Many economic arguments have been made for why the non-citizen should be permitted to work in the United States. Many have argued that immigrants don’t compete materially with American for jobs, that they only compete with very “low-skilled” U.S. citizens for jobs, or only suppress wages by marginal and ultimately insignificant amounts, or that, regardless of competing slightly for already existing jobs, migrating people also create jobs and economic growth anyway, offsetting any competition.[i] Even I have made these arguments.[ii] But all of these arguments, while compelling and true, miss the point: it really doesn’t matter if immigrants compete with U. S. citizens for jobs- because the jobs in the U.S. do not belong to Americans – they belong to everyone because everyone has a right to survive.
The Right to Work Follows From the Right to Life, Despite Racist Law
The right to life is recognized under both American[iii] and international law.[iv] Unfortunately, the law does not recognize, either domestically[v] or internationally,[vi] that the right to life means the right to cross a border to access the means of survival, such as employment.[vii] Nonetheless, if people have a right to live, and people need to work to live, it follows that people have a right to work. So, while the right of all people to compete for the same job does not follow legally – it does follow logically and morally. The law, as is so often the case, just hasn’t caught up to the morality yet. But the law has not caught up to the morality yet because, while the right to work may follow morally, it does not follow politically.
It does not follow politically because it does not follow racially. White supremacy is naturally opposed to truly color blind and nationality blind, work opportunity. The artifice of white supremacy that says locus of birth dictates whether or not you have a right to survival, long ago found an expression in the law. This vehicle of expression is called the plenary power doctrine.
Like many platforms for white supremacy (e.g., the war the drugs[viii]), the plenary power doctrine hides behind ostensibly race-neutral concepts. On its face the plenary power doctrine says that a nation state is sovereign, meaning it has a right to self-determination, and therefore has a virtually unconditional right to exclude any non-citizen it wants from its territory, for whatever reason it wants, when and (more or less) however it wants.[ix] While generally, the constitution and its protections attach to any person in U.S. territory,[x] the doctrine still effectively allows Congress to eject non-citizens and especially “undocumented” non-citizens from that territory or deprive them of equal treatment basically, willy nilly.[xi] Practically, this means sovereignty absolves our society from any moral duty whatsoever to any human being that is not a citizen of the nation state. In other words, it exploits and abuses the idea of self-determination to vanquish totally the humanity of any human life that is not a citizen. Since citizenship is traditionally tied to race and nationality, and is, I would argue, an unalterably racialized idea,[xii] the ability of this sovereign-supremacy doctrine to serve white-supremacy should be obvious.
The reader may disagree that nationality is an inherently racist idea, but that does not change my moral obligation to call a fig a fig. It is impossible for me to ignore that the practical function of nationality is to allow different rules to apply to different people based on an assigned national label; a label which is itself defined by immutable (e.g., locus of birth, lineage) or non-meritorious traits (e.g., language or religion) – in a word, racism. It is a means to rationalize violence. In an employment context, economic violence.
Actually, Supreme Court Justice David Josiah Brewer, in a dissenting opinion from a late nineteenth century case that discussed the plenary power doctrine, made a not entirely dissimilar criticism of the doctrine than that one I am making right now:
It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they took to the practices of other nations to ascertain the limits? The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, and it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.[xiii]
Indeed, the idea that the plenary power doctrine is anything other than a racialized effort to diminish the humanity of others via banishment is belied by the very case law that articulated the doctrine. The seminal cases on the plenary power doctrine, Nishimura Eiku v. U.S.,[xiv] and Fong Yue Ting v. U.S.,[xv] were failed efforts to challenge the Chinese Exclusion Acts, explicitly racist exclusionary laws that prohibited Asian immigration. That the U.S. Supreme Court used an ostensibly race-neutral doctrine to procure an unambiguously racist result that upheld an equally racist law makes suspect the allegation that the doctrine is race-neutral and reveals the true motivation behind the doctrine and the Supreme Court decisions that kept it law.
Nonetheless, today the plenary power doctrine is the legal foundation of the federal government’s power to restrict immigration and permit discrimination, such as restricting which benefits non-citizens may receive, including work opportunity.[xvi] In this way the plenary power doctrine is the most powerful legal tool for protecting (white/american) privileged access to jobs and obstructing the right to life and survival for non-citizens. The argument that marginalized group A is “taking” the work that hegemonic group B has a superior right to is not new. It was wielded against black citizens and citizen women to exclude them from work as well. This exclusion not only gave white men privileged access to wages but also generated a source of cheap labor. As Aviva Chomsky notes in her book They Take Our Jobs!: And 20 Other Myths About Immigration, marginalizing a group of people, be it women or blacks, provided a cheap source of labor for white men, just as marginalizing immigrants does now:
For centuries, the United States and other industrialized countries have institutionalized inequalities by granting rights to some people but not to others. People without rights may be slaves, they may be colonial subjects, they may be racial and ethnic minorities, or they may be immigrants . . . In all cases, though, governments have made sure that there are people without rights to fulfill buisness’s need for cheap workers and high profits.[xvii]
Making the immigrant’s right to work less than the citizen’s right performed the same function today as it did before – shutting out equal opportunity of some group performs the dual purpose of both hoarding wages for the privileged few and creating a cheap source of labor to benefit them. That kind of privilege is just a rationale for brutality.
American Jobs Belong to the World
If everyone has the right to compete for jobs regardless of locus of birth and nationality than no one’s right is superior to anyone else’s. The non-citizen with permission to work is not morally superior to the non-citizen without that permission. They are not more deserving, they are not more accomplished, and they can prove no greater claim to the opportunity. The employment authorization card is issued without the moral authority to issue it: No one should need another person’s permission to survive. To propose that any person or institution has the right to give that permission is an argument against equality. Either everyone who needs to work has the right to work, or no one does.
To horde your local work opportunity for yourself is not just racist – it is also selfish. It is an act of destructive hedonism, a victory for shameless narcissism. The person who endorses “our jobs, not theirs” must admit they enrich themselves at the expense of another. They embrace an amoral, me-first universe and spit on the golden rule. There is no dignifying the law of the plenary power doctrine – it is the mindless law of the jungle masquerading as jurisprudence. Its true purpose is for “determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.”
The jobs in the United States belong to the world, to the nation of Humanity, not just to the tribe of Americans. You may insist that you have a superior right to compete for that job in your neighborhood because you accomplished the dumb task of being born closer to it than someone else, but you would be wrong. Of course immigrants bring jobs, but that’s irrelevant because they have a right to compete for existing jobs. Will you lose a job if an immigrant is hired in your place? Of course you will, that’s how sharing works. That’s what equality looks like. Does that mean you may have a duty to make sacrifices so that others might live? Yes, that’s how morality works. Henry David Thoreau, making an argument against slavery that could easily double as an argument against work restrictions, once put it thusly:
If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself. . . But he that would save his life, in such a case, shall lose it. These people must cease to hold slaves . . . though it cost them their existence as a people.[xviii]
Morally, it doesn’t matter if immigrants produce jobs, because they also have a right to compete for your job and my job. No non-citizen can take your job, in fact, because it isn’t yours. But if you are someone who insists on the contrary, curmudgeon myth, for as long as you insist on it, as an immigration lawyer I will insist on aiding as many people as possible to survive by helping them get work permission in the United States – as far and as often as the law allows me. I will work hard to pry what is not yours from your stubborn, selfish hands.
[i] See, e.g, Alex Nowrasteh, “Immigrants Did Not Take Your Job” (Nov. 2, 2012); Sari Pekkala Kerr & Willian R. Kerr, “Economic Impacts of Immigration: A Survey,” Harvard Business School (2008, 2011), available at http://www.hbs.edu/faculty/Publication%20Files/09-013_15702a45-fbc3-44d7-be52-477123ee58d0.pdf; Tanvi Misra, “Immigrants Aren’t Stealing American Jobs,” The Atlantic (Oct. 21, 2015), available at http://www.theatlantic.com/politics/archive/2015/10/immigrants-arent-stealing-american-jobs/433158/; Adam Davidson, “Debunking the Myth of the Job-Stealing Immigrant,” The New York Times (March 24, 2015), available at http://www.nytimes.com/2015/03/29/magazine/debunking-the-myth-of-the-job-stealing-immigrant.html?_r=1.
[ii] Steven Sacco, “In Defense of the Eligible Undocumented New Yorker’s State Constitutional Right to Public Benefits,” 40 N.Y.U. Rev. L. & Soc. Change 181, 228 (2016).
[iii] Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (noting the “life, liberty or property” formulation articulated in the Fifth Amendment of the U.S. Constitution has its roots in the Magna Carta, which included the “right to life.”)
[iv] Art. 6 of the International Covenant on Social and Political Rights. (“Every human being has an inherent right to life”); UN Doc. HRI\GEN\1\Rev.1 at 6 (1982)(“[The Right to Life] is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation . . . It is a right which should not be interpreted narrowly”).
[v] Harisiades v. Shaughnessy, 342 U.S. 590 (1953) (Douglas dissenting)(The power of Congress to exclude, admit, or deport aliens flows from sovereignty itself and from the power ‘To establish an uniform Rule of Naturalization’. U.S. Cnst., Art. I, s 8, cl. 4. The power of deportation is therefore an implied one. The right to life and liberty is an express one. Why this implied power should be given priority over the express guarantee of the Fifth Amendment has never been satisfactorily answered.”)
[vi] While international law recognizes a righto work (See art. 6(1) of the International Convenient on Economic Social and Cultural Rights) international law does not also recognize the right to cross a border to fulfill that right to work See International Convention on the Protection of the Rights of All Migrant Workers and Their Families. (Describing nowhere in the document any right to cross a border for the protection of life, other than the right to seek asylum, which is itself very narrow). See Also art. 12 on the International Covenant on Social and Political Rights. (ensuring a right to leave one’s country, but no corollary right to enter another has been interpreted). See, e.g., the similar right to leave under the European Convention on Human rights: A.E. v. Poland, No. 14480/04 (31 March 2009), at ¶ 46 (“reiterates that Article 2 of Protocol No. 4 guarantees to any person a right to liberty of movement, including the right to leave any country for another country to which he or she may be admitted”).
[vii] See Supra, Notes 5 and 6.
[viii] See, e.g., Angela Y. Davis, Abolition Democracy: Beyond Prison, Torture and Empire Interviews (2005); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Color Blindness (2010);
[ix] Nishimura Eiku v. U.S., 142 U.S. 651, at 659 (1892)(“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe”).
[x] See, Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)( The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. . . These provisions are universal in their application to all persons within the territorial jurisdiction); But See Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir. 2001)(finding that a lower standard of review is appropriate for review of laws that discriminate between documented and undocumented people when the law says what federal immigration authorities may and may not do); Mathews v. Diaz, 426 U.S. 67 (1976).
[xi] See, supra, notes 9 and 10.
[xiii] Fong Yue Ting v. U.S., 149 U.S. 698, 737-8 (Brewer Dissenting).
[xiv] Nishimura Eiku v. U.S., 142 U.S. 651, at 659 (1892).
[xv] Fong Yue Ting v. U.S., 149 U.S. 698, 728 (1893)(“For the reasons stated in the earlier part of this opinion, congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country . . .”)
[xvi] See Mathews v. Diaz, 426 U.S. 67 (1976).
[xvii] Aviva Chomsky, They Take Our Jobs!: And 20 Other Myths About Immigration (2007), at page 27.
[xviii] Henry David Thoreau, “Civil Disobedience” (1849).