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The Marketization of Citizenship in an Age of Restrictionism

  • Ayelet Shachar
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1 These measures include the introduction of Executive Order No. 13767 of January 25, 2017, “Border Security and Immigration Enforcement Improvements,” Federal Register 82, no. 18, p. 8793; and Executive Order No. 13768 of January 25, 2017, “Enhancing Public Safety in the Interior of the United States,” Federal Register 82, no. 18, p. 8799. Memorandum from John Kelly, Secretary of Homeland Security, to Kevin McAleenan, Acting Commissioner, U.S. Customs and Border Protection et al., “Implementing the President's Border Security and Immigration Enforcement Improvements Policies” (February 20, 2017). The decision to rescind DACA was announced on September 5, 2017. In early 2018, DACA recipients were awarded an injunction from a federal court that temporarily halts the rescinding of the program. As of mid-January, there were negotiations underway in Congress to reach an agreement on the future of the DACA program.

2 On the competing visions of a nation of immigrants and that of a nation of laws, see Ayelet Shachar, “Earned Citizenship: Property Lessons for Immigration Reform,” Yale Journal of Law & the Humanities 23, no. 1 (2011), pp. 110–58.

3 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, EB-5 Immigrant Investor Program,

4 The bona fide formulation is drawn from the recent U.S. Supreme Court decision in the travel ban case. See Trump v. International Refugee Assistance Project (IRAP), 582 U. S. ____ (2017).

5 These multiple facets of citizenship are captured well by Joppke, Christian, “Transformation of Citizenship: Status, Rights, Identity,” Citizenship Studies 11, no. 1 (2007), pp. 3748 .

6 “Golden Visa Portugal–Residency for Investors” (online),

7 States are not alone in charting this new terrain. Intermediaries, both local and transnational, such as specialized law firms, wealth mangers, and other for-profit third parties have also exerted influence in shaping and transplanting such programs from one country, or region, to another.

8 For a comparative overview of these civic-integration requirements, see Goodman, Sara Wallace, Immigration and Membership Politics in Western Europe (Cambridge: Cambridge University Press, 2014).

9 Fossen, Anthony van, “Citizenship for Sale: Passports of Convenience from Pacific Island Tax Havens,” Commonwealth & Comparative Politics 45, no. 2 (2007), pp. 138–63.

10 Sumption, Madeleine and Hooper, Kate, Selling Visas and Citizenship: Policy Questions from the Global Boom in Investor Immigration (Washington, D.C.: Migration Policy Institute, 2014), p. 2.

11 Spain and Portugal are prime examples.

12 Malta's initial legislation, adopted in 2013, in essence brought to the continent the Caribbean cash-for-passport model. Cyprus soon followed suit with its citizenship by investment program. In exchange for €2 million, Cypriot (and by extension European) citizenship can be acquired at an unprecedented speed—within three months—through naturalization by exception. See “Cyprus: Citizenship by Investment Program,”

13 The “real and effective” standard is applied in many jurisdictions, affirming a notion of citizenship as social membership; it is most famously drawn from the Nottebohm Case. See Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgment of April 6, 1955: I.C.J. Reports 1955, p. 22. This decision focused on the claims for diplomatic protection and recognition of citizenship by other members of the international community.

14 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, EB-5 Immigrant Investor Program,

15 Department of Homeland Security, Office of Inspector General, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” Washington, D.C., December 12, 2013 (OIG-14-19), p. 5,

16 Government of Canada, Department of Finance, “The Road to Balance: Creating Jobs and Opportunities,” February 11, 2014 (F1-23/3-2014E), p. 81.

17 For a thorough account, see Ley, David, Millionaire Migrants: Trans-Pacific Life Lines (Malden, Mass.: Wiley-Blackwell, 2010).

18 Government of Canada, Department of Finance, “The Road to Balance,” p. 81.

19 Migration Advisory Committee, “The Economic Impact of the Tier 1 (Investor) Route,” (London: Migration Advisory Committee, 2013), p. 1.

20 Ibid., pp. 1–2 (emphasis added).

21 U.S. Government Accountability Office, “Immigrant Investor Program: Progress Made to Detect and Prevent Fraud, but Additional Actions Could Further Agency Efforts,” Washington, D.C. (GAO-16-828), September 2016, p. 6. See also Eric Lipton and Jesse Drucker, “Kushner Family Stands to Gain from Visa Rules in Trump's First Major Law,” New York Times, May 9, 2017, p. A1 (quoting Gary Friedland, a professor at NYU, who explains that traditional lenders for real estate projects can charge interest at 12 to 18 percent, whereas EB-5 loans carry a much lower interest, circa 4 percent, or roughly a third or a quarter of standard borrowing costs).

22 Editorial Board, “The Kushners and Their Golden Visas,” New York Times, May 9, 2017, p. A22.

23 This section draws on arguments developed in greater detail in Shachar, Ayelet, “Citizenship for Sale?” in Shachar, Ayelet et al. , eds., The Oxford Handbook of Citizenship (New York: Oxford University Press, 2017), pp. 789816 .

24 On such transformations, see Shachar, Ayelet, The Shifting Border: Legal Cartographies of Migration and Mobility (Critical Powers Series, Manchester University Press, forthcoming 2018).

25 I thank Sarah Fine for helpful conversations sharpening this point.

26 Becker, Gary S., The Economic Approach to Human Behavior (Chicago: University of Chicago Press, 1976), pp. 5, 8 (emphasis added).

27 Gary S. Becker, “An Open Door for Immigrants—The Auction,” Wall Street Journal, October 14,1992, p. A1.

28 For early and still influential critical accounts, see Radin, Margaret J., “Market-Inalienability,” Harvard Law Review 100, no. 8 (1987), pp. 1849–937; and Sunstein, Cass R., “Incommensurability and Valuation in Law,” Michigan Law Review 92, no. 4 (1994), pp. 849–50. See also Anderson, Elizabeth, “The Ethical Limitations of Markets,” Economics & Philosophy 6, no. 2 (1990), pp. 179205 . Michael Walzer has influentially argued against allowing advantages in one social sphere or arena (the economic) to unfairly influence another (the political). See Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), pp. 95103 .

29 Downes, Daniel M. and Janda, Richard, “Virtual Citizenship,” Canadian Journal of Law and Society 13, no. 2 (1998), p. 55.

30 This could also lead to tiered citizenship for present citizens. Marketization processes remind us of the long durée of history whereby the vast majority of the population was denied access to equal membership through mechanisms such as property ownership (over slaves, land, or household members) and the like.

31 Smith, Rogers, “Citizenship: Political,” in Smelser, Neil J. and Baltes, Paul B., eds., International Encyclopedia of the Social & Behavioral Studies (Oxford: Elsevier, 2001), p. 1857.

32 Shachar, Ayelet, The Birthright Lottery: Citizenship and Global Inequality (Cambridge, Mass.: Harvard University Press, 2009), pp. 164–90. See also Shachar, “Earned Citizenship.” Related ideas refer to notions of a stakeholder society, or to the importance of social membership in determining access to citizenship. See Bauböck, Rainer, “Expansive Citizenship—Voting beyond Territory and Membership,” Political Science & Politics 38, no. 4 (2005), pp. 683–87; and Carens, Joseph H., The Ethics of Immigration (New York: Oxford University Press, 2013).

33 On the expressive function of law, see Sunstein, Cass, “On the Expressive Function of Law,” University of Pennsylvania Law Review 144 (1996), pp. 2021–253; on “performative” law, see Austin, J. L., How to Do Things with Words, 2nd ed. (Cambridge, Mass.: Harvard University Press, 1975).

34 Sandel, Michael J., What Money Can't Buy: The Moral Limits of Markets (New York: Farrar, Straus and Giroux, 2012), p. 9.

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