Friday, September 22, 2017
Federal and state policies that make immigrant work putatively illegal are in tension with a constitutional right to work that is deeply rooted in United States history and jurisprudence. The Department of Homeland Security ("DHS") regulates immigrant work through a system of employment authorization and sanctions on employers who hire unauthorized immigrant workers. This system has become such a central feature of immigration law that few recognize it is a relatively recent innovation. While the United States has always regulated its domestic labor market by modulating immigration, regulation of work as a mechanism of immigration enforcement has only existed since the 1980s. In order for that system to come into being, a radical shift needed to occur: immigrants' right to work had to be forgotten.
From the late nineteenth through the early twentieth centuries, courts accepted that immigrants had a right to work based on substantive due process and natural law. This article contends that there are strong constitutional reasons to return to that principle, which has lapsed but has never been overruled. The right of immigrants to work is "objectively, deeply rooted this Nation's history and tradition," which is sufficient to trigger a rigorous form of substantive due process review. No statute has ever been passed that revokes immigrants' right to work; the laws that exist today do not ban unauthorized immigrants from working but instead utilize employer sanctions to relegate them to various forms of contingent work. In these positions, immigrant workers are denied the bundle of rights and protections that go along with the traditional employment relationship. They face exploitation, lower wages, unsafe conditions, and retaliatory discharge or reporting to DHS.
This system of subordination arose during the late 1970s after a dramatic curtailment in legal Western Hemisphere immigration virtually assured a constant campaign of deportation against millions of predominately Latin American unauthorized immigrants. Policymakers discouraged unauthorized immigrant employment as a strategy to reduce the wave of illegal immigration they had created—a goal that has so far not been met. This history shows that the ineffective policies of the present day raise significant constitutional concerns, and it is time to reconsider them. One way to do so is by taking a second look at the right to work that was well established during an earlier era of United States history.