What if you could sue the federal government for a job?
Sounds radical, right? Well, the idea that Americans should have a right to a job — the same way they have a right to vote — goes back at least 75 years. And now that 2020 presidential hopefuls like Sen. Corey Booker (D-N.J.) and Sen. Bernie Sanders (I-Vt.) are talking about a federal job guarantee, the idea is creeping back into the national consciousness.
Thus far, the political discussion around the senators' different proposals has revolved around their feasibility, and that's understandable to a point. World War II and the New Deal work programs are a distant memory. These days, lots of people doubt the federal government's ability to pull off something as ambitious as a national job guarantee.
But plenty of job guarantee supporters argue that enshrining a legal right to a job will be just as important. "Once you set that aspirational commitment, any particular program you design might work or it might not," Rohan Grey, a director of the National Jobs for All Coalition and the Modern Money Network, told The Week. "But if it doesn't work, that's evidence the program has failed the aspirational commitment." Furthermore, if the right to a job is codified in law, then people can sue specific government actors and officials whenever the program does fail. Americans would still be able to turn to Congress to fix the failure as well. But they could also seek legal redress themselves.
For advocates of the idea, there are lessons here from recent history.
Unemployed Americans have actually filed lawsuits against the president and the labor secretary before, but the courts have rejected their cases for lack of standing and other legal issues. The problem was, the plaintiffs based their suits around laws that were supposed to enshrine a right to a job, but were too toothless to be effective.
First, there was the Employment Act of 1946. Inspired by the revelatory experience of World War II, when unemployment averaged 1.7 percent from 1943 to 1945, the bill sought to enshrine a federal government commitment to full employment. It even tried to establish a legal right to a job and create a policy infrastructure for meeting that need. But it was ultimately watered down by a revolt of the Dixiecrats, who feared sustained full employment would upend the racial hierarchy of the Jim Crow South.
Then there was the the Full Employment and Balanced Growth Act(a.k.a. the Humphrey–Hawkins Act) of 1978. Championed by Coretta Scott King and inspired by the civil rights struggles of the 1960s, it had a similar bent to the 1946 original, but was undermined by the big business lobby, which had just come into its own.
Both bills ultimately passed, but in states so weakened they were practically ineffective. The devil, as they say, was in the details.
"Rights that require government action, other than the simple payment of money, are notoriously difficult to enforce," Philip Harvey, a Rutgers law professor and an expert on the right to a job, told The Week. Effective legislation, he explained, needs two interconnecting parts to succeed.
The first is the legal right itself. Any job guarantee legislation would have to clearly lay out what sort of work the government must provide, along with the minimum standards of pay, benefits, accessibility, hours, and more. It would have to make it explicitly clear that unemployed Americans have the legal standing to sue, and who they can sue.
The second part is how to make it all work: The actual institution, agency, and policy program that will hook up individual workers with employment, organize their labor, and get them paid. Here, the legislation must specifically lay out the steps by which eligible workers are identified, ushered into the system, and ultimately provided with employment. Instead of having to oversee the process step by step, the court can simply refer to the playbook written by the legislature and identify where the government failed to uphold its commitment. "Those are the kind of bureaucratic steps that a court is willing to enforce," Harvey continued.
You can see how central the legal right is to the entire job guarantee project. If a bill simply stated the legal right, but relied on far more robust use of traditional fiscal and monetary policy to actually deliver the jobs, it would fall prey to all the problems of court enforcement that Harvey laid out.
The aspirational commitment also serves a social and political purpose: It helps ignite the activists and movements on the ground that will press the legislators and the courts to make the right a reality. "Everything we know about social movement history and legal history suggests that this rights piece is necessary," Raúl Carrillo, also a director of the National Jobs for All Coalition and the Modern Money Network, explained to The Week. "Both for the political preservation of the program, but also for the mobilization to initiate it in the first place."
"Everyone has a right to a job" certainly seems like a more natural rallying cry than "better monetary policy and fiscal stabilizers," however well intentioned the latter cause.
The question now is how serious the Democratic Party's presidential hopefuls are. A job guarantee with a workable legal right at its core will be a massive lift, both legislatively and in terms of political mobilization. But there are already models to build on. In fact, Harvey has consulted for years on two longstanding job guarantee bills — one for the city of New York, the other for the U.S. Congress — that aim to meet all the legal needs he laid out.
The demand for a universal right to jobs has already made itself felt twice in the last century. Maybe the third time's the charm.