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Making Labor Legal

What was once an unquestioned right is fast becoming a privilege: the United States now has a laboring class—or, to use a more appropriate term that we all wish obsolete, a caste—that is institutionally deprived of civil and political rights in order to raise the profitability of U.S. firms. With tacit support from the government, American business has generated demand for this predominately Latino labor force to inexpensively perform our hardest tasks. Renewing the tradition of using non-white, sub-citizen workers ought to cause considerable stress to those concerned with human rights.

Yet many commentators are too confused or timid to properly address this situation.  Progress cannot be made on this issue until the level of discourse is raised among the American electorate and politicians alike. This is an issue of labor law, the most basic characteristic of a humane commercial society. When such laws are ignored, all but elites lose. No society should permit bosses to enjoy higher legal status than their workers.

Pro-immigration protest in San Francisco, May 2009. Photo courtesy of SaoPaulo,
Pro-immigration protest in San Francisco, May 2009. Photo courtesy of SaoPaulo,

The most important relationship in capitalism is that of employers to employees. It is the backbone of all economic activity, the system’s most elemental building block.  Labor law exists because bosses often possess a power advantage over their workers. This unevenness in agency leads to exploitation—unfair wages, unsafe working conditions, and other dehumanizing procedures—which only the state has the ability to regulate.  With unions marginalized, such regulation is the only way to truly protect workers.  Yet in America now, bosses seeking to regain a power advantage have vastly succeeded in subverting worker’s protections.

Although illegal immigrants are nominally entitled to many of the same rights as citizens, such protections are illusory. An illegal laborer cannot bring her boss to court without risking deportation. Thus the entire legal apparatus for worker protection is broken. A group living under such conditions now constitutes an important part of our economy.  This situation was underscored by last year’s immigration raid on an Agriprocessors meatpacking plant in Iowa that procedurally hired illegal laborers. The plant withheld overtime pay, subjected workers to highly unsafe conditions, and employed 57 children under the age of 16.  Hundreds of the laborers subjected to such premodern working conditions were, in turn, jailed and deported. Only one of the plant’s managers was charged in the crime.

Many educated Americans associate criticizing the institution of illegal labor with xenophobia, and would rather skirt around the issue; the real bigotry, though, lies in ignoring such a large-scale human rights violation.   Keeping a permanent class of laboring extralegals is an unavoidable moral issue for American citizens. The debate should not center on how to accommodate the extralegals (keep them in a lower caste, but make it more enjoyable), but rather how to make them legal, safe, and dignified in their labor.

Support for illegal labor is often rationalized by discussing the laborers’  personal agency. In a New York Times op-ed Gordon Hanson writes, “Low-skilled immigrants are able-bodied individuals who have come to the United States to improve their lives.” They choose to come here and add tremendous value to our economy, he argues, so why worry about their legal status?

This claim endorses one of the most bankrupt ideas in conservative thought: that the freedom of a laborer to accept or reject a job (the contractual nature of the workplace) validates any accepted job.  By employing such an argument, analysts are unwittingly resuscitating some of the vilest arguments against labor protections (i.e. it is, in fact, the employee’s freely made choice to work in the unsafe coal mine, so why should his boss be held accountable for anything that happens? Or isn’t it better for a worker to be offered a job for one dollar an hour than no job at all?).

Another Times commentator said of illegal immigrants, “Their ethic of self-reliance and hard work is one that Americans should recognize and celebrate.”  This ostensibly liberal writer has, however unconsciously, nodded to Hanson’s implicit libertarianism.  In a modern political context, self-reliance means not relying on government for one’s protection. Illegal laborers, like most second-class citizens historically, have no alternative to self-reliance. Their situation we should seriously heed, not celebrate.

It would be more consistent with the liberal disposition to argue that if the American economy generates the demand for Latino labor, all immigrants ought to be provided the same protections from their bosses that citizens enjoy. The U.S.-led North American Free Trade Agreement (NAFTA) badly damaged large portions of the Mexican economy, causing serious unemployment and inflation, and making illegal labor in America more appealing.

What worries many liberals, and rightfully so, is how the enforcement of labor law may affect the lives of illegal immigrants.  For the U.S. to deport illegal immigrants after having sought and used their labor is clearly wrong. These workers responded to an institutional pull.  Unless we’re interested in drifting into the shadow of apartheid, we must legalize our entire domestic Latino labor force with green cards or citizenship. Simultaneously, employers must be held accountable for violations of worker’s protections. Then anyone seeking to labor illegally will have difficulty finding a job, and the border wall can have however many breaches, because those entering will more likely do so legally and safely.

This scenario is less fantastical than it may seem. Legalizing America’s Latino labor force will be a hard pitch, but it is indeed sellable. Aside from the moral reasons I’ve cited above, there are a few practicalities of such a policy shift that would benefit those especially in the American lower middle class.  Illegal labor is nearly impossible to compete with—assuming Americans want the jobs now worked illegally. Legalizing the labor force would level the playing field making many blue-collar and sub-blue-collar industries’ labor supply more competitive. And the woefully misguided narrative of illegal immigrants “stealing jobs” would become all the more untenable.

What’s more, formerly illegal workers, once legalized, would comprise an entirely new tax base, not to mention economic sector, which would greatly benefit the country.  A worker’s visa and/or citizenship would give the legalized labor force greater certainty about its future—in turn leading to long-term investments, such as building houses and opening businesses in the formal sector. Such increases in economic activity would boost many domestic sectors that employ currently legal citizens.

The difficult task of legalizing the U.S. labor force cannot begin until this country’s progressives see the issue more clearly. Obama’s rhetoric on immigration has been encouraging.  When the health care storm subsides, immigration reform must return to high priority status. Going into this debate, there ought to be several ideas liberals and even many conservatives can agree on.

llegal labor should always be avoided. Bosses should be punished for exploiting workers. Workers should not be punished for having been exploited. Illegal laborers have provided our economy with some of its most essential activity.  We must repay them with at least the most minimal element of civic justice, legality.


Spencer Woodman

Spencer Woodman studies economics at Sarah Lawrence College.


The Brooklyn Rail

OCT 2009

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