On the other hand, many businesspeople and others who take advantage of the cheap labor undocumented workers provide live in fear of the possibility that the U.S. will actually "crack down" on those workers and expel them, leaving us without low-cost workers to pick our crops, clean our houses, and water our gardens.

Obviously, there is an enormous tension between these conflicting goals and concerns. There is one partial solution to this problem, however, that people of all political perspectives should be able to agree on. In the absence of a comprehensive new immigration policy which either expels, or makes legal, the estimated six million undocumented workers in this country, the one modest, reasonable and important step that the next President and Congress could take to ameliorate some of the worst consequences of our current situation is to amend federal law to overturn the United State Supreme Court’s notorious and reprehensible Hoffman Plastics decision.

Hoffman Plastics is a Supreme Court decision from 2002 that denied back pay to a machine operator whom a California chemical company had illegally fired for union activity. He was denied that back pay solely because he was an undocumented immigrant. The National Labor Relations Board, the nation’s chief adjudicator of these types of disputes, had told Hoffman Plastics to give this man 3-1/2 years of back pay—the wages he would have earned if he hadn't been illegally fired—saying he deserved the same remedy that a documented worker would receive in the same circumstances. But the Supreme Court countered that immigration law takes precedence over labor law. "Allowing the Board to award back pay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy...and encourage future violations," wrote then-Chief Justice William Rehnquist in the 5-4 decision.

Since the Supreme Court’s ruling, companies have tried, with varying success, to use this decision to overturn workers compensation awards and end enforcement of minimum wage and overtime laws for undocumented immigrants. One state court ruled, for example, that a contractor whose negligence on a construction site caused a worker to become incapacitated was not required to compensate the worker for lost earnings at the rate he was earning in New York, but rather at the rate he would have been earning in Mexico. Through this principle, employers and contractors are now free to import the workplace standards of developing countries into the United Stats.

According to a study by the National Employment Law Project, the Hoffman Plastics decision:

has encouraged unscrupulous employers to engage in retaliation against unauthorized workers who claim violations of their workplace rights, and to make more claims that these workers are unprotected by any labor laws. This in turn has [had] a chilling effect on workers’ enforcement of their remaining workplace rights…. Finally, employer who would follow the labor and employment laws are harmed when their competitors are allowed to flout the law without suffering consequences.

For all of these reasons, supporting the reversal, through legislation, of Hoffman Plastics isn’t like coming out for “amnesty for illegal aliens,” or some other proposal which might be seen as so far “out of touch” with the great mass of U.S. voters as to simply be politically beyond the pale. Most people who are otherwise inclined to support candidates like Senators Clinton and Obama, and many who are supporting Senator McCain, are presumably open to the idea that it isn’t good for any of the traditional constituencies whose support presidential candidates seek – for example, unions, blue-collar workers, and environmentalists – to have a subclass of workers so entirely at the mercy of unscrupulous employers.

In fact, finding a “fix” for Hoffman Plastics has been part of the Democratic immigration reform proposal, the SOLVE (“Safe, Orderly Legal Visas and Enforcement") Act of 2004, since it was introduced by (among others) Senator Edward Kennedy and Senator Hillary Clinton, on May 4, 2004.

In light of this political reality, the failure of any of the three remaining major-party presidential candidates to be outspoken in identifying the need to repair the damage done by Hoffman Plastics is lamentable. One can only hope that one of these candidates, at least, will recognize the importance of advocating for this important short-term solution, even while acknowledging that a long-term, comprehensive solution to the problem of undocumented workers in this country is going to be a long, long time in coming.