Suffer The Children

Mark Twain was reputed to have said that history never repeats itself, but it does often rhyme. And when you review the course of American history, you can certainly see the same battles being fought over and over again, each time on slightly different terrain. In the abstract, these constant battles are the result of the natural tension between the efforts to fulfil the aspirations of freedom and equality embedded in our founding documents and the real-world powers, privileges, and prejudices that prevent that. The issue of slavery and its legacy of racism has dogged this country since its founding – we even fought a Civil War over it. Relatedly, the expansion of human rights and the issue of who is and can become an American citizen have also been a constant, as has who will have the right to vote. And our democracy has been in a continuous battle to restrain the corruption of concentrated economic power.

We’d like to think that each one of these battles leads to incremental progress, the moral arc of the universe bending towards justice. The abolition of slavery, the Reconstruction Amendments, the civil rights era of the 1960s, and the Obama presidency appear to show the slow but steady progress we have made in combatting the legacy of slavery. Similarly, women’s suffrage and the more recent expansion of women’s, gay, trans, and Native American rights tell a similar story. Teddy Roosevelt’s trust-busting, FDR’s New Deal, and the expansion of the regulatory state illustrate our efforts to deal with concentrated economic power.

But more often than we would care to admit, the aftermath of many of these victories ends up in backlash and retrenchment, backsliding from the earlier progress. The end of Reconstruction gave way to the emergence of the Klan, Jim Crow laws, and nearly a century of violence and disenfranchisement for Blacks. We are living in the backlash against the civil rights era today, with voting rights restrictions, diluting minority votes via gerrymandering, what’s effectively a poll tax for some citizens in Florida, women’s loss of bodily autonomy, and the attacks on gay and trans rights. The anti-monopoly efforts of the early 20th century Progressives were concurrent with the emergence of the Lochner era of the Supreme Court whose opinions about economic freedom and the sanctity of private contracts were antithetical to those progressive values. The unraveling of the New Deal has been an ongoing project for now on 40 years, beginning with the Reagan-era financialization of the economy and destruction of unions, culminating in Citizens United and the expansion of individual rights to corporations thanks to the Supreme Court. The result is probably the greatest concentration of economic power this country has seen in nearly a century, if ever.

Child labor is usually a feature of the poorest and most dysfunctional countries in the world, mainly in South Asia and Africa. It is not something we associate with a highly developed economy, especially ours. As early as 1813, Connecticut became the first state to mandate at least some education for child workers. For the next century, various Northeast states increased the restrictions on the use of child labor over the objections of factory and textile mill owners who used child labor for about 40% of their workforce – by the 1840s, requiring children under 15 working in factories to receive at least 3 months of schooling per year, then limiting children working to just 10 hours a day, and establishing a minimum age for child laborers; by the 1880s, eliminating child labor entirely in New York’s cigar industry and prohibiting night work. In all these states, enforcement was lax and eventually the differing standards created a drive for a more uniform, federal standard regarding child labor. In 1892, the Democratic Party platform included a ban on factory employment for children under 15.

That near century of progress was all brought to a grinding halt by the Supreme Court’s decision in Lochner v. New York in 1905, the seminal and infamous decision that began the 30-year so-called “Lochner era” of the Supreme Court. The Lochner decision ruled that New York State’s law that prohibited bakers from working more than ten hours a day and sixty hours per week was unconstitutional under the theory of “substantive due process”, a theory which the Court had created out of thin air in the 1880s to protect the railroads from being regulated. Substantive due process looked at the results of legislation as opposed to whether the proper constitutional process was followed in creating such legislation. In the Lochner case, the Court declared the bakers had a “liberty of contract” that would be deprived by government regulation. In other words, with limited exceptions, private contracts were supreme and could not be violated by government regulation.

The Keating-Owen bill which Congress passed in 1916 banned the interstate sale of any product created with child labor and limited the hours a child could work. It was struck down as unconstitutional by the Supreme Court in 1918 under the theory that the federal government could not regulate how a product was manufactured, only how that product could be transported across state lines. In 1922, the Court struck down another law that imposed a 10% excise tax on the profits of any company that used child labor, declaring that the tax was a penalty and a regulation on business rather than an actual tax. (Bizarrely, the Supreme Court in 2012 cited this case and used this same logic in reverse in declaring the ACA’s individual mandate constitutional because it was a tax rather than a penalty.) Frustrated by those two decisions overriding their legislative authority, in 1924 the Congress adopted a constitutional amendment barring child labor. That effort also failed when it could not get enough states to vote for ratification by 1932, primarily because of the obstruction of Southern textile owners who relied heavily on child labor and religious groups who claimed it infringed on the rights of parents. FDR’s threat of Supreme Court expansion finally ended the Lochner era in 1937 and in 1938 the Fair Labor Standards Act (FLSA) was passed that established a minimum age for child labor and put restrictions on the type of work that could be done in order to provide for their safety. The Act was amended in 1949 to finally prohibit child labor with an exception for agricultural work.

With the passage of the FLSA, child labor issues in the US largely faded to the background. But technological advances, the deregulation fervor of the late 1970s and 1980s, and the creation of the World Trade Organization in 1995 brought another era of backsliding that we continue to live through until today. Initially the focus shifted to American companies subcontracting work overseas to companies that used child labor. Throughout the 1990s, Democrat Tom Harkin proposed legislation that would prohibit the importation of products made with child labor. While Harkin never got any of that legislation passed, American firms did at least feel pressure to avoid using child labor in their overseas operations, with the most success occurring in African cocoa supply chain. At home, we again saw a surge in child labor, especially in the textile industry and the proliferation of illegal clothing sweatshops. With the passage of NAFTA, focus shifted to the exploitation of child labor in the US agriculture sector, the one area of exemption of the FLSA, where children as young as four years old were working in the fields. Efforts to reform that exemption failed under pressure from the agriculture industry.

In about 2015, we began to see another resurgence of child labor violations here in the US. 2022 saw a 37% increase in the number of minors illegally employed from the prior year, and a 140% increase over the prior decade. Last year, over 800 companies were found to be illegally employing over 3,800 children. A recent New York Times expose highlighted a “shadow work force [that] extends across industries in every state, flouting child labor laws that have been in place for nearly a century”. That work force is largely made of migrant children, some as young as twelve or thirteen. As the Times notes, “The growth of migrant child labor in the United States over the past several years is a result of a chain of willful ignorance. Companies ignore the young faces in their back rooms and on their factory floors. Schools often decline to report apparent labor violations, believing it will hurt children more than help. And H.H.S. behaves as if the migrant children who melt unseen into the country are doing just fine”. The goods produced by this child labor come from subcontractors to some of the most recognizable corporate names – Frito Lay, General Mills, Quaker Oats, Hyundai, Kia, JBS, Ben & Jerry’s, Ford, Walmart, Target, and Whole Foods – who put their brand names on those products.

There are probably a number of reasons behind this recent rise in the illegal use of child labor, some structural and some temporal. In less developed economies, it is usually an economic downturn that drives an increase in child labor. In the US, it is largely the reverse. Here, it appears that tighter labor markets like we saw in the late 1990s and in the last few years actually contribute to the use of child labor. Equally clear is the fact that our insane and broken immigration system also contributes to the problem. In 2008, Congress passed the Trafficking Victims Protection Reauthorization Act and G.W. Bush signed it. The bill forced the government to treat unaccompanied immigrant minors far more leniently than their adult counterparts, either by housing them with a relative already in the US or a foster family until they can get a hearing. The result has been an explosion of migrant minors entering the US, as well as opportunities for them to be exploited once they are here.

In addition, the degradation of state capacity also plays a role. HHS simply does not have the resources to properly track all the minors they place. Thanks to deregulation, the myth of corporate “self-regulation”, and the decades-long efforts to starve the government of resources, the Labor Department has so few inspectors they can’t even respond to complaints much less actually proactively check for illegal child labor. In a similar vein, ever since the massive Enron fraud and the associated implosion of Arthur Anderson in 2002, we have abandoned any pretense of actually holding recidivist corporate criminals to account. Today, the Labor Department can only issue fines when it finds companies violating child labor laws and, for the biggest firms, those fines are simply treated as the cost of doing business. The largest fine allowed for a child labor violation is a mere $15,000 per child.

The corporations’ ability to avoid any real accountability stands in stark contrast to the actual child laborers and their families. Parents of child workers are likely to be charged with child abuse and subject to deportation if they are undocumented. That alone makes reporting child labor abuses problematic for some, such as school authorities, who may be aware of the situation.

Efforts to combat child labor here in the US suffer from the same problem as fighting it overseas. Major corporations protect themselves by subcontracting out work to firms that do employ child labor, absolving themselves of direct responsibility. As Erik Loomis notes, subcontracting “exists to protect corporations from any kind of responsibility for the workers—even though [the corporations] have tremendous power over these workers’ actual lived experience”. Timothy Noah adds, “through subcontracting and franchising, large corporations have made the enforcement of labor protections for frontline, low-wage workers other people’s problem. Subcontractors win contracts with low bids and are left to figure out how to cover costs; the Fortune 500 company that hires them really doesn’t want to hear about it. Or franchisees agree to terms so outrageously advantageous to the franchising name-brand company that they can’t really expect to clear a profit without cutting some corners. Somebody’s got to be the fall guy.” Child labor is the perfect corner to cut because the labor comes cheap and is easily controllable, especially if they are migrants. Until we make corporations legally liable for their supply chains, the labor abuses by subcontractors will continue.

The last element in the recent increase in child labor is essentially its increasing acceptance by our judicial and political leaders. For well over a decade, Supreme Court Justice Clarence Thomas has been espousing legal theories that would deem most child labor laws unconstitutional.  We are unable to fix our immigration laws or compel a living minimum wage in order to deal with what now appears to be a chronic labor shortage. In response, more and more states are turning to expanding the use of child labor. Minnesota is considering letting 16- and 17-year-olds work construction. Iowa wants to allow 14- and 15-year-olds to work in meat-packing plants and would indemnify the meat packer from civil liability if the child was hurt because of his or her own negligence. Arkansas has passed a bill that awaits Governor Sarah Huckabee Sanders’ signature that would eliminate any need for a work permit for children under 16, potentially allowing 9-year-olds to be hired for work. New Hampshire will allow 14-year-old busboys at places where liquor is served and expands the number of hours 16- and 17-year-olds could work from 30 to 35 hours per week.

Nelson Mandela once said, “There can be no keener revelation of a society’s soul than the way in which it treats its children”. Such a revelation shows our society’s soul to be quite lacking. Whether it’s flagrantly violating child labor laws or expanding its legal use; whether it’s actually separating migrant children from their parents at the border and holding them in cages or threatening to take trans kids from their parents by charging them with child abuse in Texas and Florida; whether it’s killing our children with our insane gun laws or forcing thirteen year-old girls to give birth to their rapist’s child; whether it’s banning books and not teaching our real history or forcing gay kids into the closet again; whether it’s saddling children with debt before they even finish their education or shaming them with “lunch debt”; when it’s reducing child poverty by a third to a half with the Child Tax Credit and then letting it expire, plunging millions of kids back into poverty; by whatever metric, we are clearly failing our children.

The expansion of child labor is like the canary in the gold mine – a warning sign of reactionary regression. And like so many of the liberties we thought we had gained and the problems we thought we had solved, the battle against child labor and its associated abuses must be fought again.