51 UCLA L. Rev. 1 (2003-2004)
Borderline Decisions: Hoffman Plastic Compounds, the New Bracero Program, and the Supreme Court's Role in Making Federal Labor Policy

handle is hein.journals/uclalr51 and id is 31 raw text is: BORDERLINE DECISIONS: HOFFMAN PLASTIC COMPOUNDS,
THE NEW BRACERO PROGRAM, AND THE SUPREME COURT'S
ROLE IN MAKING FEDERAL LABOR POLICY
Christopher David Ruiz Cameron
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 mar-
gins 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.
IN TRO DU C TIO N  ................................................................................................................. 2
I. THE FORMULA AS APPLIED: HOFFMAN PLASTIC COMPOUNDS ................................ 7
II. THE FORMULA AS DEVELOPED: BILDISCO, CONNELL,
AND  CARPENTERS (SAND   DOOR) ........................................................................  11
A .  B ildisco  ....................................................................................................... . .  11
*    Associate Dean for Academic Affairs and Professor of Law, Southwestern University School of
Law, Los Angeles. A.B. 1980 University of California, Los Angeles; J.D. 1983 Harvard Law School. My
thanks to Roberto Corrada, Kevin Johnson, Cynthia Nance, Michael Olivas, and Adrienne Wing for
providing a forum in which to develop this Article at the AALS Annual Meeting in January 2003.
Thanks also to Ruben Garcia, Julia Figueira-McDonough, Kevin Johnson, Gillian Lester, George Martinez,
Isabel Medina, Lori Nessel, Jim Pope, Mary Romero, and Abel Valenzuela for their comments and
suggestions. Research assistance was provided by Lauren Kovner (Class of 2003). Any mistakes in the final
product are mine alone.

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