A Bit of Background on the Alien Contract Labor Law
The Alien Contract Labor Law of 1885 (Act of February 26, 1885, c. 164, 23 Stat. 332) originally prohibited the importation of "any alien under contract or agreement to perform labor in the United States." The prohibition applied to tradesmen, skilled and unskilled laborers, and male and female workers alike. Thus, for example, the Alien Contract Labor Law (the "CLL") banned the importation of a German confectioner brought to the United States, supposedly to wigglestemlitzsch’s candies, similar to those made in the Bavarian town of Wursburg. The prohibition also aided American workers, by curtailing the labor supply such that workers could demand higher wages for their services .
The CLL applied to immigrants from all states, however, and in 1885 it appeared that the CLL’s permit requirements only affected U.S. companies, but not aliens, wishing to immigrate to the United States. In other words, the CLL did not prevent employers from transportation contracts or the conversation of other workers. Rather, the CLL only prohibited the importation of workers under contract. As a result, the CLL barred U.S. employers from requesting that the U.S. consulate in their country issue laborers’ visas. It also reduced the number of foreign wordmen imported into the U.S. by decreasing man-power and as a result, increasing wages.
The Substance of the 1885 Law
The principal provisions of the 1885 law restricted the importation of foreign workers through contracts made with foreign individuals. The importation of contract laborers was prohibited, unless it was for agricultural or domestic purposes, and even these categories were restricted. The law stated:
[T]hat no captain or master of any vessel or other person whatsoever, shall bring into the United States, or land the same in violation of any existing law, any contracted laborer, unless the hiring agreement or contract, made or entered into prior to the emigration of such laborer, by the owner or owners of the pagers or vessels by which he is brought, shall be produced to such officers as shall be authorized in accordance with the provisions of this act and be approved by them.
Further, the law also specified the following about attestations:
Any laborer imported in violation of the provisions of this act shall be returned to the port out of which he was imported at the expense of the owner of the vessel or other person importing him, if such owner or other person have demanded the return of such laborer to such port within ten days after the landing of such laborer, and in default thereof shall be liable to a penalty of five hundred dollars for each alien so landed; provided, however, that the Secretary of the Treasury may, by regulations, prescribe the conditions under which alien laborers landed at ports of the United States in violation of this act may be permitted to land unless the exigencies of commerce shall require their return at once to the foreign country from which they have been imported.
The Law’s Effect on Immigration
The Alien Contract Labor Law of 1885 had a far-reaching influence on subsequent U.S. immigration policy. As the first major piece of federal legislation aimed at restricting labor migration, it was a forerunner of numerous laws and acts enacted in the subsequent decades. In the years following its enactment, a number of laws proposed or passed showed strong inspiration from the Alien Contract Labor Law. The first of these was the Chinese Exclusion Act passed in 1882. That act principally barred the entry of Chinese laborers into the United States, but also included a prohibition against persons entering the country under contract to perform labor. Anticipating arguments that the Alien Contract Labor Law could be used to block the entry of skilled laborers, the Chinese Exclusion Act adopted the second portion of the Alien Contract Labor Law almost word for word.
Subsequent laws showed similar inspiration. The Immigration Act of 1891 imposed a fine for entering a contract within the United States to perform labor or receiving payment for having arranged an alien’s entry without coordinating with the Commissioner of Immigration. Moreover, the act served as the precursor to the Immigration and Naturalization Service. In the Immigration Act of 1903, the Alien Contract Labor Law was one of several statutes repealed. However, while the law was no longer in effect, its spirit lived on in the Immigration Act of 1907. By adding to the Alien Contract Labor Law several provisions concerning "contract workers," the Immigration Act of 1907 simply provided a new name for the same restriction that the Alien Contract Labor Law had imposed. Even after the repeal of the Alien Contract Labor Law, the Government continued to monitor the entry of acrobats, singers, and other talent, such as in the Act of August 5, 1885, which was clearly inspired by the original Alien Contract Labor Law.
In the latter half of the 20th century, numerous statutes restricted the influx of alien contract workers into the United States. These statutes were couched in general terms, but virtually all were copied or inspired by the Alien Contract Labor Law, which was far more specific than its successor statutes. The predecessor to the PERM program, the Labor Certification process of the late 1970s and 1980s, contained provisions restricting employers’ communications with foreign agents. This restriction on communication between employers and foreign agents to obtain labor from abroad provided a strong indication that the Government saw the Labor Certification process to be tied to the Alien Contract Labor Law.
Like the Alien Contract Labor Law, the Immigration and Nationality Act of 1952 included a general prohibition on the entry of aliens "previously employed under contract to Labor." Though such a language was repeated in every subsequent major immigration law enacted through 1990, Congress finally adopted an Alien Contract Labor Law provision. This adoption signified a shift toward a more limited restriction on contract labor and away from the general restrictions on employment of aliens. Admittedly, General Accounting Office (GAO) reports from the 1980s indicate that local officials typically did not utilize the Alien Contract Labor Law.
Social and Economic Consequences of the Law
The Alien Contract Labor Law of 1885 aimed to curb the use of cheap immigrant labor, but its economic effects proved to be more complicated. Not only did the law affect the employers and industries employing the immigrants, it also had ripple effects throughout the economy.
One of the most immediate impacts was the direct increase in wages in the industries employing these immigrant contract workers. As employers fought to attract laborers without succumbing to the temptations of contract labor, they strove to make up the difference. In many cases, that meant raising wages, which in the short term increased the cost of doing business. A 1915 study of 150 factory managers, manufacturers and trustees submitted to the U.S. Department of Labor by C.J. West and M.J. Diamond, described the law’s effect on wages in farming, making clothing, and textile mills, shoe and rubber manufacturing. They found that the average wage increased by 19 cents per day in 1886. Not only were employers forced to raise wages, but they also had to spend more money on expenses to hire immigrant workers directly. They faced cancellation fees, shipping fees, and other expenses in hiring workers directly.
The law also had a significant impact on the agricultural industry, both for employers and the immigrants themselves. During the first year, farmers could not afford to pay the immigrants what they were accustomed to. Workers deserted the jobs en masse. The American Agriculturalist noted in its November issue, "Regular immigrants now express great reluctance to come here to work unless they find situations in advance, because of the risk of having to put in months – if a frost does not come too early – at work they do not like, all for 25 to 50 cents a day, whereas they can make as good as 1.50 per day at home." In a later issue, the publication equated the abandonment of the farms of the United States with what "any sensible man would do who had a little capital , and wanted to risk it in the chances of a new enterprise. He would not waste [money] at the beginning, but would wait to see the business proved before he put capital into it." In other words, farmers couldn’t afford the law’s provisions, and immigrations headed for other areas of employment.
The direct financial consequences of the law extended to the entire society, from which the immigrant workers generally came. In England, nearly 900 labor societies denounced the law as detrimental to the people. The societies asserted that voluntary emigration to earn money and then returning home was part of the "natural order of things," and workers would be better off without the contract law to interfere. That perspective was echoed in many countries in Europe. By the end of the 1885, the value of emigration from Europe had practically doubled. The law was not popular in the United States, either, drawing criticism from Secretary of the Treasury Daniel Manning. He argued that the law was "injurious to this country" because "the trades of this country can only be carried on by contract laborers."
Not only did the law have direct economic consequences, it also negatively affected the social standing of the country as a whole. Countless immigrant workers emigrated to the U.S. already having signed contracts, and the law caused a great deal of concern. Other countries began rescinding their contracts with the U.S., and groups such as the Federal Council of the churches of Christ in America, a group of Protestant churches, openly denounced it. They stated in a petition, "The law is outrageously unscriptural when it assumes to dictate to honest men and women what work they may take in exchange for fair compensation, instead of leaving them free to be her "willing manservants and maidservants."
Congress ultimately repealed the Alien Labor law on February 21, 1887. The disruption caused by the law only made it clear that the U.S. economy needed immigrants to keep running, and it could not affectively police how they worked.
Legal Challenges and Amendments to the Law
While the Alien Contract Labor Law was enacted to prevent the perceived threat of cheap foreign labor, it was not without its critics. Nearly from the day it was passed, the law faced legal challenges from those who opposed its broad application.
In 1887, just two years after its enactment, a case was brought involving a ship bringing immigrants from Great Britain to Savannah, Georgia "to work at an establishment in the manufacture of cigars, which, when they reached New Orleans, they were to have done without any payment for their passage, and were to be paid their wages from binding contracts already made with the owners of the same."
The federal court reviewed the law and, without ruling directly on its constitutionality, held that the law did not apply to immigrants coming to the United States for the purpose of working in America for a specific employer. This would appear to be in direct conflict with the law. Nonetheless, United States v. Guyler, 22 F. 938, held that because the immigrants were under contract to work for a specific individual or business, the law did not apply.
The case was appealed to the Supreme Court and the District Court’s decision was affirmed. But the case left open the question regarding the law’s application in other scenarios.
In United States v. Cowan, 46 F. 85, a different federal court was faced with an issue involving individuals recruited by the British to work at a sugar plantation in British Guiana, with the understanding that they would enter the United States if needed, and work until their services were no longer required, at which point they would return to British Guiana.
This Court, like the one that decided Guyler, held that the law did not apply in this scenario because the contract was not just for work in the United States. The employer was in another country, and the worker knew he may be asked to do work that did not involve any place in the United States.
Almost immediately after the Court in Cowan decided that the law did not apply to people who may be hired by a foreign employer to do specific work, the law was amended to address it directly.
The 1887 amendment added "any other then existing part or parts of the United States" after "territory" in the definition of "contract labor" – thereby broadening the definition of those who could be considered employees under the law. In effect, employers could be excluded from the law by showing that the employer was located outside the United States, and that the contract therewith was exclusive and not a sham, but, this approach would cut against the broad intent of that original legislation.
The law continued to draw challenges, however. In 1894, the United States was no longer just threatened by foreign labor, it was becoming mired in a large supply of strike labor. In response, Congress attempted to amend the contract labor law again, this time adding a proviso excluding from the law "any contract hiring an alien in a foreign country to perform, and to perform in a foreign country, menial labor in the United States on some particular occasion." This language made no mention of the date or time period, nor did it clearly define menial labor.
The next year, in 1895, courts evaluated this addition to the statute. On May 11, a court in California found the 1894 amendment to be too vague and stated that it should not be permitted to interfere with the rights of an individual or State. In doing so, the court in People v. McGowan, 65 Cal. 17, expressed its opinion that under the law, a family could not hire a housekeeper for a few hours or a few days to care for a sick family member. Thus, in California, neither menial nor temporary employment was permitted.
In 1899, the law changed once more. This time, U.S. v. Santos, 9 U.S. 514, 14 (1899), addressed the 1894 amendment that had allowed for people arriving in the United States on a specific date to be hired temporarily and excluded from the law because they were hired to perform menial labor on a particular occasion.
Citing Cowan, the 1899 Court held that the 1894 amendment was unconstitutional because it had allowed a worker to leave the country and return as long as the status of employment remained the same. Because the workers remained under British Guiana law, rather than U.S. law, the law could not classify these British Guiana laborers as foreigners—and thus they could not be included under the law.
Modern Relevance of the Law
In contemplating the legacy of a statute that imposed such clear limitations on immigration and the free movement of workers, it is difficult not to wonder whether it could possibly have a modern application.
Its similarity to recent legislative proposals in the House and Senate are hard to miss. In particular, in May 2009, the House passed H.R. 1875, the Save America Comprehensive Immigration Reform Act of 2009. This bill would provide for enhanced enforcement of unauthorized employment and participation in unauthorized immigration by establishing penalties for employers who (1) fail to comply with "mandatory employment verification requirements;" (2) fail to comply with the antidiscrimination provisions of the Immigration and Nationality Act; and (3) discriminate with respect to employment based on citizenship, immigration status or national origin, among other things. Currently under the INA, an employer who is found liable for an unfair employment practice may be fined up to $1,100 . 00. H.R. 1875 increases the administrative assessment to $5,000 or 2 percent of the employer’s gross annual income or the amount equal to three times the amount the employer knowingly paid the unauthorized immigrant, whichever is greater. It further states that an employer who has been found liable of such discrimination three times in a five-year period will be barred from hiring any new noncitizen employee for five years. H.R. 1875 also would add criminal liability for the offending employer. This would be similar to the alien contract labor law because an employer who knowingly violates H.R. 1875 would face such loss of citizenship and jobs. Such penalties are only going to be enforced if they create some more substantial effect in deterring violations of the law. Therefore we may be looking down a path that will have a potentially long-lasting impact on America’s workforce.