Forced Child Labor in the United States

A mental exercise with the Golden Rule.

Every once in a while, when they’re not busy being THE ENEMY OF THE PEOPLE, the free press will illuminate some dark feature of the world that was hidden from view. Whenever this happens on matters close to my academic and professional ambit—that is, forced labor and trade—it stops me in my tracks.

This happened to me in 2019 when I read Austin Ramzy and Chris Buckley’s series of original reporting in the New York Times on the genocide née human rights crisis in Xinjiang. It happened for me a second time, when the Xinjiang Police Files were leaked to the International Consortium of Investigative Journalists (ICIJ) last summer. Seeing the faces and reading the charges against these Uyghurs was such a deeply unsettling experience. You can’t unread it. On days when I feel dismayed that UFLPA enforcement is doomed to be a morass of chaos and unintended consequence, I steady my vision by thinking about those men and women.

I had the same experience weekend before last, reading Hannah Dreier’s meticulously documented Pulitzer-worthy reporting in the Times, on migrant child labor in the United States.

I spend much of my time peering through a telescope at the deep recesses of global supply chains, and describing what I see. I choose the metaphor of a telescope because the work of supply chain due diligence entails looking very carefully at commercial entities, relationships and conduct that appear to be small, remote, and insignificant, only because we sit (in Washington) at the consumer end of the global supply chain. But wherever labor abuses occur, they do so quite vividly on a very human scale. We do supply chain due diligence to help restore the human-scale visibility of conduct that only seems obscure or irrelevant because it is far away. This is a good and important consequence of the U.S. having adopted forced labor trade laws.

So, weekend before last, I’m peering through my telescope (as one does) and was startled to see Hannah Dreier’s giant eyeball staring back at me, searching up through the other end of the telescope to where I sit and reside. If you’ve ever looked through a telescope backward, you know the effect. The appearance of things sitting in your very room becomes distorted. If visible at all, they’ll appear to be both tiny, and very far away.

Like any God-fearing mid-westerner, I was raised on a steady diet of Golden Rule. And so, I found it deeply unsettling to read what she wrote. Labor abuses in the supply chains of well-known commercial brands. A lot of them. Local labor laws that are archaic or ignored. Government labor enforcement agencies that are under-resourced and inadequate to the task of holding anyone to account. Children who had been severely maimed in dangerous working conditions. Predatory labor brokers who identify and then gain legal custody over vulnerable migrants—migrant children—before shuffling such migrants into debt bondage, sometimes with the complicity of ignorance from the U.S. government. The identification of hyper-localized regions—like the northwest side of Grand Rapids, Michigan?!—where, apparently, child labor is particularly rife and acute. And all I could think was, this is my vernacular about supply chain activity in Ghana, Malaysia, the DRC, China and the Dominican Republic. And I couldn’t sleep.

Hannah Dreier had the courage to look through the telescope backward. Expecting (as I would have) that she would probably find small amounts of forced or child labor, mostly among migrant workers in the agricultural sector, that expectation was revealed as an inverted-telescopic distortion. Instead, she found, and made human-scale, a dark feature of the world in our very room.

There are so many causes worth unpacking here, but I’m going to stay in my lane and speak only to the ramifications for forced labor trade laws. This is not a strictly academic exercise. The United States, flush with confidence in the merit of of forced labor import bans, has been actively lobbying our trading partners to enact similar laws.

When the United States renegotiated NAFTA into the USMCA, it crafted the so-called “Rapid Response Labor Mechanism” to be able to rapidly curtail imports from Mexican factories implicated in labor abuses. But that provision was written asymmetrically, so there is no reasonable possibility of Canada or Mexico invoking it against the U.S.

Canada and Mexico did agree, however, to enact forced labor import bans of their own. If these countries sought to enforce their laws in the same way that the U.S. does, they might take action against any U.S. brand, facility, city or region identified in the reporting, because the precedent set by the U.S. for “actionable” instances of forced labor is a mere “reasonable suspicion” standard. Would Canada or Mexico be justified in having reasonable suspicion that goods made with forced child labor are being exported from the United States into their markets? Would Canada or Mexico be justified in detaining shipments at the northern or southern borders, respectively, and demanding documentary proof of the condition of labor at every step in the manufacturing supply chain in an effort to ensure that goods made with forced labor aren’t entering their markets contrary to law?

Or what if the EU gets around to enacting a forced labor import ban? If it enforced such a ban the way the U.S. enforces its own, the companies most clearly in the danger zone would be Canadian companies that rely on inputs from northwest Grand Rapids. The EU might detain shipments from any Canadian company for which a digital record could be uncovered indicating that such Canadian company had ever, since say 2017, taken a shipment of components from central Michigan. To obtain release, such a Canadian company might have to document every last corner of its supply chain, proving that it had excised all problematic content.

If the notion of such a trade dispute seems far-fetched to you, don’t forget that the most enduring and intractable trade disputes of the WTO era have not been between the U.S. and China (whose disputes are relatively new), but between the U.S. and Europe over things like aircraft subsidies and beef hormones.

Speaking of beef, consider another important export market for U.S. beef, Japan. In January, the U.S. and Japan were proud to announce a new Task Force to Promote Human Rights and International Labor Standards in Supply Chains. In years gone by, U.S. trade negotiators had to do a lot of work to persuade Japan to open (and keep open) its market to high quality U.S. beef. I wonder what the Japanese representatives to this commission will think about importing high quality U.S. beef carved by young teenage hands, and whether they will regard that as raising questions about human rights or labor standards in the United States.

I’m trying to keep tabs on the different policy and legislative consequences of Hannah Dreier’s reporting. But one thing I can tell you I did NOT see coming was the pro-child labor camp. Iowa’s proposed legislation specifically to permit young teenagers to work in meatpacking plants predates the recent news . . . but apparently is still gaining steam? This week, the Arkansas governor signed into law a roll-back of anti-child labor provisions, calling them out-of-date. I’m not all that politically astute, and maybe this is just a strange way to own the libs, but I thought the constituencies in favor of forced child labor were small-to-non-existent in the United States. Now, I’m not so sure.

Before I wrap, two caveats. First, don’t mistake my Midwesterner, Golden Rule ruminations for false equivalency. A grievous moral harm, even when perpetuated by government incompetence or inaction, is not the same as a state-led campaign to perpetuate forced labor and eliminate the ethnic identity of a people. So don’t go there.

Second, I appreciate that there can be distinctions between child labor and forced labor, and that the two are not always coextensive. But almost every scenario described in Hanna Dreier’s reporting would be prima facie actionable by CBP if occurring outside the United States. For purposes of U.S. forced labor trade enforcement, forced labor is explicitly defined to include forced child labor. Also, CBP isn’t required to find that forced labor has definitely occurred before acting. Rather, it is authorized to act on a “reasonable suspicion” standard. Further still, CBP has begun applying that reasonable suspicion standard just to indicators of forced labor (rather than forced labor itself). Dreier’s reporting would certainly be actionable on those low conditions for action

Certain dimensions of the rules-based system of global trade (like principles of reciprocity and nondiscrimination) may have fallen out of favor of late. Heck, the Golden Rule isn’t exactly having a heyday either. But IF forced labor trade laws are worth having, promoting and exporting to other countries, it’s at least worth contemplating how they might be deployed in reverse. If nothing else, doing so can help bring perspective to our existing approach to enforcement.