Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government\u27s immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its suitability for that role. More strikingly, none have explored the Interstate Commerce Clause as an appropriate source of the immigration power, one that could open the door to a normalization of constitutional analysis in the immigration context. The Article argues that both the Foreign and the Interstate Commerce Clauses should be understood to undergird the contemporary immigration power, and suggests that acknowledging immigration’s relationship to the Commerce Clause clears a path to more routine constitutional review of immigration law and policy

Regulating the Human Supply Chain

Over the past decade, the United States has experienced a stunning 65% decline in undocumented immigration. While politicians seem unaware of this change, firms that once relied on local undocumented workers as a low-wage labor force feel it acutely. Such companies have increasingly applied to sponsor temporary migrants from abroad (sometimes called “guest workers”) to fill empty jobs. In 2015, the number of migrant workers entering the United States on visas was nearly double that of undocumented arrivals—almost the inverse of just 10 years earlier. Yet notice of this dramatic shift, and examination of its implications for U.S. law and the regulation of employment in particular, has been absent from legal scholarship. This Article fills that gap, arguing that employers’ recruitment of would-be migrants from other countries, unlike their use of undocumented workers already in the United States, creates a transnational network of labor intermediaries—the “human supply chain”—whose operation undermines the rule of law in the workplace, benefitting U.S. companies by reducing labor costs while creating distributional harms for U.S. workers, and placing temporary migrant workers in situations of severe subordination. It identifies the human supply chain as a key structure of the global economy, a close analog to the more familiar product supply chains through which U.S. companies manufacture products abroad. The Article highlights a stark governance deficit with regard to human supply chains, analyzing the causes and harmful effects of an effectively unregulated world market for human labor. Drawing on the author’s original research into innovative public, private, and hybrid approaches to the governance of human supply chains, the Article sets out and evaluates a range of potential interventions, ultimately proposing a new supply chain liability that realigns risk and responsibility for the harms that attend the global recruitment of low-wage workers

Transnational Labor Citizenship

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to prevent people from moving in search of work is to curtail their chance to build a decent life for themselves and their families. But from the perspective of workers in the country that receives them, the more immigrants, the more competition, and the worse work becomes. As an advocate for immigrant workers for over twenty years, I have often spoken from the heart of that dilemma. This Article proposes a way out. In it, I develop the idea of transnational labor citizenship, a new approach to structuring cross-border labor migration that draws on, but goes beyond, current theories of transnational political citizenship. Transnational labor citizenship reconceptualizes the relationship among the governments of immigrant sending and receiving countries, civil society labor institutions, such as unions and worker centers, and private actors. Inspired by recent efforts to organize workers as they move across borders, transnational labor citizenship would link permission to enter the United States in search of work to membership in cross-border worker organizations, rather than to the current requirement of a job offer from an employer. This Article offers the new concept of labor citizenship as a lens for understanding the challenges unions face in taking the leap to an open attitude toward the future flow of migrants. By labor citizenship I mean the ways in which workers\u27 organizations create membership regimes, set and enforce rules for those who belong, and approach their goal of improving wages and working conditions. I begin in Part II by elaborating the concept of labor citizenship, drawing on the nation-state citizenship framework and emphasizing the key pragmatic and normative roles of borders in union organizing. In Part III, I trace the interactions between labor citizenship and its nation-state counterpart, arguing that in the context of large-scale immigration, the boundaried nature of labor citizenship is frequently its undoing, creating a recurring conflict between solidarity and defense. In Part IV, I lay out the dilemma of guest work as the last frontier in this progression. I draw on the history of both the bracero and more recent temporary work visa programs in the United States to argue that even a good guest work program would not address the challenges of establishing labor citizenship in a transnational world because guest work proposals inevitably preserve barriers between guests and residents that undermine efforts to raise or even maintain wages and working conditions. In Part V, I lay out my proposal for transnational labor citizenship, and in Part VI, I explore practical and theoretical hurdles and suggest how they might be overcome

Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, The Symposium: Race, Economic Justice, and Community Lawyering in the New Century: Concluding Essay

Stories about law and social change can have a sameness to them. Yet in many ways, the tales told in this volume stand out from the crowd. Each story is shaped around a campaign undertaken by a community organization or coalition deeply engaged in the struggle for racial and economic justice. Attorneys appear as supporting players rather than main characters, seeking to help organizations build the power needed to achieve their goals. These lawyers translate information about the law into lay language, pressure opponents, defend the organization, open up spaces for community voice and action, and seek to establish new legal frameworks that demand greater government and corporate accountability to poor and working class people. Taken together, these stories suggest a promising vision for the role of lawyers in today\u27s community-based battles for social change

Effective Employee Incentive Plans: Features and Implementation Processes

[Excerpt] This paper will evaluate the effectiveness of broad-based employee incentives, identifying the features of effective plans. For our purposes, “broad-based” is used to signal that more than 50 percent of employees are eligible for this variable pay plan. In addition, the terms “variable pay plan” and “pay for performance” are used interchangeably as they appeared in the original sources

Fixing numbers for matroids

Motivated by work in graph theory, we define the fixing number for a matroid. We give upper and lower bounds for fixing numbers for a general matroid in terms of the size and maximum orbit size (under the action of the matroid automorphism group). We prove the fixing numbers for the cycle matroid and bicircular matroid associated with 3-connected graphs are identical. Many of these results have interpretations through permutation groups, and we make this connection explicit.Comment: This is a major revision of a previous versio

Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution

When the United States government sets immigration law and policy, how much attention must it pay to constitutional rights? This question has been much debated since President Donald Trump issued a series of immigration-related executive orders in his first week in office, including a bar on entry by citizens of a set of majority-Muslim countries, but it was controversial long before then. In important part, the answer depends on what the Constitution says about the scope and limits of the power of the federal government over immigration. Therein lies the tale. On this subject, the country’s founding documents say very little, and the Supreme Court’s interpretations have been inconsistent at best. For well over a century, federal courts have often relied on the theory that the immigration authority is rooted in the Constitution’s grant to the federal government of control over matters related to sovereignty and foreign affairs. This explanation forms the basis of the plenary power doctrine, first announced in 1889 and applied by the Supreme Court most recently in 2018. The doctrine grants Congress and the executive branch nearly unreviewable powers in the immigration arena. This Article offers an alternative. It asserts that immigration to the United States is and has long been principally economic in its purpose and impact and thus in many cases is properly considered a function of both the Foreign and Interstate Commerce Clauses. The constitutional source of a particular authority of a branch of the government does not wholly determine the degree of constitutional review that courts will exercise, but it is an important factor. An immigration power rooted in the Commerce Clause, the Article argues, would put a thumb on the scale in favor of ordinary judicial review for immigration statutes, rules, and policies challenged as violating constitutional rights

In the Zone: Work at the Intersection of Trade and Migration

Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one set of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant origin countries, on the theory that more trade, and the employment it creates, will deter onward migration to the Global North.I use these contexts as the starting point for a reconsideration of core ideas in trade and migration policy and theory. In the first cases, governments are constructing a comparative advantage in labor from whole cloth, by bringing in workers from other countries on terms that restrict their freedom and subject them to exploitation at work. This challenges the usual description in the trade literature of labor cost as a natural phenomenon based on local wage and productivity levels, and thus a legitimate source of advantage in trade. Meanwhile, transnational firms that locate production in these zones sidestep the ordinary choice between benefitting from global wage differentials by moving work overseas or by hiring migrant workers. Instead, they do both simultaneously, a strategy I term “double labor arbitrage.” I explore the ways that construction of comparative advantage and double labor arbitrage operate together to extract additional value from workers for the benefit of states and corporations. With regard to the second set of cases, I draw on recent empirical economic scholarship to challenge the argument that more trade will decrease emigration. More profoundly, I question the normative justification for these proposals, given the treatment of workers in the zones. Although proposed as a “solution” to immigration, I argue that they are much more likely to deepen the problems that drive it