Does The Right to Earn A Living Apply to Immigrants?

A commenter asked whether illegal immigrants have the right to earn a living. Obviously they do, as all human beings do, although that has nothing to do with whether they may violate U.S. immigration laws. But it does bring to mind the many ways that government has used immigration restrictions to give economic favors to favored constituents.

Probably the most famous case is Truax v. Raich, a 1915 decision in which the Supreme Court struck down an Arizona law that capped the number of (legal) immigrants a business could employ. That law existed solely to “protect the jobs” of — i.e., bar fair competition with — natives. The state certainly had the authority to regulate industry to protect the public, the Court said, “[b]ut this admitted authority…does not go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood…. [T]he 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 [Fourteenth] Amendment to secure. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.”

But a recent decision by the Ninth Circuit is more troubling. In the little-noticed case of Sagana v. Tenorio, that court upheld a law of the Commonwealth of Northern Mariana Islands which bars the employment of non-resident aliens in certain jobs, and imposes very severe restrictions on their employment in other jobs. This law exists solely to bar competition in the labor market, not to protect the general public. Yet, the court of appeals allowed this, saying “[t]he CNMI legislature has seen fit to create a temporary class of employees for the purpose of bolstering the CNMI economy, giving job preference to its residents, and protecting the wages and conditions of resident workers…. These are reasonable, important purposes.” This is protectionism, plain and simple, with no connection to advancing public health, safety, or welfare; it is the exploitation of government power to serve the self-interest of resident workers at the expense of non-resident workers and consumers. Sadly, the Supreme Court declined to review the case.

Immigration restrictions aren’t just an economic matter, of course. But the abuse of economic regulations to block fair competition in the labor market by immigrants is a shameful, and common phenomenon.

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