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1988 Wis. L. Rev. 955 (1988)
Exclusion and Membership: The Dual Identity of the Undocumented Worker under United States Law

handle is hein.journals/wlr1988 and id is 965 raw text is: EXCLUSION AND MEMBERSHIP: THE DUAL IDENTITY OF THE UNDOCUMENTED WORKER UNDER UNITED STATES LAW LINDA S. BOSNIAK* In this Article, Linda Bosniak analyzes the dual identity of the undocumented immigrant as both outsider and member of the national community. She argues that constitutional and statutory law have granted limited rights of membership to the undocumented immigrant but have concurrently curtailed these rights under the na- tion's border/protective powers. The author then examines the effect of the Immigra- tion Reform and Control Act of 1986 (IRCA) on the anomalous condition of the undocumented immigrant. She concludes that the two major features of the law, em- ployer sanctions and legalization, will accentuate rather than resolve the undocu- mented worker conflictual status. Although IRCA was intended to protect the nation from outsiders, in practice it will heighten the outsider status of a class of people already living and working within the nation's borders. Ms. Bosniak argues that this shift in the status of undocumented immigrants threatens the welfare of both the undocumented immigrant and the national community. Table of Contents I. INTRODUCTION: EXCLUSION, MEMBERSHIP, AND THE IMMIGRATION REFORM AND CONTROL ACT OF 1986 .............. 956 A . IR C A ........................................................... 956 B. Exclusion and Membership ................................... 961 II. THE UNITED STATES IMMIGRATION REGIME PRIOR TO IRCA ..... 967 A. Exclusion and Membership ................................... 967 B. Membership and Exclusion .................................. 977 C. The Undocumented in the Workplace ........................ 987 D. The Tensions of Duality ...................................... 998 III. THE UNDOCUMENTED WORKER UNDER IRCA ..................... 1006 A. Enhanced Exclusion and Expanded Membership: Theory and Practice .......................................... 1007 B. The Tensions of Duality under the New Regime... ......... 1019 IV . CONCLUSION .......................................................... 1040 * Law Clerk, Second Circuit Court of Appeals. B.A., Wesleyan University, 1980; M.A., University of California, Berkeley, 1988; J.D., Stanford Law School, 1988. I would like to thank Andrew Bush, Bob Gordon, Tom Grey, Tom Heller, Raul Hinojosa, Bill Ong Hing, Dan Purtell, Michael Reich, Anne Richardson, and Alex Saragoza for their useful comments on earlier drafts.

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