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tindang · 4 years ago

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Nico!

3/28/21- It's been a week out from my visit to the emergency department at MGH. Blisters have formed since then, flowering from the red/brown patch of skin on my left thigh, where I had spilled boiling water in a terrible accident. I was in a lot of pain yesterday, but I woke up today to shrunken blisters and pruritus in-and-around the area. I'm sad to miss Palm Sunday mass and to have spent the whole weekend room bound. I've been trying to find some positives, but life has not been too kind lately. I'm back in a state of rollercoaster emotions and I'm waiting to get off.

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4/5/21 - Deviating from the Ideal: U.S. Migration Policies in the Context of Rawlsian Principles of Justice

In "Aliens and Citizens: The Case for Open Borders", the philosopher Joseph Carens begins his argumentation with the following epigraph:

Many poor and oppressed people wish to leave their countries of origin in the third world to come to affluent Western societies...[and] there is little justification for keeping them out.

He goes on to examine three distinctive political theories--Nozickean, Rawlsian, and utilitarianism--and applies them to the issue of immigration. Though distinct, Carens finds that all three approaches evince the moral failures of militarizing borders and restricting the movement of peoples, suggesting that a world without borders is one that respects the idea of moral equality.

I found Carens's Rawlsian argument most compelling, insofar as it goes furthest in laying the framework for thinking about this issue transnationally. He does this in two ways: first, by arguing that people in Rawls’s “original position”--a tabula rasa -esque scenario in which people first come together to decide how they wish to be governed--would consent to principles of equal liberty and social redistribution if cloaked under a “veil of ignorance” that erases distinctions like race, class, sex, and most pointedly, national origin; and second, by refuting objections to the application of the Rawlsian veil to global contexts (Rawls had only intended for the original position to apply to certain societies with a “particular understanding of moral personality”, not all).

I posit that the analytical power of Rawl’s original position, as it is applied to transnational affairs, comes from the tensions inherent in upholding principles of equal liberty in real-world settings. Of course, Rawls had predicted such conflict, and sought to address it by drawing distinctions between ideal and non-ideal theory: in ideal theory one assumes that people will abide by the principles chosen in the original position, even after the “veil of ignorance” is lifted; in nonideal theory, one considers the historical and human behavioral challenges of staying true to original-position precepts, which is more reflective of everyday problems and situations. I believe that these tensions between ideal and non-ideal theory serve as useful tools for critiquing restrictive U.S. migration policies. By exploring the deviations from ideal theory--in the context of U.S/Mexico border policies--towards the practicalities of non-ideal praxis, I hope to reify my understanding of border issues and justify (to myself) Carens’s conclusion, that there is little justification for restricting immigration.

It is no surprise that current U.S. immigration and border policies fall far from the ideals of liberty envisioned in the original position. The question has always been how did we get here? The answer most likely predates any explanation that the Enlightenment might afford us, lying deep in the consequences of American settler colonialism and chattel slavery. Though I acknowledge this history and its foundational impact on modern American society, let me first flesh out my understanding of the gradual legal push away from ideal theory--while remaining always fully aware that the law is but one avenue through which principles of white supremacy and racism are encoded. If we are to then start with the legal perspective for answering the question posed above, we might begin with the Supreme Court’s decision in the Chinese Exclusion Case (1889), which contains the nation’s very first declaration of national sovereignty over immigration and vested Congress with plenary power over such matters. Sarah Song, a law professor at UC Berkeley, traces the philosophical tradition undergirding this decision to ideas espoused by Swiss author Emer de Vattel, whose Les droit des gens (The Law of Nations, 1758) outlined the parameters of sovereignty in the case of international law. Vattel writes:

The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as they may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty.

In staking this claim, Vattel followed already established notions of the state as being like a “moral person,” first laid out by German jurist/philosopher Samuel von Pufendorf, and later further developed by German author Christian Wolff. This personification of the state sanctions it with “an understanding and a will of which it makes use for the conduct of its affairs”, namely, as Vattel reasoned, in the interest of its self-preservation and self-perfection. It’s worth noting that Vattel understood that this self-interest deviated from the ethos of being a “moral person”, which if taken to its logical conclusion with regards to the idea of “moral state(s)”, would result in a “universal republic” in which “a real friendship [would] be seen to reign among them” (II.12). Here, it is not lost on me that this utopian conclusion mirrors the conditions of Joseph Carens’s ideal theory--that is, a global community void of hierarchical distinctions. In this sense, Vattel’s swing towards non-ideal realism, defined by state self-interest, may be at the heart of today’s polemics over immigration.

Indeed, I believe this is so. Public anxiety re the economic burden of migrants on American social institutions and fair wage have led to communitarian objections to increased migration from both conservatives and social democrats--while attending a protest against the Trump administration in 2017, I fondly remember standing next to a supposed feminist who, while rallying against the now former president, also expressed a resolute “no” when the crowd began reciting “Immigrants are welcome here.” The fixation on self-preservation may explain far-right popularization of terms like “chain migration” in lieu of “family reunification,” and the 2019 revision of the public charge rule which would have expanded the definition of being a “public charge,” and would have thus restricted poorer immigrants from either being admitted into the U.S. or attaining Legal Permanent Resident status. And, not surprisingly, today’s fears were enshrined in law vis-à-vis other, past Court decisions that occurred soon after that seminal 1889 case: in Nishimura Ekiu v. United States (1892) and Fong Yue Ting v. United States (1893), the Supreme Court again expanded the U.S. government’s power over immigration, citing further elaborations of Vattel’s theory of sovereignty (Song 2017); within the latter decision, these two passages from The Law of Nations are cited in their entirety:

Every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury. What she owes to herself, the care of her own safety, gives her this right; and in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner. (I.230)

Thus also it has a right to send [asylees] elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens, that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, to follow, in this respect, the suggestions of prudence. (I.231)

In other words, the state, by virtue of its personhood and the rights accorded to moral persons, has the right to exclude those it deems dangerous to its self-interest. As many scholars have pointed out, the right to exclude is essentially a property right; and the commensuration of individual property rights to collective, state territorial rights has been the source of much debate (See Carens’s Nozickean argument for open borders).

All this is to say that the principles of state sovereignty that underlie American immigration policy were founded under non-ideal theory conditions, which privilege human interest over ideal theory egalitarianism. The effect of this philosophical turn cannot be overstated; because while it is one thing to erect borders and deny access in the name of self-interest, it is another to punish those seeking opportunity and/or asylum for similar reasons.

To explain today’s punitive approach to immigration, it is incumbent on me to outline another ideal to non-ideal theory transition: This time, I mark as my starting point the Bracero Accord, a U.S./Mexico bilateral program that, between 1942-1964, facilitated over 4.5 million temporary labor contracts to male Mexican workers in an effort to redress previous, depression-era deportations of Mexican-American citizens and to address labor shortages that appeared during and after World War II. Though imperfect (the program was ultimately deemed exploitive), this bracero initiative may have came closest in realizing the tenets of justice that ideal theory conceptualized, formalizing (now questionable) protocols for far pay and anti-discrimination; that is, in setting aside the dehumanizing experience that braceros encountered, we might think of the legal protections granted to these workers, and the imperative that the U.S. government showed in trying to repair its relationship with Mexico, as a promise towards an ideal--a quasi- “veil of ignorance” that ended up being unrealistic, ineffective, and violent. So, it might be here within the context of the hopes of the Bracero Accord and the porous border through which hundreds of thousands of Mexican workers made their way each year that we locate our ideal beginning.

From this point, the rapid progression towards non-ideal theory, which again takes into account the “historical obstacles and the unjust actions of others” that seek to undermine liberty and justice, paradoxically began during the civil rights era of the 1960s, when a) the termination of the Bracero Program and b) amendments to the Immigration and Nationality Act effectively ended the legal and cyclical migration patterns of years past. Princeton sociologist Douglass Massey summarizes:

Whereas in the late 1950s, some 450,000 Mexicans had entered the United States each year as Braceros and 50,000 as permanent residents, by the late 1970s the Bracero Program was gone and legal visas were capped at 20,000 (Massey 2014)

A closed door, however, does not mean a locked one; notwithstanding new restrictions on migration, former braceros continued their northward journey through unauthorized channels, paving the way for what has become considered “illegal” migration. In his article, Massey provides this useful figure, which takes data from DHS to assess Mexican migration to the U.S. in the three categories shown below:

The noticeable inverse between trends in temporary labor migration and unauthorized migration (measured by the annual number of apprehensions divided by the number of Border Patrol officers, expressed per thousand) in 1964 reveals the unspeakable harms of supposedly benevolent updates to U.S. immigration policy. Despite the tapering of unauthorized migration since 1986, shown above, the wide-ranging consequences of the 1964 recategorizing of what were once “legal” guest workers to now “illegal” trespassers on the political, social, and individual levels of society deserves pause and reflection.

At the broad level of the body politic, the rising number of annual border apprehensions in the mid-1960s effectuated closer federal scrutiny of the border. At the behest of political racketeers, members of the U.S. Border Patrol, and a changing landscape of public opinion surrounding undocumented migration, Congress enacted a litany of measures that further restricted entry: 1986′s Immigration Reform and Control Act (IRCA), while granting amnesty and Legal Permanent Resident status to 2.7 million former undocumented migrants--subject to conditions of learning English and seeking citizenship--criminalized undocumented hiring and signed off the first of a series of significant increases in appropriations for the Border Patrol; 1994′s Operation Gatekeeper militarized the busiest border sector in San Diegos (See also ‘prevention through deterrence’ strategy); 2001′s PATRIOT Act made it easier for the government to employ immigration rules to detain or deport non-citizens without resort to the lengthy procedural regulations of the criminal justice system (Akram 2006). Juliet Stumpf and others have mapped these measures to a phenomenon they call “crimmigration,” which describes the American merger of criminal and immigration law that has happened since 1875 when the first federal statute was passed to restrict immigration of Chinese women. Since then, Stumpf writes, “the relationship between immigration and criminal law has evolved from merely excluding foreigners who had committed past crimes to the present when many immigration violations are themselves defined as criminal offenses and many crimes result in deportation” (Stumpf 2006). Indeed, today, immigration prosecutions outnumber all other types of federal criminal prosecutions, including prosecutions for drugs and public order violations (See “Prosecution/Courts”).

Interwoven into the political and structural realignments of U.S. migration policy during this time was the effect that legal/illegal discursive shifts had on White Americans. As politicians seized on the expediency of showing strength against the "Mexican Menace” and “alien invasion”, and as journalists found success in characterizing undocumented border crossers as “illegals” set out to “inundate” American society and “swamp” its culture (Chavez 2001), it becomes easy to imagine the kind of social re-engineering that must have taken place: As Mae Ngai reminds us in Impossible Subjects: Illegal Aliens and the Making of Modern America, Mexicans were once considered legally white and enjoyed migratory privileges not afforded to Asian migrants (Ngai, 38, 2004); but, as UMASS-Amherst professor Moon-Kie Jung might say, racial differentiation happens when people come to hold schemas for “separating human populations by some notion of stock or collective heredity of traits” (Jung, 64, 2006). Viewed in the light of American genocide, slavery, colonialism and imperialism, the racialization of Mexicans based on notions of in/exclusion was par for the course. We might find then, within the border debates of the mid to late twentieth century, the seed of today’s social animus towards Latinx migrants, which has encouraged bias in enforcement of immigration law and (most likely) inspired Arizona’s Senate Bill 1070 (Read more about state/federal collaboration and interdependency when it comes to developing and enforcing immigration law in Judith Resnick’s “Bordering by Law”).

The human impact of these policy adjustments should not be forgotten, nor go unnoticed. For it is at the individual--and for some of my friends with undocumented parents, personal--level that federal immigration policies harm. This case is explicitly made in Jason de León’s The Land of Open Graves, which lays the blame for migrant deaths along the border squarely in the hands of the U.S. government. It is described in this podcast during which a university student talks about her experience growing up living in fear that her parents could be deported at any moment; and again, in the harrowing stories that undocumented child migrants have told, as documented by Valeria Luiselli in Tell Me How It Ends; and perhaps, more recently, in the iconic image of Yanela, the 1-year-old Honduran girl, who was captured crying for her detained mother. Between these examples, one thing is clear: U.S. immigration policies violate, if not the ideals of moral equality that America was founded on, then international human rights.

De Leon writes: “The benefit of the chronological distance from the pain and suffering of past migrations is that many Americans today have no problem putting nationality before humanity” (Leon, 26, 2015). In this blog post/essay, I make the case that this antipathy for life, or explicitly for the life of Others, has as much to do with historical myopia as it underlines the principles of self-interest that lie behind our legal and social interpretations. When people hear that undocumented migrant children are being separated from their families yet still defend the action as just since “They came into our country illegally,” I see this perverse rationalization as but a product of self-preservation. Mae Ngai has spoken about the consequences of normalizing such principles of sovereignty in immigration affairs, suggesting that it “generates the view that immigration is a zero-sum game among competitive nation-states” (Ngai 2004). Not only does this view fuel anti-immigrant resentment, it discourages us from seeing the moral worth of our neighbors and prevents us from coming together to form humane and bilateral coalitions for tackling transnational problems.

Against the backdrop of U.S. human rights violation, and the radical transition away from the conceptions of justice laid out in Rawls’s original position, I remain cautiously hopeful that there will come a day when justice will be served. It might not happen during my lifetime, but I’ll be on the vanguard of this fight.

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