Criminal Law

If You Oppose Punishing and Deporting Undocumented Workers, You Should Also Oppose Punishing Employers that Hire Them

Punishing employers is unjust for many of the same reasons as punishing the workers. And doing so harms the workers, too.

|The Volokh Conspiracy |


A protest against ICE raids.

Last week's ICE raids on undocumented workers in Mississippi—the largest of their kind—have drawn widespread protest for brutally separating parents from their children and deporting migrants whose only sin is escaping poverty and oppression in their homelands by finding job opportunities in the US. The protests are justified. But some critics also complain that ICE targeted workers, without also penalizing their employers. For example, CNN commentator Jake Tapper simultaneously decried the humanitarian effects of the raids, and also criticized an administration official for failing to "hold buisnesses responsible for this."  Such complaints are not new. There is a long history of federal immigration enforcement agencies rarely penalizing employers, and critics complaining that they should do so more often, even as they also lament the harm ICE raids inflict on workers.

But if you truly believe that it is wrong to punish and deport undocumented workers, you also have every reason to oppose punishing the employers who hire them. Those who oppose deportation do so, at least in large part, because they believe (correctly, in my view) that these individuals should not be barred from starting a new life in the US and seeking opportunity here. But they cannot do that if they are effectively barred from holding jobs because anyone who hires them will be punished for doing so.

Some of the opposition to deportation is driven by the impact on families, most notably children (including many who are US citizens) separated from parents. But children also suffer if their parents are not allowed to work, and therefore cannot earn income to support their families.

Imagine that a person named Bob is seeking work to escape poverty and support his family. Congress enacts a bill known as Bob's Law. Under this legislation, Bob is allowed to live wherever he wants, and law enforcement agencies are forbidden to punish him for taking any job that might be offered him. But there's a catch: any business that hires Bob will be severely sanctioned for doing so, even though Bob himself will not be (perhaps they must pay a large fine, or the owner must go to prison, or both). Moreover, Congress earmarks funds for a special Bob's Law Enforcement Budget (BLOB), which can only be spent on prosecuting Bob's Law violators, so that officials will have a strong incentive to actually go after employers who dare hire Bob, as opposed to letting them off the hook.

Formally, Bob's Law doesn't constrain Bob in any way. The only people who can be punished are the employers who hire him. But, in reality, the law consigns Bob to a life of poverty and desperation, as he will either have to take shady black market jobs, or subsist on charity or welfare (if he can get it).  Bob's family will also suffer, of course, since he is unlikely to be able to support them with more than a paltry (and highly uncertain) income.

Bob's Law is purely imaginary. But those who argue that the federal government should refrain from punishing undocumented workers, but rigorously prosecute the employers who hire them, are effectively advocating much the same sort of policy in real life. This regime would not target undocumented workers directly, but in practice it would consign them to much the same sort of miserable existence as Bob would face.

A "punish employers only"policy also prevents undocumented workers from contributing to the economy as much as they otherwise would. Rigorously prosecuting employers who hire them ensures that they will either be unable to find work at all, or will only be able to do so in underground enterprises, where they are likely to be less productive than at legitimate ones.

Targeting businesses is also likely to harm US-citizen workers, as well as undocumented ones. The types of measures employers would have to adopt to ensure compliance are likely to exclude many citizen workers, or at least put them through bureaucratic nightmares, such as those inflicted by the E-Verify system, mandated by some states.

Some might argue that the employers should be punished regardless of consequences, because they have violated the law. But, of course, the same thing can be said for the workers. In the case of the latter, opponents of deportation rightly point out that the laws in question are so deeply unjust that migrants are justified in violating them. Moreover, in a world where we have vastly more violators of federal law than the government can possibly punish, law enforcement should focus its resources on enforcing those laws that have the strongest moral justifications. "Just enforce the law" is not a viable moral theory in a world where many laws on the books are deeply unjust, and it is in any event impossible to punish more than a small fraction of violators. These objections apply to employer sanctions in much the same way as attempts to punish workers. Indeed, efforts to punish the former almost inevitably harm the latter, as well.

If you nonetheless do believe that all laws should be enforced to the hilt, regardless of how unjust, than you cannot also argue that the government should let undocumented workers go, but punish their employers. Both are lawbreakers, after all.

Another possible variant of the "punish employers only" theory is that these businesses should be blamed for the poor conditions under which many undocumented workers labor. If employment conditions are your beef, then you should at least advocate limiting enforcement actions only to cases where conditions fall below whatever you believe to be the right minimum standard. There should be no general effort to punish employers of undocumented immigrants, as such.

You should also keep in mind that government-mandated employee benefits tend to result in a combination of reduced employment, reduction of salary and/or other employee benefits, or some combination of both. Undocumented workers might prefer worse conditions with higher pay to the opposite combination. At the very least, the more you care about the welfare of these workers, the more you should hesitate to support policies that forcibly reduce the range of options available to them, at least in the absence of strong evidence that those measures will make them better off.

Obviously, there are cases where employers use coercion or fraud to abuse undocumented workers. Where that happens, there is good reason to punish them, as is also true of employers who inflict similar abuse on other employees. Unlike in the case of poor working conditions that employees might willingly accept in exchange for higher pay, coercion and fraud are not voluntary transactions, and usually don't leave workers better off than they would be otherwise. But mandatory infliction of sanctions on all employers of undocumented workers actually makes it more difficult to root out such genuine abuses. Workers are unlikely to report abusive employers if doing so will predictably lead to them losing their jobs, because the employers are not allowed to hire them in the first place, and the government will terminate those jobs if it finds out about them.

In sum, if you oppose punishment of undocumented workers, you should also oppose punishing their employers. The latter inflicts much the same injustices as the former, including by harming the workers themselves.