American and California Agricultural Worker Protections
The Importance of Migrant Labor in Agriculture
The well-being of the U.S. economy is intimately intertwined with the influx of migrant workers. Analysis of the March 2013-2014 Current Population Survey done by the United States Department of Labor found that 91% of all crop workers in California were born somewhere other than the U.S., and 67% of those crop workers are undocumented. NAWS data revealed that 90% of these foreign-born workers are from Mexico (Mines, Gabbard, & Steirman, 1997). California emphasizes the significance of Mexican migration in U.S. agriculture. To emphasize, California accounts for one third of all United States’ agricultural outputs, and most of the people doing the work are migrants from Mexico. This dynamic between Mexico and the United States’ food supply is crucial, and is a priority for policy makers and farmers in the United States. Labor constitutes approximately one-third of total costs of fruit, vegetable, and horticultural production in the United States. In the past few years, the current Trump administration has been said to be putting a foot down on immigration. However, making immigration more difficult is crippling to the agricultural labor force, which is in turn devastating for the economy.
Current Policies
Article I, Section 8, clause 4 of the Constitution entrusts the federal legislative branch with the power to “establish an uniform Rule of Naturalization.” This clear textual command for uniformity establishes that the federal government, specifically Congress, is responsible for crafting the laws that determine how and when noncitizens can become naturalized citizens of the United States. Immigration is regulated at the federal level, chiefly under the rules established in 1952 with the passage of the Immigration and Nationality Act (INA). The Immigration Reform and Control Act (IRCA) of 1986 was enacted to curb illegal immigration, denying welfare benefits to undocumented immigrants and strengthening sanctions against employers who hire them.
The U.S. Congress has control over all immigration-related regulations, while the White House is in charge of enforcing immigration laws. However, many states have passed legislation that limits undocumented immigrants' access to public benefits, directs state and local police to check the legal residence status of arrestees and other directives that affect immigrants. Lawmakers pressing for immigration-related state laws typically cite a lack of federal enforcement and the need to conserve limited state resources, while some cite security concerns. The lesson here is clear: the regulation of immigration was a matter for the federal government.
In later cases, the Court made clear that there is room for state and local involvement in the regulation of the lives of immigrants, albeit not necessarily in the regulation and enforcement of laws controlling the flow of immigration itself. In DeCanas v. Bica (1976), the question before the Court was whether a California law that imposed sanctions on employers who hired noncitizens unauthorized to work in the United States infringed on federal immigration powers. The Court rejected the challenge to the California law, concluding that, in the absence of a comprehensive federal scheme to regulate the employment of unauthorized workers, California’s law was not preempted by federal immigration law. DeCanas acknowledged the power of states to regulate immigration-related matters that fall under the states’ traditional police powers, provided the states’ laws do not conflict with federal immigration law.
Considered the most widespread state protections for undocumented immigrants, Senate Bill 54 took effect on January 1, 2018. The law (California Values Act) builds on previous "sanctuary" policies with regard to assisting federal immigration efforts and extends them, by establishing statewide non-cooperative policies between state law enforcement officials and federal immigration authorities. Fortunately, although the government will now enforce this requirement more stringently, it has also made complying with employment eligibility verification easier on employers. Employers can now store I-9 forms electronically, check the employment eligibility verification forms online, and learn about what to do if the employee's information does not match the information provided by the government.
Immigration and Trade Policy Changes
Immigration and trade policies directly affect the influx of immigrant labor on U.S. and Californian farms. Three key immigration and trade policy changes can exemplify how much policy drives immigration. These three policy changes are increased border enforcement: the 1986 Immigration Control and Reform Act (IRCA) and the North American Free Trade Agreement (NAFTA). All three of these were policy shocks that impacted immigration.
Recent years have seen the increase of law enforcement along the US-Mexico border. These operations were directed at deterring unauthorized immigration via the Mexican border. Under the Trump administration, detainment, increased entry costs, and a proposed wall have been the go-to fixes for illegal immigration from Mexico. Despite this “crackdown” on immigration, past research suggests that the majority of those who attempt an illegal border crossing eventually succeed. In addition, because increased border enforcement also deters return migration from the United States back to Mexico, the net effect of increased border control is unclear (Public Policy Institute of California).
The Immigration Control and Reform Act (IRCA) was an attempt by the US government to begin curbing illegal immigration by implementing sanctions against farmers who knowingly hired undocumented workers. However, it additionally incorporated an amnesty program and concessions for farmers. Also in 1986, the Special Agricultural Worker (SAW) Program legalized an additional million immigrants, the majority from Mexico. The Replenishment Agricultural Worker (RAW) program allowed for new immigration to alleviate farm labor shortages caused by SAWs leaving agriculture. However, the RAW was never used, because the Department of Labor determined that there were no farm labor shortages in the early 1990s, despite employer sanctions. Indeed, the U.S. Commission on Agricultural Workers concluded that there was "a general oversupply of farm labor nationwide" and, "with fraudulent documents easily available," employer sanctions were not deterring the entry of unauthorized workers.
NAFTA opened borders for trade and investment between Mexico and the United States and reinforced an on-going process of agricultural liberalization in Mexico. NAFTA and the concurrent domestic reforms in Mexico were only partially motivated by migration concerns; nevertheless, they were expected to have far-reaching impacts on migration flows. President Salinas argued that opening up markets would help Mexico export more goods and fewer people, thereby reducing migration pressures. In theory, however, the effects of NAFTA on migration from rural Mexico are ambiguous. On one hand, one would expect economic liberalization to decrease production of maize and other goods that could be imported more cheaply from the United States, increasing emigration pressures. On the other hand, it could stimulate agricultural exports, as well as nonagricultural production in Mexico that may absorb displaced rural workers. Thus, just like border enforcement and IRCA, NAFTA's effects on migration from rural Mexico to the United States are ambiguous.
California Agricultural Labor Shortage
Decades of inconsistent immigration policy has created a shortage of workers on American farms. Many American farmers have seen the
Farmers can participate in the H-2A guest farm worker visa program, which provides temporary visas to workers for up to 10 months, then requires them to return home after the season. But the application system is often difficult to navigate. According to a study by the American Farm Bureau Federation, the H-2A process is so grueling, farmers have had to hire lawyers to help. Of those who made it through, 72% of growers said administrative delays caused workers to arrive weeks after the needed date.
Plus, the program is expensive.
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