Legalizing Undocumented Work | Cardozo Law Review

Introduction

An estimated eight million undocumented workers live as a subclass of workers in the United States.1 Their essential work is cast in a shadow of “illegality” because federal immigration law prohibits employers from hiring such workers.2 As a result, undocumented workers are relegated to low-paying jobs in specific industries, such as agriculture, construction, or domestic work.3 Employers can easily take advantage of such workers by paying them less than the minimum wage or requiring them to work under dangerous conditions.4 While social movements focused on undocumented workers may target their ire against private employer exploitation, the immigration system itself is ultimately responsible for facilitating the systemic subordination of undocumented workers.

Given this phenomenon, this paper urges these social movements to reconsider the undocumented worker separate and apart from their immigration status. It proposes that all individuals, regardless of immigration status, should have the lawful ability to work.5 My argument is that the case for legalizing undocumented work offers a series of compelling claims centered on the problematic subordination of a distinct racial subclass of workers in the United States.

The outlawing of undocumented work at the federal level is of relatively recent vintage. In 1986, the Immigration Reform and Control Act (IRCA) created the federal prohibition to control migration by stopping the magnet of jobs in the United States.6 IRCA, however, has been ineffective in stemming the tide of migration.7 Since its enactment, the undocumented population has increased8 and effective enforcement has been nearly impossible.9 Instead, the result of IRCA has been the creation of a separate caste of low-wage workers who are vulnerable to abuse and exploitation.

There is some official recognition of the resulting abuse and exploitation of undocumented workers, although the focus has been on private “bad apple” employers who victimize workers. The need for victimized workers opens the door to determining whether undocumented workers too have acted badly in some way. While campaigns against exploitative employers can be incredibly effective at highlighting the problems with undocumented work, they often obscure the more systemic problem created by governmental policy.

Further, the moral disapproval of undocumented workers helps to bolster the continued connection between migration and work. While the act of engaging in undocumented work violates no law in and of itself,10 this moral claim centers on the earlier act of border crossing or visa overstay, transforming this unlawful act into a continuing state of “illegality.” By violating the rule of law, the moral claim is that undocumented immigrants have forfeited their right to lawfully work.11 Another version of this moral claim centers on fairness, claiming that undocumented immigrants have unfair access to the limited resource of jobs, disadvantaging impoverished native-born workers.12 Using this justification of “illegality,” some states and localities have also jumped on the bandwagon seeking to further outlaw undocumented work.13

The countervailing case for legalizing undocumented work separate and apart from immigration status bases the injustice of the federal prohibition in the elimination of a caste-like system that violates America’s stated commitment to equality, freedom, and anti-racial subordination.14 In terms of equality, undocumented workers are entitled to equal treatment not only because of their membership within the American community of workers,15 but also as a matter of reciprocal obligation owed to such workers who participate in and contribute to the law and economy of the workplace.16 In terms of freedom, undocumented workers experience constraints on the ownership over their own labor, preventing the realization of their autonomy, security, and dignity through work.17 The subordination of undocumented workers more specifically implicates racial equity as well, with its disproportionate impact on a “brown-collar” workforce.18

Some would use the concept of “illegality” or fairness to justify the exclusion of undocumented workers from equality and freedom principles. A closer look at “illegality,” however, reveals the malleability of this concept, which is often the result of more complex circumstances related to poverty, family unity, and political instability rather than intentional law breaking. Further, the United States government has created expectations by historically creating a norm of acceptability of undocumented work,19 including collecting taxes from undocumented workers20 and tolerating their hiring within certain industries.21 Undocumented work is indistinguishable from any other work in the United States in the ways that workers are engaged in an exercise in responsibility to family, employers, and the larger community.22 On balance, fairness dictates that undocumented workers, particularly as a racial or ethnic subclass of workers, are owed equality and freedom on the same terms as native-born workers.

There are several benefits to this countervailing case for legalizing undocumented work separate and apart from immigrations status. The timing for such countervailing moral claims based on freedom and equality, grounded in anti-racial subordination principles, is opportune. There continues to be growing resistance, through sanctuary-type policies, public protests, and lawsuits, which focus on shared principles of equal treatment and freedom from an indiscriminate deprivation of rights for immigrants.23 The increasing anger towards the exclusion of immigrants on the basis of racial animus24 has the potential to dovetail with recent mass protests seeking to compel society to address systemic racism.25

While individuals of certain political ideologies will remain unpersuaded,26 the purpose here is to target those who might recognize the humanity of undocumented workers but need further persuasion as to why they should be entitled to equivalent civil, social, and economic rights as workers.

Further, such arguments based on moral claims go beyond economic arguments, which often get mired in the costs and benefits of undocumented work. While there is ample evidence to refute the hyperbole about undocumented workers “stealing jobs” or “draining resources,” there is insufficient information about the fine-grained impact of undocumented workers on specific communities.27 The recent coronavirus pandemic has distilled how undocumented workers are essential workers, yet revealed the continued refusal to acknowledge their contributions by excluding them from any federal relief.28 Arguments focused solely on the benefits of undocumented workers to the economy, therefore, continually fall short in countering the moral disapproval of undocumented workers.

Finally, this proposal for legalizing undocumented work applies more broadly to all undocumented workers within our territorial boundaries. The favored solution for undocumented workers is the legalization of their immigration status by providing a pathway to citizenship. While such legalization proposals hold out promise for some undocumented workers, they inevitably result in leaving behind others who do not qualify for the benefits reserved for “deserving” immigrants.29 By disentangling the concept of undocumented work from citizenship status, it avoids the inevitable limitations of such proposals.

This proposal for reconsidering the undocumented workers separate and apart from their immigration status builds upon the existing literature that details the harms created by the federal prohibition and the need to restore full employment rights for such workers.30 In response, several scholars have proposed alternate non-federal frameworks for addressing the rights of undocumented workers such as state and local law,31 international human rights law,32 or transnational bilateral programs.33 This paper seeks to return to the primary problem of the federal prohibition34 by bringing together several theories about what is owed to those engaging in undocumented work within our borders.35 It offers countervailing moral claims for the ambitious reform of legalizing undocumented work.

The legalization of undocumented work undoubtedly raises some practical questions. One is how it can actually be accomplished. Repealing the federal prohibition is an obvious first step. A second step would be to affirmatively legalize undocumented work. Both steps raise several challenges, including the question of how to register such workers without creating a database that can be used for immigration enforcement purposes. Another question concerns the practical import on the existing social movements for undocumented workers. The countervailing case can help with the development of framing that will encourage collective action by connecting to the current demands by undocumented workers for dignity and respect.

Having the lawful ability to work is not a panacea. It does not remove all the challenges that undocumented workers face as they are still subject to deportation based on immigration status. There will necessarily have to be accompanying reforms that strengthen anti-retaliation protections for undocumented workers and prohibit immigration enforcement at worksites. Nor does obtaining the status of lawful employees—especially for those who are low-wage workers—automatically mean that they will have broad opportunity and economic security at work.36

This paper, however, does not purport to solve all the social ills that face undocumented workers. It deliberately does not, for example, take on the larger question of citizenship status. The lens of citizenship is not necessary to respond to discrimination and injustice against undocumented workers.37 Further, the discussion about whether or not undocumented workers are entitled to citizenship status is a different calculus that requires contending with competing views about what should count for purposes of citizenship, such as length of residence, affiliation with citizens, or the ability to economically contribute.38 Such discussions have been at an impasse for decades and continue to be mired in politics.39 Instead, this proposal limits itself to the legalization of undocumented work because it can still transform the social and economic conditions of undocumented workers. The lawful ability to work would open up access to different job markets and would allow workers to move more freely between jobs when they are dissatisfied with pay or working conditions. The status of being a legitimate employee provides workers with a greater ability to use their voice and assert workplace rights. Such official participation in the workplace too can lead to better social integration, not unlike the way that a right to a K–12 education for undocumented immigrants has contributed to how immigrant youth integrate into American society.40

Finally, the choice of work is not meant to be exclusionary towards non-workers. Rather, work is a good starting place for reexamining the restoration of social and economic rights to immigrants that have otherwise been foreclosed because of “illegality.”41 The case for work is strong because it is an integral part of the identity of so many undocumented immigrants.42 Work also naturally creates connections to coworkers and the broader community, which are essential for building movements. If the penalty of “illegality” can be successfully disentangled from undocumented work, it opens up the possibility of reexamining the other ways in which undocumented immigrants face inequality or subordination within our territorial boundaries.

Part I introduces the federal law’s creation of the separate caste of undocumented workers and the ways in which recognition of private employer exploitation obfuscates the systemic role of the federal prohibition. It then reviews the moral disapproval that justifies tying migration to work based on the “illegality” of undocumented workers. Next, Part II offers the countervailing case for legalizing undocumented work based on principles of freedom and equality. Part III examines the benefits of the countervailing case, including how such claims are ripe for consideration, go beyond the economic debates about undocumented worker contributions, and support more transformative change for the entire subclass of undocumented workers. Finally, Part IV provides some practical thoughts about the challenges in constructing a system that legalizes undocumented work and the potential of such framing about equality, freedom, and racial injustice to increase collective action.

I. Migration and Work

Federal immigration law ties migration to the legality of work. By outlawing undocumented work, it creates a subclass of undocumented workers, concentrated in low-wage positions in certain industries, without full labor and employment rights. While there is some recognition of employer exploitation of undocumented workers, the focus on penalizing “bad apple” employers obfuscates the underlying immigration system that makes such exploitation possible. Rather, the moral disapproval of “illegal” workers is what bolsters this interconnection in federal immigration law. It centers on the importance of obeying the rule of law and extends the “illegality” of undocumented immigrants to the workplace. Further, it argues that providing undocumented workers with access to the “limited resource” of jobs is unfair, given the difficulties confronting native-born low-income individuals.

A. Plight of Undocumented Workers

Federal law creates a subclass of undocumented workers in two respects. First, IRCA prohibits the employment of undocumented workers, resulting in the exclusion of undocumented workers from traditional labor markets. The prohibition further makes them vulnerable to abuse and exploitation and constrains their rights to remedy their own exploitation. Second, the immigration system has created a two-tier system for immigrant workers in the United States,43 by only providing a pathway to permanent immigration status for “high-skilled” workers.44See 8 U.S.C. § 1153(b). As a result, the federal laws create a separate caste of “low-skilled” undocumented workers with circumscribed rights and opportunities within the United States.

IRCA requires employers to check the documents of employers through the I-9 process or be subject to penalties. Undocumented workers, therefore, are not free to work in any industry. Rather, undocumented workers are heavily segregated into specific industries that are dangerous and low paid.

Construction and agriculture, for example, are among the top industries with the most annual fatal injuries.45 Within these industries, undocumented workers are more highly concentrated as a percentage of the overall workforce in the following occupations: crop production (22%), private household employment (22%), landscaping (21%), apparel manufacturing (19%), building maintenance (19%), and dry cleaning and laundry (18%).46 Occupations within these industries are associated with low wages. For example, the average wages for crop production, private households, and landscaping are as follows: $670, $526, and $728 per week.47 If these earnings were year-round, they would amount to an annual salary at or slightly above poverty level for a family of four in the United States.48

IRCA’s prohibition on hiring has also caused employers to use job arrangements that distance themselves from the direct hiring of undocumented workers.49 Employers accomplish this indirect hiring by engaging undocumented workers through subcontractors, temporary work agencies, or as independent contractors. As employers increasingly distance themselves from undocumented workers, they can claim that they have no legal obligations towards such workers because they are not the official employer.50 Further, such hiring tends to be extremely informal or short-term so that workers have difficulty claiming their legal rights against such employers.51

Studies also confirm that undocumented workers experience wage suppression compared to their counterparts with legal status.52 A study of undocumented workers in Chicago found the median wage to be just slightly over the minimum wage.53 Within farm work, studies have shown that undocumented workers earned less pay per hour and were less likely to have health insurance compared to documented or native-born counterparts.54 With respect to Mexican immigrants, one study reported that undocumented workers earned on average 20% less than legal immigrants.55 This same study found a significant deflation in undocumented workers’ wages corresponding to the enactment in the federal prohibition in 1986, as a result of the increased costs and risks of undocumented hiring.56Id. at 496–97. Another study revealed how undocumented status is a “self-regulating barrier to upward mobility within the workforce,” either in terms of increased wages or promotion to managerial positions.57

Further, courts have limited the legal rights of undocumented workers because of IRCA. In Hoffman Plastic, the Supreme Court held that an undocumented worker did not have the right to receive damages after his employer had violated his rights.58 It is undisputed that the employer had illegally fired the worker after finding out that he was involved in union organizing efforts, an activity protected by the National Labor Relations Act (NLRA).59Id. at 140. The Court, however, claimed that an award of damages for work never performed (otherwise known as “back pay”) under the NLRA was prohibited. In this instance, the Court reasoned that back pay, which was for work that could have been done had the worker not been illegally fired, would otherwise legitimate an illegal employment relationship prohibited by IRCA.60Id. at 151. A number of courts have followed Hoffman Plastic by preventing undocumented workers from getting damages for back pay.61

Despite the limitations of Hoffman Plastic, undocumented workers still have a panoply of rights under federal, state, and local law.62 The practical reality, however, is that undocumented workers are not truly free to exercise their rights. They fear that filing complaints might subject them to scrutiny or cause them to lose their job.63Gleeson, supra note 42, at 586. There is a sense of wanting to conform, which may mean not asking for pay raises, breaks, or taking any other action that “rock[s] the boat.”64Id. Undocumented workers, for example, may shoulder the responsibility for taking on precautions to not get injured during work because they either believe that they are not entitled to redress for such injuries or do not want to face increased scrutiny for requesting a benefit like workers’ compensation.65 Some employers will use immigration status as an explicit tool against workers by threatening to call local police or U.S. Immigration and Customs Enforcement (ICE) to arrest workers.66 In the past, workplaces where workers were organizing or agitating about workplace conditions have been targets for immigration enforcement.67

As a result, employers can more readily exploit undocumented workers. One large-scale survey of low-wage workers found that nearly half of the female undocumented workers surveyed had experienced a minimum wage violation in the previous work week, compared to the 16.1% of female native-born workers.68 A study of domestic workers found that undocumented workers were more likely to be threatened, pressured to work more hours, or pushed or physically hurt.69 Other studies of industries with a high concentration of undocumented workers have found similar evidence of exploitation. One study of women who work in the meatpacking industry found that they had suffered from wage theft and inadequate safety equipment and had been denied access to bathroom breaks or time off for family emergencies.70 Female farmworkers have reported a high level of sexual harassment and abuse on the job.71

Moreover, the immigration laws create this subclass of undocumented workers because they provide no mechanism for such workers to obtain lawful status in the United States. “High-skilled” workers with “extraordinary ability” or “advanced degrees” can readily obtain lawful status in the United States through employment.728 U.S.C. § 1153(b)(1)–(2). In contrast, the only opportunity for “less-credentialed” workers is through the temporary worker (“guest worker”) programs, which are limited to several hundreds of thousands of workers.73 These programs provide temporary visas for seasonal work that do not convert into permanent immigration status.74 As there are effectively no options for “less-credentialed” workers,75 they end up as participants in the “de facto” undocumented worker program.76

The “de facto” undocumented worker program is primarily brown-collar.77 While there are no precise figures on the national origin of undocumented workers, 94% of undocumented immigrants are from non-European countries, with nearly three-quarters from Latin America.78 As undocumented workers are concentrated in certain industries, it has added to the racial or ethnic segregation of workers into certain jobs. Latinx workers are known to dominate farm work and housekeeping.79 Racialized conceptions about workers also play a role in this segregation. Employers, for example, may express a preference for Latinx workers for low-wage work because of a belief that they “will work on a repetitious basis,” “seem to be good with their hands,” and “are willing to come and do whatever job you tell them without question.”80 This perceived docility naturally is the result of workers with precarious immigration status who do not want to make waves.81 Native-born workers too begin to absorb this mentality and refuse certain jobs (“Mexican work”) because they are associated with specific ethnic groups.82 The result, therefore, is the further segregation of brown-collar undocumented workers into specific low-wage jobs vulnerable to abuse and exploitation.

B. Recognition of Employer Exploitation

The federal government has to a limited extent recognized employer exploitation of undocumented workers. It does so by allowing undocumented workers to come forward and seek to hold “bad apple” employers accountable who have otherwise victimized undocumented workers. While providing redress to exploited workers is significant in and of itself, it can manage to obfuscate the systemic role that the immigration system plays in creating the plight of undocumented workers.

Despite Hoffman Plastic, the courts have recognized that undocumented workers have the right to bring claims under various federal statutes, including the Fair Labor Standards Act and Title VII.83 Undocumented workers have had access to the courts to address worker exploitation based on unpaid wages, discrimination, or health and safety violations.84

Such cases, however, often lead to a comparative culpability analysis that tries to determine who the guilty party is in the employment situation.85 The problem, of course, is that the analysis can focus on the wrongdoing by undocumented workers as well. Hoffman Plastic is an example where the worker’s use of false documents influenced the consideration of whether he could recover damages.86 In other cases involving workers’ compensation or torts, the use of false documents by undocumented workers has sometimes impacted their ability to recover damages.87

Federal agencies too have publicly acknowledged that federal laws protect undocumented workers in cases of employer exploitation.88 In particular, undocumented workers who are victims of human trafficking can obtain both economic redress and visas to remain in the United States.89 In order to obtain a visa, the worker must attempt to convince a law enforcement agency to support an application for immigration relief.90 The worker not only needs to demonstrate their victimization, but also must convince the agency of the employer’s criminal behavior.91Id. at 1079. This process is realistically only available to scenarios where employers have exercised some form of explicit coercion, leaving behind those workers who have “acquiesced” to more generalized exploitation.92Kim, supra note 17, at 1573.

Stories about private employer exploitation do provide stark examples of how undocumented workers are unequal and not free in the same way as native-born workers.93 At times, immigrant workers have rallied around such exploitation and engaged in organizing and direct action to confront such employers.94 Exposing exploitative employers can translate into real remedies for undocumented workers.95 It might also spur the passage of local or state level protective legislation that will help increase the social rights of such workers.96

The focus on the wrongdoing by employers, however, squarely places the blame of the exploitation of undocumented workers on the private sector. By providing a way to address exploitation, it makes available a stop-gap measure that for now can serve to placate undocumented workers.97 But such measures fundamentally fall short in addressing what is the true problem: how the immigration system itself is responsible for creating the plight of undocumented workers.

C. Moral Disapproval of “Illegal Workers”

Despite the plight of undocumented workers, the moral disapproval of “illegal workers” maintains this connection between migration and work. The prohibition of undocumented work is premised on a law and order concept that these immigrants have shown disrespect for the rule of law. These immigrants, who have either entered unlawfully or stayed beyond the expiration of their visa, have violated the immigration laws.98 The public discourse extends the concept of “illegality” to undocumented work. The term “illegal workers” is commonly used,99 even though IRCA was purposeful in not prohibiting immigrant workers themselves from engaging in undocumented work.100 Undocumented workers are morally suspect because they “steal” jobs and “drain” the United States of resources.101 Such moral claims, therefore, bolster the continued adherence to the principles of outlawing undocumented work, even with the well-known inefficacy of the federal prohibition.

The main moral claim centers on the undocumented worker’s “illegality.” The border crossing or visa overstay is no longer a single unlawful incident but rather “a facet” of an “‘illegal alien[‘s]’ very being” that has repercussions in other parts of their lives.102 By violating the rule of law, undocumented workers have forfeited their right to lawfully work within the United States. It follows that they should not benefit from any of the resources provided by the United States because they are breaking the law.103See Hanson, supra note 12. Violating the law has significance beyond the actual law itself. By letting people get away with violating the law, it also undermines the overall sanctity of the legal system and encourages future law breaking.104Id.

A different version of this moral claim focuses on the unfairness in allowing such “illegal” individuals to access the “limited” resource of jobs. Opponents characterize undocumented workers as unfair competition who “steal” jobs that belong to native-born workers.105 This claim is premised on a fixed resource of jobs, where “[i]f [the immigrant] didn’t have that job, somebody else, somebody born here, would have it.”106 It follows that the effect of undocumented work has had particularly deleterious consequences for “impoverished U.S. citizens” at the bottom of the economic ladder.107 Such native-born workers continue to be stereotyped by employers as being somehow averse to hard work, in comparison to their undocumented counterparts.108 Native-born workers, who have experienced barriers to employment based on criminal history, also claim that undocumented workers are able to avoid such screening processes because they evade the regular employment channels.109Gessen, supra note 105.

Together, these moral claims support the continuation of the federal prohibition despite its inefficacy for controlling migration. The federal prohibition has had no effect on stemming the tide of undocumented immigrants since its enactment.110Massey & Pren, supra note 76, at 24. Rather, Douglas Massey and Karen Pren chart the cause of the increase of the undocumented population from Latin America to the termination of the Bracero guest worker program with Mexico (1960s and 1970s) and the civil wars in Central America (1970s and 1980s).111Id. at 22–23. They also argue that the increased militarization of the border reduced the numbers of undocumented immigrants who migrated back to their home country.112Id. By increasing the costs of going back and forth, the undocumented population “hunker[ed]” down in the United States, swelling during the 1990s and 2000s.113Id. at 17–18.

The well-known under-enforcement of IRCA has created a system by which employers can readily violate the law.114 The federal government has catered to employers by providing broad exceptions to liability.115 Over the years, its attitude towards enforcement against businesses has stressed cooperation with employers.116 Employers are readily willing to violate the law, particularly in certain sectors where such violations are the norm.117 They can also evade the federal prohibition by outsourcing the hiring of undocumented workers to contractors or temp staffing agencies in order to insulate themselves from liability.118Heeren, supra note 17, at 245. Undocumented workers too do not believe that engaging in undocumented work, even with false documents, is somehow problematic.119

Yet there have been no attempts to repeal the employer sanctions since the 1990s.120 Rather, recent congressional activity on undocumented work has focused on further requiring employment verification of workers through electronic databases. Several current proposals, for example, seek to make it mandatory for all employers to use the E-Verify database.121 Some states and localities too have actively been seeking to further outlaw undocumented work by mandating E-Verify or criminalizing undocumented work.122 Beyond inaccuracies within the E-Verify database itself, these experiments have so far not been successful for similar reasons of under-enforcement or lack of compliance by employers.123 One comprehensive study of E-Verify also raised concerns about how mandatory E-Verify will result in driving undocumented workers further underground into the informal economy.124

II. Reconceptualizing the Undocumented Worker

By considering the undocumented workers as separate and apart from their immigration status, the focus becomes what is owed to them as members of the American community of workers. As workers first and foremost, it becomes apparent that the separate caste of undocumented workers violates American principles of equality and freedom.125 These principles, however imperfect in practice,126 derive from the history of racial subordination in the United States and the ideal of “nourish[ing] a vision of American society that emphasizes tolerance and the value of belonging.”127 The equality principle forbids the treatment of an individual as a member of an inferior or dependent caste.128 The principle of the freedom to work without coercion derives from the prohibition against slavery or indentured servitude.129 These values are really “a set of overlapping legal norms that aim to promote human flourishing.”130

While “illegality” stands to challenge whether these principles should apply to undocumented workers, a closer analysis reveals that it fails to convincingly ascribe a moral failing to undocumented workers that justifies their differential treatment. Even considering the plight of native-born workers, reciprocal obligations require extending the shared values of equality and freedom to undocumented workers as a matter of justice.

A. Equality

Equality addresses the separate caste of undocumented workers by requiring their equal membership in the community of workers regardless of their “illegality.” The key to this claim is redefining the membership of undocumented workers separate and apart from immigration status. Such equal treatment among all workers conforms to the widely accepted view that finds the scope of obligations of justice to be defined by membership in a common community.131 The current federal prohibition, however, denies equal rights and opportunities to undocumented workers, placing it at odds with this view of membership.

For Michael Walzer, membership in the polity should be defined by those who live, work, and are governed by the laws within the territory.132Walzer, supra note 15, at 60. In particular, his discussion of membership relates to the situation of noncitizen guest workers, brought into a territory for a fixed time period on a contract with a specific employer.133Id. at 56–57. As a matter of distributive justice, he finds that the state’s treatment of guest workers as outcasts without membership to be tantamount to tyranny.134Id. at 62–63. While Walzer’s work ultimately addresses membership within the polity—implicating citizenship status and its accompanying political rights—it can be used here for highlighting the moral limitations of denying undocumented workers membership in the American community of workers.

Linda Bosniak recognizes how membership, rather than being legally defined by citizenship status, could be treated as a matter of social fact.135 By defining membership in a different way, the citizenship status of a person is not morally relevant for purposes of “determining the civil, social, and economic rights of individuals who reside within the membership community.”136 Opposing the imposition of “less-than-complete-membership” on classes of noncitizen residents, therefore, “honors the egalitarian and anti-caste commitments to which liberal constitutionalism purports to aspire.”137

An analogous concept of membership can be found in the United States’ early history pertaining to noncitizens. James Madison’s view of “aliens” was that those who “expos[e] themselves to the burdens of the United States’ legal system, were entitled to insist on the observance of the whole of that legal system.”138 After the passage of the Fourteenth Amendment, the Supreme Court clarified this concept, explaining that due process and equal protection applied to noncitizens because they “are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”139 This concept of membership is what Gerald Neuman would describe as a “mutuality of obligation”—a kind of reciprocal view of membership.140Neuman, supra note 16, at 60.

In considering this mutuality of obligation, undocumented workers should be able to claim membership in the American community of workers as individuals who live, work, and participate in the economy and law of the United States.141 Carolina Núñez describes this reciprocal obligation to derive from not only the state’s ability to impose obligations upon undocumented workers but also the give or take between employer and worker.142Núñez, supra note 16, at 870–71. The very act of working demonstrates significant contribution and ties with the community that should garner the “full distribution of membership rights” as workers.143Id. at 870. Walzer too references this idea of reciprocity by highlighting how guest workers must be possessed of basic civil liberties because they are “[p]articipants in economy and law.”144 The act of working, without any accompanying requirement related to duration of presence, should be sufficient to trigger membership. The state’s responsibility to provide equal opportunity and rights to all workers then follows from this mutuality of obligation.

Such equality principles of membership are also reflected in our laws and institutions. The Supreme Court’s decision in Plyler v. Doe, for example, expresses this anti-caste vision of social membership by finding that undocumented children cannot be excluded from a public school education.145 While Plyler does not stand for the proposition of extending all rights to undocumented immigrants more generally, it does reference egalitarian principles for civil, social, and economic rights. It describes the situation of the “shadow population” as one that “raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.”146Id. at 218–19.

More recent court decisions have found that undocumented immigrants have equivalent rights to citizens to claim unpaid wages or seek a remedy for discrimination.147 Federal agencies have publicly acknowledged that they protect workers regardless of immigration status.148 While not explicitly addressing equality principles, they support the principle of equal treatment of undocumented workers separate and apart from their immigration status.

B. Freedom

The federal prohibition violates freedom principles. The outlawing of undocumented work limits the ability of workers to sell their labor, earn a living, and quit the workplace. Their condition is problematic because it violates principles of freedom from coercion in the workplace as well as liberty-oriented principles of self-expression, security, and dignity related to work. Notably, these constraints on freedom are being imposed on a distinct ethnic subclass of workers.

The Thirteenth Amendment enshrines the principle of freedom from coercion in the workplace.149 It “render[s] impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit.”150 The freedom to work includes “the right to determine the terms and conditions of labor, the right to gain from their labor, and the right to quit.”151 There are federal laws that already prohibit modern-day slavery, recognizing more subtle forms of psychological coercion used for pressuring workers to engage in forced labor.152 For undocumented workers, there are notable cases of workers who have been threatened with deportation as a form of coercion.153

Kathleen Kim, however, suggests that anti-coercion principles should extend beyond such explicit scenarios to addressing the structural coercion created by the federal prohibition.154Kim, supra note 17, at 1582. In essence, the coercion that undocumented workers experience is structural because it is created by the immigration system itself.155Id. The outlawing of undocumented work creates a system of servitude by impermissibly enabling “harsh overlordship or unwholesome conditions of work.”156 Undocumented workers are neither free to determine the terms and conditions of their labor nor are they in many instances truly free to quit.157 They cannot move freely from job to job, meaning they will tolerate abuse and exploitation to avoid rocking the boat.158

The freedom to work without coercion is also connected to “liberty-oriented ideas of independence, self-expression, personal satisfaction, security, and even dignity.”159 At a basic level, it includes the right to freely sell “one’s labor power” in order to survive.160Forbath, supra note 127, at 19–20. John Locke, for example, believed that each person has “‘property’ in his own ‘person.’”161 Interfering with this ability to work and reap the benefits, such as being coerced to labor for the benefit of others, is impermissible. Adam Smith explained that “[t]he patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property.”162

Taken to an extreme, the idea of being free to contract one’s own labor has actually led to deregulation of the workplace and increased inequality for low-wage workers.163 The freedom to work alone does not automatically translate into a person having meaningful, dignified, or well-paid work.164 Yet these liberty principles are significant for addressing the more fundamental problem confronting undocumented workers. Undocumented workers are foreclosed from selling their labor power to most United States employers.165 They lack access to any kind of social safety net so that working is a necessity to support families.1668 U.S.C. § 1611. As a result, they are left no options except to take jobs that are low-paying, dangerous, temporary, or involve hiring through various subcontractors or temporary staffing agencies.167

Further, the value of the liberty-oriented ideas about work is not just about its material ends. Work, as part of our humanity, is also about self-expression and dignity. Geoffrey Heeren explains that this connection to liberty and autonomy is “deeply rooted in this Nation’s history and tradition.”168 The Supreme Court has stated that anything that interferes with this freedom to work, such as the ability to define one’s occupation, “seems to be intolerable in any country where freedom prevails.”169 Work reflects the values of “respect, independence, and participation” and is a means of proving one’s self-worth in in the eyes of others.170 To some extent, all low-wage workers in the United States could claim that they have limited freedom for self-expression and dignity through work.171. For undocumented workers, however, the federal prohibition provides a more acute version of this problem, preventing them from taking advantage of their opportunity and ability to achieve things that they can and do value.172

Finally, these constraints on freedom operate almost exclusively against workers of color. The two-tier immigration system that allows “high-skilled” workers lawful work authorization and “low-skilled” workers no such authorization, has resulted in an undocumented “brown-collar workforce.”173 Maria Ontiveros notes the ways in which dehumanizing racialized rhetoric against undocumented workers is reminiscent of that used to describe slaves to justify their differential treatment.174Ontiveros, supra note 151, at 141. Depriving this ethnic subclass of workers the ability to work freely is morally problematic because it amounts to a “rigid social hierarchy that traps people in a system that holds them down.”175

C. Contending with “Illegality”

Some would argue, however, that the “illegality” of undocumented workers cancels out these principles of equality and freedom. It has the operative effect of either excluding a person from membership or condoning governmental action that constrains the freedom to work.176See supra Sections II.A & II.B. This exceptional treatment of undocumented workers is further rationalized to correct the unfair advantage undocumented workers supposedly have over native-born workers.177 A closer look at “illegality,” however, reveals that it falls short of justifying a violation of fundamental principles of equality and freedom. Further, an examination of fairness must also consider what is owed to undocumented workers, including as a matter of racial justice.

For starters, the act of unlawful entry or visa overstay is unconnected to the act of engaging in undocumented work. The unequal treatment of undocumented workers solely derives as a kind of punishment for the immigrant’s “illegality.” These earlier acts, however, are somewhat morally ambiguous.178 As acts that are not mala in se, they do not present an obvious risk to society or direct harm to victims.179Ryo, supra note 119, at 654.

Further, the “unlawful” act, which could have taken place last week, two years ago, or decades ago, is being extended to punish a person in other separate and distinct realms of their life.180 In the criminal context, this phenomenon of punishing individuals in realms entirely unrelated to their prior arrest or conviction occurs as well. Yet there has been a wholesale questioning of the fairness of such practices. States, for example, are beginning to address felon disenfranchisement as an unfair attempt to exclude those who have committed crimes in the past from their membership in the polity of voters.181 Recent governmental efforts have also countered the ways in which private entities discriminate against individuals with past criminal convictions in unrelated realms such as employment and housing.182

An undocumented worker’s “illegality” is also not the result of a simple individual and binary choice of whether or not to obey the law. The easiest example to contest this assumption is that of children, who many feel should have no culpability for their “illegality.”183 If children had no choice about violating the law because it was made by their parents, what about immigrants in situations where their personal circumstances left them little or no choice but to come to the United States? Immigrants may be fleeing political persecution or violence, unable to make a living to support their family due to climate change, or no longer be able to wait in the decade-long “line” to obtain a visa to reunite with their family in the United States.

The “economic” migrant is often maligned because the push factor of economic gain appears less sympathetic, thereby making such migrants legitimate targets for exclusion.184 Imagine a situation, however, where a person is unable to earn enough money to feed their children, put a roof over their head, or send them to school. How morally wrong does it seem if that person chooses to migrate to another country to address their economic woes? These examples demonstrate that the label of “illegal” may be more malleable than it first appears.185 Further, a more contextual and historical look shows the various factors that have produced the undocumented population over time, rather than focusing on individual acts of “illegality.”186Ahmad, supra note 29, at 289. There are limits, therefore, to morally justifying the condition of undocumented workers based on the sovereign’s national interest in holding individuals accountable for their “illegality.”

Consider too the United States’ corresponding obligation to uphold equality and freedom principles given its historic toleration of undocumented work.187 Hiroshi Motomura describes the presence of undocumented workers as a result of “[a] national policy of acquiescence,” resulting in a “tacit arrangement that is mutually beneficial.”188Id. at 107. It “assure[s] a supply of flexible, cheap labor, subject to discretionary, unpredictable, and inconsistent enforcement.”189Id. While some might dispute the extent to which the government is complicit with private employers in the invitation for workers,190 the reality is that low levels of enforcement over the years have certainly created a norm of toleration for undocumented work.191 It results in industries heavily employing undocumented workers. The food system, comprised of agriculture and food processing, and restaurants, provide a good example of the pervasiveness of undocumented work.192

This acquiescence, however, is not only about failed enforcement. It includes an economic system that enriches the country with undocumented work including: the government through taxes, private employers through profits, and consumers through cheap goods and services.193 The Internal Revenue Service (IRS), for example, collects taxes from undocumented workers without social security numbers through use of an Individual Taxpayer Identification Number (ITIN).194

Fairness, therefore, dictates that undocumented workers have the full rights and opportunities owed to any other worker in the United States. In his conception of justice as fairness, John Rawls explains that “society is interpreted as a cooperative venture for mutual advantage.”195 The obligation for equal treatment derives from the reciprocal obligations between the state and its members. Abridging the rights of undocumented workers, by restricting their liberty and freedom to work, is unfair to those workers who are exercising responsibility “not just to our loved ones but to our coworkers, and even to the larger community.”196 It is morally suspect, therefore, for the state to benefit from the existence of undocumented work while condemning such workers to non-membership or constraining their freedom to work.

While native-born workers at the bottom of the economic ladder may also face unfairness, their circumstances do not justify denying equality and freedom to undocumented workers. Native-born workers admittedly confront inequality as part and parcel of the larger systemic problems confronting low-wage workers, such as employer discrimination, the outsourcing of work, or the failure to pay living wages.197 These larger systemic problems, however, will not be solved by the continued differentiation of undocumented workers from the rest of the worker polity.198

Rather, there needs to be further understanding and negotiation between community members that opens up the dialogue about undocumented work.199 A focus on systemic problems can be helpful for opening up that dialogue. It helps to find commonalities between different groups of low-wage workers about their subordination within the workplace more generally.200 Major unions, for example, have undergone this precise transformation from expressing outward hostility towards undocumented workers to recognizing the commonalities of employer exploitation across low-wage work.201

Finally, this differential treatment of undocumented workers, who are primarily people of color, underscores the need for fairness. Here, the act of exclusion from the principles of equality and freedom is of a distinct racial or ethnic subclass of workers.202 The United States has developed anti-caste principles in response to this kind of racial subordination. To the extent that such exclusion begins to resemble such past racial subordination, it favors the rejection of any such differentiation as a matter of justice.

III. Benefits of the Countervailing Case

There are several benefits to considering undocumented workers separate and apart from their immigration status. First, it is an opportune time to be having this discussion. The current larger movement for immigrants is focused on the treatment of immigrants as a matter of equality, freedom, and racial justice. Seizing the moment, these moral claims can focus on the necessity of establishing universal rights that should attach to all workers in the United States regardless of immigration status. Second, this approach supersedes thinking about undocumented workers solely in economic terms, which has done little to contest the hegemony of the federal prohibition justified by the moral disapproval against “illegal” workers. Finally, this reconceptualization of the undocumented worker broadens the remedy, eschewing the more limited legalization proposals that focus on a smaller subset of “deserving” undocumented workers.

A. Opportune Time for Claims of Equality and Freedom

These claims of equality, freedom, and racial justice can build on the current fight for immigrant rights within the United States. The country lacks consensus about how to treat those who are present without lawful immigration status.203 There is growing resistance to the harsh treatment of immigrants by the federal system through the enactment of local sanctuary-type policies, engagement in public protest, and legal challenges.204 This expression of resistance is actively reinterpreting existing conceptions of justice for immigrants within the United States.205 With its focus on equality and freedom for a population that is vastly non-European, this fight also dovetails with other movements for racial justice such as Black Lives Matter.206

Local sanctuary-type policies can provide a robust expression of equality and freedom principles for undocumented immigrants. Across the country, they have mostly sought to address the ways in which undocumented immigrants have been excluded from equal treatment and participation in the community.207 In terms of equality, they have restored some social and civil rights to undocumented immigrants by providing access to local benefits, such as state or municipal identification, in-state tuition, or professional licenses. In terms of freedom, they have sought to protect undocumented immigrants by creating a safer environment in which immigrants could be at increased liberty to live and work within their communities. Some common policies include disentangling ICE enforcement from local law enforcement208 or protecting immigrant workers from immigration-related threats by employers.209 These sanctuary-type policies symbolically demarcate who is a full member of the community.210 By doing so, they countenance anti-subordination principles that reject the separation of immigrants into a distinct caste from other community members.

A closer look at the purpose of these sanctuary-type policies reveal that they are often grounded in equality and freedom principles. Many of these policies express values of equal protection and equal treatment based on the ways in which immigrants are members of the local community.211 The New York City Identification Card Program, for example, states that its purpose is to “ensure that every New Yorker is provided with the opportunity and peace of mind that comes with possessing a government issued photo identification.”212 In terms of freedom principles, the Boston Trust Act seeks to “[p]rotec[t] the civil rights, civil liberties, and safety of residents” while “provid[ing] opportunity, access, and equality for immigrants.”213 In Philadelphia, a city council resolution expresses these freedom principles in the context of undocumented workers by “[r]ecognizing every person’s fundamental right to earn a living, regardless of immigration status” while affirming a “commitment to protect and secure a safe and dignified workplace for all.”214

Immigrant movements too within the United States have similarly grounded their message in these equality and freedom principles. The movement for undocumented youth focuses on how such youth are denied full equal membership in society although they are “Americans in every way but on paper.”215 Religious institutions have publicly sought to provide sanctuary or other protections to migrants who are facing deportation.216 As a matter of faith, they argue for “respect[ing] the dignity of every resident of this country.”217Id. at 11. Those rallying to abolish ICE focus on freedom from the “cruelty” of a mass deportation and detention system that is “indiscriminate” or “random.”218 This protest meme has come to symbolize the ways in which ICE’s “authoritarian” tactics have infringed on basic freedoms by “harassing, pursuing, and terrorizing immigrants and activists all over this country with impunity. . . . forcing immigrants to live in fear, while making the rest of us less safe.”219 Jewish groups have been gathering to protest outside of migrant detention facilities across the United States calling them “concentration camps” engaged in “state-sponsored dehumanization.”220

Lawsuits are winding their way through the courts, notably for challenging the treatment of immigrants as an issue of racial equality.221 As of late, the public discourse about the connection between racial inequality and the treatment of immigrants has become more explicit. In 2018, advocacy organizations filed multiple lawsuits to contest the termination of Temporary Protected Status (TPS) for immigrants from multiple countries based on racial, ethnic, or national origin discrimination against TPS holders.222 In 2019, state attorneys general came together again to sue on the new public charge rule, which seeks to expand the kind of benefits to disqualify immigrants from lawful permanent residency. In announcing the filing of the lawsuit, Letitia James, the New York Attorney General, stated that the new rule “implements this Administration’s explicit animus against immigrants of color.”223 The Supreme Court recently rejected the equal protection claim in the lawsuits filed by multiple state attorneys general against the termination of the Deferred Action for Childhood Arrivals (DACA).224 While disagreeing with the majority, Justice Sotomayor wrote that the plaintiffs had stated a plausible claim because of “the disproportionate impact of the rescission decision on Latinos” and because “‘the words of the President’ help to ‘create the strong perception’ that the rescission decision was ‘contaminated by impermissible discriminatory animus.’”225

The focus on racial inequality also dovetails with the recent surge of anti-racist protests focusing on how institutions, like the police, are creating, replicating, or maintaining racial injustice.226Cobb, supra note 25. Here too the interposition of race on the inequality or subordination of undocumented workers plays an important role for these claims of equality and freedom. While the federal prohibition on undocumented work is not overtly based on race, its outright effect is of unequal treatment and subordination of workers of color. As racial justice conversations come to focus on structural racism, the plight of the undocumented worker provides a perfect example of the ways in which the immigration system has structurally created a separate caste of workers who are neither equal nor free.

While the primacy of the federal law seemingly justifies the harsh treatment of undocumented immigrants, it does not ultimately control this discourse. Rather, social movements more generally focused on immigrant rights are actively bringing about new meanings of justice for undocumented immigrants. The rise of sanctuary policies nationwide reflects the shared American values of equality and freedom as extended to undocumented immigrants. The interposition of ethnicity on the inequality or subordination of undocumented immigrants too plays an important role in this national conversation, connecting to shared values that oppose systemic racism.

The landscape for making the case for legalizing undocumented work, therefore, has drastically changed from even a decade ago. The outright effect of the federal prohibition on undocumented work is the unequal treatment and subordination of workers of color. The case for legalizing undocumented work can dovetail with the growing social movements that focus on freedom, equality, and racial justice for undocumented immigrants.

B. Superseding Economic Claims

A focus on these principles of equality and freedom supersedes the economic benefit arguments that are used to justify the fair treatment of undocumented workers. Economic arguments can counter the “illegality” of undocumented workers by building sympathy for them as “hard workers.”227 Yet pragmatic economic arguments have so far proved insufficient in countering the far-reaching moral disapproval of undocumented work that underlies the federal prohibition. The economic studies vary widely and are often mired in debates about costs and benefits. Rather, social movement actors need to move beyond these economic claims to make the moral case for equality and freedom grounded in anti-racial subordination principles.228

The coronavirus pandemic has crystallized how little the economics of undocumented work matter when arguing for the fair treatment of undocumented workers. Many undocumented workers are “essential workers” to the economy.229 Yet the “principle” behind the federal prohibition is alive and well. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) denies a federal tax rebate to undocumented workers and their families.230Id. at 1. Even with the massive layoffs due to the pandemic, there is no attempt to extend unemployment benefits to these workers.231 California and New York so far are the only states to establish any kind of relief program for undocumented workers.232

Further, there is controversy about the precise economic effects of undocumented workers in the United States, although such studies do generally manage to refute hyperbolic claims that undocumented workers are “stealing jobs” or “draining resources” from the United States.233 First, it is unclear whether undocumented workers are displacing native-born workers or simply working in industries that have worker shortages. Some studies show that immigrant workers and native-born workers are largely employed in different industries, sectors, or jobs.234 Other studies show that there is some overlap between immigrant workers and native-born workers within certain industries.235 In some studies focused on cities, immigrant workers did displace African American workers in specific occupations.236 Yet another nationwide analysis shows that cities with greater immigration from Latin America had lower unemployment and more jobs among African Americans.237

Studies examining the wages of native-born workers are also mixed. According to some, the immigrant workers put downward pressure on the wages of specific groups of native-born workers, such as high school dropouts.238 An overall review of 27 studies on wage effects, however, finds that while the results are mixed, the measured effects are “economically very small” and “not statistically significant.”239 This same review found that the largest concentration of estimated effects is clustered around zero. Some scholars explain that these studies arrive at mixed results because of the differential methodology, including the assumptions made about labor supply and markets.240

Finally, multiple one-sided studies have come up with opposite results about the economic impact of immigrant workers on the United States economy. In terms of costs, a recent study by Federation for American Immigration Reform (FAIR) estimated that undocumented immigrants cost $116 billion each year, although it has been criticized as “[f]atally [f]lawed.”241 In terms of benefits, a 2013 estimate found that undocumented immigrants paid an estimated $11.74 billion in state and local taxes in 2010, which includes $1.1 billion in personal income taxes.242 More recent estimates find that the removal of undocumented workers would not only result in a double-digit reduction of the workforces in certain industries but also result in a significant loss in gross domestic product (GDP).243 Another study found that immigrant workers not only help make products and services cheaper but also provide affordable services like child and elder care that increase the capacity of female professionals to work.244 In a report that looks at both costs and benefits, the National Academies of Sciences, Engineering, and Medicine estimated the net cost per immigrant to be $1,600 per year for state and local governments for first-generation immigrants (including the cost of K–12 education), while finding that children and grandchildren of immigrants paid far more in taxes than they consumed in public services.245

Make no mistake, economic-benefit arguments about how undocumented workers can enhance the welfare of all Americans can be attractive.246 The refrain that “immigrants do the jobs that no American will do” helps to create recognition of how such undocumented workers are integral to our economy. Yet economic arguments do not appear to have a significant effect on attitudes about undocumented immigrants.247 Instead of focusing solely on these pragmatic considerations, moral claims for legalizing undocumented work directly assail the claim that such workers deserve their condition because of their “illegality.”

C. Impacting All Undocumented Workers

The focus on legalizing undocumented work provides for a broader approach that applies to all workers within the United States. By disentangling work from migration, it overcomes the inevitable limits of citizenship status proposals. The ready solution for undocumented work usually focuses on a program that would allow undocumented workers to convert to lawful status and eventually obtain citizenship (“legalization”). The beneficiaries of such programs, however, are limited to those “deserving” immigrants who can qualify to earn their legalization.

Over the past few decades, there have been several attempts to enact some kind of legalization program. In both 2007 and 2013, bipartisan legalization programs were negotiated.248 Both bills provided for the legalization of immigrant youth (DREAMers), agricultural workers, and other undocumented immigrants who met specific criteria.249 These programs excluded undocumented immigrants who, for example, had past criminal convictions, insufficient continuous presence, or an inability to meet financial obligations (including the payment of a monetary fine).250

Even those who could initially meet the requirements to obtain temporary lawful status could face further barriers to obtain permanent legal status. The 2013 bill, for example, provided temporary lawful status for certain undocumented immigrants, called registered provisional immigrant (RPI) status.251S. 744 § 2101. A worker in RPI status would have to maintain a more or less solid work trajectory for ten years to earn lawful permanent residency.252Id. RPIs, who are low-wage workers, could also have difficulty meeting the minimum income requirements to show that they will not become a “public charge” to qualify for lawful permanent residency.253See S. 744 §§ 2101, 2323. Women, who on average earn less money, would be less likely to meet the requirements.254

Most recently, the Trump administration’s Reforming American Immigration for a Strong Economy (RAISE) Act favors legalization of young workers with high levels of education, disqualifying much of the undocumented worker population.255 The heavy politics against legalization, which opponents derisively label as “amnesty,” will ensure that any such program contains multiple barriers, particularly for those with less education. Even the Biden administration’s most recent proposal may ultimately leave behind many undocumented workers.256Shear, supra note 29.

Legalization ensures, therefore, that lawful status is earned as an entitlement for “deserving” immigrants. Muneer Ahmad details how earned citizenship underlies the concept of the moral transgression of undocumented immigrants.257See Ahmad, supra note 29, at 288. It does so by necessitating that immigrants earn their status while subjecting them to penal and disciplinary measures for their transgression. Angélica Cházaro similarly argues about the harms of focusing on individualized case-by-case earned legalization, which serves to mask the greater systemic harms related to the entire category of “illegality.”258Cházaro, supra note 29, at 387–88. With that line drawing comes the moral judgment about those left behind, who were “undeserving” of legalization as they were ultimately unable to overcome their “illegality.”

By separating the legality of work from citizenship status, therefore, it provides for a more universal remedy than legalization programs for status citizenship.259 While the legalization of citizenship status is a life-changing opportunity for those who can qualify, the criticism lies with it as a necessarily incomplete solution for addressing the plight of undocumented workers. The moral claims about the systemic inequality and subordination of undocumented work support a broader vision that does not rely on undocumented workers “deserving” rights. Rather, this vision looks to legalizing undocumented work for all workers within our borders.

IV. Practical Considerations

In this last Section, I offer some preliminary ideas about the more practical aspects of legalizing undocumented work. There are a couple of ways to approach the legalization of undocumented work and the accompanying challenges that exist with designing such a system. At the same time, I acknowledge that there are limitations to legalizing undocumented work. For this reason, it is significant that there are additional protections in place that ensure that ICE does not engage in enforcement at the workplace. Finally, while the steps that social movements for undocumented workers need to take to legalize undocumented work are beyond the scope of this paper, it offers a few brief ideas about how the principles of freedom and equality, grounded in anti-racial subordination, can help shape injustice frames to propel collective action.260

A. Two Options for Legalizing Undocumented Work

The legalization of undocumented work can take on two approaches: simply repealing the prohibition on undocumented work or affirmatively legalizing undocumented work. Both approaches raise challenges. Should workers be registered into some kind of database? What kind of protections exist to prevent such a database from being used for immigration enforcement purposes? Despite having the lawful ability to work, undocumented workers would still be vulnerable to employers who could use the possibility of deportation to keep workers subordinated. While the legalization of undocumented work is not a panacea, it is a significant step to removing some of the precariousness undocumented workers experience on a daily basis. In turn, the hope is that they will have increased power to negotiate, complain, and agitate for workplace reform.

By repealing the prohibition on undocumented work, employers could hire those without work authorization.261 Employers, for example, would no longer engage in the I-9 process to verify documents of a worker.262 It would obviate the need to use false documents for employment, reducing an undocumented worker’s exposure to potential civil or criminal liability relating to document fraud. This repeal would return employers to the system that existed prior to the enactment of IRCA in 1986.263 Without the employer prohibition at the federal level, there would no longer be federalism concerns about states and localities regulating undocumented work.

States and localities that seek to restrict immigration would likely enact harsh measures that penalize employers and undocumented workers. Several states have already enacted E-Verify laws that penalize employers by revoking their licenses for having hired undocumented workers.264 Arizona went further by seeking to criminalize workers for engaging in undocumented work, although this provision was preempted by IRCA.265 Prior to IRCA, states and localities had laws on the books to regulate the work of immigrants in various ways, often focusing their laws to keep immigrants out of particular industries.266Heeren, supra note 17, at 252 n.68.

In contrast, states and localities that seek to welcome immigrants could choose to go further to enact measures that help to affirmatively legalize undocumented work. They could issue state or local-level work permits for residents. These permits could be tied to other benefits that exist for residents and help with the payment and collection of taxes. The closest example to such local programs is when states have attempted to create their own guest worker programs.267 These programs were not only preempted but also problematic because of the well-known abuses in the guest worker programs.268 Yet they provide a glimpse into how some states have sought to independently legalize immigrant workers at the local level.

While there may be some discomfort about how this free-for-all would result in fragmentation among states and localities, it is already occurring on the issue of immigrants.269 Sanctuary-type policies are a good example of this difference.270 Rather than view such dichotomy as a harm to national identity, policy divergences at the local level can be helpful.271 Undocumented workers may vote with their feet, leaving behind jurisdictions that are less welcoming.272 The differential treatment can create a natural experiment about the benefits and drawbacks of legalizing undocumented work. Are places suddenly faced with high unemployment or economic benefits? What is the impact of defining the community more exclusively or inclusively? What does the landscape look like for workers in differing jurisdictions in terms of workplace standards and rights?

Beyond repealing the prohibition on undocumented work, the federal government could take additional steps to legalize undocumented work. Such steps could potentially prevent states and localities from legislating to penalize undocumented work because of preemption.273 Federal immigration law, for example, could be amended to include an affirmative statement about the legality of undocumented work. Such language might state: “Any person or entity may recruit, hire, or employ an alien that is present in the United States, regardless of whether the alien is lawfully admitted for permanent residence or otherwise authorized to be lawfully present in the United States.” By creating an affirmative program at the federal level, it would uniformly legalize undocumented work and create facially equal rights for undocumented workers under labor and employment laws.274

There are still, however, practical challenges with these two options. The first is the creation of some type of workable registration system for undocumented workers to facilitate the payment of payroll taxes. Such a system would require protections to prevent such information from being used for immigration enforcement purposes. The second more fundamental challenge to these proposals is one of political feasibility.

The Federal Insurance Contributions Act (FICA) requires that employers pay a contribution to the Social Security and Medicare programs on behalf of an employee. Employers are also required by law to deduct the employee’s contribution to the Social Security and Medicare programs. Currently, undocumented workers who work under false social security numbers (SSNs) are paying into the system, which has resulted in an estimated $13 billion annually paid in payroll taxes.275 With either approach, undocumented workers would need an SSN-type number so that employers could comply with FICA. The Social Security Administration (SSA), for example, could issue such numbers to undocumented workers that could be used solely for purposes of FICA and filing taxes with the IRS.

Undocumented immigrants, however, are categorically ineligible for federal public benefits such as Social Security or Medicare.2768 U.S.C. § 1611. If the law continues to make undocumented workers ineligible, they are paying into a system from which they will never benefit. Native-born workers and lawful permanent residents can only qualify for these benefits if they have earned forty lifetime credits. What if undocumented immigrants who meet these requirements could similarly obtain this benefit? On the one hand, it might seem reasonable to open up the system to undocumented workers who have earned the forty lifetime credits. On the other hand, powerful political discourse about immigrants “draining taxpayer resources” will likely prevent them from obtaining this kind of federal benefit.277 An alternative idea would be to create a separate fund from these FICA payments that could be reimbursed annually to undocumented workers when they file their taxes.278

Further, there is some concern about how an SSN-type number can cause employers or the government to track undocumented workers. If such numbers are facially different, employers would be able to recognize who among their employees is an undocumented worker. This differentiation could facilitate the same kind of employer exploitation of undocumented workers that exists under the current system. There is also concern that the federal government will use such information to conduct immigration enforcement. In the past, the SSA has not shared information with ICE for immigration enforcement purposes. The SSA, for example, has a no-match letter program. It issues letters to employers when it finds that the SSN listed on the Form W-2 does not match the SSA’s records. The SSA, however, has steadfastly announced that the purpose of these letters is to “properly post its employee’s earnings to the correct record.”279 In fact, the SSA has interpreted the sharing of such information with ICE as a violation of federal law.280

While at first glance, the creation of an SSN-type number system for undocumented workers may seem unworkable, the IRS’s ITIN system provides a good example. In 1996, the IRS began to issue ITINs to help those without SSNs to “comply with the U.S. tax laws.”281 While ITINs are not exclusively issued to undocumented immigrants, millions of undocumented immigrants have obtained ITINs in order to file their taxes each year.282 The IRS has been successful in catering to undocumented immigrants by advertising that the ITIN is available for any person regardless of immigration status.283 In fact, the Internal Revenue Code prohibits the sharing of taxpayer information with any other federal agency.284I.R.C. § 6103. A similar restriction would have to be enacted for the SSA to ensure the confidentiality of such records.285

In terms of political feasibility, it is hard to imagine building the necessary impetus for repealing the federal prohibition, much less creating a new system that allows workers to lawfully work in the United States. If the failed attempts to enact legalization are any kind of barometer for feasibility, these proposals will be politically challenging. At the same time, unlike issues of citizenship status, these proposals do not require contending with the harder questions of who “deserves” citizenship status. All workers would be automatically eligible to lawfully work in the United States.

B. Limitations of Legalizing Undocumented Work

Even assuming the successful creation of a system that can legalize undocumented work, such workers are still at risk of exploitation. Unscrupulous employers who suspect or discover the undocumented status of workers may seek to use the threat of immigration enforcement to exploit such workers. Regardless of the lawful ability to work, undocumented workers are still at risk of arrest, detention, and deportation by ICE.

The anti-retaliation provisions of many federal laws ostensibly protect workers from such immigration-related retaliation if workers have voiced or filed workplace complaints.286 Yet such protections are piecemeal, as they are dispersed within various labor and employment laws. A comprehensive and federal anti-retaliation provision that is more specifically applicable towards immigration-enforcement retaliation could more readily protect undocumented workers. In California, for example, the law protects undocumented workers by issuing civil penalties for employers who call or threaten to call the police or ICE in response to workers asserting their rights under the state labor and employment laws.287 There are other states and localities that have defined the crime of extortion to include threatening immigration enforcement in order to stop a worker from obtaining a work-related benefit.288 In order to make such an anti-retaliation law truly effective at the federal level, it would require the Department of Labor (DOL) to engage in active community education with both employers and workers to notify them of the prohibition on retaliation. The funding that is used by ICE to conduct I-9 audits and workplace raids could be transferred to the DOL to fund enforcement of this program.

It is also crucial that the government act to restrain ICE from engaging in immigration enforcement at the workplace. Currently, a memorandum of understanding (MOU) exists between ICE and other federal agencies that enforce workers’ rights, such as the DOL, Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB).289 This MOU states that ICE will generally refrain from engaging in enforcement at a worksite if there is an existing investigation of a labor dispute. Yet it fails to consider the many forms of immigration-enforcement retaliation that occur at the workplace prior to initiating a federal investigation. Ex ante monitoring could help address this problem.290 The laws could require that ICE get permission from the DOL before engaging in any enforcement action at a workplace.291Id. Even more significantly, the workplace should be off-limits as a site for immigration enforcement. At least one federal proposal has envisioned increasing the ability of undocumented workers to obtain visas based on serious workplace abuses, which would help address any retaliatory actions for their deportation.292

The failure to address immigration status, however, ultimately leaves intact the overall caste system created by the differentiations between those with and without lawful immigration status. There is no denying that legalizing undocumented work is an incomplete solution for undocumented immigrants. From the perspective of workers, however, the workplace remains an incredibly important part of the everyday lived experiences of many undocumented immigrants.293

Further, the ability of workers to freely quit their jobs and seek work elsewhere without limitations will hopefully change the dynamics of the workplace. Currently, undocumented workers may remain in jobs and put up with unjust or unsafe working conditions because of the fear of being “discovered” or the anxiety of having to find another job in a limited market for undocumented work.294 The legalization of undocumented work may make some undocumented workers feel more comfortable to negotiate or complain about on-the-job conditions. There may be psychological benefits too in gaining some stability and power in the workplace.295 While the imbalance of power between employers and low-wage workers will persist, there should be increased pressure on employers to improve the on-the-job conditions needed to attract and retain workers.

The focus on undocumented work too is not meant to imply that social rights should only be restored to “deserving” working immigrants. Outside of work, there are many issues that confront undocumented immigrants that violate principles of equality or freedom, such as equal access to benefits or freedom from civil detention. Rather than perceive the focus on undocumented work as exclusionary, it serves as a test case concerning the restoration of additional social and political rights to undocumented immigrants. In doing so, it will help to lessen the “illegality” of such immigrants by helping to strengthen their worker identities and reduce intergroup bias.296 As undocumented workers engage in legal work within their communities, the more incongruous their “illegality” as a matter of citizenship status will be with their lived lives.

C. Connecting to the Social Movement

Undocumented workers feel wronged by the current immigration system. At times, they have organized to demand fairness, justice, and respect. Social movements, however, require oppressed individuals to view the problem no longer as misfortune, but as an injustice.297 Arguments for legalizing undocumented work can connect with the moral intuitions and principles expressed by these workers. By countering the moral disapproval of “illegal” workers with equality and freedom principles grounded in anti-racial subordination, such arguments can help develop injustice frames for the social movement. In turn, such frames provide the potential for mobilizing immigrants and allies based on their high degree of resonance with their current life situation or ideology.298See id. at 476–77.

In reviewing the success of the civil rights movement, Aldon Morris discusses how “[p]eople must develop an oppositional consciousness that provides them with a critique of the status quo and reasons to believe that acting collectively will lead to change.”299 Collective action frames “negotiate a shared understanding of some problematic condition or situation they define as in need of change, make attributions regarding who or what is to blame, articulate an alternative set of arrangements, and urge others to act in concert to affect change.”300 Rebellion against authorities is partly dependent on the generation and adoption of an injustice frame, which defines the system as unjust while justifying noncompliance.301Id. “Frame alignment,” which involves a broad consensus between individual interests, values, and beliefs and a social movement’s activities, goals, and ideology, is a necessary condition for movement participation.302

Undocumented workers already have some elements of oppositional consciousness about their work that contests its “illegality.” They have suggested that there is no “illegality” in seeking a job or supporting one’s family.303Coutin, supra note 102, at 23. Emily Ryo has empirically studied the legal consciousness of undocumented immigrants and found a common refrain of “we only come to work; we don’t come to harm anyone.”304Ryo, supra note 119, at 653. Undocumented workers view their work as legal and honorable and a benefit to society.305Id. at 654. Shannon Gleeson too has studied undocumented workers who emphasized that their sense of belonging is shaped by having come to the United States to work.306Gleeson, supra note 42, at 590. Workers explain that their work ethic sets them apart from other workers.307 Maria Eugenia Fernández-Esquer, Maria Carolina Agoff, and Isabel M. Leal also found that undocumented workers claim an identity that they are essential and irreplaceable: “If we’re not here to do these jobs, who’ll do it for them?”308 They justify undocumented work by stating that their families have to eat and would probably starve without such work.309Id. In order to support their families, there was nothing wrong with using false documents to get work.310 As one undocumented worker summed up: “All the government cares about is whether you are working and paying taxes.”311Id.

At times, there have been instances of collective action against the immigration system and the ways in which it “illegalizes” undocumented work. Immigrant workers have engaged in work stoppages and consumer boycotts in actions known by various names, such as “Day Without Immigrants” or “May Day Resistance.” The largest of these work stoppages occurred in 2006, with accompanying rallies of over a million people. As a result, some businesses were forced to close down for the day across the United States.312 While the focus was on defeating a bill pending in Congress that would criminalize undocumented immigrants, it more broadly sought to argue that immigrants deserve the right to continue to live and work in the United States. Immigrants carried various signs that alluded to their contributions as workers, such as, “We build your homes,” as well as more controversial signs that sought to differentiate themselves from less “desirable” immigrants, such as, “We are not terrorists.”313Id. Another more recent series of “Day Without Latinos” and “May Day Resistance” actions occurred across the country in 2017.314 These actions were similar in wanting to bring awareness to the contributions immigrant workers provide to the United States but also focused on denouncing the impact of the Trump administration’s get-tough immigration policy on vulnerable workers in some of America’s lowest-paying jobs.315Id.

Immigrant workers, along with allies, have also participated collectively in direct actions in response to ICE workplace audits that have led to mass firing of undocumented workers. Chipotle fired hundreds of workers after an I-9 audit. In protest, community allies were arrested for chaining themselves together other in a Chipotle restaurant.316 Other immigrants and allies shut down an intersection in front of a Silicon Valley supermarket chain where hundreds were fired after an I-9 audit and walked off the job of a recycling facility when their employer and ICE threatened their jobs in a similar audit.317 Workers from the famed Tom Cat Bakery, who were fired after an I-9 audit, protested their firings demanding dignity and respect.318 A “Day Without Bread” protest involved community allies chaining themselves to one of the bakery’s morning delivery trucks in protest of the firings.319 Henry Rivera, a Tom Cat Bakery worker who walked off the job in protest, explained, “We’re on strike today to send a message that we help make America great and we cannot just be thrown away like day-old bread.”320Id..

By focusing on the universal principles of equality and freedom that should attach to all workers in the United States regardless of immigration status, it offers additional injustice frames that can potentially support the mobilization of undocumented workers and allies. Frame alignment can transform the feelings of discontent into injustice by recruiting and mobilizing individuals for collective action. Community activists, for example, have found that the language of human rights or civil rights helps to mobilize “Latinos and immigrants” around various issues to “understand that their fights are interlaced.”321 In particular, the framing of the immigration system’s treatment of undocumented workers as a matter of racial subordination can lend support to this mobilization. Studies have shown that anti-immigrant policies have promoted “ethnic group solidarity and political mobilisation” across the Latinx public.322

Still, there remain large questions ahead of how to further mobilize undocumented workers into social movements. One of the major barriers to collective action among immigrants is fear. As discussed above, undocumented workers avoid complaining about problems and even “internalize an ideal in which ‘good’ workers endure such conditions quietly.”323 For this reason, allies can be significant in supporting the mobilization of such undocumented workers. As one community organizer said after a Day Without Immigrants action: “It’s important to let workers know that organizations have their backs if they do suffer retaliation.”324DiMaggio & Singh, supra note 314. Employers too have acted in solidarity by shutting down businesses during Day Without Immigrant actions.325 Business owners, particularly with immigrant roots of their own, explained “the importance of making a statement and standing behind all of our staff.”326 Unions have included undocumented workers into their bargaining units announcing the “dignity of labor done by all workers regardless of their immigration status.”327 They have negotiated collective bargaining agreements with employers that explicitly seek an agreement not to cooperate with ICE enforcement tactics.328

Uneven Regulatory Geography of Immigration Policy, 104 Ass’n Am. Geographers 329, 333 (2014). A group called Sanctuary Restaurants has created networks across restaurants to protect workers from deportation.329 Consumers still remain a relatively untapped potential source of influence. The Fair Food Program and Milk with Dignity campaign offer innovative examples of how worker organizing allied with consumers can accomplish political pressure.330 The use of injustice frames can similarly mobilize additional allies who feel the necessity and propriety of standing up.331

These injustice frames of freedom and equality, grounded in anti-racial subordination, therefore, might offer some ways to further build these social movements for undocumented workers. In general, principles of equality and freedom already resonate across immigrant movements. While the challenge ahead is significant, the fight for legalizing undocumented work can connect to the moral intuitions and principles shared by undocumented workers and allies to mobilize for change.332

Conclusion

Undocumented workers exist as a separate subclass of workers subject to exploitation in the United States. The reconceptualization of the undocumented worker separate and apart from their immigration status provides a new way of thinking about the problem of undocumented work. By tying the treatment of undocumented workers to more fundamental American principles of equality and freedom within the context of racial justice, it responds to the emotional opposition that undocumented work engenders.333 It resonates with the current social movements for immigrant rights engaged in resistance against the federal government concerning the treatment of undocumented immigrants. It holds promise in terms of linking with the current consciousness of undocumented workers and offering collective framing for building a more robust social movement about undocumented work.

These principles of equality, freedom, and racial injustice ultimately explain why undocumented work should be lawful within the United States. Yet the legalization of undocumented work is not meant to be an end in and of itself. There is still much practical work to make these concepts for undocumented workers into a reality. As low-wage workers, undocumented workers will still contend with many of the problems associated with the imbalance of power between such workers and their employers. Further, as undocumented immigrants, their freedom would be hindered as they continue to be at risk for deportation from the United States. The disentanglement of work from migration, however, is a first step for reconsidering the ways in which the “illegality” of immigrants deprives them of social, economic, and political rights in the United States. The legalization of undocumented work will practically provide such immigrants with increased power. By changing the dynamics of power, undocumented workers may then advocate for improvements to the workplace or expanded opportunities for pathways to citizenship.

* Associate Professor of Law, Sheller Center for Social Justice, Temple University Beasley School of Law. I would like to thank Jane Baron, Martha Fineman, Jennifer Gordon, Llezlie Green, Rick Greenstein, Kathleen Kim, Angela Morrison, Jaya Ramji-Nogales, Rachel Rebouché, Peter Spiro, and the participants of the Precarious Workplace Workshop at Texas A&M University School of Law. Natalia Ruggiero and Thomas Chapman provided invaluable research assistance.