Why Liberal States Accept Unwanted Immigration Author(s): Christian Joppke Source: World , Vol. 50, No. 2 (Jan., 1998), pp. 266-293 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/25054038 Accessed: 26/03/2009 18:54

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http://www.jstor.org WHY LIBERAL STATES ACCEPT UNWANTED IMMIGRATION

By CHRISTIAN JOPPKE*

of the more popular watchwords of our time is that the na to ONE tion-state is in decline?"too big" solve regional problems, "too to as small" solve global problems, the topographical metaphor goes. A an related argument is often made regarding increasing incapacity of states to at was control immigration. "Strangers the gate" the alarmist cry heard in the wake of 1989 and all that. The Economist (March 15, a 1991) showed a ramshackle border guardhouse being overrun by giant bus bursting with all sorts of foreign-looking (and strangely as cheerful) characters. Such hyperbole has since disappeared, partially a across states. result of tightened procedures for asylum Western But there still seems to be a gap between a restrictionist control rhetoric and an expansionist immigration reality. An influential comparative volume on na immigration control argues: "[T]he gap between the goals of . . . of in this tional immigration and the actual results area (policy outcomes) is growing wider in all major industrialized states of the North Adantic re ."1 Why do the developed more rhetoric gion accept immigrants than their generally restrictionist and policies intend? the between The phenomenon of unwanted immigration reflects gap outcomes. immi restrictionist policy goals and expansionist Unwanted not as in the gration is actively solicited by states, legal quota immigra it is tion of the classic settler nations. Rather, accepted passively by reasons states, either for humanitarian and in recognition of individual as in reunification of labor rights, asylum-seeking and family migrants, or to as in il because of the states' sheer incapacity keep migrants out, as legal immigration. The gap hypothesis can thus be reformulated the question,Why do liberal states accept unwanted immigration?2 * was on This article first presented at the conference "Effects of Policy Migration Patterns and the thanks to Integration of Immigrants," Humboldt University of Berlin, November 1-2,1996. My Rainer M?nz for the invitation. 1 Wayne Cornelius, Philip Martin, and James Hollifield, eds., Controlling Immigration (Stanford, Calif.: Stanford University Press, 1994), 3. 2 Liberal States While frequently used in the literature?see, for example, Gary Freeman, "Can and Social Science 534 Control Unwanted Migration?" Annals of the American Academy of Political WorldPolitics 50 (January 1998), 266-93 LIBERAL STATES& UNWANTED IMMIGRATION 267

states one That accept unwanted immigration contradicts of their core over prerogatives: the the admission and expulsion of aliens. As Hannah Arendt wrote with an eye to its totalitarian aber more in matters rations, "Sovereignty is nowhere absolute than of ac emigration, naturalization, nationality, and expulsion."3 Does the ceptance of unwanted immigration indicate a decline of sovereignty? A as in David across is on quick "yes," Jacobson's Rights Borders^ premised a simplistic and static notion of sovereignty, thus denying its historical variability and chronic imperfection.4 answer two To the question fully, things should be considered. First, it is to two sover important distinguish between separate aspects of to eignty, formal rule-making authority and the empirical capacity im to plement rules. The former belongs theory, in which sovereignty is the defining characteristic of individual states as state the units of the international system;5 the latter falls within the domain of political and historical sociology, which has preferred the state or to notions of strength, capacity, autonomy investigate the his torically varying embodiments of the modern state.6 Gary Freeman has demonstrated that in both aspects there is little evidence for a decline to or of sovereignty regarding immigration control:7 the decision accept not to actors reject aliens has been relegated other than the state, and states not the infrastructural capacity of modern has decreased, but in over seen as or creased, time. Second, whether judicial authority empir as as ical capacity, sovereignty has rarely been absolute conveyed by s state Arendt characterization. Internationally, the exigencies of inter on or non dependence have always put the brakes erratic expulsion an admittance practices because hostility against alien might be

(1994), 17-30; Cornelius, Martin, and Hollifield (fh. 1), 5?the notion of "unwanted" immigration on may be criticized analytical and normative grounds. Analytically, it reifies states as collective indi a re viduals with clear-cut preferences. Normatively, it endows political righting term with academic to out a spectability. Against such objections, I wish point that "unwanted" is used here in purely occurs descriptive sense, denoting immigration that despite and against explicit state policies. Qualify case as ing illegal immigration in the , the first discussed here, "unwanted" requires no further elaboration. Family immigration in Europe, the second case, is rendered "unwanted" by uni form since the 1970s. 3 zero-immigration policies early Hannah Arendt, The Totalitarianism (San Harcourt Brace Jovanovich, 1973), 278. 4 Origins of Diego: across David Jacobson, Rights Borders (Baltimore: Johns Hopkins University Press, 1996). See Stephen Krasner, "Westphalia and All That," in Judith Goldstein and Robert Keohane, eds., Ideas and (Ithaca, N.Y.: Cornell Press, 1993). Foreign5 Policy University See Janice Thomson, "State Sovereignty in International Relations," International Studies Quar 39 (1995) ,213-33. terly6 See Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds., Bringing the State Back In (New York: Press, 1985). 7 Cambridge University to Gary Freeman, "The Decline of Sovereignty?" in Christian Joppke, Challenge theNation-State: Immigration inWestern Europe and the United States (New York: Oxford University Press, 1998). 268 WORLD POLITICS

interpreted as hostility against her state. In addition, international law or on race prohibits both expulsion nonadmittance grounds of and the of in states. refoulement the victims of political persecution other Not are under only states, but also individuals, legal subjects international states are law?a novelty of the postwar era?and increasingly obliged to an "law Western states respect emergent of migrants."8 Domestically, states are in qua constitutional bound by the rule of law, which impor tant not respects protects the rights of persons and just of citizens.9 constraints states to Various authors have argued that global force two accept unwanted immigration. Saskia Sassen has identified such on state external constraints sovereignty: economic globalization and an the rise of international human rights regime.10 The penetration of peripheral countries by multinational corporations has created the push an mobile into core coun of uprooted and labor force seeking entry the tries of the world system. In addition, the secondary labor market in the countries a for An emer receiving provides powerful pull immigrants. gent international human rights regime protects migrants, independent states of their nationality, limiting the discretion of toward aliens and devaluing national citizenship. Echoing the work of Jacobson, Sassen state a an argues that the basis of legitimacy has undergone shift "from on to exclusive emphasis the sovereignty of the people and right self ... to determination rights of individuals regardless of nationality."11 au Taken together, economic and political globalization "reduce[s] the state tonomy of the in immigration policy making,"12 despite the state's to area desperate attempts renationalize this policy under the sign of populist restrictionism. The diagnosis of globally diminished sovereignty indicates that the to mi West has partially created what it seeks contain?international not answer as to states gration. But it does the question why Western accept unwanted immigrants. First, the space-indifferent logic of glob cannot some as alization explain why states, such the immigrant states are at receiving of the oil-producing Middle East, very efficient 8 R Perruchoud, "The Law of International 24 (1986), 699-715. 9 Migrants," Migration Luigi Ferrajoli decimates T. H. Marshall's identification of individual rights with citizenship rights, a new as a from which postnational "logic of personhood" is then construed departure. Instead, Ferra states never na joli shows that most individual (legal and social) rights in liberal had been invested in tional citizenship and had always revolved around universal personhood. Ferrajoli, From the Rights of to on the Citizen Rights of the Person (Manuscript, European Forum Citizenship, European University see to Institute, Florence, 1995-96). On the logic of personhood, Yasemin Soysal, Limits Citizenship (Chicago: University of Chicago Press, 1994), chap. 8. 10 an Uni Saskia Sassen, Losing Control? Sovereignty in Age of Globalization (New York: Columbia versity Press, 1996), chap 3. 11 Jacobson (fh. 4); Sassen (fn. 10), 95. 12 Sassen (fn. 10), 98. LIBERAL STATES& UNWANTED IMMIGRATION 269

or liberal keeping out, sending back, unwanted immigrants.13 Only 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 transactions, the world of the late was no one nineteenth century less global than the world hundred years to later.14 If the Bonn allowed its guest workers stay, while mass Wilhelmine Germany practiced resolute rotation and expulsions, a state cannot weakened by economic globalization be the explanation. The state always had to vindicate itselfwithin and against an inherently to to globalizing capitalism. Third, and related this, the very reference to states economic factors is insufficient explain why accept immi or mo grants, wanted unwanted. Economic globalization explains the of in as as the bilization potential immigrants the sending societies, well not interest of domestic employers in acquiring them, but their actual states. one to acceptance by the receiving Unless subscribes the ques state a tionable view that the is always tool of capitalism, the task would to em be identify the domestic processes by which, say, expansionist out in ployer interests cancel the restrictionist interests of the public turn out to in specific times and places. But then sovereignty would be not ternally, externally, diminished. Fourth, the international human not so as to states rights regime is strong make fear and tremble. Jack as a Donnelly characterized it "relatively strong promotional regime," rests on norms which widely accepted and values, but lacks implemen tation in and enforcement powers.15 Devoid of hard legal powers, the ternational human rights regime consists of the soft moral power of con discourse.16 This is better than nothing. But globalists have been tent with listing formal treaty and convention titles, avoiding the "de tailed process-tracing" by which their soft power may become to trace. domestically effective.17 Perhaps there would be little process For recent across instance, the tightening of asylum law and policy states states Western demonstrates that these have been extraordinarily norm inventive in circumventing the single strongest of the interna tional human rights regime, the non-refoulement obligation.18

13 Myron Weiner, The Global Crisis (New York: 1995), 80-83. 14 Migration HarperCollins, Janice Thomson and Stephen Krasner, "Global Transactions and the Consolidation of Sover eignty,'' in Ernst-Otto Czempiel and James Rosenau, eds., Global Changes and Theoretical Challenges (Lexington, Mass.: Lexington Books, 1989). 15 Jack Donnelly, "International Human Rights: A Regime Analysis," International Organization 40, no. 3 (1986). 16 Soysal (fn. 9). 17 Martha Finnemore, "Norms, Culture andWorld Politics: Insights from Sociology's Institution no. alism," International Organization 50, 2 (1996), 339. 18 no. Christian Joppke, "Asylum and State Sovereignty," Comparative Political Studies 30, 3 (1997). 270 WORLD POLITICS

In the following, I propose an alternative explanation. The capacity states to not of control immigration has diminished but increased?as every person landing at Schipohl or Sidney airports without a valid entry visa would painfully notice. But for domestic reasons, liberal states are kept from putting this capacity to use. Not globally limited, states but self-limited sovereignty explains why accept unwanted immi grants. Gary Freeman identified the political process in liberal democracies as one contrast to major element of self-limited sovereignty.19 In the globalist diagnosis of vindictive yet ineffective restrictionism inWestern starts an states, Freeman with opposing observation that the politics of in in immigration liberal democracies is, fact, "broadly expansionist and two reasons. inclusive,"20 for which he gives First, the benefits of immi as or are gration (such cheap labor reunited families) concentrated, costs as or are while its (such increased social expenses overpopulation) a diffused. That poses collective action dilemma, in which the easily as or organizable beneficiaries of concentrated benefits (such employers over the bearers of dif ethnic groups) will prevail difficult-to-organize fused costs, that is, the majority population. Borrowing from J.Q^Wilson, states Freeman argues that immigration policy in liberal is "client poli ... a tics form of bilateral influence in which small and well-organized in a groups intensely interested policy develop close working relation shipswith officials responsible for it."21Taking place out of public view and with little outside interference, the logic of client politics explains states the expansiveness of liberal vis-?-vis immigrants. Second, the universalistic idiom of liberalism prohibits the political elites in liberal states or from addressing the ethnic racial composition of migrant most ex streams. Freeman calls that the "antipopulist norm." Its potent source universalism in the classic set pression is the principle of country no screen der nations, which longer potential immigrants for their ethnic or norm will induce elites to seek consen racial fitness. The antipopulist sus on to remove the issue from immigration policy and partisan politics. a under the of client As I shall argue, domestic political process sway one reason liberal states unwanted politics is why accept immigration. But I suggest two modifications to Freeman's model. 19 International Mi Gary Freeman, "Modes of Immigration Politics in Liberal Democratic States," Review 29, no. 4 (1995). gration20 Ibid., 881. 21 Ibid., 886. James Q? Wilson's notion of client politics is built upon Mancur Olson's theory of col to lective action dilemmas, which states that the organized and active interest of small groups tends over interest The of this prevail the nonorganized and nonprotected of large groups. premise expected on outcome is rational, self-interested action part of the individual. Wilson, ed., The Politics of Regula Uni tion (New York: Basic Books, 1980); Olson, The Logic of Collective Action (Cambridge: Harvard versity Press, 1965). LIBERAL STATES& UNWANTED IMMIGRATION 271

as a source ex First, Freeman ignores the legal process second of states. pansiveness toward immigrants in liberal In fact, the political is to process chronically vulnerable populist anti-immigrant sentiments ?even in as the United States, the Congressional anti-immigrant backlash in thewake of Californias Proposition 187 testifies. Judges are as are to generally shielded from such pressures, they only obliged the abstract commands of statutory and constitutional law. The legal pro cess is crucial to states continued explaining why European accepting immigrants despite explicit zero-immigration policies since the early 1970s. to a In open opposition restrictionist , which switched to courts from elitist client politics popular national interest politics, in voked statutory and constitutional residence and family rights for im In migrants. Europe, the legal rather than the political process explains states why accept unwanted (family) immigration. a are In second modification to Freeman's model, I suggest that there not important variations in the processing of unwanted immigration just between the United States andWestern Europe but within West states European themselves. Freeman lumps together guest-worker and postcolonial-based immigration regimes and thus overlooks their a as different logics. In guest-worker regime, such Germany's, the state at one point actively lured (de facto) immigrants into the country, and not to at once thus is morally constrained dispose of them will it de a course. In a as cides upon change of postcolonial regime, such was never Britain's, immigration actively solicited but passively toler a ated for the sake of secondary goal?the maintenance of empire. Im migration policy is thus by definition a negative control policy against at no immigration that point has been wanted. Differently developed moral obligations toward immigrants in both regimes (among other in or factors) help explain variations European states' generosity firm ness toward immigrants. 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 the United States to control illegal immigra

22 seem Comparing state responses to illegal immigration and family immigration may odd. Why or not compare state responses to only one form of immigration, be it illegal family-based? Illegal im too recent to warrant a migration inWestern Europe is and protean comparison with the U.S., where a two it has been recurrent stake of political debate for decades. Family immigration in the United sense States is not unwanted immigration, in the of occurring against the backdrop of explicit zero-im migration policies. Rather, family reunification in the U.S. is the major principle of selecting wanted new even over quota-immigrants, having precedence the criterion of skills. It would have been possi mass source ble to compare state responses to asylum-seeking, the third major of unwanted 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). 272 WORLD POLITICS

tion, particularly from Mexico, is due primarily to the logic of client a norm politics and strong antipopulist that feeds upon America's as a universal "nation of and emphatic self-description immigrants" upon the civil rights imperative of strict nondiscrimination. In Europe, states from zero legal and moral constraints kept pursuing rigorous new and immigration policies after the closing of postcolonial guest worker immigration in the late 1960s and early 1970s, respectively. Jux extreme cases I further taposing the of Germany and Britain, suggest were most across that these constraints unevenly distributed Europe, partially reflecting the different logics of guest-worker and postcolonial regimes.

Illegal Immigration in the United States

to is the root America's enduring incapacity control illegal 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 was established the policymakers and academics alike, powerfully by 1981 report of the U.S. Select Commission on Immigration and in National Interest. It Refugee Policy, U.S. Immigration Policy the stipu was and that the contain lated that immigration policy "out of control," ment of illegal immigration had to be the first step in regaining control. a loss and is mislead That perspective, stating sequence of recovery, ing; there had never been a golden age of control. The problem of ille a gal immigration is a by-product of the attempt to build unified, which no national system of immigration control, longer exempted effort entailed: Western hemisphere immigration. The three-step (1) stopping (under the pressure of domestic labor unions) the Bracero in which for more than two decades had guest-worker program 1964, providedWestern growers with cheap foreign fruit pickers; (2) estab a lishing through the 1965 Immigration Act ceiling of 120,000 immi which been grant visas for the Western hemisphere, had formerly exempted from numerical restrictions; and (3) applying, in 1976, the limit of thousand an Eastern hemisphere individual-country twenty to which resulted inMexico nual visas Western hemisphere countries, a severe visa Not a loss of but the instantly developing backlog. control, is nationalization and standardization of U.S. immigration control the the of proper premise for understanding origins illegal immigration. used as indicators of the stock Tellingly, apprehension figures?widely after the end of Bracero in and flow of illegal immigrants?rose steeply 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 to was control criteria Eastern and Western Hemisphere countries, 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. caveat a never Given this of control that 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 to (irca), and, second, through the failure of the U.S. establish effective in immigration controls the 1990s. IRCA carried its restrictionist intention in its name. It turned out, to status however, be vastly expansionist, legalizing the of three million illegal immigrants in theUnited States, while failing to establish effec measures new tive against the inflow of illegal immigrants. The influ ence two outcome: of client groups is responsible for this ethnic and civil rights groups, who argued and mobilized effectively against al legedly discriminatory employer sanctions; and employers, particularly a Western growers, who pushed for guest-worker program that became a acceptable only through adopting the features of second, small amnesty for temporary workers. a In settler nation, where nation building has coincided with immi gration, immigration policy is a highly institutionalized process, in a which pro-immigrant interests have legitimate, entrenched role in IRCA policy-making. During the first round of the six-year saga, which ranks the more recent among embattled legislations of times, the op to position of Hispanic interest groups the introduction of employer was to on sanctions key preventing temporarily any legislation illegal immigration. As recommended by the Select Commission in 1981, the was to carrot stick of employer sanctions accompany the of amnesty. was to Unless it illegal for employers employ illegal workers?so reck oned the Select Commission?the legacy of the infamous Texas Pro was not to viso be beaten.23 But because Hispanics formed the majority measure of illegal immigrants in the U. S., any against illegal immi must have as senator grants appeared anti-Hispanic. As Republican Alan a re Simpson ofWyoming, congressional leader of immigration

23 at so Inserted in the 1952 Immigration and Nationality Act the behest of Texan growers, the not act called Texas Proviso stated that employing illegals did constitute the criminal of "harboring." was were Accordingly, it legal to employ illegal immigrants, although they still subject to deportation. 274 WORLD POLITICS

form throughout the 1980s and 1990s, put it, "Any reference to immi or turns to a gration reform control out, unfortunately, be code word for to em ethnic discrimination."24 In their opposition the "anti-Hispanic" ployer sanctions, the Hispanic lobby skillfully exploited the fact that even or was the slightest hint of ethnic racial discrimination anathema in era in over the of civil rights. In fact, the battle employer 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 able majorities in the 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 acceptable the Hispanic Caucus."25 The Hispanics were joined by civil rights groups, who feared that the an a introduction of employment verification system (dubbed "national ID card")would be detrimental to civil liberties in general, and lead to a was across "culture of suspicion."26 This perception shared the ideological spectrum. A leading conservative columnist branded the introduction of an ID as con card "this generation's largest step toward totalitarianism," to movement cluding that "it is better tolerate the illegal of aliens and even criminals than to tolerate the constant surveillance of the free."27 to a vote on In his refusal have the second version of the Simpson Mazzoli bill, O'Neill struck a similar chord: "Hitler did this to the Jews, wear a you know. He made them dog tag."28 Against such wide oppo sition, which linked the civil rights imperative of nondiscrimination with a em traditional American antistatism, the plan of standardized ployment verification scheme had to be dropped. A first severe crack in the control dimension of IRCAhad been inflicted.

During the second round of IRCA, compromise-seeking agricultural employers broke their initial alliance with the less compromise-prone a as ethnic and civic groups, but demanded guest-worker program the an in price for their support of immigration control law. The growers' satiable appetite for cheap immigrant labor was equally disliked by was to Simpson, whose honest but quixotic mission craft immigration in is law and policy the national interest: "The greed of the growers...

24 New York Times, 16,1982, A12. 25 August New York Times, October 5,1983,1. 26 Rick Swartz, interview with author, Washington, D.C., March 26,1994. 27 William Saffire, "The Tattoo," New York Times, 9,1982, A27. 28 Computer September Ellis Cose, A Nation of Strangers (New York: Morrow, 1992), 167. LIBERAL STATES 8cUNWANTED IMMIGRATION 275

no can insatiable. There is way they be satisfied. Their entire function in life is that when the figs are ready, the figs should be harvested and to more they need four thousand human beings do that."29 A third, drastic version of the Simpson Senate bill, introduced in spring 1985, brought the moderate part of theHispanic lobby aboard by threatening to drop the amnesty provision altogether. In this "final inning" of the the Simpson-Mazzoli saga,30 joint energy of immigration control ad vocates and of the ethnic and civil rights lobby focused on neutralizing a was the growers' initiative for guest-worker program. This initiative spearheaded by the later immigration foe PeteWilson, then a Republi can senator an from California, who asked for annual contingent of to to 350,000 foreign workers harvest perishable fruits for up nine months a year. was no one Interestingly, the idea of guest workers liked by except the growers, with the European negative experience firmly in mind. to The inevitable compromise with the growers thus had consist of beefing up the civil rights of the workers they asked for.Mediated by trans liberal Congressman Charles Schumer, the eventual compromise a The formed the guest-worker program into second amnesty. so-called a Schumer proposal, which became part of IRCA, provided permanent 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. "For the first time in American history," an to said exuberant Lawrence Fuchs, "outsiders brought in difficult, temporary jobs would be given the full Constitutional protections and many of the privileges of insiders."31 Signed into law in early November 1986, the Immigration Reform was a and Control Act certainly "left-center bill,"32 inwhich the control was to an IRCA im aspect barely visible. Putting end the Texas proviso, a on im posed sanction scheme employers who knowingly hired illegal in a to and sanctions migrants. But concession Hispanics employers, would be abolished if the General Accounting Office were to find dis or on crimination undue burdens employers in the future. Most impor IRCA a tantly, included far-reaching antidiscrimination provision that

29 Lawrence Fuchs, "The Corpse That Would Not Die: The Immigration Reform and Control Act of 1986," Revue des Internationales 6, vol. 1 (1990). 30 Europ?enne Migrations Aristide Zolberg, 1990. "The Immigration Reform and Control Act of 1986 inHistorical Per spective,'' in Virginia Yans-McLaughlin, ed., Immigration Reconsidered (New York: Oxford University Press, 1990), 326-35. 31 Fuchs (fn. 29). 32 Congressman Charles Schumer, quoted in the New York Timesy October 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. to This amounted the "only expansion of civil rights protection in the whole Reagan era."33 IRCA s Of dual amnesty-sanctions agenda, only the amnesty compo nent worked as intended. Nearly 1.8 million illegal immigrants applied status for legal under the general legalization program, and 1.3 million 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 1988?attributable less to the effectiveness of sanctions than to await

and-see response among potential immigrants?by 1989 the illegal was to flow back pre-IRCA levels.34 In 1993 the size of the illegal popu was to as as ten lation in the U.S. estimated be high years ago?be tween three and four million persons.35 Why did IRCAfail to control illegal immigration? A major reason is a toothless sanctions scheme, which resulted from the "odd coalition" a pressure by Hispanics and employers.36 From early on, good-faith clause had been inserted into the Simpson-Mazzoli bill, which released to employers from any obligation check the authenticity of employees' a in an documents: document check conducted good faith constituted not "affirmative defense" that the respective employer had committed In were immune the "knowing hire" misdemeanor.37 effect, employers 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 ID some card had been blocked, twenty-nine documents?including to easily faked U.S. birth certificates, so-called breeders?served satisfy was the control requirement. The positive affirmative-defense incentive a incentive: complemented by negative antidiscrimination demanding a ID an specific constituted "unfair immigration related employment were better off the document practice." So employers accepting pas sively offered by the prospective employee. As David Martin put it,

33Swartz(fn.26). 34 to the United See Frank Bean, Barry Edmonston, and Jeffrey Passel, eds., Undocumented Migration States (Washington, D.C.: The Urban Institute, 1990). 35 Demetrios Papademetriou, "Illegal Mexican Migration in the United States and U.S. Responses,'' nos. 314-48. International Migration 31, 2-3 (1993), 36 not even Another reason for IRCA's failure is that it does touch the problem of visa overstayers, to which account for over 60 percent of the undocumented population. David Martin, "The Obstacles at Effective Internal Enforcement of the Immigration Laws in the United States" (Paper presented 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.l),71. LIBERAL STATES& UNWANTED IMMIGRATION 277

is more to IRCA's sanctions scheme "tells employers that it important em avoid even an appearance of discrimination than it is to wind up ploying unauthorized workers."38The civil rights imperative of nondis crimination has obviously stood in the way of effective immigration control. to in a even As I would like argue second step, the anti-immigration movement to of the 1990s has been unable do away with expansive client politics. The inability of political elites to deal effectively with il legal immigration provoked the biggest anti-immigrant backlash in voters seventy years. In November 1994, Californian overwhelmingly passed Proposition 187, dubbed the "SaveOur State" (SOS) Initiative, most which would bar illegal aliens from state-provided services, in care was no a cluding health and education. This less than political most in a earthquake. Transmitted by the conservative Congress half century, with both houses falling to Republican control in the same was November , the aftershock immediately felt inWashing ton. not A sweeping overhaul only of illegal, but also of legal immigra to tion seemed be in the making, turning the clock back before 1965, to mass the legislative opening of America immigration. Two years to a tremor. later, the earthquake is reduced The planned restriction of 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 was came in tion watered down significantly. Once again, client politics the way of "put[ting] the interests of America first."39 no its It is accident that the anti-immigrant earthquake had epicen ter inCalifornia. Initially rural and peopled by thewhite farmers' flight from the dust-bowl misery of 1930s Oklahoma, California not only lacks the "nations of immigrants" nostalgia of the East Coast cities, new more im with the Statue of Liberty and other world symbols, but portantly, it also is the residence of almost half of the estimated national total of four million illegal immigrants. The Urban Institute calculated cost state to in emer that they the close $2 billion per year education, gency medical services, and incarceration. Against this, the $732 mil state revenues taxes on lion in from sales, property, and income illegal aliens appear paltry.40

38 Martin (m. 36), 6f. 39 to L?mar Smith, Republican representative from Texas, used this phrase characterize his sweep to ing House bill that dealt joindy with legal and illegal immigration. "House G. O. P.Moves Cut Im New York 77m?, June 22,1995. migration,"40 Peter Schuck, "The Meaning of 187," The American Prospect 85 (1995). 278 WORLD POLITICS

California epitomizes three problems of contemporary immigration to extreme the U.S.: its regional concentration; the disproportionate costs some state incurred by , while the main benefits in terms taxes are of federal and social security payments reaped by the on federal ; and the increasing focus immigration's negative welfare rather than labor-market implications. Accordingly, the leaders SOS of and their staunchest supporter, Republican governor Pete Wil went out to stress was not son, of their way that Proposition 187 about immigration control (which is the prerogative of the federal govern but a crunch was ment), about squeezed budget. The budget real, given that was most severe recession California just undergoing its economic war restruc since the first oil crisis, which resulted from the post-cold turing of the U.S. defense industry. It was clear up front that Proposition 187, which openly defied the v. in Supreme Court ruling in Plyler DoeyA1 would get stuck local and courts. federal However, also supported by one-third of Latino and the was a majority of Asian and black voters, Proposition 187 essentially measure to so re symbolic the political elites who had recklessly evaded alities and responsibilities for years. And ifCongress picked up the ball at was more the national level (this the than symbolic reasoning of the v. initiative leaders) the Supreme Court might reconsider Plyler Doe state and eventually uphold the restrictionist law. Congress indeed picked up the ball without delay. A federal Com on mission Immigration Reform immediately proposed drastic changes of existing immigration law and policy. Headed by Barbara Jordan, the former black Congresswoman from Texas, and spiked by liberal pro immigrant politicians and academics, the commission in its final report inMarch 1995 recommended that legal immigration should be cut by one-third, the extended family categories should be scrapped alto gether, and employers should find it more difficult and costly to hire not foreign professionals. Interestingly, the commission did touch the has nation-of-immigrants myth, but stated that "the U.S. been and to a nation should continue be of immigrants."42 But this proposal, sup went even ported also by the Clinton administration, further than Proposition 187 and Governor Wilson, who had targeted only illegal immigration.

41 v. In its Plyler Doe decision (1982), the Supreme Court ruled that the children of illegal immi to a to a grants have the constitutional right public school education. Plyler indicates that, in addition political process under the sway of client politics, the legal process has bolstered the position of illegal see immigrants in the U.S. For the lack of space, I cannot discuss this further here, but Peter Schuck, no. "The Transformation of Immigration Law," Columbia Law Review 84, 1 (1984). 42 Barbara Jordan, "The Americanization Ideal," New York Times, September 11,1995. LIBERAL STATES& UNWANTED IMMIGRATION 279

Regarding illegal immigration, the commission already in late 1994 had a advocated national employment verification system, which would the names and social numbers of all compile security citizens and legal to in em aliens authorized work the U.S. and make it mandatory for ployers to call it up before hiring new workers. The proposal stopped of a ID to short introducing national card, which continues be anath 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 were disguise. The commission's recommendations incorpo rated in similarHouse and Senate bills, introduced by Lamar Smith, a Republican congressman from Texas, and Senator Alan Simpson. Both bills measures: cut centered around three legal immigration by slashing the nonnuclear family categories and reducing skilled immigration; combat illegal immigration by screening the workplace more tightly in a and fortifying the borders; and, windfall from the parallel congres sional effort of welfare reform, making illegal and legal aliens ineligible most for public services. Hardly had the ink dried, when the machine of client politics was set in motion. An broad Coalition on unusually "Left-Right Immigration" included not just the usually odd immigration bedfellows of employers and ethnic and civil rights groups, but also the Home School Network, a Christian fundamentalist mea group rallying against the antifamily sures to curtail legal immigration; Americans for Tax Reform, who dis liked?along with Microsoft, Intel, and the National Association of a tax on Manufacturers?to have employers pay heavy each foreign worker and they sponsored; the National Rifle Association, upset by the to employment verification system (If you're going register people, not to why guns? they shouted).43 Richard Day, the chief counsel the Senate characterized this unusual as Subcommittee, line-up "Washington groups" against "the American people," who had asked for "some breathing space" from immigration.44 Such is the logic of im as migration client politics. The success of the client was to first machine split the omnibus bill in two.The machine was helped in this by divisions within the Repub lican A section of free-market Party. large and family-value Republi cans (such as Jack Kemp, William Bennett, and Dick Armey) favored legal immigration. In addition, Republicans from California, where the was most over problem of illegal immigration pressing, feared that rifts

43 "The Politics of New York Times, December 31,1995. 44 Strange Immigration," over "Unlikely Allies Battle Congress Anti-Immigration Plan," New York Times, October 11, 1995. 280 WORLD POLITICS

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 on to concentrate on postpone legislation legal immigration and ille gal immigration first. The "big one" had suddenly shrunk to a smallish tremor. a immigration Only few months earlier, Republican Lamar Smith had boasted that "the question is no longer whether 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 wrote an than public opinion," angry immigration foe.46 After cracking the omnibus bill, the effort of the pro-immigration on some re lobby concentrated smoothening drastic features of the maining bill on illegal immigration. One target was the proposal for a denounced mandatory, nationwide, employment verification system, by "47 a as libertarian critic "dialing '1-800 Big Brother.' An amendment by was to be Senator Edward Kennedy watered down the proposal, which in to a in place within eight years, variety of voluntary pilot programs to three high-immigration states, be reviewed by Congress after years. meant new The weakened proposal that without legislation, there would no was an be nationwide employment verification system. This impor on tant step away from the recommendation of the Commission Immi a gration Reform, which had called mandatory national verification an system the linchpin of combating illegal immigration. In addition, a amendment by Senator Orrin Hatch, pro-immigration Republican a in from Utah, eliminated hefty increase fines against employers who owners. knowingly hired illegal aliens?a victory for small business When signed into law by President Clinton in early October 1996, the "Maginot line against illegal immigration"48 looked more like a eaten immi Swiss cheese, with big holes into it by America's clients of gration policy. The drastic Gallegly amendment in the House (named after its sponsor, California Republican Elton Gallegly), which would states to allow bar the children of illegal immigrants from public schools turn was and thus would into national law California's Proposition 187, of a safe veto. dropped from the final bill, also because presidential is to A watered-down employment verification system unlikely fix the biggest deficit in illegal immigration control, ineffective workplace

45 on "Congress Plans Stiff New Curb Immigration," New York Times, September 25,1995. 46 Roy Beck, "The Pro-Immigration Lobby," New York Times, April 30,1996. 47 to York November "House Panel Approves Plan Register Immigration Status," New Times, 22, 1995. 48 Quoted in "Senate Votes Bill to Reduce Influx of Illegal Aliens," New York Times, May 3,1996. LIBERAL STATES& UNWANTED IMMIGRATION 281

in new screening and employer sanctions. The control impetus the law to thus boils down stricter border enforcement; doubling the number to ten of border patrol agents thousand by the year 2000: requiring the Immigration and Naturalization Service (INS) to build a fourteen-mile long, ten-foot high, triple-steel fence 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 or operations, "Gatekeeper" "Hold the Line," the Clinton administra tion had cleverly preempted Republicans from monopolizing the im migration-control discourse during the 1996 Presidential must means it campaign. It be conceded that, whatever chooses, the can never to to United States perhaps expect reduce illegal immigration zero. As Peter Schuck correctly noted, "A vast, prosperous nation with a strong due process and equal protection values and 2,000-mile border with the Third World cannot eliminate illegal migration; it can only to are hope manage it."49 Chances that the Immigration Control and Financial Responsibility Act of 1996 will not be of much help in ac complishing this task.

Family Immigration in Europe

Whereas America's debate about illegal immigration is alive and evolv ing every day, Europe's debate about family immigration is historically a in on closed, reflecting fundamental difference immigration both a recurrent sides of the Atlantic. In the United States, immigration is even most severe process. Not the anti-immigrant backlash in the last to mass immi seventy years has managed slam the Golden Door, and continues unabated. gration (legal and illegal) By contrast, Europe to new over im closed its doors immigration twenty years ago. Postwar to has a migration Europe been nonrecurrent, historically unique pro cess, with immigrants acquired not by will, but by default. and The family became the site for closing down guest-worker post torn vectors of individ colonial immigration, between the opposite the and the of states to admit or ual rights of migrants right sovereign reject aliens. In this, European family immigration differs from American family immigration, which is defined in the language of quotas, not chief mechanism of new wanted rights, and has become the acquiring states not the arrival immigrants. European did actively solicit belated not of the spouses and children, 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 terms acceptance be understood in of client politics. There is no entrenched pro-immigration lobby in Europe comparable to the United States. the to After shift zero-immigration policies from the late 1960s to early 1970s, the European politics of immigration became national now interest politics. States uniformly disregarded their single strongest client, employers interested in cheap foreign labor, and acted on behalf of collective goals such as social integration or the integrity of nationhood. The immigration that still occurredwas as of right ormorally tolerated It a state that would rather not see it immigration. pitted hap states cannot pen against the immigrant who only sought what liberal deny?family unity. In states a handling family immigration, European accepted lan guage of primary and secondary immigration that is unknown in the as a United States. Primary immigration is actively recruited, in guest or as worker regime, passively tolerated in the absence of restrictions, in a occurs re postcolonial regime. Secondary immigration after the or cruitment stop the introduction of restrictions, in recognition of the of In each state is a family rights primary immigrants. European there core as historically particular of primary immigrants, such South Asians or in or a Afro-Caribbeans Great Britain Turks in Germany, for whom moral specific, elaborate discourse of rights and obligations evolves. states to act This approach has allowed European humanely and gen those once to erously toward admitted, while slamming the door every one else. In this sense, the principle of source-country universalism and norm not the of addressing the ethnic composition of migrant streams, saw across which Freeman universally established liberal states, has not established in were itself Europe.50 Primary immigrants simply sub to the nation as not trans jected exigencies of building usual; they did into form Europe self-conscious nations of immigrants. Thus, toward the outer even sense layers of secondary (or tertiary) immigration, the of moral obligation and the family rights of migrants had to become In successively weaker. the absence of such gradations, primary immi new gration would have forever spun off immigration, and nonrecurrent recurrent immigration would have turned into immigration, U.S. style.

50 A second example for the absence of source-country universalism in European immigration pol as or icy is the phenomenon of ethnic-priority immigration, such the "patri?is" in Britain the no "Aussiedler" (ethnic German resettlers) inGermany, for which there is parallel in the U.S. liberal states & unwanted immigration 283 Generous in Germany

A tiresome tendency in scholarly writings about German immigration to state a is chastise the for its "not country of immigration" philosophy, so No immi which patently denies the country's immigration reality.51 ever the state's because it is gration reality could contradict philosophy, a statement Bonn normative reflecting the Republic's self-description as a German in communist East homeland of the subjugated diaspora ern In the formula was Europe.52 fact, not-a-country-of-immigration introduced when four million foreigners already resided in (West) Ger no many and showed signs of leaving. Only against this backdrop does sense at its unre the philosophy make any all. Further complicated by more solved national question, Germany articulated, only extremely, were?not what all European countries countries of immigration. on A second shortcoming of scholarly writings German immigration on a de is their fixation the political process, drawing grim picture of as of a state. That facto immigrants hapless victims repressive perspec tive of the which al overlooks the pivotal importance legal process, to turn lowed guest workers into settlers with permanent-resident even to in rights and grow numbers through constitutionally protected family immigration. To be sure, the invocation of constitutional rights for guest workers an enshrined occurred against the backdrop of immigration law that no to unfettered executive discretion and conceded rights whatsoever the foreigner. Paragraph 2(1) of the Foreigner Law of 1965 stipulates: "A residence permit may be issued if the presence of the foreigner does not harm the interests of the Federal Republic." Residence permits were a on a were no issued for year, renewable basis, but initially there more on Before provisions for than temporary stays German territory. the so-called of "permanence regulation" ??ufenthaltsverfestigung) 1978, not but the long-term residence did stabilize, jeopardized foreigner's status because it contradicted the official "no-immigration" policy. Fol the a which conceived of the for lowing logic of guest-worker regime, as a of eigner return-oriented, isolated carrier of labor power, devoid no reunification. De family ties, rules originally provided for family tailed rules for reuniting foreign families were not devised before 1981, was to a source and their thrust close major of unwanted immigration after the recruitment stop. 51 to a Politics no. 2 See Thomas Faist, "How Define Foreigner?" West European 17, (1994). 52 no. 38 Kay Hailbronner, "Ausl?nderrecht und Verfassung," Neue Juristische Wochenschrift 36, (1983), 2113. 284 WORLD POLITICS

For the branches of twenty-five years, political government managed to their to an to escape responsibility adjust archaic Foreigner Law the new to reality of de facto immigration and replace the rule by adminis trative decree by the proper rule of law.An activist judiciary stepped into this vacuum, aggressively and expansively interpreting and defend the so on a ing rights of foreigners. They could do the basis of consti tution that drew two recent fundamental lessons from German history: to state to first, subordinate power the rights of individuals; and second, to most to na grant the fundamental of these rights without respect seven tionality. The first articles of the Basic Law protect universal human rights, independent 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 the state to a "respect" and "protect" the dignity of the individual. In state conscious departure from Germany's "strong" tradition, the Ger man Basic Law puts the individual first, the state second; it is conceived in the spirit of limiting state sovereignty by individual rights. a On these grounds, series of Constitutional Court rules obliterated the official "not-a-country-of-immigration policy.53 In the so-called Arab case of court an 1973, the invalidated immediate deportation order two contacts ter against Palestinians accused of harboring with rorist that constitutional groups, arguing the plaintiffs had liberty rights that outweighed the in their immediate removal. In the case court a court so-called Indian of 1978, the repealed lower rule that a to an had affirmed the nonrenewal of residence permit Indian who in court ar had lived Germany continuously since 1961. Instead, the gued that the previous routine renewal of residence permits had created a on constitutionally protected "reliance interest" {Vertrauensschutz) part of the in plaintiff continued residence. Against this reliance interest, the official was moot: "For a no-immigration policy rejection of the resi dence it is not to to permit renewal sufficient point the general maxim that the Federal is no Republic country of immigration."54 Once were the residence rights of guest workers secured, the Con stitutional to Court turned the issue of family reunification?a much trickier terrain. It did not involve the rights of established residents but the new initial granting of residence permits. Since the recruitment of was stop 1973, the chain migration of families of guest workers (next to one of the two avenues asylum) major of continuing migration flows

53 See Gerald L. Neuman, "Immigration and Judicial Review in the Federal Republic of Germany," New York Journal 'International Law 23 (1990). 54 University of Decision of 26 September 1978 (1 BvR 525/77), 186. LIBERAL STATES& UNWANTED IMMIGRATION 285

to in to the Germany, patent contradiction official no-immigration pol icy.55Since December 1981, the federal government has recommended states restrict of that the responsible severely the entry foreign spouses was to of second-generation guest workers. Such family reunification an be contingent upon eight-year residence minimum of the resident a one no spouse and postmarriage waiting period of year. By contrast, were on restrictions imposed first-generation guest workers. The fed eral government defended this differential policy before the Constitu on of its recruitment of tional Court moral grounds: "Because foreign a workers the Federal Republic has accepted special responsibility to not to a wards the recruited; but it has obliged itself accept generation of German spanning immigration of family members."56 Typical states the federal recommenda , the {L?nder) implemented on tions second-generation marriage immigration highly unevenly. to Liberal Hesse lowered the residence requirement five years; restric to tionist Bavaria increased the waiting period for spouses three years; broke the elite and hyper-restrictionist Baden-W?rttemberg existing consensus not ex of limiting first-generation marriage immigration by the from second- to tending three-year waiting period first-generation guest workers. In the Turkish and Yugoslav case of 1987, the Constitutional Court stopped short of recognizing a constitutional right of family reunifica to the In a deci tion, according Article 6 of Basic Law.57 complicated a to to control sion that betrayed reluctance restrict the state's capacity a source court Article 6 major of unwanted immigration, the held that (which protects the integrity of the family) did not imply a constitutional But to the of right of entry for nonresident spouses. according principle members still proportionality, nonresident family possessed family rights under Article 6 that foreigner law and policy had to respect.58 In this court residence light, the upheld the challenged eight-year requirement these measures were neces and the one-year waiting rule, arguing that sary to guarantee the social and economic integration of the resident

55 mil Between 1973 and 1980, the number of foreign workers inWest Germany fell from 2.595 same from 3.966 lion to 2.070 million; during the period, the absolute number of foreigners increased 1880-1980 million to 4.450 million. Ulrich Herbert, A History of Foreign Labor in Germany, (Ann was be Arbon University of Michigan Press, 1990), 188. Because the number of asylum seekers small fore reunification can account for the increase. 561980, only family Quoted inDecision 12 1987 (2BvR 1226/83,101,313/84), p.33f. 57 of May The German Constitutional Court thus did not go as far as the French Conseil d'Etat, which (in a in a 1978 decision. effect) recognized constitutional right of family reunification famous 58 even not in under the Constitu The Court thus argued that aliens residing Germany had rights most tion. As Neuman (fn. 53) notes, this went far beyond the generous rulings of the U.S. Supreme Court regarding the rights of aliens. 286 WORLD POLITICS

and to court spouse prevent sham marriages, respectively. But the struck down Bavaria and Baden-W?rttembergs three-year waiting rule as disproportionate and destructive of young marriages. Interestingly, court the criticized especially Baden-W?rttembergs extension of the to three-year waiting rule the first generation, because it violated 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 as the out process. development may be read successive canceling of drastic solutions, culminating in the liberalized Foreigner Law of 1990. not on a This liberalization rested just negative recognition of legal on an consensus constraints but emergent moral among the political to with the re elites cope humanely consequences of the guest-worker consensus cruitment. That became forged and reinforced in three crit moments as to a ical when drastic solutions emerged competitors moderate and centrist foreigner policy. SPD Immediately after the recruitment stop of November 1973, the led federal government declared that "no legally employed foreign to return worker... shall be forced home," while rejecting the proposal to a set terms introduce rotation system.59 This the for the strictly vol return unem untary schemes of inducing the migration especially of were ployed guest workers, schemes that copied from France without much success in a the early 1980s. A right-wing proposal for "reason able and humanitarian rotation system" emerged during the first soci worker in ety-wide guest debate the early 1980s, allowing the minister to of the interior make the moral obligation toward the guest workers not come explicit: "[The foreign workers] have here spontaneously. In we ... stead, have brought them into this country since 1955 Even if are we they without jobs, have obligations toward them."60 A third crit moment was ical the conservative crusade against the family immigra tion of children above six years, fought by the hard-line interior new minister under the Kohl government, Friedrich Zimmermann (CSU).Aside from being constitutionally questionable, this drastic pro posal crossed the threshold of the morally acceptable. "No comparable in or country Europe North America," said the outraged Commis sioner for Foreigner Affairs Lieselotte Funcke (FDP), "would condone a at such family-hostile proposition." Pointing the moral impossibility

59 Frankfurter Allgemeine Zeitung, November 9,1974. 60 no. Gerhard Baum (FDP), quoted in Das Parlament 32, 9 (1982). LIBERAL STATES& UNWANTED IMMIGRATION 287

of implementing this measure, her colleague Burkhart Hirsch (FDP)en visioned "with horror what would happen here if an older child who a was from its and thrown overstayed visit forcibly separated parents out veto FDP of the country." An unusual by Hans-Dietrich Genscher, chief and foreign minister for whom opposition to the interior minis ter's illiberal foreigner policy became a litmus test of party identity new within the coalition government, buried the proposal. The new Foreigner Law of 1990 only put into lawwhat administra court not-a tive and constitutional rules had long established. The to text. country-of-immigration formula is nowhere be found in its The return objective of encouraging the 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 now to eigners have statutory (in addition constitutional) residence and went even family rights. In several respects, the law beyond existing ad ministrative and legal practice. The one-year waiting period for second in was generation marriages, okayed by the Constitutional Court 1987, were own abolished. In addition, spouses and children granted their of the head of or residence rights, independent family. Finally, second- were third-generation foreigners who had temporarily returned home to return. measures given the right These indicate the independent not new workings of moral obligations, just of legal constraints. The Foreigner Law sticks to the old premise of wrapping up a historically as unique immigration episode, while perhaps containing much liberal as ization possible within the inherently limited framework of "for eigner policy." Firm in Britain

to two con In Britain also, family immigration has been subject the flicting imperatives of controls and rights: closing down a historically im unique immigration episode, while respecting the family rights of case came to migrants. But whereas in the German the rights predom over case inate the controls imperative, in the British the opposite are at two reasons outcome: happened.61 There least for this the pecu a liar character of postcolonial immigration and the absence of written constitution protecting individual rights. immi Postcolonial immigration has been, from the start, unwanted can at no be under gration. Accordingly, its political processing point

61 as This is recognized in the literature the "exceptional" efficacy of British immigration control. Gary Freeman even argues: "The British experience demonstrates that it is possible to limit unwanted immi gration." Freeman, 1994b. "Britain, the Deviant Case," in Cornelius, Martin, and Hollifield (fh. 1), 297. 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 contrast to or no policy.63 In Germany France, the first oil crisis marks 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 to was initial approach postcolonial immigration strikingly similar. was at too This immigration best passively tolerated by elites who stuck to an in sun never sets. long the illusion of empire which the Until the passing of the first Commonwealth Immigrants Act in 1962, some 800 million subjects of the Crown, inhabiting one-fourth of the earth's landmass, had the right of entry and settlement in Britain. Only a most a hostile public, aggrieved by the dramatic secular decline that nation ever out modern had gone through, shook the elites of their if to complacency. As compensate for past inattention, successive Tory to stern and Labour governments alike have since stuck the imperative that New Commonwealth immigration had to be stopped. A sense of even not moral obligation, guilt, has been absent among British elites, an race but it has been channeled into the buildup of elaborate relations never an regime. British immigration policy has known active phase of start a to recruitment; it has been from the negative control policy keep out. tout immigrants Directed against unwanted immigration court, British immigration policy has been only weakly affected by moral considerations.

Nor has it been mellowed by legal-constitutional constraints, which is reason over the second why the controls prevailed the rights impera tive in British family immigration policy. In Britain, which lacks awrit ten constitution and the principle of legal review, there has been little blockading of the political branches of government by recalcitrant courts. Sovereignty is firmly and unequivocally invested in Parliament, no to which knows constitutional limits its lawmaking powers. In im a ex migration policy, this institutional arrangement entails dualism of treme legislative openness and executive closure, which, in the absence a to of client machine, is detrimental the interests of immigrants. Par in the liamentary openness formulation of immigration policy keeps a restrictionist lawmakers within the confines of pervasively public a opinion. Once policy has been decided upon, there is executive closure in its implementation, with the Home Office firmly and uncontestedly

62 contrasts This processing the German guest-worker policy, which followed the logic of client pol itics the oil crisis and the recruitment stop of 1973. 63before See, for example, Sarah Spencer, ed., Strangers and Citizens (London: Rivers Oram Press, 1994). LIBERAL STATES& UNWANTED IMMIGRATION 289

in In Britain's constitution"64 is charge. the orthodox view, "political good for because it lets elected officials make decisions that, in other in systems, unelected judges make. But practice it entails executive, rather than and it leaves with or with parliamentary sovereignty, minorities, out to the whims of the citizenship, extremely vulnerable majority. the over in The predominance of controls the rights imperative British family immigration policy can be demonstrated along the fate of Section 1(5) of the 1971 Immigration Act?until its abolishment in 1988, the only family right in British immigration law. It secured for all New Commonwealth men legally settled in Britain before 1973 the right to be joined by their nuclear family from abroad,without any state interference.65 Section 1(5) thus expressed Britain's special moral and it legal obligations toward its primary immigrants. However, when came into the way of controlling secondary immigration, Section 1(5) was a vote in simply abolished by simple majority Parliament. The story of the slashing of Section 1(5) is a most extraordinary 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 fe government against admitting the foreign husbands and fianc?s of to treatment men male immigrants Britain. Such asymmetrical of and women a more an law is only drastic example of immigration shot sex on the through with discrimination, operating premise that the wife as was. most should be where the husband head of the family But im were thus portantly, husbands and fianc?s male immigrants, blurring were the line between secondary and primary immigration. Husbands as a perceived stealth primary immigrants, crowding strained labor new market. Accordingly, theMinister of State defended his immigra tion rules of 1979-80, which barred foreign husbands and fianc?s from a cut on settlement in Britain: "We have particular aim?to back pri mary male immigration."66 on When the European Commission Human Rights accepted for cases review the of three British immigrant wives harmed by the hus a band rule, the British government responded with prophylactic rule

64J.A. G. Griffith, "The Political Constitution," The Modern Law Review 42, no. 1 (1979). 65 so Section 1(5) of the 1971 Immigration Act stipulated: "The rules shall be framed that Com monwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives are to come and children not, by virtue of anything in the rules, any less free into and go from the not United Kingdom than if this Act had been passed." 66 Quoted in P. Thornberry, "Seven Years On: East African Asians, Immigration Rules and Human Rights," Liverpool Law Review 2 (1980), 146. 290 WORLD POLITICS change in 1982-83. Whereas (in racially discriminatory intent) the old women rules exempted from the husbands ban only (white) "patrial" ei or to new ther born ancestrally related the U.K., the rules allowed 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 matter, because settled, noncitizen immigrant still remained never a con separated from their husbands. However, there has been in that was not offset a new re cession British immigration policy by a striction elsewhere. Already the old immigration rules contained to women were ex number of "safeguards" applied those patrial who empted from the husband ban: most importantly, they and their to was spouses had prove that the "primary purpose" of their marriage not were immigration. In the 1982-83 rules, these safeguards tightened through shifting the burden of proof from the state to the applicant. venomous Only now, the primary-purpose rule could unfold its pow the to ers, providing the government with perfect tool close the loop at sex hole that had opened up the equalization front. Predictably, the European Court of Human Rights, in itsAbdulaziz, Cabales and Balkandali landmark decision ofMay 1985, found that the were on sex. The 1980 immigration rules discriminatory the ground of to remove trace sex Strasbourg rule forced the government the last of rules. discrimination from its immigration As Home Minister Leon Brittan reckoned in the House of Commons, the government faced two sets was or of choices.67 The first between "narrowing" "widening" to men in the husbands rule: prevent settled immigrant from bringing or to to their spouses, permit settled immigrant wives bring in theirs. commitment to Narrowing would imply dishonoring the government the family rights of settled immigrant men, enshrined in Section 1(5). But in that the Accordingly, the government opted for widening. case, an two more additional annual intake of estimated thousand immigrant to new husbands had be offset by safeguards. That decision predeter or "ex mined the government's second choice between "abandoning" tests. tests to tending" its marriage To drop the currently applied to on our to husbands only "would be go back firm commitment strict if tests were to be the mandate immigration control." But the kept, was to to men women. of the Strasbourg rule apply them equally and As the home minister concluded his sharp syllogistic exercise, "[W]e cannot to ... continuation of expect the European Court endorse the treatment not them to giving wives preferential by making subject

67Parliamentary Debates, Commons, vol. 83 (1985), cols. 893-96. LIBERAL STATES& UNWANTED IMMIGRATION 291

same a the requirements." While Labour front-bencher railed against one must the government's "spiteful and vindictive course,"68 admire a court a means the cleverness of turning European indictment into of even firmer immigration control. as it was As sharp appeared, the home minister's syllogism 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 was in in safeguards. As long Section 1(5) force, the marriage tests, not on men cluding the primary-purpose rule, could be used 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 one ilege. Accordingly, the bit of generosity in the government's to was a response the Strasbourg rule chimera. Because Section 1(5), which finally stood in the way of full sex equality in British policy on secondary immigration, had the status of a a statutory right, it could be removed only through change of statutory law.The 1988 Immigration Act successfully removed Section 1(5) in in seventeen the first change of immigration law years. Marked by lit or an tle noise protestation, the repeal of Section 1(5) was, nonetheless, extraordinary event; it had been the only family right that had existed in British immigration law. Only under massive pressure, including from the House of Lords, had it been elevated from discretionary rule to statutory law in the 1971 Immigration Act. Successive governments to had reaffirmed their commitment honor this right. are British as But all rights relative in law, the painless removal of Sec tion 1(5) by a simple parliamentary majority epitomizes. In dropping it, one un the government also abandoned the moral commitment it had dertaken vis-?-vis its primary New Commonwealth immigrants.69 Now was no to even there limit the sway of firm immigration control, affecting ordinary Britons. Section 1(5) had so far protected white patrial men tests. were to them from the excrutiating marriage Now they subject too. came to vast rest. The immigration tail beat the nonimmigrant

Conclusion states "Can liberal control unwanted migration", Gary Freeman answer was: it recently asked.70 His yes, but, depends?yes, because 68 Gerald Kaufman, quoted in ibid., col. 901. 69 Interestingly, Minister of State Timothy Renton sought to soften this break of commitment by out now who are pointing that those who profited from Section 1(5) had been infants in 1971: "Those are not were at receiving the benefit of section 1(5) those who adult males the time of the 1971 Act but the young children who had then been born.* Renton, in Ibid., col. 856. 70 just quoted Freeman (fh. 2). 292 WORLD POLITICS

states of modern dispose considerable infrastructural powers that have not diminished, but increased over time; it depends, because capacity across states across to varies and the type of migration subject control. attention to context a an Such and detail precludes quick and generic swer of the yes-or-no variety. Turning Freeman's 1994 question around, this article explored why, in cases states actu the that liberal accept unwanted immigration, they so. states so on a ally do That liberal do large scale has been acknowl edged in Cornelius, Martin, and Hollifield's "gap hypothesis," which a an ex identifies growing gap between restrictionist policy intent and pansionist immigration reality.A variety of globalist analyses explained in to an this gap reference externally conditioned decline of sovereignty. These analyses offered generic views of mobilized immigrants and par actual cer alyzed states, without identifying the mechanisms that make states tain accept certain types of unwanted immigration. Against the diagnosis of globally limited sovereignty, this article an start suggested alternative diagnosis of self-limited sovereignty, ing with Freeman's observation that the dynamics of interest group pol in states makes itics ("client politics") liberal them inherently expan one sionist vis-?-vis immigrants. But the political process is only pillar one a of self-limited sovereignty, that is fully entrenched only in classic settler regime, like the United States. European guest-worker regimes a had client politics only until the oil crisis, and pure postcolonial regime (like Britain) never had it.Thus, other factors must be respon states sible if such accept unwanted immigration. In European states, legal constraints in combination with moral obligations toward histor ically particular immigrant populations?not the logic of client poli tics?account for continuing (family) immigration despite general are zero-immigration policies. But these legal and moral constraints across states. highly unevenly distributed European Germany, with a both strong constitution celebrating human rights and the moral a an extreme case sov burdens of negative history, is of self-limited it one most ereignty, making of the expansive immigrant-receiving countries in to the world. Britain has managed contain unwanted more immigration effectively than any other country in the Western at cost on the own world, but the of trampling family rights of her citizens. a At the risk of stating tautology, accepting unwanted immigration is states. inherent in the liberalness of liberal Under the hegemony of the United States, liberalism has become the dominant Western idiom in LIBERAL STATES& UNWANTED IMMIGRATION 293

the a for universal human postwar period,71 indicating respect rights and the rule of law. At the same time, nationalist semantics were 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 is in course" around the world. It therefore strange that globalist analy now as on sis these liberal principles reappear external constraints states are to Western that reduced the nationalist, sovereignty-clinching caricatures they perhaps had been hundred years earlier, in the high noon the factors either absent or inef of imperialism. Among global fective in this discussion of the political and legal processing of un wanted immigration has been the "international human rights regime," most recent perhaps the single inflated construction in social science discourse. Of course, its absence may be the flaw of this analysis. But that has to be demonstrated.

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