The United States is home to a large and entrenched population of unauthorized residents. The Pew Research Center estimates that there are over 11 million unauthorized migrants living in the U.S., about 62 percent of whom have lived here for over a decade. Most of these long-time residents have no more legal right to remain than a migrant who is detained while crossing the border for the very first time. Eight million of these legally vulnerable unauthorized migrants are in the U.S. workforce.
Jennifer Chacón is a professor of law at the University of California–Irvine School of Law.
The fact that eight million workers—about five percent of the entire workforce—are unauthorized has serious implications for all U.S. workers and for the health of the nation’s democratic system. There are some obvious implications for workers’ rights: it is often difficult to organize in support of fair wages and better workplace conditions when you or a substantial number of your co-workers fear deportation. Indeed, pundits and politicians often attribute stagnating wages and deteriorating workplace conditions to our “broken immigration system.” But the problem runs much deeper. Like our inexplicable immigration system itself, these workplace problems are symptoms of a governmental structure that fails to give voice to many members of our national community.
This is not a new problem. Until 1986, the presence of a large, unauthorized workforce—and the concomitant problems of worker exploitation and a sizable, disenfranchised Latino population in the Southwest—sat uneasily alongside the promise of the 1960s rights revolution. In 1986, Congress provided a path to citizenship for more than three million immigrants who were already working in the country without authorization. At the same time, for the first time in U.S. history, Congress made it a federal crime to hire unauthorized workers.
Today, opponents of new paths to citizenship point to 1986 as a cautionary tale. Ignoring the role of arbitrary 1960s and '70s-era caps on immigration, they argue that it was the 1986 amnesty, coupled with weak enforcement of its criminal provisions, that generated the magnet for unauthorized migrants now in the workforce. This narrative has exerted a powerful influence on contemporary immigration debates. The reform bill passed by the Senate in 2013 was crafted in response to such concerns, resulting in a half-hearted legalization package that would have been implemented only upon the completion of a large bundle of expanded enforcement initiatives. Even this compromise bill failed to pass the House.
Two years later, many of the presidential candidates from both parties are still talking about immigration reform, but none support a clean legalization. Statements from Democrats gesture toward compromise bills like the Senate’s failed 2013 effort. Republican candidates have suggested that normalization of status may be possible for some subset of unauthorized migrants, but that citizenship may be a bridge too far.
The supposed lesson of 1986, then, is that some migrants may be able to earn citizenship, but their worthiness must be weighed against the magnet effect of expanded access to citizenship. This approach is often justified by reference to a contract theory of citizenship, which posits that citizens’ ability to define and defend the boundaries of their political community through their collective membership decisions is a prerequisite to functioning democracy. But such theoretical and political understandings of citizenship ignore how democracy actually works.
Formal legal citizenship, and the privileges such citizenship carries, may be bestowed by the government. But functionally, citizenship is generated by participation. Citizens constitute themselves as such through their participation in social and political life—through voting and through service on juries, of course, but also through providing the labor that builds a nation’s infrastructure, through participation in efforts and organizations seeking to improve conditions in the workplace, through contributions to civic and religious organizations committed to law reform and social improvement, and through economic contributions. When individuals have functioned as citizens for years, at the implicit invitation and to the benefit of myriad members of the polity, the political system that denies them formal legal citizenship is not really functioning as a representative democracy.
Many unauthorized migrants are functioning as citizens today; the fact that they have no federal “path to citizenship” does not mean that they are not members of multiple, overlapping political communities. In many neighborhoods, cities, counties, and even states, immigrants who lack formal legal status are important constituents. They help to shape policies on the ground in matters as diverse as policing, professional licensing, education, and zoning. At the same time, they are members of transnational communities that exert policy influence at the national level.
On a few recent occasions, the federal government has responded to the voices of its functional citizens in a limited way. The Deferred Action for Childhood Arrivals program of 2012, which allowed hundreds of thousands of young, unauthorized migrants to apply for a temporary reprieve from deportation and to access to work authorization and driver’s licenses, is one broad and compelling example. But more is needed. The formal limits on these individuals’ political participation and the instability of their right to remain in the country generates a significant democracy gap.
When five percent of the workforce is excluded from formal participation in the national political dialogue, this is not a triumph of democratic form, but a subversion of it. Rather than guarantee the integrity of national citizenship, this state of affairs actually threatens its relevance. Extending citizenship rights to long-term participants in the U.S. workforce would bring our representative system a bit closer to our democratic ideals while strengthening workers' ability to influence national policies.
For the Future of Work, a special project from the Center for Advanced Study in the Behavioral Sciences at Stanford University, business and labor leaders, social scientists, technology visionaries, activists, and journalists weigh in on the most consequential changes in the workplace, and what anxieties and possibilities they might produce.