Thursday, August 06, 2020


Article Index

E. Work

Early Supreme Court cases upheld immigrants' right to work in the face of state restrictions, relying heavily on the logic and rhetoric of natural rights. In Yick Wo v. Hopkins, the Court struck down a San Francisco ordinance prohibiting unlicensed laundry establishments constructed of wood--an ordinance that was selectively enforced by the city to close down laundries owned by Chinese persons. In finding that San Francisco had violated Yick Wo's constitutional right to equal protection, the Court undertook a relatively lengthy discussion of natural rights, including the right to make a living without being subject to “the mere will of another.” The Court instructed that in the American system, “sovereignty itself remains with the people, by whom and for whom all government exists and acts.” Yet the Court stressed that the questions before it “are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.” For the Court in Yick Wo, “the people” were not just the citizens of the United States; they were all persons, who enjoyed a natural right to work.

The Court returned to this theme of inalienable rights early in the twentieth century. In Truax v. Raich, the Court struck down an Arizona law prohibiting the employment of more than a certain allotment of non-citizens. According to the Court, the “right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.” At the time, it seemed that work had become well-established as a right of personhood.

In the years since, it has become far less clear that non-citizens have a protected right to work. States may bar immigrants from employment in jobs with a “governmental function,” such as state elective office, the state police, public school teachers, and deputy probation officers. The Court's rationale in these cases relies heavily on the theory of membership rights: such persons “perform functions that go to the heart of representative government.” Moreover, it is unquestionable that the federal government can regulate non-citizen employment, and non-citizens who work in violation of these rules cannot seek the same remedies for workplace violations as citizens. In some cases, states can regulate non-citizens' employment too. States are preempted by federal law from criminalizing working without proper documentation, but they can suspend or revoke the licenses of businesses that fail to comply with federal requirements, as long as the state scheme tracks the federal one closely enough. Today, work is a right reserved for members of the U.S. system--citizens and certain privileged immigrants.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law