More on Powers

More protectionism

How many times do we hear people say that immigrants are “stealing our jobs”? It’s one of the oldest reasons for discrimination. California’s history of persecuting the Chinese is one miserable example. In 1878, the state held a constitutional convention, which produced a constitution forbidding corporations from employing the Chinese at all. Those who attacked the Chinese admitted that they did so because the Chinese were smart and worked hard. This, they said, drove down wages for white workers. Thus began the era of the “Exclusion Acts,” anti-immigration treaties that sharply cut down on the number of Chinese admitted to the United States.

But the Fourteenth Amendment prohibits states from discriminating so as to protect one group from having to compete fairly against another group. In Truax v. Raich, for instance, the Supreme Court struck down an Arizona law which required companies to employ at least 80 percent American citizens. “[T]he purpose of this act,” the Court said, was “frankly revealed in its title. It is there described as “’an act to protect the citizens of the United States in their employment against noncitizens.’” But “[i]t requires no argument to show that 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…. 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.” Lawfully admitted aliens have the right to an equal opportunity at employment.

But not in the Mariana Islands.

The Commonwealth of the Northern Mariana Islands (CNMI) is part of the United States, and is subject to the Fourteenth Amendment like any other state. But they have a law called the Nonresident Workers Act, which heavily regulates the employment of legally admitted aliens. It requires any person who wants to hire a nonresident alien to first notify the CNMI Department of Labor, which tries to find a resident for you to hire instead. Employers must employ at least ten percent resident workers. The Department of Labor pre-approves all contracts with nonresidents. Employers must post a bond worth three months of wages plus repatriation expenses and medical coverage, for each nonresident employed, and must pay nonresidents biweekly in cash. And the Act forbids nonresidents from certain jobs entirely.

The Ninth Circuit Court of Appeals upheld the constitutionality of this law in September, on the grounds that

the 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 while enforcing a system to control and regulate its visiting laborers. These are reasonable, important purposes.

In other words, just like the Powers v. Harris court, the Ninth Circuit held that economic protectionism itself is a legitimate state interest. The Court cited Truax, and acknowledged that the right to earn a living is protected by the Fourteenth Amendment. But it noted that “the Court has never held that the right to pursue work is a fundamental right. The Court has stated that the ‘generalized’ right to choose one’s employment ‘is nevertheless subject to reasonable government regulation…’ ‘[W]e…merely look to see whether the government could have had a legitimate reason for acting as it did….’ As explained above, there are legitimate reasons for creating and maintaining a temporary worker program….” In other words, the “rational basis” analysis, which was invented fifteen years after Truax, allows the government to discriminate so as to raise the wages of natives—a rationale that totally undoes Truax, as well as more recent cases that forbid such discrimination.

I wrote an amicus brief for the Pacific Legal Foundation asking the Supreme Court to take the case. "The tendency of legislatures to restrict employment opportunities to favored constituencies is a constant threat to the rights of aliens who are entitled to the equal protection of the law," I wrote.

Whether protectionism per se is a legitimate state interest under the Fourteenth Amendment is a vital federal question. Protectionist legislation deprives persons of their right to earn a living, which this Court has held is “the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure,” and of which lawfully admitted aliens may not be deprived. Indeed, Justice Douglas called the right to earn a living “the most precious liberty that man possesses.” Discriminating against some people in the exercise of this right, simply to boost the income of political insiders, and to protect these insiders against fair economic competition, is just the sort of “arbitrary and discriminatory” regulation that the Fourteenth Amendment forbids. The decision below ratifies discriminatory government action which lacks any connection to protecting public health and safety, but is explicitly designed to benefit private interests. Should that decision be allowed to stand, arbitrary and discriminatory economic regulation will remain a court-blessed “legitimate state interest” for purposes of the Fourteenth Amendment.

We’ll wait and see if the Supreme Court decides to right this wrong.

By the way, I heard about the Sagana case from the propietor of this blog, Mr. Cernovich. Although I try to keep abreast of developments in economic liberty law, I hadn’t heard about this one. So a special thanks for his vigilance. If anyone out there hears about a case that you think I should know about, please feel free to email me!

For more, see Sugarman v. Dougall, 413 U.S. 634 (1973), Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948). For more on anti-Chinese discrimination, see Iris Chang, The Chinese in America: A Narrative History (2004); H.W. Brands, The Age of Gold 325-33 (2002); David E. Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 Wm. & Mary L. Rev. 211 (1999)

--Timothy Sandefur