In this paper, I analyze restrictions on immigration to the United States as a form of government-mandated employment discrimination against aliens. Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. Under our immigration and nationality laws, we base this discrimination explicitly on circumstances of birth beyond the control of the alien. I argue that immigration restrictions thereby violate our liberal ideals of equality, which require a cosmopolitan perspective that extends equal concern to all individuals. Furthermore, even if we assume a less demanding moral theory that allows us to give the interests of natives priority over the interests of aliens, it remains difficult to justify the employment discrimination required by our laws as ideal policies unless we consider the satisfaction of segregationist preferences to be a justification. The role of intolerance in supporting the adoption of immigration restrictions underscores a second sense in which the discrimination they embody violates our liberal ideals. We may promote the interests of natives, however, by restricting the access of unskilled alien workers to public benefits and to citizenship, which suggests liberalized guest-worker programs as a component of immigration reform. From the cosmopolitan liberal perspective, such programs would represent only a second-best improvement over the status quo, but worth supporting given constraints that make more ideal policies politically infeasible.
discrimination, immigration, employment, labor law
Chang, Howard F., "Immigration Restrictions as Employment Discrimination" (2003). Faculty Scholarship at Penn Law. 25.