Reviewed by Christopher Malone, Associate Professor and Chair, Department of Political Science, Pace University cmalone [at] pace.edu.
At the time of this writing, S744, otherwise known as the Border Security, Economic Opportunity, and Immigration Modernization Act, is wending its way through the U.S. Senate. Sponsored by New York Senator Charles Schumer and his fellow “Gang of Eight” members, S744 is the first real attempt to reform the U.S. immigration system in over a quarter century. If the prospects for some type of immigration reform in the summer of 2013 are brighter than they have been in years, the debate around S744 is also a perfect example why separating out law and policy from the push and pull of politics is virtually impossible.
After suffering a humiliating presidential defeat in the 2012 election in which more than seven in ten Latinos voted to reelect President Obama, the establishment of the Republican Party begrudgingly acknowledged that immigration reform would have to include some type of path to citizenship for the estimated 11 million undocumented immigrants living in the United States. In his 2013 State of the Union address delivered just days after his second inauguration, President Obama set the tone for the debate by stating, "Real reform means establishing a responsible pathway to earned citizenship – a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally."
That same evening, the Republicans designated Marco Rubio of Florida to give the official response to the president and to staunch the hemorrhaging of the Latino vote. In a first, Rubio, the most prominent Republican member of the Gang of Eight, delivered his 15-minute rebuttal in both English and Spanish. Yet in that address, the Cuban American Rubio was sufficiently vague on the issue of a path to citizenship – or what the more conservative wing of the Republican Party calls “amnesty.” It crystallized seamlessly the political and policy dilemmas Republicans found themselves in after the 2012 election: On the one hand, the “face’ of immigration reform for Republicans became a young telegenic Latino who speaks the native language of what is now the largest ethnic minority in the United States. On the other, coming out in explicit support of a path to citizenship would certainly further fracture an already splintered and demoralized Republican Party. When Obama won reelection, two thirds of the American public supported some type of path to legalization for the undocumented. That figure has risen since, further complicating the politics of immigration for a Republican Party caught between an intransigent base and the writing on the wall.
It remains to be seen what the final version of immigration reform will look like, or if something will pass the Republican-led House of Representatives. But one thing is clear: despite nearly four decades of divided government in which neither political party has had effective control over the federal government over long stretches of time, electoral outcomes still have policy consequences – no matter how small, no matter how slow to materialize. There is no doubt that we would not be at this moment if it were not for the fact that a) the outcome of elections in many key swing states turn on the Latino vote, and b) in two consecutive national elections Latinos have rejected the Republican Party outright. Nothing concentrates the mind or forces a change in policy like fear of losing.
Law, policy, and the realities of electoral math: they comprise the Gordian knot in any modern representative democracy. It is this nexus of policy outcomes and political power which really sits at the core of Ruben Garcia’s timely if at times uneven book Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them Without Protection. To be clear, Garcia’s primary focus is not necessarily immigration reform. Yet, its specter lurks in the background, giving the book an added weight. As Garcia himself points out time and again, the details of any final deal have vital consequences for his subject matter. More broadly though, Garcia’s goal is to offer a framework for the legal, moral, and economic protection of what he calls “marginal workers” – those largely in irregular employment situations (e.g., seasonal workers, independent contractors, and those on temporary visas) who have fallen through the cracks of various legal and statutory regimes governing the American workplace. No matter which category marginal workers fall into, Garcia is clear about the predicament and its consequences: “The problem with the way that labor regulation has proceeded over the last century is that it leaves a number of politically powerless workers behind” (p.9). Without political power, desirable policy outcomes become unattainable. Yet, Garcia takes the point further to consider whether some aspects of law and policy should stand outside the whims of politics. The aim of Marginal Workers then is both descriptive and ambitiously normative: to first detail how the law and policy makers have shut out millions of politically powerless American workers from fair labor standards, and second to chart a different course which would put the marginalized worker on solid legal and moral footing in advocating for improved conditions. “Rather than the spoils of political victory,” Garcia explains, “workers’ rights should be seen as fundamental human rights, as they are in international law” (p.4).
The most informative and interesting parts of Marginal Workers are those that illuminate the gaps which Garcia wants to bridge in current labor law through his “human rights” frame. In Chapter 3, he discusses the divergent statutory objectives of the National Labor Relations Board (NLRB) and Title VII of the Civil Rights Act of 1964, and how it has affected workers over time. The subject matter is nothing new, as Garcia acknowledges. Paul Frymer’s work Black and Blue: African Americans, The Labor Movement and the Decline of the Democratic Party delves deeply into the New Deal coalition’s race/class divide through a detailed account of the development of what Frymer calls the Administrative and Legal states. Acknowledging the importance of Frymer’s work, Garcia takes a decidedly different tack. He analyzes the rift between Title VII and the NLRB through the lens of the 1973 Supreme Court decision in Emporium Capwell v. Western Addition Community Organization, in which two black department store workers fired after claiming racism in promotion practices were not covered by the National Labor Relations Act (NLRA). For Garcia, Emporium Capwell illustrates a conflict between the fundamental rights of workers and the caprice of the political process: “it becomes clear that the liberal paradigm of legislation, executive implementation, court review and statutory revision does not work in the field of workplace law as well as it should” (p.38).
In Chapter 5, perhaps the best chapter in the book, Garcia turns his attention to the deeply flawed guestworker program that has developed in the United States over the last century. Guestworker programs in the United States in their various iterations nonetheless have one basic characteristic. “There is little chance for guestworkers to influence labor policy” (p.96), since “guestworker status is fundamentally incompatible with the ability to exercise meaningful bargaining power at work” (p.90). Of all “marginalized” workers, the guestworker represents the most egregious example of commodified labor. When workers must sell their labor power on the market without fair labor standards, collective bargaining rights at the negotiating table, or political voice at the polls, the system necessarily leads to exploitation. In the increasingly globalized economy of the 21st century, guestworkers are left at the mercy of a merciless market. Garcia explains:
Laws protecting collective action are now swimming upstream in a globalized economy where workers, particularly immigrant and foreign workers, are seen as articles of commerce without bargaining power; thus labor is being re-commodified (p.89).
In such a climate, the efficacy of the political process breaks down, leaving the guestworker in a Catch-22 of sorts. Without the ability to vote, temporary workers have no impact on electoral outcomes. Without the collective bargaining rights afforded to most other workers, temporary workers are left unprotected by the NLRA. Despite being similarly situated, temporary workers have no ability to form around their mutual interest and use the traditional mechanisms – lobbying, voting, campaign contributions, and so on – of political pressure. On the other side, with no incentives to do anything to ameliorate the situation, elected officials and labor union leaders turn their attention and energies elsewhere. For Garcia, the only way to overcome this “democracy deficit” is to have international bodies such as the International Labor Organization (ILO) step in to provide the foundation of human rights standards. Guestworkers may also “utilize the NAFTA labor side agreement processes and international forums to challenge the lack of worker protections and inability to exercise freedom of association” (p.110). Such tactics would help to shine an international spotlight on labor violations.
All well and good – but will this and other prescriptions for the problems Garcia raises work? Here the skeptics will pause. Acknowledging that “there are limits to what can be accomplished through the law” (p.118), Garcia outlines other avenues. For instance, a change in the “frame” in which workers’ rights needs to be placed is required. Borrowing from the notable cognitive linguist George Lakoff, Garcia argues that workers’ rights must be seen within a new context of “freedom” – a term he rightly points out has traditionally been co-opted by the political right. “Because of the limitations of the law, a new way of conceptualizing workers’ rights as freedom is necessary” (p.119). Rather than the freedom of the employer to run his enterprise as he sees fit or the worker to contract with whom she sees fit, Garcia argues that the mantle of freedom must be taken back and repackaged as the freedom for workers to associate or the freedom from want, exploitation, or compulsory labor. Garcia acknowledges that such a transformation in the “freedom” frame will not be easy to accomplish – especially in the minds of employers. Nonetheless, the effort to transcend current labor law must begin with this rhetorical retooling.
Further, if the past half century in American labor law is any indication, workers’ rights are too important to be left to national politics. Garcia therefore advocates for the incorporation of international law in U.S. courts in order to protect workers of all classes (p.120). Since international law prioritizes human rights over capital, Garcia theorizes that it offers a more promising avenue for marginalized workers. He points to the use of the Alien Tort Claims Act of 1791 – which was originally passed to combat international piracy – as an example of how American law has been opened up to international standards. Decisions by the Supreme Court such as Roper v. Simmons have also been based partly on international norms. But such a legal strategy will have to be reconsidered in light of SCOTUS’ most recent decisions: in March 2013, the Supreme Court severely limited the reach of the Alien Torts Statute (ATS) in Kiobel v. Royal Dutch Shell. In a unanimous ruling, the Court held that ATS only applies to conduct within the United States or on the high seas. It remains to be seen what impact Kiobel might have on Garcia’s legal strategy. Acknowledging the tectonic shift in viewing workplace law in an international human rights frame, Garcia nonetheless rather faciley states, “this should change” (p.121).
The question, of course, is how. Perhaps unwittingly, Garcia actually undermines his own argument when he suggests that the “answer” to this conundrum might be found in the American civil rights movement:
Through the perseverance and tenacity of countless individuals, the mood of the country became more tolerant of civil rights. Certainly, there has been plenty of backlash to various aspects of the civil rights agenda. Eventually, however, there has been greater acceptance of civil rights. The same can happen for workers’ rights, which were once accepted as articles of faith, but are now seen as, at best, obstacles to be avoided, and at worst, destructive to the nation (pp.122-123).
Though cognizant of the implications segregation had for the American image abroad during the Cold War, the civil rights movement was nonetheless deeply grounded in American law and the American judicial system. From the Declaration of Independence to the Fourteenth Amendment to Brown v. Board to the Civil Rights Act of 1964, the movement’s philosophical underpinnings and policy successes are a testament to the very aspects of the American political process that Garcia seems ambivalent about. Civil rights advocates engaged in social protest; they formed pressure groups; they utilized the courts; they pushed for new laws; they raised money and supported elected officials or ran their own candidates when possible. In other words, they changed the system from the inside-out. Maybe those efforts didn’t go far enough. But the strategies employed were peculiar to American institutional design. For these reasons, it is questionable whether the civil rights movement’s tactics and strategy are applicable to the “outside-in” approach Garcia advocates for.
An international-based, human rights frame would certainly assist the workers’ rights movement rhetorically; but injustices rooted in the American labor system require American solutions. In this sense, the civil rights movement might very well be a model for workers’ rights in a way Garcia does not concede. One might also suggest pointing to the current immigration debate with which I began. Immigrants’ rights organizations have been agitating for years around comprehensive immigration reform. Due to the dynamics of demographic shifts, political pressure and electoral politics, a policy window has opened up for changes to the current system that might just allow a path to legalization for the most marginalized workers in the United States: the undocumented. Nothing is guaranteed, and certainly the current immigration debate includes discussions about expanding the types of guestworker programs Garcia eschews. On the other hand, providing undocumented workers with legal status is far better than the status quo. More importantly, any immigration reform deal signed into law should be seen as the beginning of the political process to a more humane labor law regime rather than its culmination. A good strategist knows that one political victory is the stepping stone to the next one. Through those political victories, the vessels of public policy are charted for a new course ever slow slowly.
The point here is that there is an inside-out strategy on workers’ rights which might just bear fruit in current debates – no matter how partial the triumph. Garcia indicates this possibility himself when he discusses the hard-won labor policy victories during the New Deal – victories which we should point out have been rolled back by the political successes of neo-liberal forces over the last three decades. All of these victories, on both sides, were incomplete, to be sure. But then again, that is the nature of politics in a representative democracy. On the other hand, to the extent that victories were won, it was simply because people fought hard for them. The ability to organize and find one’s political leverage means everything.
None of this should detract from the important contribution Garcia has made to the debate with Marginal Workers. If the book comes up short on the policy prescriptions and strategy, it certainly succeeds on the diagnosis of the problem.
It does need to be said that Marginal Workers is in dire need of an edit job. Chapters are segmented into short sections separated out by subheadings which interrupt the flow of the narrative, draining the author’s rhetorical momentum. At times, the same points are unnecessarily repeated two and three times within each chapter, or between chapters. On page 32, Garcia writes that “courts often utilize cannons [sic] of construction” and then spells “canons” correctly some 3 lines down. In Chapter 4, there are no less than seven varying instances where the reader is told what the chapter is meant to address. At one point in Chapter 5, Garcia discusses the Farmworker Justice Program, and in the next paragraph calls it the Farmworker Justice Fund (p.100). On the next page, he mentions the Northwest Workers Justice Complaint, and in the next paragraph calls it the Northwest Justice Workers Project complaint (p.101). Some of these points and discrepancies might seem minor or even trivial, but they make it more difficult for the reader to maintain the train of the argument.
Nonetheless, Garcia’s instincts on the plight of marginalized workers are unimpeachable and, I dare say, noble. In the end, he fails to mention one important way to change the debate around controversial issues such as workers’ rights: through writing important tracts on it. By this standard, it is safe to say he has done his part.
Frymer, Paul. 2007. Black and Blue: African Americans, the Labor Movement and the Decline of the Democratic Party. New Jersey: Princeton University Press.
Brown v. Board of Education 347 U.S. 483 (1954).
Emporium Capwell v. Western Addition Community Organization 420 U.S. 50 (1975).
Kiobel v. Royal Dutch Shell 569 U.S. _____ (2013)
Roper v. Simmons 543 U.S. 551 (2005).
Copyright 2013 by the Author, Christopher Malone.