Abstract
In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that an undocumented immigrant who has been fired in retaliation for exercising his right to engage in union organizing activity must nevertheless be denied the remedy of backpay. The majority reasoned that awarding backpay to vindicate the National Labor Relations Act (NLRA) would run afoul of conflicting provisions of the Immigration Reform and Control Act, which forbids the hiring of undocumented workers.
Dean Cameron argues that Hoffman is the most recent manifestation of a decades-long process by which the Court has been elevated from an interpreter to a maker of federal labor policy. Since 1959, Congress has enacted practically no substantive reforms of the NLRA. But the Supreme Court has. Its vehicle of choice has been the "borderline" case, in which the majority erects a false conflict at the margins, separating the NLRA from some other federal law, then resolves the conflict by effectively abrogating the NLRA.
In making federal labor policy, the Court's majority now favors four types of choices, none of which Congress would necessarily favor: judicial activism, isolationism from international labor law, protectionism of employers who violate the NLRA, and anarchism. In describing these choices, Dean Cameron pays special attention to judicial activism, which has effectively revived, and expanded, the old Bracero Program, a long-discredited series of laws and treaties under which the United States imported Mexican workers to work in the agricultural industry as indentured servants.
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