Inside the State: The Bracero Program, Immigration, and the I.N.S.

By Kitty Calavita

The acclaimed socio-legal study of the Bracero labor program, why it failed, and what that means to immigration policy and organizational theory. By Kitty Calavita, professor of criminology, law and society at UC-Irvine and author of 'Invitation to Law & Society' (U. of Chicago, 2010), now with her new Foreword, to update the reader.

Professor Calavita unearthed INS and Congressional records, and conducted extensive personal interviews of the people involved, to figure out why this program of temporary farmworkers, which dominated for more than two decades in the Southwest U.S., collapsed. Her findings tell us much about the catch-22 of migration and refutes stereotypic political theory of agency "capture" to explain the program's demise. They also tell a fascinating methodological story of entrenched agencies and the sheer archaeology of stubborn research in the face of vested interests and agency inertia.

Adopted in many college classes over the years, and now available in its 2010 edition with the author's new Foreword, as part of the Classics of Law & Society Series: a classic book with continuing substantive and methodological value. As her Foreword notes, worries about immigration and labor persist (including new calls for guest worker programs), as does basic dysfunction of the present form of INS. Digging deeper reveals the persistence of a structural tension between popular perceptions of immigration, the need for agricultural labor, and the dynamics inside the state's administrative structures — in fact the human actors, she emphasizes — that deal with these controversial issues.

The Virtual Dustjacket, from the Previous Edition:
“This book is a beautifully researched and welcome addition to the emerging literature on administrative discretion and policymaking in the immigration area. It cuts deeply through previously unexplored terrains of data — both oral histories and Immigration Service archives. It should be of considerable interest to every scholar looking for informed discussion about the nature of official behavior in difficult political contexts.”
— Janet A. Gilboy, Research Fellow, American Bar Foundation

“Using original materials, this is a masterful, insightful account of the political and bureaucratic politics of one of our most controversial programs — the ‘braceros.’ Calavita sheds important light on the origins and history of the braceros program, the complicated role of the Immigration and Naturalization Service, the Departments of Justice, Labor, and Agriculture, and their relationship to local political and agricultural interests. She deals with the dilemmas and contradictions between the need for cheap labor and the regulation of immigration. In so doing, Calavita makes important empirical and theoretical advances in understanding the connections between law, regulation, political science, economics, and sociology. This is a major contribution to our understanding of public policy.”
— Joel F. Handler, Professor of Law, UCLA

• Language: English
• Publisher: Quid Pro, LLC
• Release date: Jul 12, 2010
• ISBN: 9781610270014

Kitty Calavita

Kitty Calavita is Professor Emerita of Criminology, Law and Society and of Sociology at UC Irvine. Her books include Invitation to Law and Society: An Introduction to the Study of Real Law; Immigrants at the Margins: Law, Race, and Exclusion in Southern Europe; Big Money Crime: Fraud and Politics in the Savings and Loan Crisis; and Inside the State: The Bracero Program, Immigration, and the INS. Valerie Jenness is Professor of Criminology, Law and Society and of Sociology at UC Irvine, where she is also Dean of the School of Social Ecology. Her books include Making Hate a Crime: From Social Movement to Law Enforcement Practice; Hate Crimes: New Social Movements and the Politics of Violence; Making It Work: The Prostitutes' Rights Movement in Perspective; and Routing the Opposition: Social Movements, Public Policy, and Democracy.

Book preview

INSIDE THE STATE

The Bracero Program,

Immigration, and

the I.N.S.

Kitty Calavita

___

Classics of Law & Society

Inside the State: The Bracero Program, Immigration, and the I.N.S.

Smashwords edition: Published by Quid Pro Books, at Smashwords.

Copyright © 1992, 2010 by Kitty Calavita. All rights reserved. No material in this book may be reproduced, copied, or retransmitted in any manner without the written consent of the publisher.

Originally published in 1992 by Routledge (New York, N.Y.).

Published in the 2010 digital edition, with the author's new Foreword, by Quid Pro Books.

ISBN-10: 1610270010

ISBN-13: 9781610270014

Quid Pro Books

Quid Pro, LLC

5860 Citrus Blvd., Suite D-101

New Orleans, Louisiana 70123

www.quidprobooks.com

qp

Publisher’s Cataloging-in-Publication

Calavita, Kitty.

Inside the State: The Bracero Program, Immigration, and the I.N.S. / by Kitty Calavita.

  p. cm.

  Includes bibliography, appendices, and index.

  Includes 2010 foreword.

Series: Classics of Law & Society

ISBN-10: 1610270010

ISBN-13: 9781610270014

A sociological and political study of the rise and fall of the Bracero immigrant worker program, and what its demise means for immigration policy and organizational theory.

1. United States. Immigration and Naturalization Service. 2. United States—Emigration and Immigration—Government policy. 3. Aliens, illegal—Government policy. 4. Alien labor, Mexican—Government policy—United States. 5. Migrant agricultural laborers—Southwestern states. I. Title.

JV6493.C35  2010

353.0081’7—dc20   2010-12340 CIP

For Nico, Joe, and Marco

Contents

Foreword, from the Author, July 2010

Acknowledgments

Chapter 1. Introduction

Chapter 2. The Formative Years

Chapter 3. Formalization and Informal Control: The Bracero Program Comes of Age

Chapter 4. Let’s Make a Deal

Chapter 5. Wrangling with the Department of Labor

Chapter 6. Loss of Control

Chapter 7. Conclusion

Notes

Appendix A. Illegal Aliens Apprehended by the INS, 1940–1976

Appendix B. Mexican Foreign Workers Admitted Under the Bracero Program, 1942–1964

Appendix C. Mexicans Admitted on Permanent Visas, 1940–1971

Bibliography

Index

About the Author, the Book, and the 2010 Digital Edition, from the Publisher

Foreword

I began research for this book in the late 1980s. It had become clear by then that the U.S. Immigration Reform and Control Act of 1986 (IRCA), which President Reagan declared would regain control of the borders, had done nothing to reduce undocumented immigration. In the almost two decades since Inside the State was first published, immigration control continues to be a contentious issue, both in the United States and in other capitalist democracies. Dozens of states and localities in the U.S. have passed local laws—one of the most controversial being Arizona’s recent law requiring the police to question those they detain whom they suspect of being undocumented and making it a crime for immigrants not to carry immigration documents—while President Obama, like George W. Bush before him, struggles to patch together a politically viable federal immigration overhaul.

The difficulties go beyond the problem of securing Congressional action. For much of the last century, the agency charged with enforcing U.S. immigration laws has been derided as dysfunctional and lambasted for its inability to control the borders. In 1983, a Pulitzer prize-winning journalist (Crewdson, 1983: 114) called it the worst-managed, least effective federal agency in Washington. More than twenty-five years later, a New York Times editorial said federal immigration enforcement in the Bush Administration was out of control, adding that Immigration and Customs Enforcement and the Border Patrol are botching their jobs (New York Times, February 6, 2009: A26). An editorial criticizing the immigration agency under President Obama declared that nothing had changed: That shambling machinery lurches on (New York Times, March 4, 2009: A20). And, a study of the agency by the non-partisan think tank, Migration Policy Institute, painted a portrait of dysfunction (paraphrased by New York Times reporter, Thompson, 2009: A19). Decade after decade and reform after reform, the immigration bureau remains one of the most widely criticized federal agencies in the United States.

As we see in Inside the State, the agency is not simply chronically inept or mismanaged. Instead, it has the misfortune of sitting at the fault line of a structural contradiction between the economic demand for cheap immigrant labor and political demands for border control. So, immigration officials are stuck between the rock of economics and the hard place of politics. While they are charged with rounding up and deporting illegal immigrants, historically they have faced enormous obstacles in the form of backlash from employers who stand to lose their workers in these round-ups.

The Bracero Program established a system of imported Mexican farmworkers for U.S. agriculture that lasted from 1942 to 1964, with the immigration agency the chief overseer of the program. Here potentially was a solution to its structural dilemma—but only if they could convince growers to use braceros instead of illegal workers. For the strategy to work, the INS had to ensure a steady stream of braceros and overlook growers’ frequent contract violations. The program went down in scandal in the early 1960s not simply because of corruption or incompetence (although there was plenty of both); instead, the INS confronted head-on a structural contradiction, the temporary solution to which was to turn a blind eye to employers’ abuses and violations of the bilateral bracero accords.

A lot has changed since the Bracero Program ended, but much remains the same. Immigration, both legal and illegal, has increased dramatically. An estimated 12 million undocumented immigrants now live in the U.S.; they are more likely to be settled than shuttling back and forth across the border as they did in the past; and, they are both more diverse in origin and more evenly distributed across the U.S. than they once were. Also changed is the post-September 11 political climate, with its enhanced national security fears and popular sentiment against porous borders. These changes, rather than transforming the structural contradictions surrounding the immigration issue, intensify them. With undocumented immigrants now less concentrated in agriculture and central to a wide variety of manufacturing and service sectors, their economic utility is even more pervasive; at the same time, fears about uncontrolled borders resonate broadly and deeply in the post-9/11 climate. The pattern is repeated throughout the world, wherever capitalist economies draw in cheap immigrant labor. And, just as the issues are the contemporary version of those that plagued U.S. policymakers in the mid-twentieth century, the solutions often involve new guestworker programs that bear an uncanny resemblance to the Bracero experiment, tweaked and refurbished for contemporary sensibilities.

The field of law and society, among other things, studies the gap between the law in the books and the law in action. Scholars posit all kinds of reasons for these gaps, including the idiosyncrasies of enforcement discretion, agency bias, incompetence, and so on. When the gap between the stated purpose of law and its outcomes persists across time and place, as it does in the case of immigration, we can reasonably infer that something systemic, or structurally patterned, is going on. As we see from Inside the State, the structural contradictions circumscribing and buffeting immigration policies in capitalist democracies persist, even while the historical context may change and with it the specifics of the pattern.

The consequence of such contradictions is not only frustration with the immigration problem. The human toll is enormous, with thousands of border-crossing deaths every year, appalling living and working conditions for immigrants, and retaliation and civil rights violations by law enforcement and local residents.

Sociologists often study the deviant case in order to figure out what makes it deviate, and by extrapolation, what makes the normal normal. In a similar way, autopsies of legal failure, such as this analysis of the Bracero Program, might help us piece together the required ingredients of success—at the very least, it might keep us from repeating the same mistakes over and over again. But, of course it isn’t easy. Because if I am right, it is not a matter of technical expertise alone. Instead, it will involve finessing deep-rooted contradictions and a willingness to look outside the narrow box of immigration policy for solutions.

Kitty Calavita

Berkeley, California

July 2010

Acknowledgments

I had the help and support of a number of colleagues, friends, archivists, and government officials, in the preparation of this book. The staffs at the National Archives and the Freedom of Information and Privacy Act Office of the Immigration and Naturalization Service (INS) gave generously of their time to help me locate the archival material upon which much of this book is based. Many past and present INS officials were equally generous in allowing me to interview them at length. In one case, a former immigration agent took the time to write detailed letters responding to my many queries. Without the good will and hard work of these people, this book would not have been possible.

I would also like to thank Wayne Cornelius and the staff at the Center for U.S.-Mexican Studies at the University of California, San Diego, where I was awarded a research fellowship during the early stages of this project. Their continued interest in my research has been an important source of satisfaction and moral support.

Bill Chambliss, as usual, has been a good friend and colleague, not only contributing an important intellectual grounding for the book, but helping me put in perspective the inevitable dry spells of archival research. His encouragement and friendship have meant a lot to me. The insightful and constructive criticism of Marjorie Zatz, John Brigham, and Christine Harrington on various drafts of the book eased the always difficult process of revisions. I also thank Cecelia Cancellaro, Michael Esposito, and the staff at Routledge, Chapman and Hall, who did an excellent job with copy editing and the many other details of preparing the book for publication.

The Program in Social Ecology at the University of California, Irvine has provided me with the ideal work environment in which to finish writing the book. I especially appreciate the expertise of Judy Omiya and Diane Christianson who helped me with the administrative and word processing tasks involved in manuscript preparation. Their patience and efficiency are without equal.

Finally, this research was funded by a grant from the Law and Social Science Division of the National Science Foundation. I want to thank Felice Levine and the panelists of the National Science Foundation for their interest in the project.

K.C.

Chapter 1

Introduction

On September 29, 1942, five hundred farm workers from Mexico arrived in Stockton, California. Transported by the United States government and delivered to California growers, these Mexican workers were the first installment of a wartime emergency program designed to fill the declared labor shortage in agriculture. Over the next twenty-two years, in what turned out to be the largest foreign worker program in U.S. history, five million braceros were contracted to growers and ranchers in twenty-four states. The term bracero comes from the Spanish word for arm, brazo, and can be translated loosely in this context as farmhand. Its literal meaning, arm-man, hints at the function these braceros were to play in the agricultural economy, supplying a pair of arms and imposing few obligations on the host society as human beings. The Bracero Program was operated jointly by the State Department, the Department of Labor, and the Immigration and Naturalization Service (INS) in the Department of Justice. The INS was critical, for in its capacity as official gatekeeper, it controlled entries, departures, and bracero desertions, giving the agency substantial power, not only over the braceros themselves, but ultimately over the entire program.

This is the story of how immigration officials used that power, why they used it the way they did, and what forces impinged on them in the process. It is a story about informal lawmaking and the ability of one federal agency not just to interpret and implement the policy agenda handed down by Congress, but in fact to set the agenda. As the story unfolds, we will see the immigration agency, beset by contradictory pressures embedded in the broader political economy, alternately stretch Congressional statutes, walk around those that seem insurmountable, and invent its own to fill inconvenient voids.

The Bracero Program was born and raised on administrative powers, not just the power of the INS but of all government agencies that participated in bracero operations. What came to be called the Bracero Program was in fact a series of programs initiated by administrative fiat, subsequently endorsed by Congress, and kept alive by executive agreement whenever foreign relations or domestic politics threatened their demise. The foreign contract labor system, designed by a small group of federal administrators in the spring of 1942, was launched with very little public notice. The Immigration Service and the Departments of State, Labor, and Agriculture, together with the War Manpower Commission, in early 1942 formed a Special Committee on Importation of Mexican Labor, drew up plans for the first installment of Mexican contract labor, signed a bilateral agreement with Mexico, and arranged for the importation of workers, all in the absence of congressional legislation or public debate. Not that Congress opposed the idea; within a few months, Congress gave its nod of approval, officially endorsing the wartime emergency program that outlived World War II by more than two years and provided growers, at government expense and under government contract, with an uninterrupted supply of cheap, essentially captive, Mexican workers.

By 1947, with the war long over, and with it the labor shortage that had provided the rationale for the bracero importation, Congress allowed the statutory basis for the program to expire. But administrative action took up where legislation left off. The government contract system was temporarily replaced by direct employer recruitment of braceros, supervised and assisted by the Immigration Service and the rest of the bracero administrative apparatus, but unencumbered by much of the red tape of the legislative program. To accommodate employers who complained that recruiting braceros from Mexico was expensive and time-consuming, the INS devised an even simpler arrangement: on-the-spot legalization of illegal Mexican farm workers. Indeed, the official policy during this period gave priority to illegal immigrants found in the United States. By 1950, the number of Mexicans legalized and paroled to growers as braceros was five times higher than the number actually recruited from Mexico.

In 1951, President Truman’s Commission on Migratory Labor reported that employer abuses and lax enforcement produced deplorable working and living conditions for braceros; that the INS had effectively abdicated its border control responsibility which, together with legalization policies, had given rise to unprecedented levels of illegal immigration; and that the steadily increasing number of braceros and illegal aliens had depressed wages and undermined collective bargaining efforts by domestic farm workers. As damning as the Commission’s conclusions were, its recommendations to restrict the contract labor system were ignored.

Instead, the Bracero Program was expanded and entrenched, the outbreak of war once again providing the justification for a congressionally sanctioned program. As the Korean War escalated and growers’ allies in Congress warned of new labor shortages, the formal program was revised. PL 78, which served as the statutory basis for the Bracero Program until its termination in 1964, passed in June 1951 with very little discussion and virtually no opposition. The government was back in the business of recruiting, contracting, and delivering workers to agriculture. But if the system was thus formalized, it was by no means rendered inflexible. Rather, the Immigration Service used its considerable administrative ingenuity over the next thirteen years to mold and shape the program to maximize its utility to bracero employers. By the time the increasingly controversial labor system wound down in 1964, it had supplied millions of Mexican workers to Southwest growers and ranchers, and in the process inevitably had a substantial negative impact on farm wages, working conditions, and labor relations. As one observer summed up the benefits of the program to bracero employers: For the growers the program was a dream: a seemingly endless army of cheap, unorganized workers brought to their doorstep by the government.¹

This study of the Bracero Program as it provides growers with an endless army of cheap labor not only highlights the informal policymaking process and the role of administrative discretion, but also contributes to the theoretical debate over the nature and functions of the state. In some respects, the role of the INS in shaping the Bracero Program to suit the needs of growers seems to fit well the structural model of state action proposed by Althusser,² Poulantzas,³ and others. Indeed, a number of immigration scholars have offered implicit structural explanations for the evolution and demise of this contract labor system. Bach,⁴ for example, argues that the state, in an effort to maximize profits on one hand and contain legitimation problems on the other, constructed bracero policies to undermine the power of domestic farm labor by increasing the size of the agricultural work force, while periodically placating the political demands of opponents of the program with poorly enforced and generally ineffective safeguards. Others have pointed to direct personal, political, and economic links among bracero employers and the legislators and public administrators who set bracero policy, in a depiction more reminiscent of the Marxist instrumentalist model of state action.⁵

However, neither the Althusserian structuralist rendition nor the more straightforward instrumentalist account of the state’s role in designing and implementing the Bracero Program are entirely supported by the historical record. A close look at the immigration agency that shared responsibility for running the Bracero Program reveals a far more complex scenario, and greater inconsistencies and ambiguity of state action, than either of these perspectives can account for. In the first place, as we will see, INS policies were not simply a response to the demands of the capitalist class—in this case growers—but were first and foremost the product of the bureaucracy’s own institutional needs. Perhaps most important, this study finds a state that is rift with internal divisions, as the policy agenda of the Immigration Service collides head-on with the policy goals of other state agencies, most notably the Department of Labor. The following section sketches a theoretical model of immigration policymaking that may help us make sense of the shifting patterns of INS policymaking. It also describes the agency’s precarious alliance with growers, and the pronounced divisions within the state that periodically escalated into bitter administrative crossfire.

THE CONTRADICTIONS OF IMMIGRATION POLICYMAKING: A THEORETICAL FRAMEWORK

Since Alexander Hamilton warned Congress in 1791 that European immigration to the United States must be encouraged in order to increase the size of the work force and mitigate the dearness of labor,⁶ U.S. policymakers have recognized the importance of immigrants as a labor supply. Throughout most of the 19th century, an open-door policy prevailed, with much of the early legislation designed to encourage immigration. The first federal immigration law, appropriately titled An Act to Encourage Immigration, was passed in 1864 in response to industrialists’ complaints of reductions in the labor supply during the Civil War, decreases in immigration, and rising wages. This law established the first Bureau of Immigration—located in the Treasury Department—whose primary function was to encourage emigration from Europe and to arrange for the transportation and distribution of immigrant workers upon arrival in the U.S.

Employers applauded the ever-increasing influx of immigrants. Andrew Carnegie referred to immigration as a golden stream which flows into the country each year and valued each adult immigrant at $1500, for in former days an efficient slave sold for that sum.⁷ The New York Journal of Commerce declared appreciatively, Men, like cows, are expensive to raise and a gift of either should be gladly received. And a man can be put to more valuable use than a cow.⁸ Minor restrictions by the turn of the century barred a few undesirables but were carefully worded and implemented so as not to interfere with the golden stream. As the 19th century came to a close, nearly a million immigrants entered the United States every year, most of whom took up industrial employment in the urban centers of the East and Midwest.

If Carnegie and other capitalists of the period appreciated the new immigrants, domestic workers were less enthusiastic. Not surprisingly, the influx of hundreds of thousands of desperate, mostly unskilled, immigrant workers each year had the effect of depressing wages and undermining the power of the fledgling labor movement.⁹ The contradiction between capital and labor on this issue was fundamental and irresolvable. It was precisely because the immigrants provided abundant cheap labor that employers welcomed the new immigration and workers demanded its restriction.

As the American labor movement organized nationally and increased its ranks in the late 19th century, this contradiction presented a thorny dilemma for immigration lawmakers. The Anti-Alien Contract Labor Law of 1885, which barred the importation of foreign labor on contract, was the legislative response to this dilemma. Proclaiming that the law would prevent pauper-wage prices for labor and bring relief to the labor of this country, Congress enacted a measure that responded politically to the demands of organized labor but did not interrupt the immigrant stream.¹⁰ By the time the law was passed, only a few highly skilled immigrants were being imported on prearranged contracts. While earlier in the century employers had often contracted workers with special skills directly from Europe, by 1885 the vast majority of European immigrants were unskilled and the private labor exchanges of New York and other port cities had replaced the direct contract system. Thus, although Congress promised rhetorically to save American labor from the pauper labor of Europe, the potential of the Anti-Alien Contract Labor Law to curtail the immigration of this unskilled labor was virtually nil.

As the size of the immigrant influx continued to increase, a contradiction of a somewhat different nature became apparent. If immigrants supplied a work force, that work force was made up of human beings, and because it was a cheap labor supply that they provided (and for which they were so appreciated by employers), these human beings were frequently destitute. The same policies that increased the size of the cheap labor supply and depressed wages, simultaneously increased the fiscal burden associated with a burgeoning poor population. By the end of the 19th century, much of the immigration debate in Congress reflected this contradiction: on one hand a surplus labor supply was useful to the rapid development of the emerging capitalist democracy, while on the other hand the poverty it brought required unprecedented expenditures on poorhouses, asylums, hospitals, and jails.¹¹

These contradictions are not confined to the United States in the 19th century; they permeate the policy debate whenever immigration is used as a way to expand the unskilled work force. Referring to the guest worker system in Europe in the 1960s and 1970s, Swiss playwright Max Frisch once said: We called for workers, and there came human beings.¹² The European guest worker program not only ignited the labor movement in protest over competition with Third World workers, but also imposed a series of unanticipated social and fiscal costs. Compounding these tensions, guest workers—whose primary virtue had been their presumably temporary status and the flexibility to which this was thought to contribute—increasingly chose to remain and become permanent members of the European host societies.¹³

In the United States, Congress attempted to resolve immigration dilemmas by placing restrictive quotas on Eastern Hemisphere immigration in the early 1920s, while exempting from those quotas migration from Mexico and other Western Hemisphere countries. The Chair of the House Committee on Immigration and Naturalization, in debates preceding the quota legislation, questioned the director of the U.S. Employment Service on the experience with Mexican labor during World War I. He was particularly interested in the flexibility of the Mexican labor source, asking, You reserve the right to deport them when you get too many? Another representative interjected, How did the thing work out? Were you able to deport them when the need had passed? Another persisted, Are you having any trouble in getting them out of the country since bringing them in?¹⁴

What this brief overview suggests is that immigration policymakers historically have faced a number of contradictions to which modifications in immigration law are one response. Immigrant workers are a golden stream to be used as cheap labor to expand the economy and maximize profits; but at the same time, they trigger a political backlash against the resulting wage reductions and exact a fiscal toll in the form of social welfare costs, broadly construed. Some of the most important U.S. immigration policies have attempted to resolve the conflicts stemming from such contradictions. The Anti-Alien Contract Labor law of 1885 is one example, and the public charge provisions barring anyone with a predisposition" to poverty—first enacted in 1882 and still on the books—is another.¹⁵

Within this context, Mexico has long been considered an ideal backdoor source of cheap labor. In the 1880s, Mexicans provided a critical supply of cheap labor for rapidly expanding agricultural production in the Southwest and constituted a large portion of the railroad workers on the Southern Pacific and Santa Fe Railroads which transported the agricultural produce.¹⁶ In recognition of their important role in the economy, the immigration restrictions of the early 20th century included specific exceptions for Mexicans. For example, when a literacy test for entering immigrants was passed in 1917, Southwest growers convinced policymakers to exempt Mexicans.

These were not merely good neighbor policies. Rather, the advantage of immigration from Mexico was the flexibility derived from Mexico’s proximity to the United States and the related ability to expand and contract the supply of Mexican workers with the labor need, thus easing the tensions associated with the more permanent European immigration. If immigration from Europe had been hailed earlier because men like cows are expensive to raise, Mexican immigration was doubly beneficial. Not only were the majority of Mexican immigrants adult males unaccompanied by dependents, but their stay in the United States was contingent on a continued demand for their labor. The temporary nature of Mexican immigration and the marginal status of the migrants were periodically reinforced by formal and informal policies. For example, during the 1920s, in order to ensure the departure of Mexican immigrant workers, the Department of Labor instructed employers to withhold 20% of their pay to be deposited with immigration officials and returned to them on their way back to Mexico.¹⁷ The debates surrounding the Quota Laws of the 1920s attest to the congressional intention to use Mexican immigrants as a malleable supply of labor.¹⁸ The massive repatriation of Mexicans during the depression of the 1930s—many of whom were in the U.S. legally and some of whom were U.S. citizens—left little doubt of policymakers’ willingness to act on these intentions.

Half a century later, with undocumented immigrants supplying a substantial portion of the work force in Southwestern agriculture, the garment industry, janitorial services, construction clean-up, hotels and restaurants, and other seasonal and minimum-wage jobs, the Immigration Reform and Control Act of 1986 (IRCA) once again wrestled with the dilemmas surrounding immigration policy. While IRCA contained amnesty provisions that legalized close to three million undocumented immigrants, an employer sanctions measure, which for the first time made it illegal to knowingly employ an undocumented worker, was the indisputable political centerpiece of the law. Responding to widespread public pressure to regain control of the border yet concerned not to harass employers, Congress crafted employer sanctions that were largely symbolic. Republican Senator Alan Simpson, the principal Congressional sponsor of IRCA and an adamant advocate of border control, explained to his colleagues in the Senate that, despite the appeal of employer sanctions, It must be the type of program which does not place an onerous burden upon the employer....¹⁹ As passed, employer sanctions sent the message that something had been done to restrict illegal immigration, but contained substantial loopholes through which most employers could escape detection and prosecution.

The reform package attracted bipartisan support. However, a few members of Congress observed that IRCA, presented as a restrictive measure, would in fact have the opposite effect. Citing the abundant loopholes in employer sanctions and the generosity of the bill’s farm labor provisions, Democratic Representative Roybal of California said, on the day of the final vote in the House: They [members of Congress] thought... that they voted for immigration reform with sanctions, but they did not. What they voted for is a farm labor bill, a bill that is designed to provide cheap labor for the farmers and growers of this country.²⁰ Fellow Democrat Henry Gonzalez, Representative from Texas, complained, Let there be no mistake about it. This bill... guarantees that those who want to exploit cheap, foreign labor... can continue to do so with impunity.²¹ Republican Senator McClure of Rhode Island said simply that the bill was a failure, a sham, and a fraud.²² After an initial decline in border apprehensions following the law—probably in part the consequence of the broad legalization program—by 1991 apprehensions were at their highest level in five years and climbing steadily.²³

This interpretation of U.S. immigration policymaking and the contradictions driving it draws from the dialectical-structural model of law and the state.²⁴ This dialectical model posits that the political economy of a capitalist democracy contains within it specific contradictions, and that law often represents the state’s attempt to grapple with or reconcile the conflicts derived from those contradictions. To the extent that the contradictions are entrenched in the political-economic structure, the attempted resolutions are not only doomed to failure but give rise to further conflict. From this perspective, the Bracero Program is one piece of an on-going dialectic in which the structural contradictions surrounding immigration precipitate conflicts and dilemmas for policymakers, to which Mexican immigration historically has been both a temporary resolution and a trigger for future dilemmas. But, if this dialectical-structural model of state action helps explain the rough outlines of the Bracero Program, the account is at best incomplete,