When Federal Immigration Exclusion Meets Subfederal Workplace Inclusion: A ‘Forensic’ Approach to Legislative History

Abstract

What happens when a person is simultaneously viewed as an unauthorized immigrant without rights according to a federal regime and as an employee with rights according to a subfederal regime? In the wake of widespread and inconsistent adjudication of this issue, this Article sheds new light on this pressing question. To date, pertinent court battles and scholarship have led to a virtual stalemate and often focus exclusively on normative policy arguments. By contrast, this Article employs an empirically grounded review of fifteen years of legislative history to analyze this paradox. This review illustrates that the denial of workplace protections to unauthorized workers runs contrary to immigration law purposes. The Article, therefore, provides a fresh perspective on an otherwise intractable debate. In doing so, it also develops a more scientifically grounded forensic approach to legislative history which addresses some of the most salient and passionate critiques of legislative history and revives legislative history as a more reliable interpretive tool in law and policy analyses.