IMMIGRATION POLICY AND IDENTIFICATION ACROSS BORDERS.

Author:Lindauer, Matthew
 
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IMMIGRATION POLICIES can express disrespect for members of society, non-members, or both. Proponents of the traditional state sovereignty view on immigration have generally held that only policies in the first and third categories could be moral wrongs--it is morally regrettable, perhaps, but not morally impermissible for a state to implement immigration policies that express disrespect for outsiders.

One problem with the state sovereignty view, I argue, is that it is insensitive to the ways in which members and nonmembers relate to one another. The "external relationships" of members, relationships they stand in with nonmembers, make it the case that the treatment of nonmembers can affect or express attitudes about members themselves. Some of these relationships are what we might call "relationships of closeness," such as family and romantic relationships. In this paper, I focus instead on "relationships of likeness," or more specifically, relationships between members and nonmembers that hold due to a shared quality or set of qualities on the basis of which members identify with nonmembers. These relationships of likeness make it the case that immigration policies that discriminate against nonmembers also often discriminate against members, and while this point has been recognized to some extent, its full implications have not been appreciated.

Some theorists who defend the state sovereignty view, in fact, have tried to curtail the permissive implications of the view for policies that are racially, ethnically, or otherwise discriminatory by appealing to discrimination against members. One argument of this kind that Christopher Heath Wellman has used to defend the state sovereignty view was originally given by Michael Blake. (1) Blake argues that, because immigration policies that discriminate against nonmembers typically also make invidious comparisons between members, discriminatory immigration policies can be morally impermissible even by the lights of the state sovereignty view. Blake did not intend for this argument to undermine the state sovereignty view, nor did Wellman think it did. However, I argue that the fact that states generally cannot implement discriminatory immigration policies without expressing disrespect for their own members, contra Blake and Wellman, is a serious problem for the state sovereignty view.

As Wellman acknowledges in later work, Blake's argument may be unsatisfying for at least two reasons. (2) First, it seems odd to think that the White Australia policy, the Chinese Exclusion Act, and Donald Trump's recent executive orders on immigration have only been wrong in virtue of discriminating against insiders. Second, the argument is silent about the use of discriminatory immigration policies when the groups that these policies discriminate against are not already present. If there are no people of Mexican descent in a given society, that society can discriminate against Mexicans seeking admission, for all the argument says. For these reasons, Wellman states that, while he is most drawn to this strategy for explaining why discriminatory immigration policies are morally wrong, he is not fully satisfied with it. (3)

In this paper, I argue that the domestic implications of discriminatory immigration policies are far-reaching and undermine, rather than support, the state sovereignty view. Once we grasp the full extent to which immigration policies are constrained by the principle of equal respect for members, a principle that contemporary forms of the view are committed to, we will see that the view cannot hold on to one of its main distinguishing features--the wide latitude it ascribes to societies in determining and implementing their immigration policies. On considerations of domestic justice alone, my argument shows that the state sovereignty view cannot serve as a satisfactory framework for the normative assessment of immigration policies. Notably, this argument differs from those offered by critics of the view that favor open borders, who have often challenged its partiality toward members. This article also gives a unified explanation of how historical and hypothetical immigration policies discussed in the ethics of immigration literature could express disrespect for members of society. This explanation draws on the existence of the external relationships of members that are grounded in identification with nonmembers on the basis of a shared quality or set of qualities. (4) In conclusion, I suggest that the existence of these external relationships has additional implications for the ethics of immigration that have yet to be fully explored, and that examining this terrain will be essential in developing a fully satisfactory framework for the normative assessment of immigration policies.

  1. THE STATE SOVEREIGNTY VIEW

    The state sovereignty view regarding immigration policy accords a great deal of latitude to societies to exclude or give less than equal treatment to some non-members who wish to enter and become full members. In this paper, I at times refer to these kinds of policies as "discriminatory" immigration policies, since they involve discrimination against certain nonmembers. I will not discuss restrictive immigration policies that would not, at least in any obvious way, discriminate against a particular group of immigrants, such as a policy of excluding all potential newcomers, or a policy of capping immigration at a desired number. The view that I am concerned with here is committed to the sovereignty of states to determine immigration policies as they see fit, with very few exceptions. This view continues to be endorsed by prominent theorists working on the ethics of immigration and border control. (5) As we will see, state sovereignty has been thought to entail the moral discretion of states to discriminate against immigrants on the basis of features such as race and ethnicity.

    Two of the most prominent contemporary defenses of the state sovereignty view are due to Michael Walzer and Christopher Heath Wellman. (6) According to both theorists, members of society, understood as a political entity or state, are given priority in the determination of that society's immigration policies. Walzer's piece on immigration policy is the locus classicus of the state sovereignty view in the ethics of immigration literature. (7) He argues that if we think that individuals have a right to form self-determining societies we must believe that the members of these societies have a collective right to control and restrain the influx of immigrants. The right of a society to determine its own immigration policy, in other words, is necessary for the sovereignty and security of that society as a distinct political community. Admission and exclusion "suggest the deepest meaning of self-determination." (8) All else being equal, then, a society is permitted to implement discriminatory immigration policies. According to Walzer, as long as Australia gave up some of its unused territory to persons seeking to set up a society where non-whites could enter and become members, the White Australia policy would have been morally permissible to keep in place. This was a policy of excluding non-whites as candidates for immigration to Australia, instituted at the time of Australian federation in 1901 and gradually dismantled between 1949 and 1973. Walzer does not commend White Australia, of course, but believes that "White Australia could survive only as Little Australia." (9) Morally regrettable as it might have been, this racially discriminatory immigration policy did not in itself wrong anyone. For Walzer, societies do have to take in at least some refugees and perhaps certain family members of insiders, but policies that discriminate against immigrants on the basis of race or ethnicity are not morally wrong per se. (10)

    Wellman has recently offered a prominent defense of the state sovereignty view on grounds of freedom of association. (11) He also emphasizes the rights of individuals to form self-determining societies, but his argument centers on freedom of association as an integral component of self-determination. As in the case of individuals, a society's freedom of association entitles it to associate or not associate with persons as it sees fit. Legitimate societies, ones that respect the human rights of their constituents and all other persons, are entitled to self-determination and hence freedom of association for Wellman. Taking seriously freedom of association at the level of societies entails that societies are entitled to wide latitude in setting and administering their immigration policies. In contrast with Walzer, Wellman holds that a state is not required to admit refugees so long as there are other ways of helping them. (12) He regards family members and romantic partners of insiders as perhaps the only exception to the nearly unqualified right to exclude. (13) Most importantly for my purposes, as I noted above, he is inclined toward Blake's insider-focused explanation of why discriminatory immigration policies are morally wrong, but not fully satisfied that this explanation works.

    As I noted above, both defenses of the state sovereignty view ultimately rely on the rights of members as the source of a society's prerogatives to discriminate against immigrants. (14) The rights of members to form and maintain self-determining societies generally trump any rights that nonmembers might have to enter or receive equal treatment. We should also note that both defenses are intended to work within liberal egalitarian political theory, which is committed to the equality of members of society. (15) Walzer and Wellman deny that, as critics have asserted, the rights of nonmembers limit the moral discretion of societies in determining their immigration policies. (16) I will avoid this impasse regarding the relative weight of the rights of members and nonmembers in matters of immigration...

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