Migrant Workers and Rights of Mobility in the European Community and the United States: A Study of Law, Community, and Citizenship in the Welfare State

Free Movement of Persons and European Solidarity1

“…Nevertheless, the idea which underlies—and therefore justifies and legitimates at substantive level—the Community worker's cross‐border access to social rights remains, from this point of view, tied to a commutative‐type logic of reciprocal exchange between the contribution to the production process (and to the process of construction of the common market) supplied by the migrant and his (full) socio‐economic integration into the host Member State (cf. Garth, 1986, p. 96). In other words, it is still the economic function performed by the employee or self‐employed worker within the common market which justifies full and direct access to the social rights guaranteed by the host Member State, even when the social benefits in question correspond to a ‘redistributive’ or ‘asymmetric’ idea of solidarity (Ferrera, 2005, p. 31) and not that of strictly ‘commutative’ solidarity (for the use of this terminology, albeit with reference to a different context, see Christensen and Malmstedt, 2000, p. 70).…”

“…Although the case‐law on Article 39 EC is enough in itself to have been described as the first core element for the construction of an incipient form of social citizenship ‘under the constraints of an employment‐oriented concept of freedom and European integration’ (Leibfried, 1993, p. 147; but see in the same sense, among others, Garth, 1986, p. 97; D'Antona, 1994), there is no doubt that it is only with the increasingly incisive application of Articles 12 and 18 of the Treaty that the Community legal order has moved in the direction of ‘a more universalistic view of citizenship founded on the notion of inclusiveness as an essential component of Europe's identity’ (Kenner, 2003, p.327). In the ‘radical’ (Tomuschat, 2000) reading of the provisions on citizenship of the Union that it has developed starting from its judgment in the famous Martínez Sala case, 14 the Court of Justice has given the rules on transnational access to welfare a new and at least partly unexpected dynamism and direction of development, so much so that there is good reason to talk of a real ‘change of paradigm’ (Reich, 2005, p. 678).…”

“…In an article which may now be considered a classic among studies on ‘integration through law’, Bryant Garth (1986) demonstrated that the affirmation of an unconditional right of all American citizens, including the needy , to movement within the United States was made essentially possible in the early 1940s by virtue in particular of the institution, following Roosevelt's New Deal legislation, of an initial—albeit reduced—form of social assistance at (also) federal level. Having long before acquired full political and constitutional unity reflected (as more directly of interest here) in the absolute subordination of state citizenship to national citizenship, the former being a mere ‘appendix’ to the latter consequent upon the establishment of residence in the state of choice (Garth, 1986, pp. 101 and 109), with the New Deal the United States also achieved a first unification at the level of a common—albeit minimum—federal social responsibility regarding the material living standards of Americans (cf.…”

“…And likewise in the Supreme Court's subsequent case‐law, emphasis is consistently placed on this very close correlation ‘of the U.S. right to travel to the notion of primary federal citizenship and some federal responsibility for social welfare in the states’ (Garth, 1986, p. 101).…”

Spins of (Dis)Integration: What Might "Reformers" in Canada Learn from the "Social Dimension" of the European Union?

“…14 Since control is national and each nation has its most favored historical "immigration mix" this already precludes a really integrated EC−labour market as Garth (1986) pointed out in his seminal article. On the structure of these national labor markets cf.…”