Ruben J. Garcia, Associate Professor of Law, California Western School of Law. I would like to thank the Volume 10 and 11 editors of The Journal of Gender, Race & Justice for inviting me to their annual Symposium and for their editing of this Article. Thanks to California Western law student research assistants Justin Prato, Bart Parsley, Dwayne Stein, Jay Aboudi, and Lorriane Nisbet. I would also like to thank Marty Malin, my California Western colleagues William Aceves, John Noyes, and Paul Gudel. Finally, thanks to my wife Tori for her patience, editorial suggestions, and support.
"The labor of a human being is not a commodity or an article of commerce."1
"The comparative advantage of workers in poor countries is cheap labor."2
The current proposals over immigration reform, which include a broad expansion of temporary labor programs to bring more "guestworkers" to the United States, took place in an age of increased labor commodification.3 The above quotes represent the two poles of the dilemma that guestworkers face which frames this Article. In the current political debate about immigration reform, the term "guestworkers" has been given various meanings, including providing temporary status for undocumented immigrants already in the country.4 This Article focuses on "guestworker" programs that seek to bring Page 28 unskilled workers into the United States on a temporary basis.5 This Article describes the lack of bargaining power and voice that guestworkers have on the global labor market-and how this lack of bargaining power leads the workers to be treated like commodities in international trade, widening the democratic deficit both globally and within the United States. International labor agreements and human rights instruments may provide some protection for guestworkers, but the best solution is to have fewer guestworker programs, rather than to expand them as current legislation proposes.
This Article views guestworker programs as leading to the commodification of labor and a widening of the democracy deficit. Guestworkers are commodified because they are treated as articles of trade without bargaining power or voice in the substantive transaction. Their inherently temporary nature makes guestworkers unable to enforce their legal rights. Further, they are unlikely to leverage their collective bargaining power to obtain better working conditions or ability to stay in the United States permanently. Temporary workers have no voice in their new country, less influence with their country of origin, and no voice at work if they are unable to enforce their rights. This is why any guestworker program that cycles workers through on a temporary basis-even one that purports to grant workers the same rights as U.S. residents-is bound to commodify guestworkers and exacerbate the democracy deficit.
"Commodification" is the idea that in a market economy everything, from body parts to knowledge, can be bought and sold.6 Indeed, in the current economy it is hard to think of anything that is not commodified, including pain and suffering.7 Developments in law and society in the last Page 29 fifty years have chipped away at the de-commodification of labor that aimed to give workers greater agency and bargaining power in transactions regarding their own labor.8 This Article discusses how the laws protecting collective action are now swimming upstream in a globalized economy where workers, particularly immigrant and foreign workers, are seen as articles of commerce without bargaining power; thus, labor is being recommodified.
On a global scale, workers have lost significant bargaining power over the last fifty years as barriers to trade have been removed.9 Historically, the concept of "comparative advantage" in international trade referred to commodities such as natural resources or raw materials that countries could trade with each other in the global marketplace.10 The new source of comparative advantage in the global economy is cheap labor.11 Recent interest in the United States in an expanded guestworker program exemplifies this commodification of labor. Countries jockey for position in the global marketplace to offer the cheapest labor to multinational corporations.
Trade agreements such as the North American Free Trade Agreement ("NAFTA") privilege the protection of investment over the protection of labor.12 The commodification of labor mutes the voice of the workers who will be most affected by these trade negotiations. This can be seen in the recent negotiations between the United States and Mexico for a guestworker program.13 The potential guestworkers are treated as commodities without Page 30 agency or an interest in the outcome of agreements between countries.14This Article finds lacking the theories of virtual representation that may close the "democracy deficit" between the workers¥ interests and the imperatives of international trade and politics.
By definition, guestworkers have little bargaining power in determining their employment conditions. Specifically, they have the choice between destitution in their home countries and temporary work in the United States. The material benefits of working in the United States should not be underestimated, but these benefits do nothing to provide guestworkers with a say in their employment conditions. This Article argues that in order for workers to have bargaining power in the inevitable global market for labor, they must be given a voice in the negotiations over trade agreements through representatives of their own choosing. Further, this Article argues that guestworker status is fundamentally incompatible with the ability to exercise meaningful bargaining power over their labor conditions.
Part II of this Article will discuss three theoretical phenomena that frame the analysis: the commodification of labor, globalization, and the democracy deficit. The commodification of labor is a long-term historical process that extends directly from slavery and moves through the history of the labor movement with its goal of de-commodification. Globalization complicates de-commodification precisely because knowledge and intangible labor are so highly valued today.15 In the global economy, workers would have more freedom of movement if they were considered to be goods rather than people. The democracy deficit refers to the global institutions, such as trade agreements, that are negotiated by governments often without the input of the people who are most affected by them. Recently, scholars have argued for the creation of global administrative legal institutions to close the democracy deficit.16 On the domestic front, guestworkers are by nature unrepresented in their new country, and their home country representatives often have little incentive to represent fully their interests. Thus, increasing the presence of a large number of noncitizen Page 31 workers will only exacerbate the democracy deficit.
Part III will examine guestworker programs in light of the dilemmas posed by commodification. There have been legislative proposals and high- level negotiations between the United States and Mexico regarding a guestworker program for all sectors of the United States economy. These negotiations take place between the heads of state of the two countries, Presidents Bush and Fox, but do not involve the workers who would be directly affected by these countries.17 Congress is currently considering elements of these proposals in comprehensive immigration reform.18Potential guestworkers in countries other than Mexico, however, are unable to influence democratically these legislative proposals. Instead, the workers are treated as commodities to be traded between countries. The commodification of workers adds another dimension to the moral problems inherent in guestworker programs. These moral objections as well as the economic, policy, and historical problems with guestworker programs are examined in Part IV.
Part IV will look at the current state of workers in the global economy and how the "democracy deficit" affects the voice of global workers. Trade agreements such as NAFTA place a higher value on goods than people, so again workers are faced with a choice-seek equal status with goods and as protection of the "investment" of private actors or seek protection based on their own human dignity and international human rights principles. Despite the many objections to guestworker programs, they will likely continue to exist in one form or another. Part V will conclude this Article with ways to make these programs more responsive to workers to narrow the democracy deficit.19
Finally, before beginning my discussion of guestworkers, I should mention the facets of immigration and temporary labor that this Article will not discuss. First, while many of the issues affecting the undocumented also overlap with guestworkers, this Article will not focus directly on the labor rights of the estimated twelve million...