The 1990s have been fascinating times for study of United States-Mexico relations. In the decade's early years, public discussion in the United States centered on the ratification of the North American Free Trade Agreement (NAFTA), a controversial trade accord between the United States, Mexico, and Canada.(n1) The NAFTA debate in the United States focused on whether this country should enter into a trade agreement with Mexico; Canada's inclusion as a trading partner provoked considerably less controversy,(n2) Free trade forces ultimately prevailed and Congress approved the agreement.(n3)

Not long after NAFTA's approval, debate over immigration, particularly undocumented immigration from Mexico, hit a fever pitch in the United States. Tinged by a distinctly anti-Mexican tilt,(n4) California's Proposition 187, which swept to a landslide victory in the November 1994 elections,(n5) marked the beginning of the restrictionist onslaught. Congress soon after funded monumental efforts to bolster enforcement along the United States-Mexico border through military-style operations.(n6) Like the infamous deportation campaign of 1954 known as Operation "Wetback,"(n7) in which the United States rounded up and deported Mexican immigrants and United States citizens of Mexican ancestry, recent border enforcement efforts meant tightening migration controls along the nation's southern border with Mexico and increased deportation of Mexican citizens. Tighter enforcement came despite the longstanding charges that U.S. Border Patrol officers all-too-frequently abuse Mexican citizens,(n8) At the same time, the federal government stiffened the immigration laws(n9) and drastically limited the public benefits available to legal as well as undocumented immigrants.(n10) This legislative action disparately impacts Mexican citizens,(n11)

One might wonder what this modern history has to do with the Treaty of Guadalupe Hidalgo, which in 1848 ended the United States-Mexican War.(n12) As part of the price for peace and a large piece of Mexican land, the Treaty, among other things, purported to protect the rights of Mexican citizens in the territory surrendered to the United States.(n13) However, as many have carefully documented, the spirit, if not the letter, of the Treaty went largely unfulfilled.(n14) Most fundamentally, many Mexican citizens, transformed by the Treaty into United States citizens of Mexican descent, and their descendants, never enjoyed full membership rights in this society, despite the Treaty's promise that they would.(n15)

Though dealing with issues of citizenship, the Treaty of Guadalupe Hidalgo did not address future migration between the United States and Mexico, as the nations were reconfigured under the Treaty and later the Gadsen Purchase.(n16) Thus, the Treaty drafters failed to confront a question that ultimately came to dominate relations between the two nations. This omission is understandable in light of the fact that the U.S. government did not enact the first comprehensive immigration laws until several decades after Mexico and the United States consummated the Treaty.(n17) Unlike modern times, immigration did not preoccupy the national consciousness.

Like its predecessor, NAFTA failed to deal generally with the question of migration. Unlike the omission of migration from the Treaty of Guadalupe Hidalgo, however, the modern failure is striking because migration had emerged as one of the most, if not the most, contentious issues in United States-Mexico relations during the latter half of the twentieth century.(n18) A high level of migration between the two nations is a simple fact of modern life. Indeed, not long after NAFTA's ratification, Mexico, for the first time in its history, allowed its citizens to become U.S. citizens while maintaining Mexican nationality,(n19) thereby legally recognizing--in a way that NAFTA did not--the transnational identity of a segment of its population.(n20)

Against this backdrop, one might expect the NAFTA partners to at least discuss immigration.(n21) From the outset, however, NAFTA "was limited to free trade as opposed to a common market, which would allow for the free flow of all factors of production."(n22) In any event, if NAFTA had dealt with immigration, it presumably would have responded to domestic political pressures in the United States and restricted, not liberalized, migration from Mexico to this country.

Suppose, however, that the political climate changed dramatically in a way that "open borders" advocates might endorse. Assume that the United States agreed to permit labor migration between the two nations while (to be fair) prohibiting the exploitation of Mexican labor.(n23) Would the terms of such an agreement be enforceable? Unfortunately, significant evidence suggests that they would not be, at least under present political, economic, and social conditions. Experience with the lax enforcement of the Treaty of Guadalupe Hidalgo, and United States anti-discrimination laws generally, suggest that undue confidence in the effectiveness of such a compact would not be justified.(n24)

Economic and social forces shape the rate of legal and illegal immigration to the United States and the legal and social status of migrants in the country. Business gains in the United States result from a low wage labor force provided by migration from Mexico.(n25) The public in the United States, however, resists formalizing the immigration status of Mexican immigrants, who are viewed as racially and culturally different and a threat to their economic well-being.(n26) The uncertain legal status of undocumented immigrants renders them all the more susceptible to exploitation in the workplace. It is difficult to see how law, whether through bilateral agreement or otherwise, could substantially change this complex social dynamic.

Part I of this article considers various provisions of the Treaty of Guadalupe Hidalgo and NAFTA implicating citizenship rights. Several provisions of the Treaty of Guadalupe Hidalgo purported to protect Mexican citizens. Though U.S. courts have occasionally enforced the Treaty provisions, persons of Mexican descent have never been afforded full membership rights in the United States. NAFTA, though not squarely addressing immigration, does nothing to change the dynamics allowing for a significant undocumented Mexican labor force to participate in the U.S. economy with precious few civil rights. Rather, NAFTA reinforces the immigration status quo between the two nations at a time when economic and other pressures favor change. Part II considers whether, in light of enforcement and related problems exacerbated by the power differential between the United States and Mexico, it matters what an agreement between the two nations might provide in terms of migration.

I. The Tale of Two Treaties

Both the Treaty of Guadalupe Hidalgo and NAFTA failed to address immigration and nationality issues in any meaningful way. Both, however, offer powerful insights about the forces behind United States-Mexico migration, the politics of race in the United States, and the role of law in protecting the rights of minorities in this country.

The parties consummated the two agreements under similar, though different, circumstances. The Treaty of Guadalupe Hidalgo ended a war lost by Mexico and, as some have put it, accomplished the "conquest" of the Southwest(n27) by the United States. Mexico obviously had little bargaining power in negotiating the Treaty. The parties agreed to NAFTA not to end a war, but in an effort to improve their economies. Though not nearly as disadvantaged in its relations with the United States as it was in 1848, Mexico, suffering economic woes and facing increasing political instability, needed a free trade agreement much more than either the United States or Canada. (n28) As put by one observer,

[i]nternally, the Mexican government needed desperately to legitimize itself in the face of growing challenges by the opposition and increasing popular dissatisfaction with the sacrifices exacted for the prospect of free trade. Externally, it realized that the nation had to brace itself for the fierce international competition unleashed by the culmination of the cold war. Mexico felt it would fall behind hopelessly if it failed to find new partners and markets(n29)

Clearly, in negotiating both the Treaty of Guadalupe Hidalgo and NAFTA, Mexico possessed much less leverage than the United States.

A. The Treaty of Guadalupe Hidalgo and Immigration and Nationality

Two important provisions of the Treaty of Guadalupe Hidalgo address the citizenship rights of Mexican citizens living in the territory ceded under the Treaty to the United States.(n30) Article VIII provides that:

Mexicans now established in territories previously belonging to Mexico, and which remain for the future within.., the United States... shall be free to continue where they now reside, or to remove to the Mexican Republic ....

Those who shall prefer to remain in said territories, may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But, they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in said territories, after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.(n31)

Article IX further provides that:

[t]he Mexicans who...shall not preserve the character of citizens of the Mexican Republic... shall be incorporated into the Union of the United States and be admitted, at the proper time (to be judged by the Congress of the United States) to the enjoyment of all rights of citizens of the United States according to the principles of the Constitution...(n32)

The two articles of the Treaty together promised Mexican citizens in the surrendered territories the option of U.S. citizenship and guaranteed those who exercised that option the same rights as all other citizens. The liberality of the citizenship provisions provoked controversy in some quarters of the United States. "Many Anglo Texans, for example, resisted the signing of the Treaty of Guadalupe Hidalgo (from the perspective of United States expansionist interests, a highly favorable land cession), because it extended U.S. citizenship to the large Mexican population of the ceded territory."(n33) Though it ratified the Treaty without change to the citizenship articles, the United States later experienced great difficulty in honoring the promise of equal citizenship to the new U.S. citizens of Mexican ancestry.

To be fair, Articles VIII and IX of the Treaty resulted in some benefits for Mexican citizens. For example, although most racial minorities were treated as non-whites in a time when U.S. law limited naturalization to "white" immigrants,(n34) the court in one important case found itself compelled by the Treaty of Guadalupe Hidalgo to classify Mexican immigrants as "white" for naturalization purposes.(n35) In analyzing the significance of Article VIII, the court observed that the citizenship rights applied to "Mexicans (and the term includes all Mexicans, without discrimination as to color)."(n36)

Despite its positive impact on formal citizenship rights, the Treaty of Guadalupe Hidalgo failed to guarantee the rights of the new U.S. citizens and their descendants. For example, Anglos, with the help of the federal government invoked a variety of legal (and illegal) mechanisms to strip Chicana/os of their property rights under the Treaty.(n37) Similarly, the California Supreme Court rejected a challenge under the Treaty to a foreign miners tax imposed by the state of California.(n38) Poverty in unincorporated and impoverished colonias populated primarily by Mexican Americans along the United States-Mexico border today serve as stark reminders of the failure of the Treaty's promise to achieve full membership rights for persons of Mexican ancestry.(n39)

Richard Delgado succinctly summarized the enforcement record of the Treaty of Guadalupe Hidalgo:

[t]he Treaty...purported to guarantee to Mexicans... full citizenship and civil rights...The treaty, modeled after ones drawn up between the U.S. and various Indian tribes, was given similar treatment: The Mexicans' "[I]and and property were stolen, rights were denied, language and culture suppressed, opportunities for employment, education, and political representation were thwarted."(n40)

To put it mildly, the Treaty of Guadalupe Hidalgo suffered significant enforcement difficulties.(n41) The U.S. government ultimately failed to protect the rights guaranteed under the Treaty to Mexican citizens who became U.S. citizens.

B. NAFTA's Avoidance of Immigration

NAFTA implicated issues of deep domestic concern in the United States. Organized labor feared that, if companies relocated operations to Mexico, jobs of "American workers" would be lost to low wage Mexican workers.(n42) Some environmentalists feared that free trade would damage the environment if production facilities in this country moved across the border to Mexico with its less stringent environmental controls.(n43) Unlike immigration, however, the NAFTA parties attempted to quell controversy by addressing these issues in side agreements.(n44)

NAFTA failed to comprehensively address immigration. Despite the fact that from an economic perspective labor migration and trade are a little different,(n45) domestic political concerns prevented the United States from negotiating for more liberal migration from Mexico.(n46) The only significant migration provision in the treaty recognized each nation's sovereign right to take measures "to ensure border security and to protect the domestic labor force and permanent employment in their territories." (n47) This permitted the development of freer trade between the United States, Mexico, and Canada, combined with U.S. implementation of stricter border controls along its southern border.(n48) NAFTA contrasted starkly with more expansive integration agreements of the times, most notably those forming the European Union, which provide for the migration of labor between member nations.(n49)

Despite NAFTA's failure to squarely address the issue, migration concerns influenced the debate over its approval. Some restrictionists in the United States, for example, criticized the agreement for not requiring Mexico to assist U.S. efforts to combat illegal immigration.(n50) In sharp contrast, prominent Mexican intellectual Jorge Castaneda complained that NAFTA failed to allow for labor mobility: "The governments are opening borders to goods and capital flows, while labor, Mexico's main export, is barred from entry."(n51)

NAFTA proponents on the northern side of the border contended that, even if the agreement failed to squarely address immigration, it ultimately might decrease undocumented immigration from the south. When free trade improves the Mexican economy, so the theory went, economic improvement would reduce a major "push" behind Mexican migration to the United States. (n52) Though "the NAFTA text stayed well clear of the explosive issues raised by illegal immigration from Mexico to the United States," many understood that the free trade accord might indirectly reduce immigration.(n53)

Political roadblocks, including differences of race, barred the contemplation of any agreement facilitating labor migration between the United States and Mexico.(n54) NAFTA's failure to address immigration is consistent with the longstanding refusal of the United States to allow for the admission of economic migrants(n55) and efforts under the U.S. immigration laws to restrict the migration of the poor.(n56) Fears of mass migration unquestionably strike fear into the hearts of many in the United States. Differences of class, culture, language,(n57) and physical appearance all contribute to the perception that Mexican citizens are of a different "race."(n58) Such differences contribute to calls for restrictionist measures.(n59) As commentators have observed, cultural differences between the United States and Mexico cause difficulty in commercial relations.(n60) One can expect even greater controversy when the discussion turns to the migration of persons--not capital, income, products, and services--who differ from the Anglo norm in this country.

The perspective of the Mexican government, of course, is very different. Long relying on the migration of its citizens to the United States as a safety valve that prevented serious political unrest, Mexico also sees northern migration as a source of income because migrants send money earned in the United States to their families in Mexico.(n61) In addition, concerned with the safety of its citizens, the Mexican government consistently has complained that the U.S. Border Patrol abuses Mexican migrants(n62) and focuses deportation efforts disproportionately on Mexican citizens.(n63) Despite these concerns, the pressing political and economic need for a free trade agreement(n64) could not help but cause the Mexican government to quickly abandon any hopes of dealing with immigration in NAFTA.

Even with NAFTA's silence on the subject, however, immigration was central to United States-Mexico relations at the end of the twentieth century. Many prominent commentators have emphasized the importance of the United States and Mexico working together to resolve immigration issues.(n65) In the future, one might see migration between the two nations addressed in a bilateral agreement between the United States and Mexican governments.(n66) Unfortunately, racial and other differences made it politically infeasible for the United States at this historical moment to negotiate an accord facilitating labor migration between the two nations.

II. Does It Matter Whether a Treaty Between the United States and Mexico Governs Migration?

Assume that the United States and Mexico filled in the immigration gap left by the Treaty of Guadalupe Hidalgo and NAFTA and agreed to permit free migration of labor between the two nations. Assume also that part of the hypothetical accord required that the parties enforce the same laws--minimum wage, safe working conditions, non-discrimination--applied to the member countries' own citizens. Would free migration positively affect the work-lives of Mexican immigrants in the United States?

There is reason to believe that the best made agreement would not meaningfully change the status quo. Indeed, one might speculate that it would worsen matters for Mexican citizens working in the United States. An open border presumably would increase migration by Mexican workers into the United States, although the magnitude of any immigrant flow is difficult to predict. Due to family ties and social networks developed over generations, two powerful factors in the current Mexican migration to the United States,(n67) one would expect continued job segregation as family and social networks steered immigrants to certain jobs. One also would expect many of the migrants to be unskilled. (n68) By increasing the supply of unskilled labor in certain jobs, increased migration would place downward pressure on wages.(n69) This is precisely what occurred in agriculture with the temporary Mexican labor programs that existed in the United States from World War II through the 1960s.(n70) Such a result would be consistent with the fact that both the Treaty of Guadalupe Hidalgo and NAFTA adversely affected agricultural labor, with its large Mexican immigrant and Mexican American component, in the United States.(n71)

Nor could we be confident that, regardless of any agreement, the United States could ensure that employers do not exploit Mexican labor.(n72) Not-so-distant history suggests the contrary. In the 1950s, the United States and Mexico entered into agreements allowing for the creation of the Bracero Program, a temporary worker program that ostensibly protected the wages and working conditions of Mexican workers.(n73) The United States failed to enforce worker protections and, consequently, agricultural growers frequently paid substandard wages to Mexican farmworkers.(n74) The Bracero Program also drove down wages for all agricultural workers.(n75) As Mario Barrera commented:

[t]he benefits of the bracero program were disproportionately appropriated by the large growers... The various adverse effects--which were not supposed to happen but did--were borne by others. Domestic workers were displaced from jobs; farm wages in California showed a downward trend; housing for workers on the farms deteriorated; and unions experienced even greater difficulties organizing in the countryside.(n76)

To worsen the prognosis for change through a migration agreement between the United States and Mexico, U.S. laws designed to protect minority citizens from discrimination and workplace exploitation have been far from effective.(n77) The U.S. government long has experienced difficulties enforcing laws protecting racial minorities, whether they be U.S. or foreign citizens. For example, as George Martinez has documented, courts generally have failed to protect the civil rights of Mexican Americans and Mexican immigrants.(n78) As commentators have observed, the undocumented, particularly vulnerable due to their uncertain immigration status, need increased protections to prevent exploitation.(n79) Whether the law could ever effectively prevent such exploitation is open to debate.

Moreover, facially neutral laws may have unintended racial consequences. For example, the law imposing sanctions on employers of undocumented immigrants has not proven effective(n80) and, at the same time, has resulted in national origin discrimination against persons of Latin American and Asian ancestry.(n81) Such discrimination occurs despite the fact that it is prohibited by law.(n82)

Failure of the United States to abide by the idyllic migration agreement would be consistent with its inability to honor the Treaty of Guadalupe Hidalgo.(n83) This history is characteristic of this nation's checkered record of complying with treaty obligations. The United States, for example, infamously violated treaties with Indian tribes.(n84) Similarly, the United States has been less than conscientious in adhering to human rights treaties, as demonstrated by the U.S. government's forced return to Haiti of persons fleeing that nation's political violence in the 1990s.(n85) More generally, the United States has a spotty record in ensuring that the immigration laws conform to international law.(n86)

Finally, Mexico, with its relatively weak bargaining posture,(n87) could not be expected to be in a position to ensure that the U.S. government keeps its word with respect to any migration agreement. Mexico's lack of leverage in its dealings with the United States can be seen, for example, in NAFTA's investment provisions, which decidedly favor U.S. interests and may negatively affect Mexican citizens as well as Latina/os in this country.(n88) Similarly, the agreement's dispute resolution mechanisms imitate U.S. legal traditions and ignore Mexico's rich, though different, legal culture.(n89) Mexico's limited bargaining power in negotiating NAFTA ultimately suggests that it might be unable to pressure the United States to enforce any protections for Mexican citizens in a migration agreement.

The evidence is not all one-sided, however. In the European Union, for example, law has been utilized to combat discrimination against foreign workers in certain cases.(n90) Similarly, although dispute resolution under NAFTA has not been perfect, it has worked in some instances.(n91)

In sum, the mere fact that the United States might be obligated under an agreement to ensure that employers do not exploit Mexican immigrants does not necessarily mean that this will become a reality. This is true even if Congress passed a plethora of laws designed to implement the accord's mandate. In the end, it is far from certain that a pact liberalizing migration between the United States and Mexico would change the status quo--the existence of a large, easily exploitable labor force of Mexican citizens in the United States with little bargaining power. To facilitate meaningful change, the nations would need to confront the social and economic forces that maintain the current system.

Conclusion

This essay has attempted to outline some of the migration and citizenship issues implicated by the Treaty of Guadalupe Hidalgo and NAFTA. Though immigration emerged as an issue of critical importance to both the United States and Mexico at the end of the twentieth century, it is not likely to be fully resolved through law, either by treaties or otherwise. Economic, social, and historical forces dictate migration patterns. Although business interests treasure the cheap labor provided by the Mexican people, public opinion in the United States strongly opposes legal recognition of migrants of a different race, culture, and class. This dynamic ultimately inures to the benefit of employers able to recruit a vulnerable, easily exploitable low wage labor force of undocumented workers. Even if political obstacles to a migration agreement between the United States and Mexico were overcome and the United States passed laws designed to bar the exploitation of foreign workers, there is little reason to believe that such laws alone would improve the wages and conditions of Mexican citizens laboring in the United States.

This analysis ultimately suggests that, if change in the migration patterns between the United States and Mexico is desired, it is necessary to address the underlying causes, rather that attempt to modify them through law alone. Economic disparities between the United States and Mexico increase migration pressures. Ties between Mexican citizens and family members in the United States also contribute to the steady flow of migrants to this country. Both factors are unlikely to change in the short run. Indeed, it may not be possible to eliminate migration pressures, in light of the substantial--and growing-Mexican American population in the United States with family in Mexico. In any event, what is critical to remember is that law is only one tool for managing migration between the United States and Mexico. Those serious about decreasing migration from Mexico in the long run must consider other means as well. Promoting economic development in Mexico, thereby creating economic incentives to remain there, is one possiblity. A very different alternative would be to simply allow freer migration under the law in recognition that social and economic forces always will determine migration between the United States and Mexico. Whether the public in the United States will expressly acknowledge the inevitability of a Mexican presence in this country, however, remains far from certain.

(n1) See The North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., 32 I.L.M. 296 (1994) [hereinafter NAFTA]. Because NAFTA is a congressional-executive agreement rather than a "treaty" under Article II, section 2 of the U.S. Constitution (which would subject it to the approval of two-thirds of the U.S. Senate), its constitutionality has been questioned. See generally Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801 (1995) (analyzing arguments about NAFTA's constitutionality).

(n2) See, e.g., ROSS PEROT & PAT CHOATE, SAVE YOUR JOB, SAVE OUR COUNTRY: WHY NAFTA MUST BE STOPPED--Now! (1993) (criticizing NAFTA with principal focus on alleged evils of entering trade agreement with Mexico).

(n3) Congress did so, however, only after the addition of environmental and labor side agreements calmed domestic resistance to NAFTA. See inca text accompanying notes 42-44.

(n4) See Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629, 650-61 (1995) (analyzing racial undertones to the initiative campaign).

(n5) See League of United Latin American Citizens v. Wilson, 908 E Supp. 755, 763 (C.D. Cal. 1995) (observing that California voters passed initiative by a 59-41% margin).

(n6) See U.S. Comm. on Immigration Reform, Becoming an American: Immigration and Immigrant Policy, Executive Summary 34 (Comm. Print 1997) (observing increased resources permitting Operations Hold the Line in Texas, Gatekeeper in California, and Safeguard in Arizona). See generally TIMOTHY J. DUNN, MILITARIZATION OF THE U.S.-MEXICO BORDER, 1978-1992 (1996) (documenting great increase in border enforcement).

(n7) See generally JUAN RAMON GARCIA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN WORKERS IN 1954 (1980) (analyzing enforcement campaign).

(n8) See, e.g., U.S. COMM. ON CIVIL RIGHTS, FEDERAL IMMIGRATION LAW ENFORCEMENT IN THE SOUTHWEST.. CIVIL RIGHTS IMPACTS IN BORDER COMMUNITIES (1997) (reporting on violence and other civil rights violations by Border Patrol); MEXICAN NAT'L HUMAN RIGHTS COMM., REPORT ON HUMAN RIGHTS VIOLATIONS OF MEXICAN MIGRATORY WORKERS ON ROUTE TO THE NORTHERN BORDER AND UPON ENTERING THE UNITED STATES BORDER STRIP (1991) (same).

(n9) See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996). See Lenni B. Benson, Back to the Future: Congress Attacks the Right of Judicial Review of Immigration Proceedings, 29 CONN. L. REV. 1411 (1997), for analysis of how these laws eliminated judicial review of a myriad of immigration decisions.

(n10) See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104193, 400-451, 110 Stat. 2105, 2260-77 (1996); see also Michael Scaperlanda, Who is My Neighbor?: An Essay on Immigrants, Welfare Reform, and the Constitution, 29 CONN. L. REV. 1887 (1997) (criticizing welfare reform legislation as inconsistent with Constitution and Judeo-Christian values).

(n11) See generally Kevin R. Johnson, Race, The Immigration Laws, and Domestic Race Relations: A "Magic Mirror" into the Heart of Darkness, 73 IND. L.J. 1111 (1998) (analyzing how facially neutral immigration laws disparately impact racial minorities, including Mexican citizens).

(n12) See Treaty of Peace, Friendship, Limits and Settlement with the Republic of Mexico Feb. 2, 1848, U.S.-Mex., 9 Stat. 922 [hereinafter Treaty].

(n13) See infra text accompanying notes 30-41 (analyzing significance of Articles VIII and IX of Treaty of Guadalupe Hidalgo).

(n14) See, e.g., RODOLFO ACUNA, OCCUPIED AMERICA 18-20, 112-18 (3d ed. 1988) (discussing U.S. violation of treaty); RICHARD GRISWOLD DEL CASTILLO, THE TREATY OF GUADALUPE HIDALGO: A LEGACY OF CONFLICT (1990) (analyzing history of treaty enforcement); Guadalupe T Luna, Chicana/o Land Tenure In the Agrarian Domain: On the Edge of a Naked Knife, 3 MICH. J. RACE & L. (forthcoming 1998) [hereinafter Luna, Land Tenure] (documenting Chicana/o dispossession from lands in violation of treaty); Guadalupe T. Luna, "Agricultural Underdogs" and International Agreements: The Legal Context of Agricultural Workers Within the Rural Economy, 26 N.M.L. REV. 9, 13-21 (1996) [hereinafter Luna, Agricultural Underdogs] (studying how treaty's violation contributed to Chicana/o poverty); George A. Martinez, Legal Indeterminacy, Judicial Discretion and the Mexican American Litigation Experience: 1930-1980, 27 U.C. DAVIS L. REV. 555, 566-69 (1994) (analyzing judicial decisions involving property rights of Mexican Americans under treaty); see also Christopher David Ruiz Cameron, One Hundred Fifty Years of Solitude: A Law Professor Critiques the Dominance of Historical Scholarship on the Treaty of Guadalupe Hidalgo, 5 SW. J.L. &TRADE IN THE AMERICAS 83 (1998) (providing empirical analysis of land grant cases under the Treaty decided by U.S. Supreme Court); Christine A. Klein, Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo, 26 N.M.L. REV. 201 (1996) (comparing deprivation of property rights under Treaty with similar deprivations under Indian treaties). The Treaty's impact has ripple effects lasting to this day. See, e.g., MARY ROMERO, MAID IN THE U.S.A. 8-10 (1992) (analyzing how violation of Treaty resulted in poverty of Chicana/os in Southwest, internal migration between states, and many Chicanas entering urban labor markets as domestic service workers).

(n15) See infra text accompanying notes 37-41 (analyzing deficiencies in Treaty enforcement); see also Richard Griswold del Castillo, The U.S.-Mexican War: Contemporary Implications for Mexican American Civil and International Rights, in CULTURE Y CULTURA: CON SEQUENCES OF THE U.S.-MEXICAN WAR, 1846-1848,.at 76 (1998) (considering modern civil rights implications of Treaty of Guadalupe Hidalgo).

(n16) See GRISWOLD DEL CASTILLO, supra note 14, at 59-61; see also Remarks of Arturo Gandara. "Understanding the Treaty of Guadalupe Hidalgo on Its 150th Anniversary" Conference, Southwestern University School of Law, Feb. 6, 1998 (analyzing legal significance of Gadsen Purchase).

(n17) See 1 CHARLES GORDON, STANLEY MAILMAN, & STEPHEN YALE-LOEHR, IMMIGRATION LAW & PROCEDURE Subsection 2.02-2.04, at 2-6, to 2-7 (1996) (summarizing history of federal immigration regulation during this period); James F. Smith, A Nation That Welcomes Immigrants? An Historical Examination of United States Immigration Policy, 1 U.C. DAVIS J. INT'L L. & POL'Y 227, 228-31 (1995) (same). Before comprehensive federal regulation, individual states restricted migration in a variety of ways. See generally Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993) (documenting this history).

(n18) See Kevin R. Johnson, Free Trade and Closed Borders: NAFTA and Mexican Immigration to the United States, 27 U.C. DAVIS L. REV. 937, 943-56 (1994). For analysis of the parallels between the Treaty of Guadalupe Hidalgo and NAFTA with respect to dispute resolution; see George A. Martinez, Dispute Resolution and the Treaty of Guadalupe Hidalgo: Parallels and Possible Lessons for Dispute Resolution Under NAFTA, 5 SW. J.L. & TRADE IN THE AMERICAS 147 (1998).

(n19) See Jorge A. Vargas, Dual Nationality for Mexicans? A Comparative Legal Analysis of the Dual Nationality Proposal and Its Eventual Political and Socio-Economic Implications, 18 CHICANO-LATINO L. REV. 1 (1996); see also Congress OKs Letting Expatriates Retain Citizenship Benefits, CHI. TRIB., Dec. 14, 1997, at C16 (reporting that Mexican Congress unanimously approved expansion of dual nationality to citizens living outside country). See generally Peter J. Spiro, Dual Nationality and the Meaning at Citizenship, 46 EMORY L.J. 1411 (1997) (contending that a move toward tolerance of dual nationality under U.S. law was appropriate and should not cause concern).

(n20) See Rachel F. Moran, Foreword--Demography and Distrust: The Latino Challenge to Civil Rights and Immigration Policy in the 1990s and Beyond, 8 LA RAZA L.J. 1, 13-24 (1995).

(n21) See Johnson, supra note 18, at 956-59 (outlining reasons why U.S. refused to put immigration on the NAFTA bargaining table).

(n22) David Lopez, Dispute Resolution Under Mercosur from 1991 to 1996: Implications for the Formation of a Free Trade Area of the Americas, 3 NAFTA: LAW & BUS. REV. OF AMERICAS 3, 7-8 (1997).

(n23) I define "exploitation" in this context narrowly to mean that employers of Mexican citizens would be required to comply with generally applicable wage and other labor protections. Consequently, Mexican workers would have the same legal protections as all other workers, including U.S. citizens, in the United States.

(n24) See infra text accompanying notes 67-91 (analyzing lessons of history in this regard).

(n25) See, e.g., KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION AND THE I.N.S. (1992) (documenting how growers benefited from Bracero Program allowing Mexican workers to come to nation temporarily); see also infra text accompanying notes 72-76 (analyzing how growers gained from cheap labor provided by Bracero Program).

(n26) See, e.g., PETER BRIMELOW, ALIEN NATION (1995) (presenting racial, cultural, political, economic, and other arguments for drastic reductions in current levels of immigration).

(n27) ACUNA, supra note 14, at 12-15.

(n28) See Enrique R. Carrasco & Randall Thomas, Encouraging Relational Investment and Controlling Portfolio Investment in Developing Countries in the Aftermath of the Mexican Financial Crisis, 34 COLUM. J. TRANSNAT'L L. 539 (1996) (analyzing investment strategies in developing nations in light of Mexican financial crisis of 1990s).

(n29) Angel R. Ocquendo, NAFTA's Procedural Narrow-Mindedness: The Panel Review of Antidumping and Countervailing Duty Determination Under Chapter 19, 11 CONN. J. INT'L L. 61, 63 (1995); see Sergio Garcia-Rodriguez, Mexico's New Institutional Framework for Antitrust Enforcement, 44 DEPAUL L. REV. 1149, 1155-57 (1995) (articulating pressures on Mexican leadership to reach free trade accord with U.S.).

(n30) See generally GRISWOLD DEL CASTILLO, supra note 14, at 62-86 (discussing Articles VIII and IX of the Treaty and their implementation).

(n31) Treaty of Guadalupe Hidalgo, supra note 12, art. VIII (emphasis added).

(n32) Id., art. IX (emphasis added). Article IX was interpreted as not requiring Congressional action formally bestowing Mexican citizens, who did not retain Mexican citizenship, with U.S. citizenship. See People v. De La Guerra, 40 Cal. 311, 341-44 (1870) (holding that Treaty of Guadalupe Hidalgo directly conferred citizenship rights and rejecting claim that person of Mexican ancestry in California was not U.S. citizen, and thus was ineligible to serve as judge, because Congress failed to specifically afford citizenship).

(n33) Jane E. Larson, Free Markets Deep in the Heart of Texas, 84 GEO. L.J. 179, 224-25 (1995) (footnote omitted). See generally DAVID MONTEJANO, ANGLOS AND MEXICANS IN THE MAKING OF TEXAS, 1836-1986 (1987) (analyzing history of racial subordination of persons of Mexican ancestry in Texas).

(n34) See generally IAN F. HANEY LOPEZ, WHITE BY LAW (1996) (analyzing significance of racial prerequisite for naturalization, which remained in place from 1790 until 1952).

(n35) See In re Rodriguez, 81 F. 337, 350-51 (W.D. Tex. 1897); see also George A. Martinez, The Legal Construction of Race: Mexican Americans and Whiteness, 2 HARV. LATINO L. REV. 321, 326-27 (1997) (analyzing significance of Rodriguez in demonstrating that race "can be constructed through the political process. Through the give and take of treaty making, Mexicans became `white' "). Interestingly, two Anglo politicians filed suit attempting to bar Rodriguez from citizenship (and the franchise) and "hoped to prove that [he], a dark Mexican who freely admitted he was probably of Indian descent, was unfit for citizenship." NElL FOLEY, THE WHITE SCOURGE: MEXICANS, BLACKS AND POOR WHITES IN TEXAS COTTON CULTURE 107 (1997).

(n36) In re Rodriguez, 81 F. at 352. In making this statement, the court implicitly recognized that "whiteness" was not simply a question of skin color, but a product of the complex interaction of social forces. See generally MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES (1986) (analyzing forces shaping racial formation in this country). The statement also acknowledges the diversity of physical appearance among persons of Mexican ancestry. See Kevin R. Johnson, "Melting Pot" or "Ring of Fire"?: Assimilation and the Mexican-American Experience, 85 CAL. L. REV. 1259, 1290-99 (1997) (analyzing significance of diversity of physical appearance in Mexican American community in U.S.).

(n37) See Luna, Land Tenure, supra note 14 (offering examples and reviewing case law); see, e.g., United States v. Ortiz, 176 U.S. 422 (1900) (reversing lower court's confirmation of Mexican land grant); Chavez v. United States, 175 U.S. 552 (1899) (affirming lower court's refusal to confirm land grant).

(n38) See People v. Naglee, 1 Cal. 232, 248-51 (1850). The California legislature later repealed the tax, apparently because of enforcement difficulties. See Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth-Century America: The First Phase, 1850-1870, 72 CAL. L. REV. 529, 536 n.33 (1984).

(n39) See generally Larson, supra note 33 (studying plight of colonias along border in Texas); Luna, Agricultural Underdogs, supra note 14 (same).

(n40) Richard Delgado, Derrick Bell and the Ideology of Racial Rearm: Will We Ever Be Saved?, 97 YALE L.J. 923, 940 (1988) (footnotes omitted).

(n41) See supra note 14 (citing authorities to this effect); see also Martinez, supra note 18 (outlining difficulties experienced by persons of Mexican ancestry with mechanisms for resolving disputes under Treaty of Guadalupe Hidalgo).

The history surrounding the Treaty of Guadalupe Hidalgo reveals the interrelationship of the subordination of different racial minorities in the United States. See Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as "Foreigners, "and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 358-62 (1998) (contending that subordination of various racial minorities is interrelated); George A. Martinez, African-Americans, Latinos, and the Construction of Race: Toward on Epistemic Coalition, 19 UCLA Chicano-Latino L. REV. (forthcoming 1998) (offering philosophical argument for this position). The U.S.-Mexican War resulted from American expansionist desires, including a hope by some to protect the institution of slavery in the United States. See ACUNA, supra note 14, at 5-31. Thus, an effort to save slavery (and the subordination of African Americans in the United States) served as part of a chain of events contributing to the subordination of Chicana/os in the Southwest.

(n42) See Roy J. Adams & Parbudyal Singh, Early Experience with NAFTA's Labour Side Accord, 18 COMP. LAB. L. 161, 161-64 (1997) (summarizing organized labor's opposition in U.S., Mexico, and Canada to labor side agreement).

(n43) See William P. Alford, The North American Free Trade Agreement and the Need for Candor, 34 HARV. INT'L L.J. 293,296 (1993) (stating that, in opposing NAFTA, "[w]ith fingers pointed at the tragically low state of Mexican environmental protection, particularly in the maquiladora-dominated industrial zones that line parts of the U.S. border, some environmental groups have painted grim pictures of what they see as growing pressure to lower, or at least not increase, U.S. environmental standards in order to remain competitive with Mexican industry.") (footnote omitted).

(n44) See North American Agreement on Labor Cooperation, Sept. 13, 1993, U.S.-Can.-Mex., 32 I.L.M. 1499 (1993); North American Agreement on Environmental Cooperation, Sept. 13, 1993, U.S.-Can.-Mex., 32 I.L.M. 1480 (1993). Critics claim that the side agreements have done little to alleviate the concerns that resulted in their addition to the NAFTA package. See Maria Teresa Guerra & Anna L. Torriente, The NAALC and the Labor Laws of Mexico and the United States, 14 ARIZ. J. INT'L & COMP. L. 503 (1997); Ileana M. Porras, The Puzzling Relationship Between Trade and Environment: NAFTA, Competitiveness, and the Pursuit of Environmental Welfare Objectives, 3 IND. J. GLOBAL LEG. STUD. 65 (1995); see also Richard W. Stevenson, Union Misgivings on NAFTA are Clinton's Latest Worry, N.Y. TIMES, Nov. 5, 1997, at A8 (observing concerns expressed with addressing important labor and environmental issues in side agreements to NAFTA, rather than in core of trade accord).

(n45) See generally JULIAN L. SIMON, THE ECONOMIC CONSEQUENCES OF IMMIGRATION (1989) (offering economic arguments for less restrictive U.S. immigration policies); Howard F. Chang, Liberalized Immigration as Free Trade: Economic Welfare and the Optimal Immigration Policy, 145 U. PA. L. REV. 1147 (1997) (criticizing U.S. immigration law and policy from economic perspective).

(n46) See Johnson, supra note 18, at 957-59. NAFTA included some narrow immigration provisions providing for temporary entry of noncitizens into the United States for business purposes. See Ellen G. Yost, NAFTA--Temporary Entry Provisions--Immigration Dimensions, 22 CAN.-U.S.L.J. 211 (1996) (summarizing provisions). Thus, NAFTA in effect eases travel restrictions for upper class Mexican citizens.

(n47) NAFTA, supra note 1, art. 1601, 32 I.L.M. at 664 ("[T]his Chapter reflects the preferential trading relationship between the Parties, the desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for temporary entry, and the need to ensure border security and to protect the domestic labor force and permanent employment in their respective territories."). For a study of NAFTA's migration provisions based on several years of experience with the agreement, see Noemi Gal-Or, Labor Mobility Under NAFTA: Regulatory Policy Spearheading the Social Supplemental to the International Trade Regime, 15 ARIZ. J. INT'L & COMP. L. 365 (1998).

(n48) See supra text accompanying notes 6-11 (outlining increased border enforcement after NAFTA's approval). The dichotomous treatment of migration of people and goods between the United States and Mexico permitted by NAFTA can also be seen in electricity transfers between the nations. While migration of persons is subject to heavy regulation, transfer of electricity, which has environmental consequences, is not regulated at all. See Arturo Gandara, United States-Mexico Electricity Transfers: Of Alien Electrons and the Migration of Undocumented Environmental Burdens, 16 ENERGY L.J. 1 (1995) (arguing for regulation of electricity transfers between U.S. and Mexico because of associated environmental burdens).

(n49) See Johnson, supra note 18, at 971-74; see also John A. Scanlan, A View From the United States-Social, Economic, and Legal Change, Persistence of the State, and Immigration Policy in the Coming Century, 2 IND. J. GLOBAL LEG. STUDIES 79, 129 (1994) (opining that history of European Union, and gradual loosening of migration restrictions between member nations, "may provide a glimmer of hope" of more liberal migration between U.S. and Mexico); cf. Boris Kozolchyk, NAFTA in the Grand and Small Scheme of Things, 13 ARIZ. J. INT'L & COMP. L. 135, 146 (1996) (seeing NAFTA as part of movement toward integration of international economy and positing that "[i]t is quite possible that the free trade formula embodied... in NAFTA, can be the key to a more peaceful and prosperous future for the whole of mankind").

The parties to the European Union (EU) may have found it easier to enter a comprehensive integration agreement because of the relative equality of the member nations, all with developed economies and relative similarities among their populations. Nonetheless, the easing of migration restrictions in the EU has not been problem-free. See, e.g., Jacqueline Bhabha, European Harmonisation of Asylum Policy: A Flawed Process, 35 VA. J. INT'L L. 101 (1994) (criticizing development of EU's asylum policy); Immigration: Frontier Wars, ECONOMIST, Jan. 10, 1998, at 42 (describing threat to integration of immigration policies in EU due to influx of refugees).

(n50) See, e.g., Alan C. Nelson, NAFTA: Immigration Issues Must Be Addressed, 27 U.C. DAVIS L. REV. 987, 987 (1994).

(n51) See Jorge G. Castaneda & Carlos Heredia, Another NAFTA: What a Good Agreement Should Offer, in THE CASE AGAINST "FREE TRADE" 86 (1993). This, of course, is consistent with U.S. immigration law and policy, which historically has discriminated against Mexican citizens. See Johnson, supra note 11 (analyzing discrimination in U.S. immigration law and policy against racial minorities, including Mexican citizens).

(n52) See, e.g., Robert T. Matsui, Free Trade and Democratic Values: NAFTA's Effect on Human Rights, 27 U.C. DAVIS L. REV. 791,791 (1994); Dave McCurdy, The Future of U.S. Immigration Law, 20 J. LEGIS. 3, 16-17 (1994); see also FREDERICK M. ABBOTT, LAW AND POLICY OF ECONOMIC INTEGRATION 1718 (1995) (stating that stemming illegal immigration from Mexico was "secondary" objective of U.S. in negotiating NAFTA).

(n53) GARY CLYDE HUFBAUER & JEFFREY J. SCHOTT, NAFTA: AN ASSESSMENT 25 (rev. ed. 1993); see Gary Hufbauer & Jacqueline McFadyen, Judging NAFTA, 23 CAN.-U.S.L.J. 11, 22 (1997) ("[A]s a political concept, NAFTA has everything to do with illegal migration. [Mexican] President Carlos Salinas asked rhetorically, `Do you want our tomatoes or our tomato pickers?' "). Some observers contend that the increased trade between the United States and Mexico facilitated by NAFTA has indirectly increased migration pressures. See Douglas S. Massey, March of Folly: U.S. Immigration Policy After NAFTA, AM. PROSPECT, Mar.-Apr. 1998, at 22.

(n54) See Francis Lee Ansley, North American Free Trade Agreement: The Public Debate, 22 GA. J. INT'L & COMP. L. 329, 370 (1992) (stating in context of public debate over NAFTA that "[lit is the politics of racism and prejudice that keeps the issue of broadening the legal participation of the Mexican labor force and access to U.S. labor markets off the table of negotiations on a free trade accord.") (quoting Maria Jimenez, Immigration Law Enforcement Monitoring Project).

(n55) See Francis A. Gabor, Reflections on the Freedom of Movement in Light of the Dismantled "Iron Curtain', 65 TUL. L. REV. 849, 866-68 (1991) (stating that U.S. immigration law fails to address migration of "economic refugees" and contending that such migration should be permitted in certain circumstances).

(n56) See Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class, 42 UCLA L. REV. 1509, 1519-28 (1995).

(n57) English-only laws, seen with increasing frequency in the 1990s, have been one of the responses to language difference. For analysis of how these laws disparately impact persons of Mexican ancestry, as well as all Latina/os, see Steven W. Bender, Direct Democracy and Distrust: The Relationship Between Language Law Rhetoric and the Language Vigilantism Experience, 2 HARV. LATINO L. REV. 145 (1997), and Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 85 CAL. L. REV. 1347 (1997).

(n58) See Ian E Haney Lopez, Race and Erasure: The Salience of Race to LatCrit Theory, 85 CAL. L. REV. 1143 (1997) (analyzing racialization of Mexican Americans in U.S. through lens of Supreme Court decision of Hernandez v. Texas, 347 U.S. 475 (1954)); Martinez, supra note 14, at 573 ("Mexican Americans have been faced with exclusion from public facilities, neighborhoods, and with racial slurs in a manner similar to the experience of African-Americans."); see also Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2 HARV. LATINO L. REV. 101, 117-29 (1997) (analyzing how all Latina/os, citizens and immigrants alike, are classified as "foreigners" in U.S. society); Louis A. Martinez, En Aquel Entonces: Popular Literature as the Mirror of Political and Cultural Conflict, 5 SW. J.L. & TRADE IN THE AMERICAS 177 (1998) (analyzing how Mexican women are de-humanized through reliance on racial difference in nineteenth century ballad).

(n59) See supra notes 9-10 (listing some of these measures).

(n60) See, e.g., Stephen Zamora, The Americanization of Mexican Law: Non-Trade Issues in the North American Free Trade Agreement, 24 LAW & POL'Y INT'L BUS. 391 (1993) (analyzing significance of cultural differences between two nations in the context of NAFTA); see also James F. Smith, Confronting Differences in the United States and Mexican Legal Systems in the Era of NAFTA, 1 U.S.-MEXICO L.J. 85 (1993) (contrasting U.S. and Mexican legal systems).

(n61) See Johnson, supra note 18, at 941-42 & n.16.

(n62) See supra note 8 (citing report of Mexican government documenting abuses).

(n63) See Johnson, supra note 4, at 652 & n.107 (discussing claims of Mexican officials that Proposition 187 campaign was racist and xenophobic). Evidence supports this contention. See U.S. DEP'T OF JUSTICE, 1995 STATISTICAL YEARBOOK OF THE IMMIGRATION AND NATURALIZATION SERVICE 163, 185 (1997) (noting that 68.5% of all noncitizens deported in fiscal year 1995 were Mexican citizens).

(n64) See supra text accompanying notes 28-29 (outlining pressures on Mexican government to enter free trade agreement with U.S.).

(n65) See, e.g., BINATIONAL STUDY ON MIGRATION 65 (1997) (pre-publication draft) (recommending creation of institutionalized mechanisms for U.S. and Mexico to explore mutually agreeable immigration policies); see also KEVIN F. MCCARTHY & GEORGES VERNEZ, IMMIGRATION IN A CHANGING ECONOMY 291 (Rand, 1997) (claiming U.S. and Mexico "must realize the special role Mexican immigration plays in the lives of both countries"); SIDNEY WEINTRAUB, NAFTA: WHAT COMES NEXT? 55 (1994) (observing that, "[a]lthough not included in NAFTA, the subject of immigration is a salient element in the economic and social integration of Mexico and the United States").

(n66) An expert on U.S.-Mexico relations, Jorge Castaneda, specifically expressed this as a future possibility. See Remarks of Dr. Jorge G. Castaneda, "Understanding the Treaty of Guadalupe Hidalgo on Its 150th Anniversary" conference, Southwestern University School of Law, Feb. 6, 1998.

(n67) See WAYNE A. CORNELIUS, MEXICAN MIGRATION TO THE UNITED STATES: THE LIMITS OF GOVERNMENT INTERVENTION 2-5 (Working Papers in U.S.-Mexican Studies No. 5 1981).

(n68) See GEORGE J. BORJAS, FRIENDS OR STRANGERS: THE IMPACT OF IMMIGRANTS ON THE U.S. ECONOMY 115-33 (1990) (expressing concern with low skill levels of latest cohort of immigrants).

(n69) See PHILIP L. MARTIN & DAVID A. MARTIN, THE ENDLESS QUEST: HELPING AMERICA'S FARM WORKERS 174-77 (1994) (contending that only by limiting undocumented immigration will U.S. be able to improve wages for farm labor); see also VERNON M. BRIGGS, JR., MASS IMMIGRATION AND THE NATIONAL INTEREST 190-221 (2d ed. 1996) (analyzing negative impact of "mass migration" on U.S. labor market).

(n70) See CALAVITA, supra note 25, at 70-71.

(n71) See Luna, Agricultural Underdogs, supra note 14, at 13-21, 41-44.

(n72) See generally GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (analyzing limits of law in bringing about significant social change); GIRARDEAU h. SPANN, RACE AGAINST THE COURT (1993) (same). The prevalence of exploitation of immigrants in the garment industry specifically suggests the difficulties of enforcing worker protection laws. See Laura Ho et al., (Dis)Assembling Rights of Women Workers Along the Global Assembly Line: Human Rights and the Garment Industry, 31 HARV. C.R.-C.L.L. REV. 383 (1996). Moreover, it is not certain that these laws benefit the persons who they are designed to protect. Some, for example, contend that the minimum wage law hurts low wage workers and racial minorities. See, e.g., Daniel Shaviro, The Minimum Wage, the Earned Income Tax Credit, and Optimal Subsidy Policy, 64 U. CHI. L. REV. 405 (1997); Harry Hutchison, Toward a Critical Race Reformist Conception of Minimum Wage Regimes: Exploding the Power of Myth, Fantasy, and Hierarchy, 34 HARV. J. ON LEGIS. 93 (1997). Indeed, law arguably serves in many situations to maintain Anglo hegemony over minorities. See Kenneth B. Nunn, Law as a Eurocentric Enterprise, 15 LAW & INEQ 323 (1997).

Besides the fact that a liberal migration agreement might not be enforceable, the United States, as it did with the Treaty of Guadalupe Hidalgo, see supra text note 14 (citing authorities to this effect), could undermine the Treaty's protections in implementing legislation or judicial decisions.

(n73) See SELECT COMM'N ON IMMIGRATION AND REFUGEE POLICY, STAFF REPORT OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 469-77 (1981) [hereinafter SCIRP STAFF REP.].

(n74) See CALAVITA, supra note 25, at 29, 45-46, 64-66, 70-71; ERNESTO GALARZA, MERCHANTS OF LABOR: THE MEXICAN BRACERO STORY 183-98 (1964).

(n75) See GALARZA, supra note 74, at 199-218; SCIRP STAFF REP., supra note 73, at 475-76. Moreover, efforts by the Mexican government in negotiating predecessors to the Bracero Program to exclude the use of temporary workers in Texas because of that state's history of racial discrimination, proved impossible to enforce. See CALAVITA, supra note 25, at 20, 23-24, 29-30, 33-36, 45-46; GALARZA, supra note 74, at 48-51.

(n76) MARIO BARRERA, RACE AND CLASS IN THE SOUTHWEST 118 (1979) (citation omitted); see JULIAN SAMORA, LOS MOJADOS: THE WETBACK STORY 81 (1971) (stating that Bracero Program was ideal for growers because only single individuals were admitted, there was no need to house families, wages and considerations favorable to business were established, and that "the only persons who were in a disadvantaged position were domestic agricultural workers (U.S. citizens) willing to work (but for decent wages) and the Mexican nationals.").

(n77) See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection.' Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (criticizing discriminatory intent requirement for establishing violation of Equal Protection Clause of 14th Amendment); Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978) (contending that resort to antidiscrimination laws perpetuates, not eradicates, racial discrimination).

(n78) See Martinez, supra note 14; see also Kevin R. Johnson, Civil Rights and Immigration: Challenges for the Latino Community in the Twenty-First Century, 8 LA RAZA L.J. 42, 45-56 (1995) (reviewing limits of litigation for Latina/os and contending that such strategies must be combined with efforts at political mobilization).

(n79) See, e.g., Peter Margulies, Stranger and Afraid: Undocumented Workers and Federal Employment Law, 38 DEPAUL L. REV. 553 (1989); Maria L. Ontiveros, To Help Those Most in Need: Undocumented Workers' Rights and Remedies Under Title VII, 20 N.Y.U. REV. L. & SOC. CHANGE 607 (1993-94).

(n80) See Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The Immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343, 369-80 (1994) (surveying data revealing that employer sanctions under Immigration Reform and Control Act of 1986 have failed to reduce undocumented workforce in United States).

(n81) See U.S. GEN. ACCT. OFF., IMMIGR. REFORM: EMPLOYER SANCTIONS AND THE QUESTION OF DISCRIMINATION 5-7 (1990) (reporting that "survey results indicate that national origin discrimination resulting from [employer sanctions under the Immigration Reform and Control Act] constitutes `a serious pattern of discrimination'" and "that the national origin discriminatory practices reported do establish a widespread pattern of discrimination"); U.S. COMM'N ON CIVIL RIGHTS, THE IMMIGR. REFORM AND CONTROL ACT: ASSESSING THE EVALUATION PROCESS at iv (1989) (finding "no doubt that the employer sanctions have caused many employers to implement discriminatory hiring practices").

(n82) See Immigration & Nationality Act Section 274B, 8 U.S.C. Section 1324b (1994 & Supp. II 1997).

(n83) See supra note 14 (citing authorities).

(n84) See generally ROBERT A. WILLIAMS, JR., LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 1600-1800 (1997); ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990).

(n85) See Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (upholding return of Haitians fleeing political violence without determining whether they might be entitled to refuge in U.S. under international law); cf. The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 589-603 (1889) (holding that law excluding immigration of Chinese persons trumped treaty with China barring such discrimination). Professor Harold Koh has forcefully argued that the U.S. treatment of Haitian refugees violated international law. See Harold Hongiu Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 YALE L.J. 2391 (1994); see also Carlos Manuel Vazquez, The "Self Executing" Character of the Refugee Protocol's Nonrefoulement Obligation, 7 GEO. IMMIGR. L.J. 39 (1993) (contending that relevant treaty was self executing and therefore prohibited Haitian interdiction and repatriation policy). The Court's treatment of Haitian refugees reflects a larger problem of inconsistency in the U.S. courts' approach to the application of international human rights treaties. Compare INS v. Cardoza-Fonseca, 480 U.S. 421,436-42 (1987) (interpreting U.S. asylum law through reference to international law), with Sale, 509 U.S. at 177-87 (construing U.S. law as consistent with international law by narrowly construing international law).

(n86) See Joan Fitzpatrick & William McKay Bennett, A Lion in the Path? The Influence of International Law on the Immigration Policy of the United States, 70 WASH. L. REV. 589 (1995) (contending that U.S. immigration law and policy violates international law in important ways); see also Berta Esperanza Hernandez-Truyol & Kimberly A. Johns, Global Rights, Local Wrongs, and Legal Fixes: An International Human Rights Critique of Immigration and Welfare Rearm, 71 S. CAL. L. REV. 547 (1998) (analyzing how recent welfare and immigration legislation conflict with international law).

(n87) See supra text accompanying notes 28-29 (observing how Mexico's relatively weak bargaining position affected NAFTA's various provisions).

(n88) See Jose E. Alvarez, Critical Theory and the North America Free Trade Agreement's Chapter Eleven, 28 U. MIAMI INTER-AM. L. REV. 303 (1996-97) (observing that the U.S. direct investment in Mexico facilitated by NAFTA may result in increasing Mexican migration to the United States, which may affect Latina/os already in the country); see also Jorge A. Vargas, NAFTA, the Chiapas Rebellion, and the Emergence of Mexican Ethnic Law, 25 CAL. W. INT'L L.J. 1 (1994) (analyzing significance of NAFTA in provoking rebellion of indigenous people in Mexico because of agreement's feared negative economic impacts); cf. Amy L. Chua, The Privatization-Nationalization Cycle: The Link Between Markets and Ethnicity in Developing Countries, 95 COLUM. L. REV. 223,303 (1995) (analyzing trend toward privatization in various developing nations and contending that "contrary to received wisdom, market solutions in developing countries appear actually to aggravate ethnic hatreds, which in turn subvert market solutions"). In addition, NAFTA, by encouraging development of maquiladoras along the border, may impose disproportionate environmental consequences on Mexican Americans in the region. See Xavier Carlos Vasquez, The North American Free Trade Agreement and Environmental Racism, 34 HARV. INT'L L.J. 357 (1993); see also Francisco T. Valdes, Under Construction LatCrit Consciousness, Community, and Theory, 185 CAL. L. REV. 1087, 1121-22 (1997) (analyzing how new Latina/o communities and identities transcend national borders); cf. Elizabeth M. Iglesias, Human Rights in International Economic Law: Locating Latinas/os in the Linkage Debates, 28 U. MIAMI INTER-AM. L. REV. 361,362 (1996-97)("[G]lobal capitalism and the interstate system are undergoing fundamental restructuring and this restructuring has already had and will continue to have profound impact on the lives of Latinas/os both in the United States and in Latin America.") (footnotes omitted).

(n89) See Martinez, supra note 18.

(n90) See JOSEPHINE STEINER, EEC LAW 179-81 (3d ed. 1992) (analyzing caselaw addressing prohibition of discrimination on the grounds of nationality of worker).

(n91) See David Lopez, Dispute Resolution Under NAFTA: Lessons from the Early Experience, 32 TEX. INT'L L.J 163,208 (1997). But cf. Martinez, supra note 18 (analyzing how NAFTA's dispute resolution provisions favor U.S. over Mexican national interests).

~~~~~~~~

By Kevin R. Johnson, UNIVERSITY OF CALIFORNIA AT DAVIS Y

Associate Dean for Academic Affairs and Professor of Law, University of California at Davis School of Law. A.B., University of California at Berkeley; J.D., Harvard University. Conversations with George A. Martinez, David Lopez, and Arturo Gandara helped me conceptualize the arguments presented in this article. I presented a draft of this essay at the "Understanding the Treaty of Guadalupe Hidalgo on Its 150th Anniversary" conference held in February 1998 at Southwestern University School of Law in Los Angeles, California. My thanks to Chris Cameron, who organized the conference and invited me to participate. I appreciate the comments and encouragement of the conference participants, especially Rudy Acuna, Refugio Rochin, Eileen Gauna, Louis A. Martinez, and James E Smith. I also presented this paper in March 1998 at Southern Methodist University School of Law at a conference entitled "A Tale of Two Treaties: United States/Mexico Relations Through the Lens of the Treaty of Guadalupe Hidalgo and NAFTA." I thank Joseph J. Norton and George A. Martinez for inviting me to participate in that conference. Chris Cameron, George A. Martinez, Sushil Narayanan, Guadalupe Luna, and David Lopez offered helpful comments on a draft of this article. Roberta S. Hulit provided much-appreciated editorial assistance.

Copyright of Bilingual Review is the property of Bilingual Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.

Source: Bilingual Review, Jan-Apr2000, Vol. 25 Issue 1, p23, 16p.