Audit Committee of TDHCA reported that Section 8 applicants
are required to attest to their citizenship and to provide “at least a signed declaration of


93
   HHSC Texas Works Handbook, Section 410;
http://www.dads.state.tx.us/handbooks/Archives/texasworks/tw05-4/PartA/A400/tw-a410.asp
94
   HHSC Program Bullets for the CHIP Prenatal Care Program;
www.dshs.state.tx.us/mch/pdf/CHIP_Prenatal%20Care_Program_bullets.pdf
95
   HHSC Handout “CHIP Perinatal and Prenatal Care Program.”
96
   Section 8Waiting List Sparks Lots of Questions and Comments, Austin-American Statesman, July 16,
2006; http://www.statesman.com/news/content/news/stories/local/07/16philanthropy.html
97
   U.S. Department of Housing and Urban Development, Housing Choice Vouchers Fact Sheet;
http://www.hud.gov/offices/pih/programs/hcv/about/fact_sheet.cfm


                                                                                                      37
their US citizenship or US nationality.”     98
                                           The report pointed out that TDHCA’s policy is
to require that additional information, such as a US passport, also be provided. However,
the Audit Committee found that:

        “For one of thirty tenants selected for test work, documentation was not available to
        determine if the tenant met the requirements of citizenship or eligible immigration
        status. The tenant noted, was admitted to the program on February 1, 2000
        without the proper citizenship documentation. During the renewal
        process…DHCA noted in the tenant’s file that the required citizenship information
        was not provided and requested the information from the tenant. However, the
        documentation was not obtained and benefits of $1,262 were paid during the 2003
        fiscal year.”99

As a result of the Audit Committee report, TDHCA began using the Immigration and
Naturalization Service’s (INS) automated system, Systematic Alien Verification for
Entitlement (SAVE), to verify the immigration status of applicants who claim to have
eligible immigration status. SAVE is a database established by the INS to help employers
and state agencies to ascertain the immigration status of any non-citizens.

Employers may use the SAVE system to verify that a potential employee is permitted to
work in the US, while state agencies can use it to establish a non-citizen’s precise
immigration status, and therefore the benefits or state programs for which the individual is
entitled. The primary problem with using the SAVE system to verify citizenship however,
is that the system only contains information pertaining to non-citizens100, so if an individual
applies for Section 8 Housing claiming to be a US citizen, the SAVE cannot substantiate
the veracity of the applicant’s claim.

Recommendations

Restrict Birthright Citizenship by Supporting H.J.R. 46

In 2005, the Pew Hispanic Center estimated that 3.1 million children of illegal immigrants
currently reside in the U.S., having obtained citizenship by birth.101 The citizenship that is
automatically conferred upon anyone born on United States’ soil clearly motivates families
to illegally cross our borders. H.J.R. 46, by Congressman Ron Paul (R-TX), proposes an
amendment to the Constitution that declares:

        “Any person born after the date of the ratification of this article to a mother and
        father, neither of whom is a citizen of the United States nor a person who owes


98
   TDHCA Audit Committee Report, May 12, 2004; http://www.tdhca.state.tx.us//pdf/agendas/040512-
auditbook-040505.pdf
99
   Ibid.
100
    Systematic Alien Verification for Entitlement (SAVE) Program User Manual, U.S. Immigration and
Naturalization Service; http://dhfs.wisconsin.gov/EM/pdf/SAVEManual.pdf
101
    Unauthorized Migrants: Numbers and Characteristics, Jeffrey S. Passel, Pew Hispanic Center, June 15,
2005; http://pewhispanic.org/files/reports/46.pdf


                                                                                                     38
           permanent allegiance to the United States, shall not be a citizen of the United States
           or of any State solely by reason of birth in the United States.”102

Amending the United States Constitution to deny citizenship to individuals born in the
United States to parents who are not themselves citizens is an important step to removing
an important incentive behind illegal immigration. To this end, a resolution should be
passed in support of the passage of H.J.R. 46 through the United States Congress.

Base Eligibility for the CHIP Prenatal Care Program on the Residency or Citizenship
Status of At Least One of the Child’s Parents

The 2006-2007 General Appropriations Act (Article II, Rider 70) utilized a provision
made by the Centers for Medicare and Medicaid Services, allowing states to provide CHIP
benefits to unborn children.

Eligibility for the subsequently-created Texas CHIP Prenatal Care Program should be
restricted to the children of U.S. citizens or legal residents.

Require Disclosure of Citizenship When a Child Enrolls at a Public School

Amend the Texas Education Code (Section 25.002) so that disclosure of a child’s
residency status is required at the time of enrollment in a public school. Each school
district should then be required to submit statistics to the Texas Education Agency that
indicate:
         (a) How many students it has enrolled who do not have documentation confirming
         either their citizenship or legal resident status; and,
         (b) What percentage of total school district enrollment students comprises students
         described in (a).

The amended version of the Texas Education Code (Section 25.002), as described above,
should make clear that disclosure of a child’s residency status is required for statistical
reasons only, and that while such disclosure is a precondition of enrollment in a public
school, it cannot be used prevent a child from enrolling.

Revise the “Emergency Medical Care” Provision in EMTALA

While birthright citizenship is the incentive behind much of the illegal immigration, the
problem is exacerbated by federal law. The Emergency Medical Treatment and Active
Labor Act of 1978 (EMTALA), requires Emergency Rooms to treat anyone who has an
“emergency medical condition”, regardless of their citizenship or ability to pay for the
treatment. It is this provision that paves the way for illegal immigrants to receive free health
care in American hospitals. As mentioned above, 80% of births in two Houston hospitals
in 2005 were to “undocumented immigrant” parents.



102
      Library of Congress, 109th Congress, 1st Session, H.J.Res. 46.


                                                                                              39
The definition of emergency care in the Emergency Medical Treatment and Labor Act of
1986 (EMTALA) should be amended so that only the rarest births which genuinely pose a
threat to the life of the mother or child should be handled in emergency rooms. It is clear
that the birth of most children can hardly be called an “emergency medical condition”,
since the term “emergency” is defined as something unexpected. Childbirth is preceded by
nine months of pregnancy and is generally a predictable and safe medical procedure.

EMTALA mandates that:

           “If any individual (whether or not eligible for benefits under this title) comes to a
           hospital and the hospital determines that the individual has an emergency medical
           condition, the hospital must provide either—
                   (A) within the staff and facilities available at the hospital, for such further
                   medical examination and such treatment as may be required to stabilize the
                   medical condition, or
                   (B) for transfer of the individual to another medical facility in accordance
                   with subsection (c).”103

With regard to the definition of an “emergency medical condition,” EMTALA provides
that:
       “(1) The term “emergency medical condition” means—
       (A) a medical condition manifesting itself by acute symptoms of sufficient severity
       (including severe pain) such that the absence of immediate medical attention could
       reasonably be expected to result in—
               (i) placing the health of the individual (or, with respect to a pregnant
               woman, the health of the woman or her unborn child) in serious jeopardy,
               (ii) serious impairment to bodily functions, or
               (iii) serious dysfunction of any bodily organ or part; or
       (B) with respect to a pregnant woman who is having contractions—
               (i) that there is inadequate time to effect a safe transfer to another hospital
               before delivery, or
               (ii) that transfer may pose a threat to the health or safety of the woman or
               the unborn child.”104

Reform the Performance Measures for HHSC and other Agencies that Administer
Welfare Programs

Introduce targets that measure the performance of state agencies partly on the basis of the
number or percentage of applications that are turned down on the basis of an applicant’s
citizenship or immigration status. This will create a positive incentive for administrators to
enforce eligibility criteria.




103
      42 U.S.C. 1395dd(b)
104
      42 U.S.C. 1395dd(e)


                                                                                                40
Deny Illegal Immigrants Access to Punitive Damages

Amend Texas Civil Practices and Remedies Code (Chapter 41) so that illegal immigrants
cannot receive punitive damage in civil lawsuits.

Understanding that the legal system should never reward those who break the law, an
individual who breaks federal law by entering and remaining in the country illegally should
not be permitted to benefit from a civil proceeding. Making it generally understood that
courts in Texas will not ignore a person’s illegal status will discourage illegal immigration.

Impose a Fee on Remittances Sent to Mexico or Central or South America

Recent research carried out by the Inter-American Development Bank shows that in 2005,
remittances from the United States to Mexico and Central and South American countries
totaled more than $40 billion.105 Mexico receives the largest amount of remittances – more
than $20 from all countries in 2005 – 75% of which is estimated to come from the United
States.106 The Mexican government already collects a fee on remittances received by its
citizens.107 Yet in the United States neither federal nor state governments levy such a fee –
despite the cost of illegal immigration to American taxpayers, particularly with respect to
uncompensated health care.

It is appropriate, therefore, to add Chapter 279 to the Finance Code so that:

        “A money transmission business shall charge a fee on a money transmission that
        originates in this state and is transmitted to a destination in Mexico or in Central or
        South America. The amount of the fee is eight percent of the total amount sent by
        the money transmission.”

To reflect the burden that illegal immigrants who do not have health insurance place on
Texas’ hospitals and health care providers, the revenue raised from this fee should be
credited to the indigent health care support account under Section 64.002 of the Health
and Safety Code. The State Comptroller concluded in November 2005 that:

        “No one doubts that undocumented immigrant workers account for a significant
        portion of the nation's uninsured. The Spring 2005 Journal of American Physicians
        and Surgeons estimated that illegal aliens might make up a quarter or more of the
        national total. [Harris County Commissioner Sylvia] Garcia noted that Harris
        County has spent about $50 million on health care for immigrant workers in the
        last five to 10 years.”108

Using fees from remittances is clearly an appropriate response to this additional burden
that illegal immigrants place on health care providers in Texas. To distinguish between

105
    “Remittances 2005,” Inter-American Development Bank, March 2006.
106
    Ibid.
107
    “Dollars Cross Border”, State Comptroller Fiscal Notes, November 2005.
108
    “Dollars Cross Border”, State Comptroller Fiscal Notes, November 2005.


                                                                                             41
legal and illegal immigrants, a refund of the fee levied on remittances may be received by
any person who can prove their United States citizenship, or that they are lawfully present
in the United States.

Repeal In-State Tuition for Illegal Immigrants

House Bill 1403 (77R) made it possible for illegal immigrants to be eligible for in-state
tuition rates at public universities in Texas. Specifically, an illegal immigrant who graduates
from a Texas high school after having lived in the state for least three years can qualify for
in-state tuition109.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 declares that:

        “[a]n alien who is not lawfully present in the United States shall not be eligible on
        the basis of residence within a state (or political subdivision) for any post-secondary
        education benefit unless a citizen or national of the United States is eligible for such
        a benefit (in no less an amount, duration, and scope) without regard to whether the
        citizen or national is such a resident.” 110

It is clear that by allowing illegal immigrants the “education benefit” of eligibility for in-state
tuition, Texas law currently treats illegal immigrants more favorably than it does U.S.
citizens or legal residents who happen not to meet state residency requirements. This is
contrary to the section of U.S Code outlined above. The question that this situation raises
is why should legal U.S. residents have to pay higher tuition rates than illegal immigrants?

Furthermore, the state is effectively subsidizing the college education of students who are
here illegally. When illegal immigrants graduate from Texas universities they will not be
able to work legally in the state. The American Association of State Colleges and
Universities reported in June 2005 that “several hundred undocumented immigrants
graduated from Texas institutions this month and found themselves unemployable without
work visas or legal status.” 111

To reflect the fact that granting in-state tuition to illegal immigrants places legal U.S.
residents at a financial disadvantage in terms of college tuition, and that it derives little
benefit to the state since illegal immigrants cannot work lawfully in Texas, in-state tuition
for illegal immigrants should be repealed. Education Code (Section 54.052) should be
amended so that in order to qualify for in-state tuition, an individual must be either a U.S.
citizen, or a legal resident, who meets the other existing criteria under Chapter 54 of the
Education Code.




109
    “States Weigh Tuition Breaks for Illegal Immigrants,” Stateline.org, June 2003.
110
    U.S. Code, Title 8, Chapter 14, Section 1623.
111
    “Should Undocumented Immigrants Have Access to In-State Tuition?” American Association of State
Colleges and Universities, June 2005.


                                                                                                  42
Conclusion

Illegal immigrants should be denied all state and federal benefits except emergency medical
care. Just as the supply of jobs attracts immigrants illegally to America, so the supply of
welfare programs with lax citizenship verification procedures serves as an incentive for
immigrants to come and stay illegally.

The method by which state and federal agencies verify the citizenship of applicants to
welfare programs is the most important part of the process of ensuring that illegal
immigrants do not receive benefits to which they are not entitled. Allowing stringent
documentary requirements to be circumvented by permitting applicants to attest to their
own citizenship, or have a family member or other person attest on their behalf, represents
a major flaw in the application process for many welfare programs in Texas.

A signed affidavit does not prove the citizenship of those applying for, or receiving, welfare.
Allowing the signatures of three persons to “verify” citizenship blurs the line between clear
verification of citizenship and an honor system, under which the state and federal
government must trust the information provided by those applying to government
programs. In reality, the only documents that absolutely prove citizenship are a birth
record, naturalization certificate, or a U.S. passport. Allowing an affidavit as proof of
citizenship undermines the entire system. The affidavit loophole should be eliminated
from the new federal Medicaid rules, if citizenship verification is to have any meaning or
force.

Those who cannot provide appropriate documentary evidence of their citizenship should
be denied enrollment in a program until such time as they can provide appropriate
evidence of their eligibility. Similarly, those already enrolled in programs who are unable
to satisfactorily prove their citizenship, should be dis-enrolled until their citizenship can be
verified.

The state should also be required to keep a record of the number of illegal immigrants who
are enrolled in welfare programs. This count should be used to ask for a federal
reimbursement for the cost of the services and financial support that the state provides to
those who are here illegally.




                                                                                              43
                                             Part III

                                  Employer Sanctions
Background

In March 2005, the Pew Hispanic Center calculated that there were 7.2 million
undocumented workers in the U.S. economy. In its study, the Center estimated that
undocumented workers account for 24% of all agricultural employment in the U.S., 14% of
all construction employment, and 12% of all food preparation employment112. The
demand for jobs and the willingness of American employers to supply them to
undocumented immigrants in such large numbers is the cause of much of the illegal
immigration that takes place across America’s southern border every day.

Two core problems must be addressed if the tide of illegal immigration is to be stemmed.
These problems are: (a) the economic conditions in Mexico that lead to mass migration;
and, (b) the willingness of employers to illegally hire migrant labor. Though it is beyond
the scope of this report to suggest remedies for the economic and social problems plaguing
Mexico, this paper will attempt to show that employer sanctions and enforcement of labor
law should be the focus of congressional action, rather than border enforcement or
amnesty.

The Dynamics of Illegal Immigration

Much like the flow of illicit drugs into the United States, the demand side appears to be the
chief culprit of the present crisis. The willingness of some employers to violate
immigration and labor laws has negative ramifications for the body politic even if the
American economy benefits from illegal immigration. So rather than rewarding
“lawbreakers” through blanket amnesty and encouraging American isolation through wall-
building and deportation, workplace enforcement should be the primary focus of
lawmakers. That would appear to be the most appropriate means to depress demand for
illegal immigration and the apparent rise of cultural separatism.

A report by the Center for Immigration Studies highlights the dynamics of the process that
sees so many people enter the United States illegally from Mexico each year:

        “The typical Mexican worker earns one-tenth his American counterpart, and
        numerous American businesses are willing to hire cheap, compliant labor from
        abroad; such businesses are seldom punished because our country lacks a viable
        system to verify new hires' work eligibility.”113


112
    The Size and Characteristics of the Unauthorized Migrant Population in the US, Pew Hispanic Center
Research Report, March 7, 2006; http://pewhispanic.org/files/reports/61.pdf
113
    “Illegal Immigration,” Center for Immigration Studies,
http://www.cis.org/topics/illegalimmigration.html


                                                                                                     44
As to the matter of why Mexicans come to the United States, the World Bank reports that
although Mexico’s economic situation has greatly improved over the last decade, the
statistics remain numbing:

         “According to the most recent poverty report prepared by the World Bank,
         approximately 50% of the population was living in poverty in 2004, an
         improvement over the 64% of the total population living in poverty following the
         1995 crisis.”114

The crushing weight of Mexico’s poor economic health is horribly clear when the situation
is considered “improved” because just 50% of its population lives in poverty. The root of
American unease with perceived job losses due to illegal immigration begins with the
poverty faced by Mexicans who are now part of the US workforce. The costs to that
nation, through drain of its human capital, probably cannot be calculated but it is of great
benefit to the U.S. economy in general and American corporations specifically.

However, the backlash over the increasing presence of illegal aliens in the U.S. economy
has not lead to increased employer sanctions. Instead, it has lead to greater calls for more
border security – or a closed border – which is ancillary to the central problem of the
willingness of corporations to flout federal law. Without access to jobs, illegal immigration
would not have reached the magnitude it is today. The vast network of migrants now living
and working in the United States clearly signals to others that crossing the border in search
of a job is an acceptable risk because the likelihood of securing employment is high.

Rather than focus on the workplace enforcement, policymakers, particularly on the
political right, have instead searched for new ways to secure the border. As noted by the
Center for Immigration Studies, “the standard response to illegal immigration has been
increased border enforcement. And, in fact, such tightening of the border was long
overdue. But there has been almost no attention paid to enforcement at worksites within
the United States.”115 The fact that there is little or no workplace enforcement, and that
Mexicans are perceived to violate American immigration laws at will in search of jobs, helps
explain why the tide of public opinion runs so strongly on the issue.

An Economic Benefit to America?

An extensive analysis of the impact of illegal immigrant labor by BusinessWeek magazine
underscores why the U.S. Chamber of Commerce and other business organizations
generally oppose efforts to increase border and workplace enforcement. The U.S.
Chamber puts the blame for the problem of illegal immigration clearly on the shoulders of
the federal government:

         “Experts estimate there may be as many as 10 million undocumented workers
         throughout the country who are working hard and performing tasks that most

114
    http://devdata.worldbank.org/idg/IDGProfile.asp?CCODE=MEX&CNAME=Mexico&SelectedCountry=
MEX
115
     “Illegal Immigration,” Center for Immigration Studies, ttp://www.cis.org/topics/illegalimmigration.html


                                                                                                         45
        Americans take for granted but won't do themselves, in such industries as
        construction, landscaping, health care, restaurants and hotels and others. The
        combination of a need for workers and an inadequate immigration system has
        caused an unacceptable status quo. By not creating adequate legal avenues for
        hiring foreign workers and not addressing the status of workers already here,
        Congress and this administration are not fully safeguarding the economy for the
        future.”116

The Chamber’s claim that business bears no culpability is hollow. Procedures already exist
for hiring of foreign labor (even if those procedures are bureaucratic), and the “status of
workers” is affected most by those who knowingly hire individuals who have not legally
entered the United States.

Economists differ as to the magnitude of the impact of illegal aliens on the wages of low-
skilled workers. George Borjas of the Kennedy School of Government argues that
immigration has reduced the earnings of a “typical” high school drop out by $1,200
annually, or about 5%. Others such as Pia Orrenius of the Federal Reserve Bank of Dallas
believes “immigration had a small negative impact on manual laborers' wages -- about 1% --
but did not adversely affect the wages of professionals or service workers.”117 Put another
way, depressed wages for low-skilled workers generally benefits employers and the
economy as a whole. In response to a Wall Street Journal survey:

        “Nearly all of the economists – 44 of the 46 who answered the question – believe
        that illegal immigration has been beneficial to the economy. Most believe the
        benefits to business of being able to fill jobs at wages many American workers won't
        accept outweigh the costs.”118

Explaining that “farms, hotels restaurants, small manufacturers, and other employers have
continued to hire the undocumented with little regard to the federal laws intended to stop
them,” the authors of the BusinessWeek analysis emphasized why the illegal workforce is
so attractive to U.S. businesses:

        “The fast-growing undocumented population is coming to be seen as an untapped
        engine of growth. In the past several years, big U.S. consumer companies – banks,
        insurers, mortgage lenders, credit-card outfits, phone carriers, and others – have
        decided that a market of 11 million or so potential customers is simply too big to
        ignore. It may be against the law for the Valenzuelas [a family profiled in the
        BusinessWeek analysis] to be in the U.S. or for an employer to hire them, but
        there’s nothing illegal about selling to them.”119

In truth these economic debates matter little. It makes no difference whether there are
positive or negative economic consequences of illegal immigration. The point is that the

116
    U.S. Chamber of Commerce
117
    Orrenius, Pia. “The Impact of Immigration.” The Wall Street Journal. April 25, 2006. Page A18.
118
    Annett, Tim. “Illegal Immigration and the Economy.” The Wall Street Journal, April 13, 2006.
119
    Grow, Brian, et.al, “Embracing Illegals,” BusinessWeek online. July 16, 2005


                                                                                                     46
immigration is illegal. Just as we do not condone theft or fraud because they can yield an
economic benefit to certain parties, illegal immigration should not be condoned simply
because some individuals, businesses, or consumers may benefit from it. It is a violation of
federal law (8 U.S.C. 1325a) to enter the U.S. without approval by an immigration official,
and it is similarly a violation of federal law (8 U.S.C. 1324a) to employ undocumented
workers. Businesses and other employers have not only a legal responsibility, but also an
ethical one, to ensure that they are not willfully employing illegal immigrants.

Exploring Employer Sanctions

It is no great leap of logic to deduce that if the employment incentive for illegal immigrants
can be removed, the rate of illegal immigration will fall. It is a simple supply and demand
equation, which can be likened to the problem of illegal drugs in American society. No
matter how many poppy fields or drug cartels are destroyed by law enforcement officials, as
long as the demand for illegal drugs remains high, so the supply of these drugs will
continue (the problems faced by NATO forces in Afghanistan is a strong rejoinder to
skeptics of the demand-side of the drug problem). Similarly, no matter how many illegal
immigrants are caught crossing the border, or detained and deported once they get here, as
long as the supply of jobs and taxpayer funded benefits exists, people will continue to
attempt (and probably succeed) to enter the U.S. illegally in search of work, especially since
economic conditions in Mexico are so deplorable compared to that in the United States.

It is hardly revolutionary to conclude that reducing the demand for illegal immigrants in the
U.S. will reduce the rate of illegal immigration. Among the most effective ways to cut the
supply of jobs would be to impose strict sanctions on American employers who are found
to be employing undocumented workers. A provision for sanctioning employers in this
way was introduced at the federal level with the Immigration Reform and Control Act of
1986. However, enforcement of this legislation has been generally weak.

The Washington Post reported (June 19, 2006) that work-site enforcement operations by
the Immigration and Naturalization Service (INS) were scaled back by 95% between 1999
and 2003. In 1999 there were 182 prosecutions of employers who had employed illegal
immigrants; in 2003 there were just four. Total fines imposed declined from $3.6 million
to just $212,000 over the same period. The INS was succeeded by U.S. Immigration and
Customs Enforcement in 2004, which lead to a slight increase in convictions – 46 in 2004,
and 127 in 2005.

In order to ensure that this increase in convictions continues, the most sensible and needed
measure to be introduced in Congress is the “Comprehensive Enforcement and
Immigration Reform Act” (S 1438) by Texas’ junior senator John Cornyn. Among its
primary recommendations is to authorize 10,000 additional agents over 5 years to
investigate employers who hire illegal aliens. Workplace enforcement is crucial because it
places the burden where it most justifiably belongs. Furthermore, workplace enforcement
recognizes the sufficiency of federal law in matters relating to immigration and labor: as
mentioned above, it is already illegal to come to the United States without having secured a
work visa or having achieved “resident alien” status and it is already illegal to hire an



                                                                                           47
undocumented worker. New federals laws are not necessary; it is simply the enforcement
of existing laws that must be improved.

Despite the recent up tick in convictions, and putting to one side the enforcement of
employer sanctions by the federal government, there is still a role that states must play by
drafting legislation and enforcing sanctions themselves. According to the National
Conference of State Legislators, over the past year as many as 30 states have considered a
total of 75 bills targeting employers of undocumented workers. States have considered
almost 500 bills on immigration in 2006 alone. As far as imposing and enforcing stricter
employer sanctions is concerned, the ball is clearly in the states’ court.

Recommendations

In Texas, House Bill 3 (79S3), which created the gross margins tax, excludes “any
compensation paid to an undocumented worker” from the amount that an employer may
deduct from its tax liability (§171.1012). There are other ways in which the employment of
illegal immigrants could be further penalized:

       A chapter could be created in the Labor Code, which would detail a monetary
       penalty (perhaps equal to the amount that was paid by the employer to illegal
       immigrants during the financial year) to be paid to the state by any business found
       to be employing one or more illegal immigrants. The revenue resulting from such
       fines could be credited to further enforcement efforts in order to increase their
       scope and effectiveness.
       Chapter 62 of the Labor Code could be amended so that the act of paying wages or
       any other compensation constitutes an admission by the employer that they have
       confirmed that the employee is authorized to work in the U.S. Any employer
       found to be paying wages or compensation to an unauthorized employee will have
       committed an offence under §37.02 Penal Code.
       Certificates of formation for all businesses filing with the Secretary of State should
       be accompanied by an affidavit stating that the company will not hire “unauthorized
       aliens.” Employer actions contrary to this affidavit will constitute an offence under
       §37.02 Penal Code.
       The gross margins tax created by House Bill 3(79S3) could be amended so that
       each taxable entity is required to declare that it employed no “unauthorized aliens”
       when submitting its reports to the Comptroller for each tax year. Employer actions
       contrary to this declaration will constitute an offence under §37.02 Penal Code.
       Similarly, the gross margins tax could be amended to include an additional tax
       penalty equal to ten percent of their tax liability for each undocumented employee
       a company is found to be employing.
       Property tax exemptions could be ended for any business or individual found to be
       employing “unauthorized aliens.”
       To further penalize repeat offenders, any business that is found to have employed
       “unauthorized aliens” for three out of any five years could be prohibited from
       conducting business in the state for a period of sixth months.




                                                                                           48
Legislation such as the above could be enforced by the Corporate Integrity Unit of the
Office of the Attorney General, the Enforcement Division of the Office of the Comptroller
of Public Accounts, and the Alien Labor Certification Program of the Texas Workforce
Commission.

Conclusion

Millions of people are compelled to leave Mexico because they live in abject poverty. The
chronic problems of poverty and unemployment there, as well as the availability of jobs
here, are the proximate, if not ultimate, causes of the mass migration from Mexico (even
Central America) to the United States. Unless and until employers believe that they
cannot escape sanction for their illegal activity, the problem of illegal immigration will
remain unabated and the illegal immigration debate will oscillate between the two extremes
of deportation and wall-building on the one hand, and blanket amnesty and complete
access to social services on the other. Neither extreme is tenable, but neither is any policy
on illegal immigration that does not address the employment incentives that are part of the
root cause of this long-simmering crisis.

Despite employer sanctions being central to the Immigration Reform and Control Act of
1986, enforcement of sanctions has been woefully poor at the federal level. For
conservatives, the knowledge that we live in a world governed by the incentives of demand
and supply leads us to a firm conclusion in the quest to halt illegal immigration. Removing
the demand for illegal labor by creating significant disincentives for employers to break the
law will cause a decline in the supply of jobs and employment potential for illegal
immigrants. With no guarantee of finding a job, the incentive to come to the U.S. illegally
will be dramatically reduced, and a decline in illegal immigration is likely to follow.




                                                                                           49
                                               Part IV

                      Ending Bilingual Education Programs
Background

Chapter 29 of the Texas Education Code declares that “English is the basic language of this
state.” However, this declaration is undermined by the subsequent qualification that:

           “[L]arge numbers of students in the state come from environments in which the
           primary language is other than English. Experience has shown that public school
           classes in which instruction is given only in English are often inadequate for the
           education of those students…Bilingual education and special language programs can
           meet the needs of those students and facilitate their integration into the regular
           school curriculum.”120

The assertion that bilingual programs are imperative for students whose first language is not
English is the basis for Texas’ bilingual and ESL programs. The logic employed in the
Education Code is unclear, since it suggests that despite English being the basic language of
the state, those students whose first language is not English must be taught in their own
language. This premise is based on the notion that students’ academic achievement will be
compromised if they are taught in English despite either not being fluent in English, or
coming from a home in which English is not the primary language.

However, experience from other states, and most notably California, suggests that students
whose primary language is not English perform better academically when they are taken
out of bilingual or English as a Second Language (ESL) programs. Academic achievement
improved across the board in California after bilingual programs were significantly cut back
in 1998, casting doubt on the assertion in the Texas Education Code that students with
poor English proficiency need to be taught in bilingual programs.

The Californian Experience: Proposition 227

On June 2, 1998, California voters passed Proposition 227, which fundamentally revised
the basis upon which bilingual education was made available to students in California’s
public schools. Proposition 227 required that:

           “[A]ll children in California public schools shall be taught English by being taught
           in English. In particular, this shall require that all children be placed in English
           language classrooms. Children who are English learners shall be educated through




120
      Texas Education Code, Chapter 29, Subchapter B, §29.051.


                                                                                             50
        sheltered English immersion during a temporary transition period not normally
        intended to exceed one year.” 121

As a result of the passing of Proposition 227, the number of schoolchildren enrolled in
bilingual education programs in California fell from 409,879 in school year 1997-98, to
169,440 in 1998-99122. Bilingual education went from being widely available to all students
at all grade levels, to being available only to students whose parents signed a waiver allowing
them to be educated in bilingual programs, but only after they had spent the first 30 days of
the school year being schooled completely in English. The only exception to this was a
provision permitting one year immersion courses during which students would learn
English before being assimilated into mainstream programs.

Professor Christine Rossell, author of a number of detailed studies on bilingual education
and the impact of Proposition 227, has pointed out that both the one year immersion
courses and the parental waiver have been abused by parents, teachers, administrators, and
school districts. Rossell’s research indicated that the one year immersion period was
deemed to be “renewable” by the California State Board of Education if a student had not
“achieved a reasonable level of English proficiency,”123 and that:

        “Teachers in schools with enough Spanish speaking English learners to run a
        bilingual education program explained…that they “worked very hard” telephoning
        and holding meetings during the 30 day all-English trial period to convince parents
        that their child would be better off in the bilingual education program.” 124

These exemptions to the eradication of bilingual education explain the residual number of
students still considered to be enrolled in bilingual programs even since the passing of
Proposition 227. Rossell’s research indicates that the number of students remaining in
bilingual programs remained constant in the years immediately after the Proposition was
passed, with roughly 11% of high school students and 15% of elementary school students
remaining in bilingual programs. This compares to enrollments rates of 29% and 39% for
high school and elementary school participants respectively, before the passage of
Proposition 227.

Assimilation

In addition to the educational benefits of ending bilingual programs, it is also likely that
such reform would improve the assimilation of immigrants into American society and
culture. As Jorge Amselle, then director of the READ (Research in English Acquisition
and Development) Institute, wrote in March 2000:



121
    “Dismantling Bilingual Education Implementing English Immersion: The California Initiative,” Prof.
Christine Rossell, University of Boston, August 20, 2002;
http://www.bu.edu/polisci/CROSSELL/Dismantling%20Bilingual%20Education,%20July%202002.pdf
122
    Ibid.
123
    Ibid.
124
    Ibid.


                                                                                                         51
        “Throughout the country's past, the notion of bilingual education was essentially at
        odds with the prevailing U.S. "melting-pot" culture. Assimilation, not separation, has
        historically been the key to America's nation-building success, and a common,
        standardized language has been, many argue, indispensable. This ideology has
        played a key role in America's domestic policies toward immigrants, particularly in
        the area of education.”125

The most obvious test of assimilation is language, and perpetuating a situation in which
students are educated entirely or partially in languages other than English will only harm
the extent to which those students can assimilate with English-speaking students.

Indeed, when Congress passed the Bilingual Education Act in 1968, its sponsor, Senator
Ralph Yarborough (D-TX) stressed that the purpose of the bill was “not to try to make the
mother tongue the dominant language, but just to try to make those children fully literate in
English.”126 Yet as Professor Rossell’s research demonstrates (below), the English language
performance of California’s students improved after the passage of Proposition 227. In
other words, bilingual education holds back the English language skills of limited English
proficiency students.

The Benefits of Ending Bilingual Programs

Despite residual enrollment in bilingual programs, the passage of Proposition 227 has been
beneficial for the California public school system. The American Institutes for Research
(AIR) reported in February 2006 that “[s]ince the passage of Proposition 227, students
across all language classifications in all grades have experienced performance gains on state
achievement tests.”127 AIR’s researchers also recommended that to improve the
educational achievement of English learners further, California’s schools should “ensure
that the students’ English learner status does not impede full access to the core
curriculum,” and that “[s]chools should limit prolonged separation of English learners from
English-speaking students to cases of demonstrated efficacy.”128

Rossell’s research also indicates that following the passage of Proposition 227:

        “[S]chools that eliminated their bilingual education programs had a 10-point gain in
        reading and a 13-point gain in math, but those that maintained some form of
        bilingual education program had only a 6-point gain in reading and a 14-point gain
        in math.”129



125
    “Bye-Bye to Bilingual Ed?” Jorge Amselle, March 2000; http://www.onenation.org/0003/030100.html
126
    Ibid.
127
    “Five Year Study of Proposition 227 Finds No Conclusive Evidence Favoring One Instruction Approach
for English Learners,” American Institutes for Research, February 21, 2006;
http://www.air.org/news/documents/Release200602prop227.htm
128
    Ibid.
129
    “The Near End of Bilingual Education,” Prof. Christine Rossell, published in the Journal Education Next
by the Hoover Institution, April 2003; http://www.educationnext.org/20034/44.html


                                                                                                        52
The results in California demonstrate that the Texas Education Code’s assertion that
“[e]xperience has shown that public school classes in which instruction is given only in
English are often inadequate for the education of those students,” is at best a questionable
basis from which to develop education policy for students with limited English proficiency.
The California experience casts considerable doubt on the value of the bilingual and ESL
programs being operated by schools in Texas, particularly when the growing cost of these
programs is taken into account.

Bilingual Education in Texas

The Texas Education Code provides that any school district with 20 or more enrolled
students with limited English proficiency (as determined by language proficiency
assessments undertaken during the first four weeks of the school year), must offer bilingual
education or a special language program to its limited English proficiency students130. The
programs that must be offered under §29.053 of the Education Code are as follows:

         Kindergarten through elementary grades: Bilingual education
         Post-elementary grades through grade 8: Bilingual education or ESL
         Grades 9 through 12: ESL

§29.055 of the Education Code draws a distinction between bilingual education and ESL,
with the former being defined as “a full-time program of dual-language instruction that
provides for learning basic skills in the primary language of the students enrolled in the
program.” ESL is defined as “a program of intensive instruction in English from teachers
trained in recognizing and dealing with language differences.” It is clear from the
definition of bilingual education that students can be taught the main parts of the
curriculum in their primary language. Indeed, the Education Code also makes it clear that
“elective courses included in the curriculum may be taught in a language other than
English,”131 with the only exception to this being that “in subjects such as art, music, and
physical education, students of limited English proficiency shall participate fully with
English-speaking students in regular classes.”132

The Cost of Bilingual Education

A report published by the Comptroller in December 2004 found that the Texas school
population grew by 18% between the 1993-94 and 2002-03 school years. During the same
period, the Comptroller found that the number of students in bilingual or ESL programs
grew by 54%133.

In the 2005-06 biennium, the Texas Education Agency (TEA) spent $22.1 billion on
educational programs. The vast majority, $14.5 billion, of this was spent on “regular”
programs, $3.2 billion was spent on programs for students with disabilities, while $1 billion
130
    Texas Education Code, Chapter 29, §29.053.
131
    Texas Education Code §29.055(d)
132
    Texas Education Code §29.055(c)
133
    “The Cost of Underpaying Texas Teachers,” Texas Comptroller of Public Accounts, December 2004;
http://www.window.state.tx.us/specialrpt/teachersalary04/


                                                                                                     53
was spent on bilingual education programs134. These figures reveal that bilingual and ESL
programs are the third largest area of TEA’s budget, and that they receive more funding
than programs for gifted or talented students, athletics programs, and career and
technology programs. In short, TEA spends 5% of its budget on teaching students in
languages other than English, and teaching English as a foreign language to students who
have a limited English proficiency. The Education Code declares that English is the
language of the state; yet, flying in the face of that declaration, $1 billion dollars of
education funding is spent each year teaching students in languages other than English.

The vast majority of students enrolled in bilingual education or ESL in Texas are
Hispanics. Research compiled by the Southern Methodist University indicates that 90% of
students in Texas Public Schools who have “limited English proficiency”, are Spanish
speakers135. The growth rate of Texas’ Hispanic population suggests that the cost of
providing bilingual education programs will continue to rise. Since FY2000-01, the
budgeted cost of bilingual education programs has grown by more than 40%, echoing the
increase in the State’s Hispanic population, which grew 54% during the 1990s136.
Conservative estimates suggest that Texas’ Hispanic population will more than double over
the next 25 years137, which indicates that the share of the education budget required by
existing ESL and bilingual education programs will increase significantly.

The growth of Texas’ Hispanic population only goes part of the way towards explaining the
increasing cost of bilingual education programs. Another factor is the lack of qualified
bilingual education teachers. The Commissioner of Education has designated bilingual
education as a “critical shortage area,” which allows school districts to offer stipends on top
of annual salaries in order to attract qualified bilingual education teachers. In March 2006,
the Comptroller reported that:

        “Bilingual education was the area most commonly reported as receiving stipends,
        with 56 percent (208 districts) offering teachers stipends in this area. It was also the
        area receiving the largest stipends, averaging $2,253 annually.”138

This additional cost associated with providing bilingual programs only strengthens the
arguments for bringing these programs to an end in Texas.

Enrollment of English-Speaking Students

§29.058 of the Texas Education Code declares that “[w]ith the approval of the school
district and a student’s parents, a student who does not have limited English proficiency

134
    “2005-06 Budgeted Financial Data,” Texas Education Agency; http://www.tea.state.tx.us/cgi/sas/broker
135
    “Texas Bilingual Education Facts,” Southern Methodist University;
http://www.smu.edu/smunews/education/esl.asp
136
    “In a State of Change: The Rapidly Growing and Increasingly Diverse Population of Texas,” University
of Texas at Austin, June 2005; http://utopia.utexas.edu/articles/tbr/state_change.html
137
    Texas Population Projections 2000-2040, Texas State Data Center and Office of the State Demographer,
June 2004; http://txsdc.utsa.edu/tpepp/2004projections/2004_txpopprj_txtotnum.php
138
    “The Cost of Underpaying Texas Teachers,” State Comptroller of Public Accounts, March 2006;
http://www.window.state.tx.us/specialrpt/teachersalary06/


                                                                                                     54
may also participate in a bilingual education program.” Given the cost of bilingual
programs and the assertion of English as the basic language of the state, there can be no
logical argument justifying the enrollment of English-speaking students in bilingual
programs. English-speaking students should be taught in English in mainstream classes,
rather than being given the option to enroll in a more costly program. This section of the
Education Code should be amended, since it acts only as a loophole though which students
whose primary language is not English may remain in bilingual education even when they
have become proficient in English.

Recommendations

Remove the Bilingual Education Mandate in the Education Code:

       Amend §29.053 of the Education Code so that school districts are no longer
       mandated to offer bilingual education or a special language program to their limited
       English proficiency students.

Exclude English-Speaking Students from Bilingual Programs

       Remove §29.058 of the Education Code so that students who do not have “limited
       English proficiency” are no longer permitted to participate in bilingual education
       programs.

Conclusion

Despite the provision in the Texas Education Code that “English is the basic language of
this state,” approximately 700,000 students with limited English proficiency are considered
eligible for bilingual education, which accounts for 5% of all education spending in Texas.
Educational attainment results from California suggest that scaling back bilingual education
programs can have a positive impact on student achievement. This, coupled with the
growing cost of bilingual programs, and the shortage of qualified bilingual teachers in Texas
leads to the conclusion that bilingual education programs in Texas public schools should
be ended.

While public schools may have a role to play providing students with basic English
language skills – perhaps following the California model of a one-year immersion course - it
is not the role of public schools to teach “limited English proficiency” students in any
language other than English. This is costly and will become increasingly more costly as
Texas’ Hispanic population continues to grow rapidly. Bilingual programs are
demonstrably no more beneficial academically than teaching students entirely in English,
and they reduce the incentive for students to learn English. If English is truly the basic
language of the state, it is the language in which all instruction in public schools should be
carried out.




                                                                                           55
                                               Part V

              Border Security and Local Law Enforcement
Recommendations

Enable Local Law Enforcement to Detain Illegal Immigrants

In United States vs. Vasquez-Alvarez, the Tenth Circuit of the U.S. Court of Appeals
concluded that there is “a preexisting general authority of state or local police officers to
investigate and make arrests for violations of federal law, including immigration laws.”139
Additionally, in United States vs. Santana-Garcia, the Tenth Circuit held that federal law
“evinces a clear invitation from Congress for state and local agencies to participate in the
process of enforcing federal immigration laws.”140

Allowing state-level law enforcement officials to detain illegal immigrants on the basis of
their illegal residency status or illegal entry alone is a vital tool for combating illegal
immigration.

A resolution supporting the passage of House Resolution 6095 through the United States
Congress should be passed. H.R. 6095 affirms that:

      “[L]aw enforcement personnel of a State or a political subdivision of a State have the
      inherent authority of a sovereign entity to investigate, identify, apprehend, arrest, detain,
      or transfer to Federal custody aliens in the United States (including the transportation
      of such aliens across State lines to detention centers), for the purposes of assisting in the
      enforcement of the immigration laws of the United States in the course of carrying out
      routine duties.”141

Increase Funding for Border Security

Border sheriffs should be provided with increased funding and resources. State-led
initiatives such as Operation Laredo have decreased border crime by at least 65% in border
counties. Increasing funding for border security will further reduce drug trafficking, people
smuggling, and other types of crime.

Discourage Sanctuary Cities

House Amendment 1139 (by Congressman John Culberson [TX-7]) to House Resolution
5672 blocks federal law enforcement funding for cities and counties that have adopted
139
    United States vs. Vasquez-Alvarez, United States Court of Appeals, Tenth Circuit. 176 F.3d 1294, 1295
(10th Cir. 1999).
140
    Unites States vs. Santana-Garcia, United States Court of Appeals, Tenth Circuit. 264 F.3d 1188, 1193
(10th Cir. 2001)
141
    Library of Congress, 109th Congress, 2nd Session, H.R. 6095.


                                                                                                       56
“sanctuary policies.” Sanctuary policies generally prevent local law enforcement officers
from asking individuals they arrest, detain, or stop whether they are in the country legally.

To reflect the harmful impact that sanctuary policies have on efforts to restrict illegal
immigration, a resolution in support of House Amendment 1139 is recommended.




                                                                                            57
           Appendix A:
Texas Voter Registration Application




                                       58
                                Appendix B:
United States Citizenship and Immigration Services (USCIS) Civic Flash Card




                                                                         59

				
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Description: Illegal Immigration and Driver's License document sample