Southern California Law Review
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' 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.
80 S. Cal. L. Rev. 503 (2006-2007)