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Why Liberal States Accept Unwanted Immigration

  • Christian Joppke (a1)

Abstract

This article explores why liberal states accept unwanted immigration, discussing the cases of illegal immigration in the United States and family immigration in Europe. Rejecting the diagnosis of state sovereignty undermined by globalization, the author argues that self-limited sovereignty explains why states accept unwanted immigration. One aspect of self-limited sovereignty is a political process under the sway of interest-group politics (“client politics,” as Gary Freeman says). The logic of client politics explains why the United States accepts illegal immigration. The case of family immigration in Europe suggests two further aspects of self-limited sovereignty: legal-constitutional constraints on the executive, and moral obligations toward historically particular immigrant groups. However, these legal and moral constraints are unevenly distributed across Europe, partially reflecting the different logics of guest worker and postcolonial immigration regimes.

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1 Cornelius, Wayne, Martin, Philip, and Hollifield, James, eds., Controlling Immigration (Stanford, Calif.: Stanford University Press, 1994), 3.

2 While frequently used in the literature—see, for example, Freeman, Gary, “Can Liberal States Control Unwanted Migration?” Annals of the American Academy of Political and Social Science 534 (1994), 1730; Cornelius, Martin, and Hollifield (fn. 1), 5—the notion of “unwanted” immigration may be criticized on analytical and normative grounds. Analytically, it reifies states as collective individuals with clear-cut preferences. Normatively, it endows a political fighting term with academic respectability. Against such objections, I wish to point out that “unwanted” is used here in a purely descriptive sense, denoting immigration that occurs despite and against explicit state policies. Qualifying illegal immigration in the United States, the first case discussed here, as “unwanted” requires no further elaboration. Family immigration in Europe, the second case, is rendered “unwanted” by uniform zero-immigration policies since the early 1970s.

3 Arendt, Hannah, The Origins ofTotalitarianism (San Diego: Harcourt Brace Jovanovich, 1973), 278.

4 Jacobson, David, Rights across Borders (Baltimore: Johns Hopkins University Press, 1996). See Krasner, Stephen, “Westphalia and All That,” in Goldstein, Judith and Keohane, Robert, eds., Ideas and Bmign Policy (Ithaca, N.Y.: Cornell University Press, 1993).

5 See Thomson, Janice, “State Sovereignty in International Relations,” International Studies Quarterly 39 (1995), 213-33.

6 See Evans, Peter, Rueschemeyer, Dietrich, and Skocpol, Theda, eds., Bringing the State Back In (New York: Cambridge University Press, 1985).

7 Freeman, Gary, “The Decline of Sovereignty?” in Joppke, Christian, Challenge to the Nation-State: Immigration in Western Europe and the United States (New York: Oxford University Press, 1998).

8 Perruchoud, R., “The Law of Migrants,” International Migration 24 (1986), 699715.

9 Luigi Ferrajoli decimates T. H. Marshall's identification of individual rights with citizenship rights, from which a new postnational “logic of personhood” is then construed as a departure. Instead, Ferrajoli shows that most individual (legal and social) rights in liberal states had never been invested in national citizenship and had always revolved around universal personhood. Ferrajoli, From the Rights of the Citizen to Rights ofthe Person (Manuscript, European Forum on Citizenship, European University Institute, Florence, 1995–96). On the logic of personhood, see Soysal, Yasemin, Limits to Citizenship (Chicago: University of Chicago Press, 1994), chap. 8.

10 Sassen, Saskia, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996), chap 3.

11 Jacobson (fn. 4); Sassen (fn. 10), 95.

12 Sassen (fn. 10), 98.

13 Weiner, Myron, The Global Migration Crisis (New York: Harper Collins, 1995), 8083.

14 Thomson, Janice and Krasner, Stephen, “Global Transactions and the Consolidation of Sovereignty,” in Czempiel, Ernst-Otto and Rosenau, James, eds., Global Changes and Theoretical Challenges (Lexington, Mass.: Lexington Books, 1989).

15 Donnelly, Jack, “International Human Rights: A Regime Analysis,” International Organization 40, no. 3 (1986).

16 Soysal (fn. 9).

17 Finnemore, Martha, “Norms, Culture and World Politics: Insights from Sociology's Institutionalism,” International Organization 50, no. 2 (1996), 339.

18 Joppke, Christian, “Asylum and State Sovereignty,” Comparative Political Studies 30, no. 3 (1997).

19 Freeman, Gary, “Modes of Immigration Politics in Liberal Democratic States,” International Migration Review 29, no. 4 (1995).

20 Ibid., 881.

21 Ibid., 886. James Q. Wilson's notion of client politics is built upon Mancur Olson's theory of collective action dilemmas, which states that the organized and active interest of small groups tends to prevail over the nonorganized and nonprotected interest of large groups. The premise of this expected outcome is rational, self-interested action on part of the individual. , Wilson, ed., The Politics of Regulation (New York: Basic Books, 1980); Olson, , The Logic of Collective Action (Cambridge: Harvard University Press, 1965).

22 Comparing state responses to illegal immigration and family immigration may seem odd. Why not compare state responses to only one form of immigration, be it illegal or family-based? Illegal immigration in Western Europe is too recent and protean to warrant a comparison with the U.S., where it has been a recurrent stake of political debate for two decades. Family immigration in the United States is not unwanted immigration, in the sense of occurring against the backdrop of explicit zero-immigration policies. Rather, family reunification in the U.S. is the major principle of selecting wanted new quota-immigrants, having precedence even over the criterion of skills. It would have been possible to compare state responses to mass asylum-seeking, the third major source of unwanted immigration in liberal states, but it raises additional issues of refugee law and politics. I have discussed asylum policy separately, see Joppke (fn. 18).

23 Inserted in the 1952 Immigration and Nationality Act at the behest of Texan growers, the so-called Texas Proviso stated that employing illegals did not constitute the criminal act of “harboring.” Accordingly, it was legal to employ illegal immigrants, although they were still subject to deportation.

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, A27.

28 Cose, Ellis, A Nation of Strangers (New York: Morrow, 1992), 167.

29 Fuchs, Lawrence, “The Corpse That Would Not Die: The Immigration Reform and Control Act of 1986,” Revue Européenne des Migrations Internationales 6, vol. 1 (1990).

30 Zolberg, Aristide, 1990. “The Immigration Reform and Control Act of 1986 in Historical Perspective,” in Yans-McLaughlin, Virginia, ed., Immigration Reconsidered (New York: Oxford University Press, 1990), 326-35.

31 Fuchs (fn. 29).

32 Congressman Charles Schumer, quoted in the New York Times, October 12,1984,17.

33 Swartz (fn. 26).

34 See Bean, Frank, Edmonston, Barry, and Passel, Jeffrey, eds., Undocumented Migration to the United States (Washington, D.C.: The Urban Institute, 1990).

35 Papademetriou, Demetrios, “Illegal Mexican Migration in the United States and U.S. Responses,” International Migration 31, nos. 2–3 (1993), 314-48.

36 Another reason for IRCA's failure is that it does not even touch the problem of visa overstayers, which account for over 60 percent of the undocumented population. David Martin, “The Obstacles to Effective Internal Enforcement of the Immigration Laws in the United States” (Paper presented at the AAAS/GAAC Conference on German-American Migration and Refugee Policies, Cambridge, Mass., March 23–26,1995), 3.

37 Kitty Calavita, “U.S. Immigration and Policy Responses,” in Cornelius, Martin, and Hollifield (fh. 1), 71.

38 Martin (fn. 36), 6f.

39 Lamar Smith, Republican representative from Texas, used this phrase to characterize his sweeping House bill that dealt jointly with legal and illegal immigration. “House G. O. P. Moves to Cut Immigration,” New York Times, June 22,1995.

40 Schuck, Peter, “The Meaning of 187,” The American Prospect 85 (1995).

41 In its Plyler v. Doe decision (1982), the Supreme Court ruled that the children of illegal immigrants have the constitutional right to a public school education. Plyler indicates that, in addition to a political process under the sway of client politics, the legal process has bolstered the position of illegal immigrants in the U.S. For the lack of space, I cannot discuss this further here, but see Schuck, Peter, “The Transformation of Immigration Law,” Columbia Law Review 84, no. 1 (1984).

42 Barbara Jordan, “The Americanization Ideal,” New York Times, September 11,1995.

43 “The Strange Politics of Immigration,” New York Times, December 31,1995.

44 “Unlikely Allies Battle Congress over Anti-Immigration Plan,” New York Times, October 11, 1995.

45 “Congress Plans Stiff New Curb on Immigration,” New York Times, September 25,1995.

46 Roy Beck, “The Pro-Immigration Lobby,” New York Times, April 30,1996.

47 “House Panel Approves Plan to Register Immigration Status,” New York Times, November 22, 1995.

48 Quoted in “Senate Votes Bill to Reduce Influx of Illegal Aliens,” New York Times, May 3,1996.

49 Schuck (fn. 40), 91.

50 A second example for the absence of source-country universalism in European immigration policy is the phenomenon of ethnic-priority immigration, such as the “patrials” in Britain or the “Aussiedler” (ethnic German resettlers) in Germany, for which there is no parallel in the U.S.

51 See Faist, Thomas, “How to Define a Foreigner?” West European Politics 17, no. 2 (1994).

52 Hailbronner, Kay, “Ausländerrecht und Verfassung,” Neue Juristische Wochenschrift 36, no. 38 (1983), 2113.

53 See Neuman, Gerald L., “Immigration and Judicial Review in the Federal Republic of Germany,” New York University Journal of International Law 23 (1990).

54 Decision of 26 September 1978 (1 BvR 525/77), 186.

55 Between 1973 and 1980, the number of foreign workers in West Germany fell from 2.595 million to 2.070 million; during the same period, the absolute number of foreigners increased from 3.966 million to 4.450 million. Herbert, Ulrich, A History of Foreign Labor in Germany, 1880–1980 (Ann Arbor: University of Michigan Press, 1990), 188. Because the number of asylum seekers was small before 1980, only family reunification can account for the increase.

56 Quoted in Decision of12 May 1987 (2 BvR 1226/83,101, 313/84), p.33f.

57 The German Constitutional Court thus did not go as far as the French Conseil d'Etat, which (in effect) recognized a constitutional right of family reunification in a famous 1978 decision.

58 The Court thus argued that even aliens not residing in Germany had rights under the Constitution. As Neuman (fn. 53) notes, this went far beyond the most generous rulings of the U.S. Supreme Court regarding the rights of aliens.

59 Frankfurter Allgemeine Zeitung, November 9,1974.

60 Gerhard Baum (FDP), quoted in Das Parlament 32, no. 9 (1982).

61 This isrecognizedin the literature as the “exceptional” efficacy of British immigration control. Gary Freeman even argues: “The British experience demonstrates that it is possible to limit unwanted immigration,” Freeman, 1994b. “Britain, the Deviant Case,” in Cornelius, Martin, and Hollifield (fn. 1), 297.

62 This processing contrasts the German guest-worker policy, which followed the logic of client politics before the oil crisis and the recruitment stop of 1973.

63 See, for example, Spencer, Sarah, ed., Strangers and Citizens (London: Rivers Oram Press, 1994).

64 Griffith, J. A. G., “The Political Constitution,” The Modern Law Review 42, no. 1 (1979).

65 Section 1(5) of the 1971 Immigration Act stipulated: “The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed.”

66 Quoted in Thornberry, P., “Seven Years On: East African Asians, Immigration Rules and Human Rights,” Liverpool Law Review 2 (1980), 146.

67 Parliamentary Debates, Commons, vol. 83 (1985), cols. 893–96.

68 Gerald Kaufman, quoted in ibid., col. 901.

69 Interestingly, Minister of State Timothy Renton sought to soften this break of commitment by pointing out that those who now profited from Section 1(5) had been infants in 1971: “Those who are receiving the benefit of section 1(5) are not those who were adult males at the time of the 1971 Act but the young children who had then just been born.” Renton, quoted in Ibid., col. 856.

70 Freeman (fh. 2).

71 Building on John Ruggie's analysis of “embedded liberalism,”James Hollifield has suggested that domestic, “rights-based liberalism” has undermined effective immigration controls in Western states. This is similar to the argument presented here. Hollifield, , “Migration and International Relations,” International Migration Review 26, no. 2 (1992).

* This article was first presented at the conference “Effects of Policy on Migration Patterns and the Integration of Immigrants,” Humboldt University of Berlin, November 1–2,1996. My thanks to Rainer Müinz for the invitation.

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