Immigrants and undocumented people have often encountered discrimination because they compete against \u201cnative\u201d businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government\u2019s ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations meant to prevent immigrants from braiding hair, manicuring nails, operating food trucks, or otherwise competing. But antitrust courts have seldom mentioned a person\u2019s immigration status, much less offered a remedy. <\/p>\n\n\n\n
This Article shows that antitrust\u2019s \u201cconsumer welfare\u201d standard has curiously ignored the plight of immigrants. Part of the reason is that antitrust law is characterized as a \u201ccolorblind\u201d regime benefitting consumers collectively, meaning that it isn\u2019t supposed to prioritize insular groups such as immigrants. Courts and scholars have also described matters of inequality and discrimination as \u201csocial harms\u201d existing beyond antitrust\u2019s scope. In fact, antitrust lawsuits have successfully sought to drive immigrants out of markets, alleging that competitors gained an \u201cunfair\u201d advantage from employing undocumented workers. Under this view of antitrust law, the exclusion of immigrants is an appropriate way of promoting competition. <\/p>\n\n\n\n
This Article argues that anti-immigrant discrimination creates the exact types of harms that antitrust was meant to remedy. Since excluding immigrants can misallocate resources on citizenship or racial lines as opposed to their most productive usages, certain acts of discrimination should entail \u201cconduct without a legitimate business purpose,\u201d even when based solely on racial animus. A hidden type of market power is revealed in that foreign-born people are less able to employ self-help remedies to correct market failures. In addition to analyzing antitrust\u2019s purpose and economic foundation, this Article delves into antitrust\u2019s history to show that an original function of competition law was to protect foreigners. By demonstrating how incumbents can inflict greater levels of harm on immigrants while wielding less market power, this Article reimagines the consumer welfare standard and its colorblind approach as well as reveals how marginalized communities defy antitrust\u2019s assumptions of self-help remedies. <\/p>\n\n\n\n