The Immigrant Right to Work

The author reviews over 100 years of political and legal history to make the case that unauthorized residents of the United States have a right to work.  A key starting point is that there is currently no statute that actually prevents unauthorized immigrants from working (if they do not present false papers). Rather, through employer sanctions and related policies there is a putative illegality that forces undocumented workers into conditions that limit their choice of employment and reduces their labor rights, mainly through fears of deportation. The author presents 19th century court cases that established the right to work as both part of natural law and consistent with the 14th Amendment’s due process clause. He then reviews how immigration policy changed over the course of the 20th century, but suggests there was no fundamental changes to labor law as it relates to immigrants, regardless of their documentation status. He calls attention to language used by the Immigration and Naturalization Service to limit the rights of undocumented residents to work that has no statutory basis and suggests that the court system and state and local governments share this misconception. He concludes that these restrictions may serve more of a symbolic value and might be a response to the anxiety provoked by a globalizing economy. Although limiting the right of undocumented residents to work will do little to change macroeconomic conditions, it certainly has had a devastating impact on the undocumented workers themselves (Erik Jacobson, Montclair State University).

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