Stephen Lee, Screening for Solidarity, 80 U. Chi. L. Rev. 225 (2013).
Under current workplace enforcement policy, an unauthorized worker may avoid, slow, or halt altogether the removal process in certain instances. The executive allocates these membership benefits to otherwise removable immigrants who have nonfrivolous labor claims against unscrupulous employers. Why do this? The most common justification is that doing so deters unauthorized migration over the long term. But this explanation is out of touch given longstanding enforcement realities. This article defends moving workplace enforcement policy in a more worker-centric direction, but relies on an alternative justification. I argue that screening for migrants who engage in acts of solidarity improves the member-selection process. Allocating membership benefits on this basis helps to identify those migrants who are most likely to integrate into the mainstream. Central to my claim is the notion that immigration rules tend to favor potential members who possess social and economic bonds with current members. Granting relief to unauthorized workers who are willing to stand in solidarity with their coworkers (especially citizen coworkers) is consistent with this vision of membership. Although the scope of my claim is limited, the solidarity principle can and should inform any efforts to redesign the rules surrounding labor migration.