Why Liberal States Accept Unwanted Immigration
Author(s): Christian Joppke
Source: World Politics, Vol. 50, No. 2 (Jan., 1998), pp. 266-293
Published by: Cambridge University Press
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LIBERAL STATES ACCEPT
WHY
UNWANTED
IMMIGRATION
By CHRISTIAN JOPPKE*
of the more popular watchwords of our time is that the na
tion-state
ONE
is in decline?"too
small" to solve global problems,
is often made
related argument
states
to control
immigration.
to solve
"too
big"
regional problems,
as the
goes. A
topographical
metaphor
an
of
increasing
regarding
incapacity
was the alarmist
at the
"Strangers
gate"
cry heard in the wake of 1989 and all that. The Economist (March 15,
1991) showed a ramshackle border guardhouse being overrun by a
(and strangely
giant bus bursting with all sorts of foreign-looking
Such hyperbole
has since disappeared,
characters.
cheerful)
across Western
a result of
for
asylum
procedures
tightened
a restrictionist
control
there still seems to be a gap between
an
as
partially
states. But
rhetoric
and
volume
immigration
reality. An influential
comparative
na
the
between
control
"[T]he
gap
argues:
immigration
goals of
. . . and the actual results of
in this
tional immigration
policies
policy
expansionist
on
area (policy outcomes) is growing wider
democracies."1
gion
accept
Why
more
in all major industrialized
re
of the North Adantic
the developed
rhetoric
restrictionist
than their generally
immigrants
do
states
and policies intend?
reflects the gap between
immigration
outcomes. Unwanted
immi
goals and expansionist
as in the
not
is
solicited
states,
by
legal quota immigra
gration
actively
it is accepted
tion of the classic
settler nations.
Rather,
by
passively
reasons and in
of individual
states, either for humanitarian
recognition
The
phenomenon
restrictionist
policy
of unwanted
as in
of labor migrants,
and family reunification
asylum-seeking
rights,
or because of the states' sheer
to
out, as in il
keep migrants
incapacity
as the
legal immigration. The gap hypothesis can thus be reformulated
question,Why do liberal states accept unwanted immigration?2
*
This
Patterns and the
article was first presented at the conference "Effects of Policy on Migration
thanks to
of Berlin, November
of Immigrants," Humboldt
1-2,1996.
University
My
Integration
Rainer M?nz
for the invitation.
1
and James Hollifield,
(Stanford,
eds., Controlling Immigration
Cornelius,
Philip Martin,
Wayne
Calif.: Stanford University
Press, 1994), 3.
2
for example, Gary Freeman, "Can Liberal States
While
frequently used in the literature?see,
and Social Science 534
Annals
Control Unwanted
Migration?"
of Political
of theAmerican Academy
WorldPolitics 50 (January1998), 266-93
267
LIBERAL STATES& UNWANTED IMMIGRATION
one of their
contradicts
accept unwanted
immigration
over the admission
and expulsion
of
the sovereignty
prerogatives:
an eye to its totalitarian
wrote with
aliens. As Hannah
aber
Arendt
more
is nowhere
than in matters
of
absolute
rations,
"Sovereignty
states
That
core
naturalization,
emigration,
nationality,
and
expulsion."3
Does
the ac
ceptance of unwanted immigration indicate a decline of sovereignty? A
quick
"yes,"
as in David
Jacobson's
Rights
across Borders^
is premised
on
a simplistic and static notion of sovereignty, thus denying its historical
and chronic
variability
imperfection.4
two
To answer the question
First,
fully,
things should be considered.
to
two separate aspects of sover
it is important
between
distinguish
to im
and the empirical
eignty, formal rule-making
authority
capacity
to international
rules.
The
former
relations
plement
belongs
theory, in
which
sovereignty is the defining characteristic of individual states as
the units
of the
international
state
system;5
the
latter falls within
the
domain of political and historical sociology, which has preferred the
notions
of state
torically
varying
or
to
the his
autonomy
strength,
capacity,
investigate
embodiments
of the modern
state.6 Gary Freeman
has
demonstrated that in both aspects there is little evidence for a decline
to accept or
of sovereignty
control:7 the decision
regarding
immigration
not been
to actors other than the state, and
aliens
has
reject
relegated
states has not decreased,
the infrastructural
but in
capacity of modern
creased, over
ical capacity,
Arendt
time. Second,
sovereignty
s characterization.
dependence
admittance
have
whether
has
rarely been
Internationally,
put the brakes
always
because
practices
seen as
hostility
or
judicial authority
empir
as absolute
as
conveyed
by
the exigencies
of state inter
on erratic
or non
expulsion
against
an
alien
might
be
and Hollifield
notion of "unwanted" immigration
(fh. 1), 5?the
(1994), 17-30; Cornelius, Martin,
it reifies states as collective
indi
may be criticized on analytical and normative grounds. Analytically,
viduals with clear-cut preferences. Normatively,
it endows a political righting term with academic re
I wish to point out that "unwanted"
such objections,
is used here in a purely
spectability. Against
that occurs despite and against explicit state policies. Qualify
sense, denoting
immigration
descriptive
in the United
States, the first case discussed here, as "unwanted" requires no
ing illegal immigration
in Europe, the second case, is rendered "unwanted" by uni
further elaboration. Family immigration
form zero-immigration
policies since the early 1970s.
3
Hannah Arendt, The Origins of Totalitarianism
(San Diego: Harcourt Brace Jovanovich, 1973), 278.
4
David Jacobson, Rights across Borders (Baltimore: Johns Hopkins
Press, 1996). See
University
and Robert Keohane, eds., Ideas and
Stephen Krasner, "Westphalia and All That," in Judith Goldstein
Press, 1993).
Foreign
Policy (Ithaca, N.Y.: Cornell University
5
in International Relations,"
International
Studies Quar
See Janice Thomson,
"State Sovereignty
39 (1995) ,213-33.
terly
6
See Peter Evans, Dietrich
and Theda
the State Back In
eds., Bringing
Rueschemeyer,
Skocpol,
(New York: Cambridge University
Press, 1985).
7
to theNation-State:
of Sovereignty?"
in Christian
Gary Freeman, "The Decline
Joppke, Challenge
inWestern Europe and the United States (New York: Oxford University
Press, 1998).
Immigration
268
WORLD POLITICS
interpreted as hostility against her state. In addition, international law
both
prohibits
expulsion
of the victims
of race and the
grounds
in other states. Not
persecution
or nonadmittance
on
of political
refoulement
are
under
but
also
international
states,
individuals,
only
legal subjects
are
states
law?a
of
the
era?and
postwar
increasingly
novelty
obliged
to respect an emergent
states
"law of
Western
Domestically,
migrants."8
states are bound
in
qua constitutional
by the rule of law, which
impor
tant respects protects
and not just of citizens.9
the rights of persons
Various
authors
have
argued
constraints
that global
force states to
two such
Saskia Sassen has identified
accept unwanted
immigration.
on state
constraints
external
sovereignty:
an
rise
the
of
international
human
rights
economic
and
globalization
The
of
penetration
regime.10
countries
has
multinational
created
the
by
push
peripheral
corporations
of an uprooted
and mobile
labor force seeking entry into the core coun
in the
tries of the world
the secondary
labor market
system. In addition,
emer
a
countries
for immigrants. An
receiving
powerful
pull
provides
human
international
gent
rights regime protects migrants,
independent
of their nationality,
national
devaluing
limiting
the discretion
of states
toward
aliens
and
the work of Jacobson,
Sassen
a
an
shift
"from
has
argues
legitimacy
undergone
on the
to self
of
the
and
exclusive
sovereignty
right
emphasis
people
... to
of nationality."11
determination
rights of individuals
regardless
the au
Taken
and political globalization
"reduce[s]
together, economic
that the basis
tonomy
desperate
populist
citizenship.
of state
of the state
attempts
restrictionism.
Echoing
in immigration
to renationalize
the state's
policy making,"12
despite
this policy area under
the sign of
The diagnosis of globally diminished sovereignty indicates that the
has partially
created what
not answer
it
But
does
gration.
West
it seeks
to contain?international
mi
as to
states
the question
why Western
First, the space-indifferent
accept unwanted
immigrants.
logic of glob
as the
some states,
cannot
alization
such
immigrant
explain why
at
states of the
Middle
East, are very efficient
oil-producing
receiving
8
24 (1986), 699-715.
International Migration
R Perruchoud,
"The Law ofMigrants,"
9
identification of individual rights with citizenship
rights,
Luigi Ferrajoli decimates T. H. Marshall's
is then construed as a departure. Instead, Ferra
from which a new postnational
"logic of personhood"
never been invested in na
joli shows that most individual (legal and social) rights in liberal states had
tional citizenship
and had always revolved around universal personhood.
Ferrajoli, From the Rights of
the Citizen to Rights of the Person (Manuscript, European Forum on Citizenship,
European University
see Yasemin
to
1995-96). On the logic of personhood,
Institute, Florence,
Soysal, Limits
Citizenship
of Chicago
Press, 1994), chap. 8.
University
(Chicago:
10
Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization
(New York: Columbia Uni
versity Press, 1996), chap 3.
11
Jacobson (fh. 4); Sassen (fn. 10), 95.
12
Sassen (fn. 10), 98.
LIBERAL STATES& UNWANTED IMMIGRATION
or
out,
keeping
unwanted
back,
sending
immigrants.13
Only
269
liberal
states are plagued by the problem of unwanted immigration. Second,
globalists operate with a hyperbolic notion of strong sovereignty that
never was.
In terms
of economic
of the late
the world
transactions,
one hundred years
no less
world
than
the
century
global
to stay, while
later.14 If the Bonn Republic
its guest workers
allowed
resolute rotation and mass expulsions,
Wilhelmine
Germany
practiced
a state weakened
cannot be the
economic
by
globalization
explanation.
was
nineteenth
The state always had to vindicate itselfwithin and against an inherently
to
and related to this, the very reference
capitalism. Third,
to
states accept
is insufficient
immi
factors
explain why
or unwanted.
the mo
Economic
grants, wanted
explains
globalization
as
in the
of
bilization
well as the
immigrants
sending societies,
potential
globalizing
economic
in acquiring
them, but not their actual
employers
one subscribes
states.
to the ques
the
Unless
acceptance
by
receiving
a
state
is always
tionable view that the
the task would
tool of capitalism,
em
be to identify
the domestic
which,
say, expansionist
processes
by
out the restrictionist
in
interests
interests
cancel
of
the
ployer
public
interest
of domestic
turn out to be in
sovereignty would
not
human
diminished.
the international
Fourth,
ternally,
externally,
not so strong as to make
states fear and tremble. Jack
is
rights regime
it as a "relatively
characterized
strong promotional
Donnelly
regime,"
on
norms and values, but lacks
rests
which
widely
accepted
implemen
times
specific
tation
and places.
and enforcement
ternational
human
discourse.16
This
tent with
tailed
listing
But
then
powers.15
rights
is better
formal
process-tracing"
Devoid
consists
of hard
of the
the in
legal powers,
soft moral
power of
regime
But globalists
than nothing.
have been con
the "de
titles, avoiding
treaty and convention
which
their
become
soft
may
power
by
to trace.
be little process
there would
Perhaps
effective.17
domestically
across
For instance,
the recent
law and policy
of asylum
tightening
states demonstrates
Western
that these states have been extraordinarily
inventive
in circumventing
tional human
rights
regime,
the single strongest
the non-refoulement
norm
of the
interna
obligation.18
13
The Global Migration
Crisis (New York: HarperCollins,
1995), 80-83.
Myron Weiner,
14
of Sover
and the Consolidation
and Stephen Krasner, "Global Transactions
Janice Thomson
and James Rosenau,
eds., Global Changes and Theoretical Challenges
eignty,'' in Ernst-Otto
Czempiel
Books, 1989).
(Lexington, Mass.: Lexington
15
"International Human Rights: A Regime Analysis,"
International Organization
Jack Donnelly,
40, no. 3 (1986).
16
Soysal (fn. 9).
17
Martha
Institution
Politics: Insights from Sociology's
Finnemore,
"Norms, Culture andWorld
alism," International Organization
50, no. 2 (1996), 339.
18
Christian Joppke, "Asylum and State Sovereignty," Comparative Political Studies 30, no. 3 (1997).
270
WORLD POLITICS
In the following, I propose an alternative explanation. The capacity
of states
to control
has not diminished
immigration
but
increased?as
every person landing at Schipohl or Sidney airports without
visa would
entry
notice.
painfully
But
for domestic
a valid
reasons,
liberal
states are kept from putting this capacity to use. Not globally limited,
but
self-limited
sovereignty
explains why
states accept unwanted
immi
grants.
Gary Freeman identified the political process in liberal democracies
as one
element
major
of self-limited
sovereignty.19
In contrast
to the
Western
globalist diagnosis of vindictive yet ineffective restrictionism in
an
starts with
states, Freeman
observation
that the politics of
opposing
in fact,
in liberal democracies
and
is,
"broadly expansionist
immigration
reasons.
two
immi
benefits
of
for
which
he
the
First,
inclusive,"20
gives
are concentrated,
families)
(such as cheap labor or reunited
gration
or
are
as
its costs (such
social expenses
while
increased
overpopulation)
diffused.
action
poses a collective
of concentrated
beneficiaries
That
organizable
ethnic groups)
will
prevail
over
in which
the easily
or
as
(such
employers
the difficult-to-organize
bearers of dif
dilemma,
benefits
fused costs, that is, themajority population. Borrowing from J.Q^Wilson,
in liberal states is "client poli
Freeman
argues that immigration
policy
in which
small and well-organized
tics ... a form of bilateral
influence
a
in policy develop
close working
relation
interested
groups
intensely
Taking place out of public view
shipswith officials responsible for it."21
and with little outside interference, the logic of client politics explains
the expansiveness
of liberal
states
vis-?-vis
immigrants.
Second,
the
universalistic idiom of liberalism prohibits the political elites in liberal
of migrant
the ethnic or racial composition
from addressing
streams. Freeman
norm." Its most potent ex
calls that the "antipopulist
in the classic set
is the principle
of source country universalism
pression
screen
no
for their ethnic
der nations, which
potential
immigrants
longer
norm will induce elites to seek consen
or racial fitness. The
antipopulist
to remove the issue from
sus on
partisan politics.
immigration
policy and
a
under the sway of client
domestic
As I shall argue,
process
political
liberal states accept unwanted
is one reason why
immigration.
politics
to Freeman's model.
But I suggest two modifications
states
19
States," International Mi
Gary Freeman, "Modes of Immigration Politics in Liberal Democratic
Review 29, no. 4 (1995).
gration
20
Ibid., 881.
21
notion of client politics is built upon Mancur Olson's theory of col
Ibid., 886. James Q?Wilson's
states that the organized and active interest of small groups tends to
lective action dilemmas, which
over the nonorganized
interest of large groups. The premise of this expected
and nonprotected
prevail
outcome
action on part of the individual. Wilson,
is rational, self-interested
ed., The Politics ofRegula
tion (New York: Basic Books, 1980); Olson, The Logic of Collective Action (Cambridge: Harvard Uni
versity Press, 1965).
LIBERAL STATES& UNWANTED IMMIGRATION
271
as a second
source of ex
legal process
toward immigrants
in liberal states. In fact, the political
pansiveness
to
is
vulnerable
sentiments
process
chronically
populist
anti-immigrant
?even
as
in the United
the
States,
Congressional
anti-immigrant
Freeman
First,
the
ignores
backlash in thewake of Californias Proposition 187 testifies. Judges are
as
are
to the
such pressures,
they
only obliged
of statutory and constitutional
law. The
legal pro
cess is crucial to
states continued
explaining
why European
accepting
since the early
immigrants
despite
explicit zero-immigration
policies
shielded
generally
abstract
1970s.
from
from
commands
In open opposition
client politics
elitist
to a restrictionist
to
popular
and constitutional
voked
statutory
In Europe,
migrants.
why
executive, which
interest politics,
national
switched
courts
in
and family rights for im
the political process explains
residence
the legal rather
unwanted
(family)
than
states accept
In a second modification
variations
important
immigration.
to Freeman's model,
I suggest that there are
not
in the processing
of unwanted
immigration
just between the United States andWestern
states
themselves.
European
and postcolonial-based
Freeman
lumps
Europe but within West
together
guest-worker
and thus overlooks
their
immigration
regimes
such as Germany's,
In a guest-worker
the state
regime,
at one
into
lured
the
(de facto) immigrants
country, and
point actively
not to
at will once it de
thus is morally
of
constrained
them
dispose
a
a
course.
In
cides upon
of
such as
regime,
change
postcolonial
was
never
solicited
but
toler
Britain's,
actively
immigration
passively
ated for the sake of a secondary goal?the
maintenance
of empire. Im
different
logics.
migration policy is thus by definition a negative control policy against
immigration
that at no point
has been wanted.
Differently
developed
moral obligations toward immigrants in both regimes (among other
factors) help explain variations
ness toward
immigrants.
in European
states' generosity
or firm
Discussing the two cases of illegal immigration in theUnited States
and family immigration in Europe,221 suggest that liberal states are
internally,
rather
than externally,
impaired
in controlling
unwanted
im
migration. The failure of theUnited States to control illegal immigra
22
state responses to illegal immigration
and family immigration may seem odd. Why
Comparing
not compare state responses to only one form of immigration, be it illegal or family-based?
Illegal im
too recent and protean to warrant a comparison with the U.S., where
inWestern
migration
Europe is
in the United
it has been a recurrent stake of political debate for two decades. Family immigration
in the sense of occurring against the backdrop of explicit zero-im
States is not unwanted
immigration,
in the U.S.
is the major principle of selecting wanted
migration
policies. Rather, family reunification
even over the criterion of skills. It would have been
new
possi
having precedence
quota-immigrants,
the third major source of unwanted
ble to compare state responses to mass asylum-seeking,
immigra
tion in liberal states, but it raises additional
issues of refugee law and politics. I have discussed asylum
see
policy separately,
Joppke (fn. 18).
WORLD POLITICS
272
is due primarily to the logic of client
tion, particularly from Mexico,
and
politics
a
strong
self-description
emphatic
norm
antipopulist
as a universal
that
feeds
"nation
upon
of
America's
and
immigrants"
upon the civil rights imperative of strict nondiscrimination. In Europe,
legal
and moral
immigration
constraints
after
policies
zero
states from
rigorous
pursuing
kept
new
and guest
the closing of
postcolonial
worker immigration in the late 1960s and early 1970s, respectively. Jux
cases
the extreme
taposing
that these constraints
were
I further
of Germany
and Britain,
most
distributed
unevenly
across
suggest
Europe,
partially reflecting the different logics of guest-worker and postcolonial
regimes.
Immigration
Illegal
America's
enduring
in the United
to control
incapacity
illegal
States
is the root
immigration
cause of its heated immigration debate today. Before investigating this
incapacity, it is first necessary to destroy the public myth that the
United States has lost control over its borders. This myth, shared by
policymakers
alike, was
academics
and
1981 report of the U.S.
Select Commission
on Immigration
Policy,
Refugee
Immigration
Policy
was "out of control,"
lated that immigration
policy
and
Interest.
in theNational
U.S.
by the
established
powerfully
It stipu
and that the contain
ment of illegal immigration had to be the first step in regaining control.
That
stating
perspective,
a sequence
of loss and recovery,
is mislead
ing; there had never been a golden age of control. The problem of ille
a unified,
gal immigration is a by-product of the attempt to build
national
Western
system
of
control,
The
immigration.
immigration
hemisphere
which
no
three-step
longer
effort
exempted
entailed:
(1) stopping (under the pressure of domestic labor unions) the Bracero
guest-worker
program
in 1964, which
for more
than
two decades
had
providedWestern growers with cheap foreign fruit pickers; (2) estab
a ceiling of 120,000 immi
lishing through the 1965 Immigration Act
grant
visas
for
the Western
hemisphere,
which
had
formerly
been
exempted from numerical restrictions; and (3) applying, in 1976, the
Eastern
hemisphere
nual visas toWestern
instantly developing
and
nationalization
an
thousand
limit of twenty
individual-country
in
Mexico
which
resulted
countries,
hemisphere
a loss of control, but the
a severe visa
backlog. Not
is the
control
of U.S.
immigration
of
the
proper premise
origins
illegal immigration.
of the stock
used as indicators
figures?widely
apprehension
Tellingly,
in
and flow of illegal immigrants?rose
steeply after the end of Bracero
standardization
for understanding
LIBERAL STATES& UNWANTED IMMIGRATION
273
1964. They first crossed the one million mark in 1976, at the very mo
ment the first national immigration regime, which applied the same
criteria
control
to Eastern
and Western
was
countries,
Hemisphere
completed.Without belittling the physical dimension of a two thousand
mile land border that divides the First from theThird World, the prob
lem of illegal immigration is quite literally a social construction.
Given
caveat
this
of a control
that never was,
and bracketing
the
physical problem of policing an inherendy difficult border, the incapac
ity of the U.S. to stop illegal immigration is due to the logic of client
politics, as predicted by Gary Freeman. I will illustrate this, first,
through the career of the 1986 Immigration Reform and Control Act
(irca),
and,
second, through the failure
in the 1990s.
controls
immigration
IRCA carried
its restrictionist
to be
vastly
however,
expansionist,
of the U.S.
intention
legalizing
to establish
effective
in its name.
It turned out,
the status of three million
illegal immigrants in theUnited States, while failing to establish effec
tive measures
The
ence
the inflow of new illegal immigrants.
against
is responsible
client groups
for this outcome:
civil rights groups, who
and
mobilized
effectively
argued
and employers,
sanctions;
legedly discriminatory
employer
ethnic
and
against
al
of two
influ
particularly
a
for
that
became
growers,
program
pushed
guest-worker
a second,
of
the
features
small
acceptable
only
through
adopting
workers.
for
amnesty
temporary
In a settler nation, where
immi
nation building
has coincided with
who
Western
gration, immigration policy is a highly
which
pro-immigrant
policy-making.
ranks among
During
the more
interests
a
have
the first round
embattled
institutionalized
legitimate,
of the six-year
process, in
entrenched
role
in
IRCA saga, which
of recent times, the op
legislations
to the introduction
interest groups
of Hispanic
of employer
was
on
to
any legislation
key
preventing
temporarily
illegal
in
As
recommended
the
Select
Commission
the
1981,
immigration.
by
stick of employer
sanctions was to accompany
the carrot of amnesty.
position
sanctions
Unless
oned
itwas
illegal for employers
the Select Commission?the
viso was
not
to be beaten.23
to
employ
illegal workers?so
of
the infamous Texas
legacy
But because
formed
reck
Pro
the majority
illegal immi
Hispanics
in the U. S., any measure
illegal immigrants
against
as
senator
As Republican
grants must have appeared
anti-Hispanic.
a
re
Alan
ofWyoming,
leader of immigration
congressional
Simpson
of
23
Act at the behest of Texan growers, the so
Inserted in the 1952 Immigration
and Nationality
called Texas Proviso stated that employing
the criminal act of "harboring."
illegals did not constitute
itwas legal to employ illegal immigrants, although they were still subject to deportation.
Accordingly,
274
WORLD POLITICS
form throughout the 1980s and 1990s, put it, "Any reference to immi
turns out,
to be a code word for
unfortunately,
em
to the
In their opposition
"anti-Hispanic"
or control
gration reform
ethnic discrimination."24
ployer sanctions, the Hispanic
lobby skillfully exploited the fact that
was
the slightest hint of ethnic or racial discrimination
over
in the era of civil
in
In
the
battle
fact,
rights.
employer
even
anathema
sanctions,
Hispanics first emerged as a unified national force capable of blocking
legislation detrimental to their perceived interest. Twice, in 1982 and
1983, theHispanic lobby succeeded in stalling theHouse version of the
Simpson-Mazzoli (immigration reform) bill after it had won comfort
in the
able majorities
Senate.
Democratic
House
majority
leader
Thomas P. (Tip) O'Neill caustically defended his refusal to hold a vote
on the second Simpson-Mazzoli bill inOctober 1983: "[I]t has to be
to the
Hispanic
acceptable
Caucus."25
The Hispanics were joined by civil rights groups, who feared that the
of an employment
introduction
verification
(dubbed
system
a "national
ID card")would be detrimental to civil liberties in general, and lead to a
"culture of suspicion."26 This perception was
columnist
spectrum. A leading conservative
shared across
the ideological
of
the introduction
branded
con
an ID card as "this
generation's
largest step toward totalitarianism,"
to tolerate the
movement
aliens
that
is
and
"it
better
of
cluding
illegal
even criminals
than to tolerate the constant
of the free."27
surveillance
In his
refusal
Mazzoli
a vote
to have
on
the
second
version
of the Simpson
struck a similar chord: "Hitler did this to the Jews,
bill, O'Neill
them wear
a
you know. He
made
sition, which
linked the civil rights imperative of nondiscrimination
with
traditional
American
dog
antistatism,
tag."28 Against
the plan
such wide
of a standardized
oppo
em
ployment verification scheme had to be dropped. A first severe crack in
the control dimension of IRCAhad been inflicted.
During
the second
broke
their
round
initial
of IRCA, compromise-seeking
agricultural
the less compromise-prone
alliance with
employers
as the
a
ethnic and civic groups, but demanded
program
guest-worker
an
in
for
their
of
law.
control
The
support
price
immigration
growers'
satiable appetite for cheap immigrant laborwas equally disliked by
was
honest
but quixotic mission
Simpson, whose
in the national
interest: "The greed
law and policy
to craft
immigration
is
of the growers...
24
New York Times, August
16,1982, A12.
25
New York Times, October
5,1983,1.
26
Rick Swartz, interview with author, Washington,
D.C., March 26,1994.
27
William
Saffire, "The Computer Tattoo," New York Times, September 9,1982,
28
Ellis Cose, A Nation
1992), 167.
of Strangers (New York: Morrow,
A27.
LIBERAL STATES8cUNWANTED IMMIGRATION
insatiable.
There
is no way
can be satisfied.
they
Their
entire
275
function
in life is thatwhen the figs are ready, the figs should be harvested and
need
they
four
thousand
human
to do
beings
third, more
that."29 A
drastic version of the Simpson Senate bill, introduced in spring 1985,
brought themoderate part of theHispanic lobby aboard by threatening
to drop the amnesty provision altogether. In this "final inning" of the
Simpson-Mazzoli
saga,30
the joint
energy
of
control
immigration
ad
vocates and of the ethnic and civil rights lobby focused on neutralizing
the growers'
initiative
for a guest-worker
program.
This
spearheaded by the later immigration foe PeteWilson,
can
initiative
was
then aRepubli
from California,
who
asked for an annual contingent
of
to
to
workers
harvest
for
nine
fruits
350,000
up
foreign
perishable
a year.
months
was liked
no one except
the idea of guest workers
Interestingly,
by
the growers, with
in mind.
the European
negative
firmly
experience
senator
to consist
of
beefing up the civil rights of the workers they asked for.Mediated
by
The
inevitable
with
compromise
the growers
thus had
trans
liberal Congressman
Charles
the eventual compromise
Schumer,
into a second amnesty. The
so-called
formed the guest-worker
program
a part of IRCA,
Schumer
which
became
permanent
proposal,
provided
resident
status,
and eventually
citizenship,
for
illegal
aliens who
had
worked inAmerican agriculture for at least ninety days fromMay 1985
through April 1986, while granting the same possibility to "replenish
ment"
workers
in the future.
said an exuberant
Lawrence
"For the first
Fuchs,
time
"outsiders
in American
brought
temporary jobs would be given the full Constitutional
many
of the privileges
history,"
in to difficult,
protections and
of insiders."31
Signed into law in earlyNovember
1986, the Immigration Reform
a "left-center
Act was
the control
bill,"32 inwhich
certainly
to an end the Texas
IRCA im
visible.
aspect
barely
Putting
proviso,
on
a sanction
who
hired
scheme
knowingly
illegal im
posed
employers
a
to
and employers,
sanctions
concession
But in
Hispanics
migrants.
and Control
was
would be abolished if the General Accounting Office were to find dis
crimination
tantly,
or undue
IRCA included
a
on
in the future. Most
impor
employers
that
antidiscrimination
provision
far-reaching
burdens
29
Lawrence Fuchs, "The Corpse That Would Not Die:
of 1986," Revue
Internationales
Europ?enne desMigrations
30
1990. "The Immigration Reform
Aristide Zolberg,
ed., Immigration
spective,'' in Virginia Yans-McLaughlin,
The Immigration Reform and Control Act
6, vol. 1 (1990).
and Control Act of 1986 inHistorical
Per
Reconsidered (New York: Oxford University
Press, 1990), 326-35.
31
Fuchs (fn. 29).
32
Charles
Congressman
York Timesy October
Schumer,
quoted
in the New
12,1984,17.
276
WORLD POLITICS
added the concept of "alienage" to Tide VII of the Civil Rights Act,
prohibiting employment discrimination on the basis of citizenship.
This
to the
"only expansion
amounted
whole
Of
of civil rights
in the
protection
era."33
Reagan
IRCA s dual
amnesty-sanctions
agenda,
only
the amnesty
compo
nent worked as intended. Nearly 1.8 million illegal immigrants applied
status under
for legal
the general
legalization
and 1.3 million
program,
under the small amnesty of the Special Agricultural Worker (SAW)pro
gram. But IRCAfailed to reduce the stock and flow of illegal immi
grants. After a temporary drop of apprehension figures in 1987 and
less to the effectiveness
1988?attributable
and-see
than to await
of sanctions
1989 the illegal
among potential
response
immigrants?by
back to pre-IRCA levels.34 In 1993 the size of the illegal popu
as ten years
to be as
in the U.S. was estimated
high
ago?be
three and four million
persons.35
flow was
lation
tween
Why
did IRCAfail to control illegal immigration? A major reason is
a toothless
sanctions
resulted from the "odd coalition"
scheme, which
and employers.36
From early on, a good-faith
pressure
by Hispanics
clause had been inserted into the Simpson-Mazzoli
released
bill, which
from
any obligation
a document
check
employers
documents:
"affirmative
to check
conducted
the authenticity
in
good faith
of employees'
an
constituted
not
had
that the respective
employer
In effect, employers
hire" misdemeanor.37
defense"
the "knowing
committed
were
immune
from punishment if they filled out and filed away routine 1-9 forms that
attested
to the document
check.
Because
the introduction
of a national
some
been blocked,
twenty-nine
documents?including
to
so-called breeders?served
U.S.
faked
birth
certificates,
satisfy
easily
incentive was
affirmative-defense
the control requirement.
The positive
ID card had
a
incentive:
antidiscrimination
demanding
by
complemented
negative
an "unfair
a
ID constituted
related
immigration
employment
specific
were better off
the document
So employers
pas
accepting
practice."
sively offered by the prospective employee. As David Martin
put it,
33Swartz(fn.26).
34
to the United
and Jeffrey Passel, eds., Undocumented Migration
See Frank Bean, Barry Edmonston,
States (Washington,
D.C.: The Urban Institute, 1990).
35
in the United States and U.S. Responses,''
Demetrios
Papademetriou,
"Illegal Mexican Migration
International Migration
31, nos. 2-3 (1993), 314-48.
36
reason for IRCA's failure is that it does not even touch the problem of visa overstayers,
Another
to
"The Obstacles
which account for over 60 percent of the undocumented
population. David Martin,
of the Immigration Laws in the United States" (Paper presented at the
Effective Internal Enforcement
on German-American
and Refugee Policies, Cambridge, Mass.,
AAAS/GAAC Conference
Migration
March 23-26,1995),
37
Kitty Calavita,
(fh.l),71.
3.
"U.S. Immigration
and Policy Responses,"
in Cornelius,
Martin,
and Hollifield
277
LIBERAL STATES& UNWANTED IMMIGRATION
IRCA's sanctions
even
avoid
scheme
"tells
employers
of discrimination
an appearance
that
it is more
important
it is to wind up em
than
to
ploying unauthorized workers."38The civil rights imperative of nondis
crimination has obviously stood in the way of effective immigration
control.
As
Iwould
movement
like to argue in a second step, even the anti-immigration
to do away with
of the 1990s has been unable
expansive
client politics. The inability of political elites to deal effectively with il
legal immigration provoked the biggest anti-immigrant backlash in
In November
years.
seventy
passed Proposition
which
overwhelmingly
187, dubbed the "SaveOur State" (SOS) Initiative,
bar
health
most
by the
Transmitted
earthquake.
voters
Californian
most
in
services,
illegal aliens from
state-provided
care and education.
This was no less than a political
would
cluding
1994,
conservative
a
in half
Congress
control in the same
century, with both houses falling to Republican
was
felt inWashing
immediately
only of illegal, but also of legal immigra
to be in the
tion seemed
the clock back before 1965,
turning
making,
to mass
the legislative
of
Two years
America
immigration.
opening
a
to
tremor.
is
restriction
the
reduced
of
The
later,
earthquake
planned
November
ton. A
the aftershock
elections,
overhaul
sweeping
not
legal immigration has been shelved, perhaps indefinitely. Until itwas
signed into law as the Immigration Control and Financial Responsibil
ityAct of 1996, an initially drastic proposal to combat illegal immigra
tion was watered
down
significantly.
Once
again,
client
came
politics
in
theway of "put[ting] the interests of America first."39
It is no accident
that the anti-immigrant
earthquake
had
its epicen
ter inCalifornia. Initially rural and peopled by thewhite farmers' flight
from the dust-bowl misery of 1930s Oklahoma, California not only
lacks
with
the "nations
of the East Coast
of immigrants"
cities,
nostalgia
more
im
but
of Liberty
and other new world
symbols,
it also is the residence of almost half of the estimated
national
the Statue
portantly,
total of four million
that they cost
gency medical
lion
aliens
in state
appear
illegal immigrants. The Urban Institute calculated
emer
in education,
the
mil
$732
this,
the state close
to $2 billion
per year
and
incarceration.
Against
and income
services,
revenues
from
sales, property,
taxes on
illegal
paltry.40
38
Martin
(m. 36), 6f.
39
from Texas, used this phrase to characterize
L?mar Smith, Republican
representative
ing House bill that dealt joindy with legal and illegal immigration. "House G. O. P.Moves
New York 77m?, June 22,1995.
migration,"
40
of 187," The American Prospect 85 (1995).
Peter Schuck, "The Meaning
his sweep
to Cut Im
278
WORLD POLITICS
California epitomizes three problems of contemporary immigration
its extreme
to the U.S.:
costs
incurred
terms
of federal
federal
welfare
concentration;
regional
state governments,
while
some
by
taxes
and
the disproportionate
the main benefits
are
social
in
by the
security payments
reaped
and the increasing focus on immigration's
negative
labor-market
the
leaders
implications.
Accordingly,
Wil
staunchest
Pete
governor
supporter, Republican
government;
rather than
of SOS and
son, went
their
out of their way
to stress that
Proposition
187 was
not about
immigration control (which is the prerogative of the federal govern
but about a squeezed budget. The
crunch was real, given
ment),
budget
was
severe economic
most
that California
recession
its
just undergoing
war restruc
resulted from the post-cold
since the first oil crisis, which
turing of the U.S. defense
industry.
Itwas clear up front that Proposition 187, which openly defied the
v. DoeyA1 would
get stuck in local and
ruling in Plyler
Supreme Court
courts.
also supported by one-third
and the
federal
of Latino
However,
was
a
187
Asian
and
black
of
voters,
essentially
majority
Proposition
re
measure
so
to the
elites
who
had
evaded
symbolic
political
recklessly
alities and responsibilities for years.And ifCongress picked up the ball
at the national
level
the more
(this was
than
and eventually
Congress
on
mission
state
the restrictionist
uphold
of the
reasoning
symbolic
initiative leaders) the Supreme Court might
reconsider Plyler v. Doe
law.
indeed picked up the ball without delay. A federal Com
Reform
Immigration
immediately
drastic
proposed
changes
of existing immigration law and policy. Headed by Barbara Jordan, the
and spiked by liberal pro
black Congresswoman
from Texas,
in its final report
and academics,
the commission
immigrant
politicians
former
inMarch
1995 recommended that legal immigration should be cut by
the extended
one-third,
family
should
categories
be
scrapped
alto
gether, and employers should find itmore difficult and costly to hire
foreign
professionals.
Interestingly,
but
myth,
nation-of-immigrants
to be a nation
should continue
ported
also
Proposition
by
the Clinton
the commission
stated
that
did not
"the U.S.
touch
has been
of immigrants."42 But this proposal,
even further
went
administration,
187 and Governor Wilson,
the
and
sup
than
who had targeted only illegal
immigration.
41
In its Plyler v. Doe decision
(1982), the Supreme
a
grants have the constitutional
right to public school
political process under the sway of client politics, the
in the U.S. For the lack of space, I cannot
immigrants
"The Transformation
42
Barbara Jordan,
of illegal immi
to a
Plyler indicates that, in addition
legal process has bolstered the position of illegal
discuss this further here, but see Peter Schuck,
of Immigration Law," Columbia Law Review 84, no. 1 (1984).
"The Americanization
11,1995.
Ideal," New York Times, September
Court
ruled that the children
education.
LIBERAL STATES& UNWANTED IMMIGRATION
279
Regarding illegal immigration, the commission already in late 1994
a national
had advocated
verification
system, which would
of all citizens and
legal
it mandatory
and make
for em
employment
social security
to work
in the U.S.
the names
and
compile
aliens authorized
numbers
ployers to call it up before hiring new workers. The proposal stopped
a national
short of introducing
ID card, which
to be anath
continues
ema in the U.S. But, predictably, itwas seen by a plethora of ethnic,
civil rights, and business organizations as being just that: a national ID
card
in
commission's
The
disguise.
were
recommendations
incorpo
rated in similarHouse and Senate bills, introduced by Lamar Smith, a
from Texas,
congressman
Republican
bills centered
around three measures:
the nonnuclear
family
and Senator
cut
and
categories
legal
reducing
Alan
Simpson.
Both
immigration
by slashing
skilled
immigration;
combat illegal immigration by screening the workplace more tightly
and fortifying
the borders;
in a windfall
and,
from
the parallel
congres
sional effort of welfare reform, making illegal and legal aliens ineligible
for most
public
services.
Hardly had the ink dried, when the machine of client politics was set
in motion.
An
unusually
broad
on
Coalition
"Left-Right
Immigration"
included not just the usually odd immigration bedfellows of employers
and ethnic and civil rights groups, but also theHome School Network,
a Christian
fundamentalist
group
sures to curtail
rallying against the antifamily
Americans
for Tax Reform, who
legal immigration;
with Microsoft,
Intel,
liked?along
Manufacturers?to
have employers
mea
dis
and
the National
Association
of
a
on
tax
each
pay
heavy
foreign
worker
and the National
Rifle Association,
upset by
they sponsored;
to
the employment
verification
system (If you're going
register people,
not
to the
Richard
the
chief
counsel
shouted).43
why
guns? they
Day,
Senate
Subcommittee,
Judiciary
"Washington
groups" against
for "some breathing
space" from
as client
migration
politics.
The
first
success
characterized
this unusual
"the American
who
immigration.44
of the client machine
was
as
line-up
had asked
people,"
Such is the logic of im
to
split
the omnibus
bill
in two.The machine was helped in this by divisions within the Repub
lican Party. A
large
section
of free-market
and family-value
Republi
cans (such as Jack Kemp, William Bennett, and Dick
Armey) favored
In
from
addition, Republicans
California, where the
legal immigration.
problem
of illegal
immigration
was most
pressing,
feared
that rifts over
43
"The Strange Politics of Immigration," New York Times, December
31,1995.
44
over
Plan," New York Times, October
"Unlikely Allies Battle Congress
Anti-Immigration
1995.
11,
WORLD POLITICS
280
legal immigration would improperly delay the impatiently awaited
crackdown on illegal immigration. InMarch 1996, the Senate Judiciary
Committee, with the parallel House committee following suit, decided
to postpone
on
legislation
legal
immigration
and to concentrate
on ille
gal immigration first.The "big one" had suddenly shrunk to a smallish
tremor.
immigration
Only
a few months
earlier,
Republican
Lamar
Smith had boasted that "the question is no longerwhether legal immi
gration
should
be reformed,
but how
it should
be reformed."45
Now
he
lay flattened by the client machine. "Congress has listened to lobbyists
more
After
lobby
an angry
wrote
foe.46
immigration
opinion,"
the omnibus
bill, the effort of the pro-immigration
than public
cracking
concentrated
on
smoothening
some
drastic
features
of the re
maining bill on illegal immigration. One target was the proposal for a
mandatory,
a libertarian
Senator
verification
system, denounced
by
employment
"47
An amendment
'1-800
Brother.'
by
"dialing
Big
down the proposal, which was to be
Kennedy watered
nationwide,
critic as
Edward
to a
in
variety of voluntary
pilot programs
eight years,
after three years.
states, to be reviewed by Congress
high-immigration
new
meant
that
there would
without
The weakened
legislation,
proposal
an
was
This
be no nationwide
verification
system.
impor
employment
on Immi
tant step away from the recommendation
of the Commission
national
which
had called a mandatory
verification
Reform,
gration
in
place within
an
In addition,
system the linchpin of combating
illegal immigration.
a
Orrin
amendment
Senator
Hatch,
pro-immigration
Republican
by
a
in fines against
increase
from Utah,
eliminated
hefty
employers who
owners.
for
small
business
hired
aliens?a
victory
knowingly
illegal
When
signed into law by President Clinton in early October 1996,
the "Maginot line against illegal immigration"48 looked more like a
Swiss
cheese, with
big holes
eaten
into it by America's
clients
of immi
gration policy. The drastic Gallegly amendment in the House (named
after its sponsor, California Republican Elton Gallegly), which would
states
to bar the children
from public schools
of illegal immigrants
turn into national
law California's
and thus would
187, was
Proposition
veto.
from the final bill, also because of a safe presidential
dropped
to fix
is
verification
A watered-down
system
unlikely
employment
allow
the biggest deficit in illegal immigration control, ineffective workplace
45
on
Immigration," New York Times, September 25,1995.
"Congress Plans Stiff New Curb
46
Roy Beck, "The Pro-Immigration
Lobby," New York Times, April 30,1996.
47
Plan to Register
"House Panel Approves
22,
Status," New York Times, November
Immigration
1995.
48
in "Senate Votes Bill to Reduce Influx of Illegal Aliens," New York Times, May 3,1996.
Quoted
281
LIBERAL STATES& UNWANTED IMMIGRATION
in the new law
and employer
sanctions. The control
screening
impetus
thus boils down to stricter border enforcement;
the number
doubling
of border patrol agents to ten thousand
2000:
the
the
year
by
requiring
Service (INS) to build a fourteen-mile
Immigration and Naturalization
long,
ten-foot
high,
fence
triple-steel
south
of San Diego;
and
impos
ing stiff penalties on the flourishing business of smuggling aliens into
the U.S. This only reinforces existing policy. As in its various border
operations,
or "Hold
"Gatekeeper"
the Line,"
the Clinton
administra
tion had cleverly preempted Republicans from monopolizing
discourse during the 1996 Presidential
migration-control
the im
election
means
it chooses,
the
It must be conceded
that, whatever
campaign.
to
United
States can perhaps never expect to reduce illegal immigration
zero. As Peter Schuck
nation
"A
with
vast, prosperous
correctly noted,
values and a 2,000-mile
border
strong due process and equal protection
with
the Third World
hope
to manage
cannot eliminate illegal migration;
are that
it."49 Chances
the Immigration
it can only
Control
and
Financial Responsibility Act of 1996 will not be of much help in ac
complishing
this task.
Family
Whereas
America's
debate
in Europe
Immigration
about
illegal
immigration
is alive and evolv
ing every day, Europe's debate about family immigration is historically
on both
a fundamental
in immigration
difference
closed,
reflecting
a
recurrent
In the United
is
sides of the Atlantic.
States,
immigration
even
severe
most
in
the last
backlash
the
Not
process.
anti-immigrant
mass
to
immi
and
the
Golden
has
slam
Door,
seventy years
managed
continues
unabated.
and
By contrast,
Europe
gration
(legal
illegal)
over twenty years ago. Postwar
im
closed its doors to new immigration
a nonrecurrent,
to
has
been
unique pro
historically
Europe
migration
cess, with immigrants acquired not by will, but by default.
The
family
became
colonial
immigration,
ual rights of migrants
and post
the site for closing down guest-worker
vectors of the individ
the opposite
states to admit or reject
and the right of sovereign
torn between
aliens. In this, European family immigration differs from American
family immigration, which is defined in the language of quotas, not
rights,
and has become
the chief mechanism
states did not
immigrants.
European
of the spouses and children,
not
new wanted
of acquiring
solicit the belated arrival
actively
to mention
the extended
family,
of its
labormigrants. They had to accept family immigration, recognizing the
49Schuck(m.40),91.
282
WORLD POLITICS
moral and legal rights of those initially admitted. In this sense, Euro
pean family immigration is unwanted immigration. As I shall argue, its
can not
acceptance
in terms
be understood
no entrenched pro-immigration
United
States.
the
After
to
shift
of client
is
There
politics.
lobby in Europe comparable to the
zero-immigration
from
policies
the
late 1960s to early 1970s, the European politics of immigration became
national
interest
client,
strongest
now
States
politics.
uniformly
in cheap
interested
employers
their single
disregarded
labor, and acted
foreign
on behalf of collective goals such as social integration or the integrity of
nationhood. The immigration that still occurredwas as of right ormorally
a state that would
tolerated
pen
It pitted
immigration.
the
against
immigrant who
unity.
deny?family
In handling
family
of
and
guage
primary
United
States.
worker
regime,
only
immigration,
sought what
European
secondary
immigration
is actively
immigration
Primary
or
passively
tolerated
in a
rather not
states
liberal
states
that
see it
accepted
is unknown
hap
cannot
a lan
in the
as in a
guest
recruited,
as
in the absence of restrictions,
occurs after the re
immigration
regime. Secondary
postcolonial
cruitment
in recognition
of restrictions,
of the
stop or the introduction
state there is a
of
In
each
family rights
immigrants.
primary
European
core of
such as South Asians
historically
primary
particular
immigrants,
or Afro-Caribbeans
a
in Great Britain or Turks
in Germany,
for whom
moral
elaborate
discourse
of
and
evolves.
specific,
rights
obligations
states to act
This
and gen
approach has allowed European
humanely
once
those
the door to every
admitted, while
erously toward
slamming
one
else. In this sense, the principle
of source-country
and
universalism
of not addressing
the ethnic composition
of migrant
streams,
saw
across liberal states, has not
which
Freeman
established
universally
were
established
itself in Europe.50
Primary
immigrants
simply sub
to the
as usual;
not trans
nation
of
did
jected
exigencies
building
they
into self-conscious
form Europe
nations of immigrants. Thus,
toward
the norm
the outer
layers of secondary
(or even
tertiary)
immigration,
the sense
of moral obligation and the family rights of migrants had to become
successively weaker.
gration would have
immigration
would
In the absence
forever
have
of such gradations,
immi
primary
new
nonrecurrent
off
and
spun
immigration,
turned into recurrent
U.S.
immigration,
style.
50
A second example for the absence of source-country
universalism
in European
immigration pol
or the
of ethnic-priority
such as the "patri?is" in Britain
icy is the phenomenon
immigration,
"Aussiedler" (ethnic German
there is no parallel in the U.S.
resettlers) inGermany, for which
liberal
& unwanted
immigration
283
in Germany
Generous
A
states
in scholarly writings
about German
immigration
tendency
the state for its "not a country of immigration"
philosophy,
so
immi
No
the
denies
country's
immigration
reality.51
patently
tiresome
is to chastise
which
ever contradict
it is
because
the state's philosophy,
reality could
gration
a normative
statement
Bonn Republic's
the
self-description
reflecting
as a homeland
in communist
East
of the subjugated German
diaspora
ern
formula was
In fact, the not-a-country-of-immigration
Europe.52
introduced when fourmillion foreigners already resided in (West) Ger
does
many and showed no signs of leaving. Only
against this backdrop
unre
make
the philosophy
any sense at all. Further
complicated
by its
more
solved national
articulated,
only
extremely,
question,
Germany
of immigration.
countries were?not
countries
all European
on
German
A second shortcoming
of scholarly writings
immigration
a
on the
is their fixation
process,
grim picture of de
drawing
political
as
state. That perspec
of a repressive
facto immigrants
hapless victims
al
of the legal process, which
tive overlooks
the pivotal
importance
to turn into settlers with
lowed guest workers
permanent-resident
what
rights
and even
to grow
in numbers
family immigration.
To be sure, the invocation
unfettered
constitutionally
protected
rights for guest workers
law that enshrined
of an immigration
no
to
and conceded
rights whatsoever
of constitutional
the backdrop
against
executive
discretion
occurred
through
the foreigner. Paragraph 2(1) of the Foreigner Law of 1965 stipulates:
of the foreigner
does
permit may be issued if the presence
Residence
of the Federal
the interests
permits
Republic."
were
issued for a year, on a renewable
basis, but initially there were no
than temporary
for more
stays on German
territory. Before
provisions
"A residence
not harm
of 1978,
regulation" ??ufenthaltsverfestigung)
not stabilize,
the foreigner's
but jeopardized
long-term
status because
the official "no-immigration"
it contradicted
policy. Fol
of the for
conceived
the logic of a guest-worker
regime, which
lowing
as a return-oriented,
of
carrier
of
labor
isolated
power, devoid
eigner
no
De
reunification.
rules
for
ties,
family
originally
provided
family
the so-called
"permanence
did
residence
tailed rules for reuniting foreign families were not devised before 1981,
and their
after
thrust was
the recruitment
51
to close
major
source
of unwanted
immigration
stop.
See Thomas
Faist, "How to Define
52
"Ausl?nderrecht
Kay Hailbronner,
(1983), 2113.
a
no. 2 (1994).
Foreigner?" West European Politics 17,
und Verfassung," Neue Juristische Wochenschrift
36, no. 38
a
WORLD POLITICS
284
For
of government
years, the political branches
twenty-five
managed
an archaic
to escape their
to
Law to the
adjust
responsibility
Foreigner
new
and to replace the rule by adminis
reality of de facto immigration
trative decree by the proper rule of law.An activist judiciary stepped
into this vacuum,
and expansively
and defend
aggressively
interpreting
on
so
could do
the basis of a consti
ing the rights of foreigners. They
tution that drew two fundamental
lessons from recent German
history:
first, to subordinate
to grant the most
tionality. The
human
rights,
state power
fundamental
first
seven
independent
to the
and second,
rights of individuals;
to na
of these rights without
respect
articles of the Basic Law protect
universal
of national
citizenship.
Article
1 makes
that
point emphatically: "The dignity of the individual is untouchable." The
article also introduces the principle of self-limited sovereignty, obliging
and "protect" the dignity
of the individual.
In a
state tradition,
from
the Ger
Germany's
departure
"strong"
Basic Law puts the individual first, the state second; it is conceived
state
the
to
"respect"
conscious
man
in the spirit of limiting state sovereignty by individual rights.
a series of Constitutional
these grounds,
Court
rules obliterated
the official
In the so-called
policy.53
"not-a-country-of-immigration
case of 1973,
an immediate
Arab
the court invalidated
deportation
On
contacts with
ter
accused of harboring
against two Palestinians
rorist groups,
that
constitutional
the
had
arguing
plaintiffs
liberty rights
that outweighed
the public
interest in their immediate
removal.
In the
so-called
Indian case of 1978, the court repealed a lower court rule that
to an Indian who
had affirmed
the nonrenewal
of a residence
permit
order
since 1961. Instead,
the court ar
continuously
routine renewal of residence permits had created
gued that the previous
a
on part
"reliance interest" {Vertrauensschutz)
constitutionally
protected
of the plaintiff
in continued
residence. Against
this reliance interest, the
had
lived
official
dence
in Germany
no-immigration
permit renewal
policy
it is not
was moot:
sufficient
"For a
to
of the resi
rejection
to the
general maxim
point
is no country of
Republic
immigration."54
were
Once
the residence
secured,
rights of guest workers
stitutional
Court
turned to the issue of family reunification?a
that the Federal
the Con
much
trickier terrain. It did not involve the rights of established residents but
of new residence
Since
the recruitment
granting
permits.
of families of guest workers was (next
stop of 1973, the chain migration
to
one of the two
avenues of
flows
asylum)
major
continuing
migration
the
New
initial
53
See Gerald L. Neuman,
and Judicial Review
"Immigration
York University Journal of 'International Law 23 (1990).
54
Decision of 26 September 1978 (1 BvR 525/77),
186.
in the Federal Republic
of Germany,"
LIBERAL STATES& UNWANTED IMMIGRATION
to
Germany,
in patent
to the official
contradiction
icy.55Since December
no-immigration
285
pol
1981, the federal government has recommended
states
spouses
severely restrict the entry of foreign
was to
Such family reunification
guest workers.
an
residence minimum
of the resident
eight-year
that the responsible
of second-generation
be contingent
upon
spouse and a postmarriage
restrictions were
imposed
no
one year.
By contrast,
period of
waiting
on
The
fed
workers.
guest
first-generation
eral government defended this differential policy before the Constitu
tional Court
on moral
grounds:
"Because
of its recruitment
of foreign
workers the Federal Republic has accepted a special responsibility to
wards
the recruited;
spanning
federalism,
tions on
it has not obliged
itself to accept a generation
of German
of family members."56
Typical
the
federal
recommenda
{L?nder) implemented
but
immigration
the states
unevenly.
immigration
highly
marriage
second-generation
to five years; restric
Hesse
lowered the residence
requirement
to three years;
the waiting
tionist Bavaria
increased
period for spouses
the
elite
broke
and hyper-restrictionist
existing
Baden-W?rttemberg
ex
consensus
not
of
immigration
by
marriage
limiting first-generation
Liberal
the three-year
tending
workers.
guest
waiting
period
from
second-
to
first-generation
In theTurkish and Yugoslav case of 1987, the Constitutional Court
stopped short of recognizing a constitutional right of family reunifica
to Article
deci
6 of the Basic Law.57 In a complicated
tion, according
to control
a reluctance
to restrict the state's
sion that betrayed
capacity
a
source of unwanted
6
the court held that Article
immigration,
major
(which protects the integrity of the family) did not imply a constitutional
right of entry for nonresident
nonresident
proportionality,
spouses. But
family members
to the
of
according
principle
still possessed
family rights
under Article 6 that foreigner law and policy had to respect.58 In this
court
residence requirement
the challenged
eight-year
upheld
light, the
measures
were neces
these
that
and the one-year waiting
rule, arguing
to
of
the resident
economic
and
the
social
sary
guarantee
integration
55
inWest Germany
fell from 2.595 mil
Between
1973 and 1980, the number of foreign workers
lion to 2.070 million; during the same period, the absolute number of foreigners increased from 3.966
1880-1980
to 4.450 million. Ulrich Herbert, A History
million
(Ann
of Foreign Labor in Germany,
Arbon University
of Michigan
Press, 1990), 188. Because the number of asylum seekers was small be
can account for the increase.
fore 1980, only family reunification
56
Quoted inDecision of 12May 1987 (2BvR 1226/83,101,313/84), p.33f.
57
Court thus did not go as far as the French Conseil d'Etat, which
The German Constitutional
(in
in a famous 1978 decision.
effect) recognized a constitutional
right of family reunification
58
had rights under the Constitu
The Court thus argued that even aliens not residing inGermany
tion. As Neuman
(fn. 53) notes, this went far beyond the most generous rulings of the U.S. Supreme
Court regarding the rights of aliens.
WORLD POLITICS
286
and to prevent
sham marriages,
But
the court
spouse
respectively.
struck down Bavaria and
rule
three-year waiting
Baden-W?rttembergs
as
and
destructive
of
young marriages.
disproportionate
Interestingly,
the court criticized
extension
of the
especially
Baden-W?rttembergs
three-year
rule to the first generation,
waiting
it violated
because
the
Federal Republic's "special responsibility toward the recruited guest
workers."
The German political process regarding de facto immigration only
caught up with positions that had been long established by the legal
Its development
process.
may
be read as the successive
canceling
out of
drastic solutions, culminating in the liberalized Foreigner Law of 1990.
rested not just on a negative
of legal
recognition
consensus
but on an emergent moral
the
among
political
re
to cope
with
the consequences
of the guest-worker
humanely
This
liberalization
constraints
elites
cruitment.
moderate
consensus
That
ical moments
when
and centrist
after
Immediately
in three crit
forged and reinforced
as
to a
solutions
emerged
competitors
became
drastic
foreigner policy.
the recruitment
stop of November
led federal government
1973,
the SPD
declared that "no legally employed foreign
to return home," while
the proposal
rejecting
set
terms
the
for the strictly vol
system.59 This
shall be forced
worker...
to introduce
a rotation
the return migration
of unem
inducing
especially
were
schemes
that
from
France
without
ployed guest workers,
copied
success in the
a "reason
much
1980s.
A
for
early
right-wing
proposal
rotation
able and humanitarian
system" emerged
during the first soci
schemes
untary
of
in the early 1980s,
debate
the minister
guest worker
ety-wide
allowing
of the interior to make
the moral obligation
toward the guest workers
In
have not come here spontaneously.
explicit: "[The foreign workers]
...
we
have brought
them into this country
since 1955
if
Even
stead,
are without
we have
jobs,
they
obligations
was the conservative
ical moment
crusade
tion
of
minister
children
under
six years,
fought
the new Kohl government,
above
them."60 A
third crit
against the family
by the hard-line
immigra
interior
toward
Friedrich
Zimmermann
(CSU).Aside from being constitutionally questionable, this drastic pro
posal
the threshold
of the morally
or
in
North America,"
Europe
crossed
country
"No comparable
acceptable.
Commis
said the outraged
sioner for Foreigner Affairs Lieselotte Funcke (FDP), "would condone
such a family-hostile
proposition."
Pointing
at the moral
59
November
9,1974.
60Frankfurter Allgemeine Zeitung,
Gerhard Baum (FDP), quoted inDas Parlament 32, no. 9 (1982).
impossibility
287
LIBERAL STATES& UNWANTED IMMIGRATION
of implementing thismeasure, her colleague Burkhart Hirsch (FDP)en
visioned "with horror what would happen here if an older child who
a visit was
from its parents
and thrown
overstayed
forcibly
separated
out of the
veto
FDP
Genscher,
by Hans-Dietrich
country." An unusual
chief and foreign minister for whom opposition to the interior minis
ter's illiberal foreigner policy became a litmus test of party identity
within
the new
coalition
government,
the proposal.
buried
The new Foreigner Law of 1990 only put into lawwhat administra
tive and
constitutional
country-of-immigration
of encouraging
objective
court
not-a
The
long established.
to be found in its text. The
is nowhere
rules had
formula
the return migration
of foreigners
has been
dropped. The new law is conceived in the spirit of replacing executive
discretion by individual rights to be held against the executive. For
to constitutional)
and
residence
(in addition
statutory
even
went
In
the
law
several
respects,
beyond
existing ad
family rights.
and
ministrative
period for second
legal practice. The one-year waiting
eigners
now have
marriages,
okayed by
In addition,
spouses
of
residence
rights, independent
third-generation
foreigners who
generation
abolished.
given
the
workings
in 1987, was
their own
granted
the head of family. Finally,
second- or
had temporarily
returned home were
the Constitutional
and
measures
to return. These
right
not
of moral
obligations,
just of
Court
were
children
indicate
legal
the
constraints.
independent
The new
Foreigner Law sticks to the old premise of wrapping up a historically
unique
ization
eigner
immigration
as
possible
episode, while perhaps
within
the inherently
as much
containing
limited
framework
liberal
of
"for
two
con
policy."
Firm in Britain
In Britain
also,
family
immigration
has been
subject
to the
flicting imperatives of controls and rights: closing down a historically
the family rights of im
respecting
episode, while
immigration
case the
came to
in
But
the
German
whereas
migrants.
rights
predom
case the
in
inate over the controls
the
British
opposite
imperative,
unique
are at least two reasons for this outcome:
the pecu
happened.61 There
awritten
and
the
absence
liar character of postcolonial
of
immigration
constitution protecting individual rights.
has been, from
immigration
its political
processing
Accordingly,
Postcolonial
gration.
61
This
immi
the start, unwanted
can at no
point be under
is recognized in the literature as the "exceptional" efficacy of British immigration control. Gary
even argues: "The British experience demonstrates
that it is possible to limit unwanted
immi
and Hollifield
(fh. 1), 297.
gration." Freeman, 1994b. "Britain, the Deviant Case," in Cornelius, Martin,
Freeman
288
WORLD POLITICS
stood in terms of client politics,62 as expressed in the widely noted (and
criticized) absence of economic considerations in British immigration
to
In contrast
policy.63
Germany
or France,
the first oil crisis marks
no
turning point in Britain. Primary New Commonwealth
immigration
was effectively halted before 1973 for entirely political reasons. If
Britain had acquired its colonial empire in a fit of absentmindedness,
its initial
This
to
approach
immigration
to the illusion
long
was
of an empire
passing of the first Commonwealth
million
subjects
of
the Crown,
in which
was
similar.
strikingly
too
elites
who
stuck
by
the sun never sets. Until
the
immigration
postcolonial
at best
tolerated
passively
Immigrants Act in 1962, some 800
inhabiting
one-fourth
landmass, had the right of entry and settlement
hostile
modern
most
dramatic
secular decline
that a
by the
aggrieved
had ever gone
shook the elites out of their
through,
As if to compensate
for past inattention,
successive Tory
to
stern
alike
have
since
stuck
the
governments
imperative
that New Commonwealth
but
the earth's
public,
nation
complacency.
and Labour
moral
of
in Britain. Only a
immigration had to be stopped. A sense of
even
not been
obligation,
guilt, has
it has been channeled
into the buildup
absent among
of an elaborate
British
elites,
race relations
never known an active
immigration
regime. British
policy has
phase of
it has been from the start a negative
control policy to keep
recruitment;
out. Directed
tout court,
against unwanted
immigration
immigrants
British
immigration policy has been only weakly affected by moral
considerations.
Nor
it been mellowed
has
reason
is the second
why
constraints,
by legal-constitutional
over the
the controls prevailed
rights
which
impera
tive inBritish family immigration policy. In Britain, which lacks awrit
ten constitution
and the principle
of legal review, there has been little
the
branches
of government
blockading
political
by recalcitrant
courts.
is
in Parliament,
and
invested
firmly
Sovereignty
unequivocally
no
to
which
its lawmaking
knows
constitutional
limits
In im
powers.
of
entails a dualism of ex
arrangement
executive
in the absence
and
closure, which,
openness
legislative
to the interests of
is detrimental
of a client machine,
Par
immigrants.
migration
treme
policy,
this institutional
in the formulation
of immigration
openness
policy keeps
restrictionist
within
the confines
of a pervasively
public
a
Once
closure
policy has been decided upon, there is executive
liamentary
lawmakers
opinion.
in its implementation, with theHome Office firmly and uncontestedly
62
This processing contrasts the German guest-worker
policy, which followed the logic of client pol
itics before the oil crisis and the recruitment stop of 1973.
63
See, for example, Sarah Spencer, ed., Strangers and Citizens (London: Rivers Oram Press, 1994).
289
LIBERAL STATES& UNWANTED IMMIGRATION
in
charge.
In the orthodox
view, Britain's
"political
constitution"64
is
good
for democracy because it lets elected officialsmake decisions that, in other
in practice
it entails executive,
rather
systems, unelected
judges make. But
or
it
with
than
and
leaves
with
minorities,
sovereignty,
parliamentary
out
to the whims
of the majority.
vulnerable
extremely
citizenship,
over the
in
the controls
of
The
rights
imperative
predominance
British family immigration policy can be demonstrated along the fate
its abolishment in
of Section 1(5) of the 1971 Immigration Act?until
in
It secured for all
British
law.
the
1988,
immigration
only family right
New Commonwealth men legally settled in Britain before 1973 the
right to be joined by their nuclear family from abroad,without any state
thus expressed
Britain's
and
special moral
it
when
its
However,
primary
legal obligations
immigrants.
came into the way of
Section
1(5)
secondary
immigration,
controlling
was
a
vote in Parliament.
abolished
by
simple majority
simply
interference.65
Section
1(5)
toward
story of the slashing of Section 1(5) is amost extraordinary
The
story because
it demonstrates
that for
the
sake of firm
immigration
controls the British elites have allowed the family rights not just of
immigrants, but of all British citizens, to sink below the European
standard. It all started with the campaign by the incoming Thatcher
and fianc?s of fe
the foreign husbands
government
against admitting
treatment
to Britain.
male
of men and
Such
immigrants
asymmetrical
an
women
law shot
drastic
of
is only a more
immigration
example
on the
sex discrimination,
that
the wife
with
premise
through
operating
as head of the
was. But most
im
should be where
the husband
family
thus blurring
and fianc?s were male
husbands
immigrants,
portantly,
were
the line between
Husbands
and
secondary
primary
immigration.
a strained
as stealth
labor
primary
immigrants,
crowding
perceived
market. Accordingly, theMinister of State defended his new immigra
tion rules of 1979-80, which barred foreign husbands and fianc?s from
settlement
in Britain:
"We have
a
particular
cut back
aim?to
on
pri
male
mary
When
review
band
immigration."66
on Human
the European
Commission
the cases of three British
immigrant wives
rule, the British
government
responded
with
Rights
harmed
a
for
accepted
the
hus
by
prophylactic
rule
The Modern Law Review 42, no. 1 (1979).
"The Political Constitution,"
64J.A. G. Griffith,
65
Section 1(5) of the 1971 Immigration Act stipulated: "The rules shall be so framed that Com
at the coming into force of this Act and their wives
monwealth
citizens settled in the United Kingdom
in the rules, any less free to come into and go from the
and children are not, by virtue of anything
United Kingdom
than if this Act had not been passed."
66
in P. Thornberry,
"Seven Years On: East African Asians, Immigration Rules and Human
Quoted
Rights," Liverpool Law Review 2 (1980), 146.
290
WORLD POLITICS
change in 1982-83. Whereas
rules exempted
ther born or
from
(in racially discriminatory intent) the old
the husbands
ancestrally
related
ban only (white) "patrial" women
to the U.K.,
the new rules allowed
ei
all
female British citizens, irrespective of birth or ancestry, to be joined by
their foreign husbands and fianc?s. This could not be the end of the
women
still remained
settled, noncitizen
immigrant
never
their
husbands.
there
has
been a con
However,
separated
was
a new re
not offset
in British
that
cession
by
immigration
policy
a
the old immigration
rules contained
elsewhere.
striction
Already
ex
women
were
to those
who
number of "safeguards"
applied
patrial
because
matter,
from
empted from the husband ban: most
importantly, they and their
was
to prove that the
spouses
"primary purpose" of their marriage
were
not
In
the
1982-83
these
rules,
immigration.
safeguards
tightened
had
through shifting the burden of proof from the state to the applicant.
its venomous
rule could unfold
now, the primary-purpose
pow
Only
the perfect
the government
tool to close the loop
with
ers, providing
front.
hole that had opened up at the sex equalization
Predictably, the European Court of Human Rights, in itsAbdulaziz,
Cabales and Balkandali landmark decision ofMay 1985, found that the
sex. The
on the
rules were discriminatory
ground of
immigration
remove
trace
to
the
last
of sex
the
rule forced
government
Strasbourg
rules. As Home Minister
Leon
from its immigration
discrimination
1980
Brittan
two
reckoned
in the House
sets of choices.67 The
of Commons,
the government
faced
or
between
"narrowing"
"widening"
in
settled immigrant men from bringing
first was
rule: to prevent
their spouses, or to permit
settled immigrant wives
the government
would
Narrowing
imply dishonoring
the husbands
to
bring in theirs.
to
commitment
the family rights of settled immigrant men, enshrined in Section 1(5).
But in that case, the
the government
opted for widening.
Accordingly,
two thousand more
annual intake of an estimated
additional
immigrant
husbands
had to be offset by new safeguards. That decision
predeter
or "ex
the government's
second choice between
mined
"abandoning"
to
tests
tests. To
currently
applied
drop the
to strict
be to go back on our firm commitment
to be
control." But if the tests were
kept, the mandate
immigration
men and women.
was
to
to
of the Strasbourg
rule
apply them equally
tending"
husbands
its marriage
only "would
As the home minister concluded his sharp syllogistic exercise, "[W]e
cannot
giving
Court
expect the European
treatment
wives
preferential
67Parliamentary Debates,
Commons,
...
to endorse
vol. 83 (1985),
by
not
making
cols. 893-96.
the continuation
them
subject
of
to
291
LIBERAL STATES& UNWANTED IMMIGRATION
the same
a Labour
railed against
front-bencher
one
must
the government's
and
vindictive
admire
course,"68
"spiteful
court indictment
the cleverness
of turning a European
into a means
of
even firmer
control.
immigration
As
While
requirements."
sharp
as it
appeared,
the home
minister's
syllogism
was
faulty.
The commitment to Section 1(5), which motivated his choice towiden
the husband rule, was destroyed by his second choice to extend the
as Section
1(5) was
safeguards. As long
the
rule, could
primary-purpose
cluding
in force, the marriage
tests, in
men
not be used on
immigrant
who had setded in Britain before 1973. If safeguardswere to be main
tained, the logic of the Strasbourg rule implied the removal of this priv
even the one bit of
ilege. Accordingly,
generosity
to
the
rule was a chimera.
response
Strasbourg
in the government's
Because Section 1(5), which finally stood in the way of full sex
equality inBritish policy on secondary immigration, had the status of a
statutory
right,
it could
be removed
only
through
a
change
of statutory
successfully removed Section 1(5) in
law.The 1988 Immigration Act
law in seventeen
years. Marked
by lit
change of immigration
or
an
of
Section
the
was,
1(5)
nonetheless,
protestation,
repeal
the first
tle noise
extraordinary event; it had been the only family right that had existed
in British
under massive
law. Only
pressure,
including
immigration
rule
the House
of Lords, had it been elevated from discretionary
to statutory law in the 1971
Act.
Successive
governments
Immigration
from
had
reaffirmed
But
to honor
their commitment
all rights are relative
in British
this right.
as
the painless
law,
removal
of Sec
tion 1(5) by a simple parliamentary majority epitomizes. In dropping it,
the one moral
commitment
it had un
the government
also abandoned
its primary New Commonwealth
dertaken vis-?-vis
immigrants.69 Now
no
limit to the sway of firm immigration
there was
control, affecting even
ordinary Britons. Section 1(5) had so far protected white patrial men
from
the excrutiating
too. The
immigration
marriage
tail came
were
subject
they
the vast nonimmigrant
tests. Now
to beat
to them
rest.
Conclusion
"Can
recently
liberal
states
asked.70 His
control
answer
unwanted
was:
yes,
Gary
migration",
but, it depends?yes,
Freeman
because
68
Gerald Kaufman, quoted in ibid., col. 901.
69
Renton
of State Timothy
by
sought to soften this break of commitment
Interestingly, Minister
out that those who now profited from Section 1(5) had been infants in 1971: "Those who are
pointing
are not those who were adult males at the time of the 1971 Act but
receiving the benefit of section 1(5)
the young children who had then just been born.* Renton, quoted in Ibid., col. 856.
70
Freeman (fh. 2).
292
WORLD POLITICS
states
modern
of considerable
dispose
infrastructural
powers
that have
not diminished, but increased over time; it depends, because capacity
varies
across
Such
attention
and across
states
to context
swer of the yes-or-no
Freeman's
Turning
in the cases
ally do
variety.
1994 question
that liberal
so. That
to control.
the type of migration
subject
a
an
and detail precludes
quick and generic
liberal
states
accept
states do so on a
edged in Cornelius, Martin,
a
identifies
growing
this article
around,
unwanted
large
and Hollifield's
gap between
explored
why,
actu
immigration,
they
scale has been acknowl
"gap hypothesis," which
restrictionist
policy
intent
and an ex
pansionist immigration reality.A variety of globalist analyses explained
this gap in reference to an externally
conditioned
decline of sovereignty.
views
of
mobilized
and par
These
analyses offered generic
immigrants
the actual mechanisms
that make cer
alyzed states, without
identifying
tain states
certain
accept
types of unwanted
immigration.
the diagnosis of globally limited sovereignty, this article
Against
an alternative
start
of self-limited
sovereignty,
suggested
diagnosis
the
with
interest
Freeman's
observation
that
of
group pol
dynamics
ing
in liberal states makes
itics ("client politics")
them inherently
expan
is only one pillar
sionist vis-?-vis
But the political
process
immigrants.
a
one that is
of self-limited
sovereignty,
fully entrenched
only in classic
settler
States.
had
like the United
regime,
client politics
only until
the oil
regimes
European
guest-worker
crisis, and a pure postcolonial
regime (like Britain) never had it.Thus, other factors must be respon
sible
if such
states
legal constraints
accept unwanted
in combination
with
In European
states,
immigration.
moral obligations
toward histor
the logic of client poli
immigrant
ically particular
populations?not
tics?account
for continuing
(family)
immigration
general
despite
are
constraints
But these legal and moral
policies.
zero-immigration
across
states.
distributed
with
highly
unevenly
Germany,
European
both a strong constitution
human
and
the moral
celebrating
rights
an extreme
case of self-limited
sov
is
burdens
of a negative
history,
one of the most
it
ereignty, making
expansive
immigrant-receiving
countries
in the world.
immigration
but
world,
citizens.
more
Britain
has managed
than any other
effectively
at the cost of
trampling
on
to contain
unwanted
in the Western
country
own
the family
rights of her
the risk of stating a tautology,
unwanted
is
accepting
immigration
in the liberalness
the hegemony
inherent
of liberal states. Under
of the
At
United
States, liberalism has become the dominant Western
idiom in
293
LIBERAL STATES& UNWANTED IMMIGRATION
the postwar
period,71
and the rule of law. At
indicating
the same
a
human
respect for universal
semantics were
time, nationalist
rights
dele
gitimized because of their racist aberrations under Nazism. Only from
their firm grounding in the key states of theWest, could the liberal
principles of human rights and the rule of law triumph as "global dis
course"
sis these
around
liberal
states
Western
the world.
It is therefore
now
principles
that are reduced
strange that in globalist
analy
as external
on
constraints
reappear
to the nationalist,
sovereignty-clinching
caricatures they perhaps had been hundred years earlier, in the high
noon
of
imperialism.
Among
the global
factors
either
absent
or inef
fective in this discussion of the political and legal processing of un
wanted
perhaps
discourse.
that has
has been the "international
immigration
the single most
inflated construction
Of
its absence
course,
to be demonstrated.
may
human
in recent
be the flaw
rights regime,"
social science
of this analysis.
But
71
on John
has suggested that
Building
Ruggie's analysis of "embedded liberalism," James Hollifield
states.
liberalism" has undermined
effective immigration controls inWestern
domestic,
"rights-based
is similar to the argument presented here. Hollifield,
This
Relations,"
"Migration and International
International Migration
Review 26, no. 2 (1992).