In tough economic times, life can be hard for employers in America’s low-wage sectors. Especially when it comes to complying with labor law. Fortunately, the government ensures that there’s always at least one group of workers for whom standards pretty much never apply. They’re called, fittingly, “undocumented.”
This year, several states have rolled out legislation to make the undocumented even more illegal. Bills in Alabama, Georgia and Indiana, modeled roughly after Arizona’s controversial racial profiling law, reflect the boilerplate lock’em up talking points: enabling profiling by police, criminalizing the mere appearance of an unauthorized immigrant as well as those who provide aid to them, and tightening restrictions on hiring. Although lawsuits have halted the implementation of these policies in some states, key court decisions have left intact provisions that deepen the divide between those with and without papers, relegating the undocumented — who work American farms, build American homes, and raise American children — to a law-free zone.
A Georgia court recently blocked the “papers please” provision of the state’s anti-immigrant bill on the grounds that using I.D.-checks to root out immigration violations would lead to an “end-run – not around federal criminal law – but around federal statutes defining the role of state and local officers in immigration enforcement.” So the state overstepped its bounds by criminalizing a federal civil offense.
At the same time, the court left intact a provision that would expand the use of a draconian I.D. screening system known as E-Verify. This is the Social Security Number-based data gauntlet that Washington has been haltingly trying to impose on employers and state governments for years (Congressional Republicans are pushing a bill to mandate the system nationwide, but it is currently used on a “volunteer” basis).
Notorious for major data errors and glitches, the system has the potential to wrongly cite many lawful job seekers as unauthorized and at the same time, to fail to detect many undocumented workers. Civil rights groups see it as a government-sponsored platform for racist profiling, which would compel employers to blanketly reject or fire Latinos and other foreign-born workers, regardless of immigration status. The centrist think tank Center for American Progress contends E-Verify will impose excessive costs for businesses and agencies charged with administering the program.
Some on the right have criticized E-verify as Big Government overreach. Business owners worry they’ll be hindered from filling critical job slots and chafe at the regulatory hassle. In Georgia, some of the strongest opposition comes from farm producers who fear that an immigration crackdown would drastically limit the seasonal labor pool, forcing growers to let unharvested crops rot.
While all these criticisms are valid, they converge on a questionable premise: discriminatory laws are not bad because they discriminate, but because they discriminate against the wrong people. But this view reflects the myth that “good” immigrants can be separated from “bad” ones on the basis of arbitrary legal distinctions. In fact, it’s precisely that arbitrariness that poses the central ethical dilemma in these anti-immigrant policies. The entire structure of the immigration-deportation regime inevitably serves the business and political establishment while keeping the workforce divided into racialized fiefdoms.
The flurry of state bills may be new, but two-tier labor is a tried and true technique. “Labor supply programs for employers, with deportations and diminished rights for immigrants, have marked U.S. immigration policy for more than 100 years,” wrote In These Times’ David Bacon in his analysis of Utah’s anti-immigration bill (also challenged in court). The crux of the Bracero guest worker program during the 1950s was an enforcement regime that constantly threatened deportation, and thus deliveredto employers a disenfranchised and impoverished supply of Mexican migrants who were wholly at the mercy of the boss. These workers had papers. But, as with today’s undocumented, what they lacked was power. That was the main qualification for their job, and the most powerless, most desperate, most easily terrorized workers will continue to be hired in droves, whether or not Washington plays good cop with E-Verify.
So although the recent court decisions may suspend the most egregious parts of the anti-immigrant bills, their reasoning is essentially conservative. Rather than interrogate the blatantly discriminatory aspects of the law, the Georgia ruling focused on federalism and concluded simply that Washington was doing a damn good job already:
Although the Defendants characterize federal enforcement as “passive,” that assertion has no basis in fact….In 2010, immigration offenses were prosecuted in federal court more than any other offense….
Those words will bring no comfort to the millions of undocumented workers now living in fear, many afraid even to leave their homes under the threat of arrest and detention.
In addition to further emboldening (rather than deterring) unscrupulous bosses, seemingly innocuous systems like E-verify erode everyone’s trust in a broken system, which continues to suck millions from public coffers to keep up a charade of law and order, while tearing livelihoods and communities to pieces.
It’s not impossible for lawmakers to replace the absurd “legal-versus-illegal” taxonomy with a system that treats all workers as human beings and respects and enforces basic rights on an equal basis. But that would make too much sense for the employers whose entire profit model hinges on structural inequality.
So instead, Georgia farms are starting to hire probationers (folks trying to move past their criminal records) to fill the slots that would be otherwise filled by cheap Mexican migrants. In the end, the crops get harvested, low-wages are paid, and business proceeds as usual.
One sweltering day, the two captive labor forces toiled alongside each other, almost recognizing their shared struggle, but not quite. One probationer-turned-farmhand told the Associated Press, “I feel like they should have gone and hired us first before they even hired them,” referring to the immigrants he was purportedly replacing.
It all falls into place. If you need work in a sagging economy that is fueled by the criminalization of workers – if you’re as desperate as so many others – just get in line: sooner or later your turn will come.
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Michelle Chen is a contributing writer at In These Times and The Nation, a contributing editor at Dissent and a co-producer of the “Belabored” podcast. She studies history at the CUNY Graduate Center. She tweets at @meeshellchen.
