Forum Final Response
The balance of competing moral considerations falls clearly on the side of rolling amnesty
May 1, 2009
With Responses From
May 1, 2009
7 Min read time
I am grateful to the respondents for thoughtful reactions that deepen our understanding of this issue. Space limits require that I be selective in my reply. Because I generally agree with the pieces by Rainer Bauböck, Gara LaMarche, Douglas Massey, Mae Ngai, and Rogers Smith, I will not discuss them here, though I learned much from each. I also found arguments offered by Jean Elshtain and Marc Rosenblum stimulating and helpful. I am not sure how much the issues in dispute between us reflect genuine disagreements as opposed to matters requiring clarification, but our differences are minor, and I will not pursue them here. Addressing Mary Shanley’s important piece would require discussing the way it connects to the issue of birthright citizenship. Another time, I hope.
I will engage selectively with the remaining eight respondents, identifying three themes in their comments: that I fail to establish that irregular migrants have a moral claim to amnesty; that I fail to provide a deep enough defense of migrants; that I fail to consider the interests of disadvantaged citizens.
My central claim is that over time the fact that irregular migrants have settled without authorization becomes morally irrelevant. They become members of society, morally entitled to have their membership recognized through regularization of their legal status. Only Gerald Neuman explicitly rejects this claim. Alexander Aleinikoff and Peter Schuck express serious doubts about it, although they, like Neuman, think there is a pragmatic case for amnesty. I agree with the pragmatic case, but believe that there is a principled case as well, one based on justice as well as on compassion.
Neuman raises various objections to the criteria of membership that I propose (passage of time, no criminal record) but offers no list of his own. As tests of membership, he wants to ask questions about personal relationships and associations and about connections to country of origin. Is someone less an American because she has a series of boyfriends rather than a husband, because her friends are primarily people of the same ethnic origin, or because she keeps in touch with the people from the land she left? That would be an outrageous suggestion if applied to a citizen. It is no better when applied to irregular migrants. These kinds of questions confirm rather than challenge my conviction that respect for individual freedom requires us to use objective, non-intrusive criteria of belonging.
Schuck agrees with me about limiting discretion, but insists that I overlook competing moral considerations that make the issue more complex. I do not claim that the right to amnesty is absolute. Like Elshtain, I do not think there are any absolute rights. With immigration, as with virtually all issues, there are competing moral considerations at stake. But sometimes the balance of these considerations is clearly on one side rather than the other. In the specific cases I discuss, and for irregular migrants more generally, I think the balance clearly falls on the side of amnesty once enough time has passed. Schuck’s complexities do not change that.
Aleinikoff asks about “the moral claim of a self-governing people to determine who should be members of their polity,” but surely he would agree that our theory of membership cannot be entirely derived from the consent of political authorities or even of the majority of the population. Our history sadly shows that popular majorities, political authorities, and even our courts of law have at various times rejected Americans of African or Asian or indigenous descent as full legal members of society because the self-governing people refused to consent to their belonging. We recognize the injustice of those exclusions today. I claim that our collective refusal to recognize long-settled irregular migrants as Americans is also unwarranted, their exclusion also an injustice.
In various ways, Arash Abizadeh, Linda Bosniak, and Roberto Suro contend that I have yielded too much ground to pragmatism and political realism. Because my proposal is so controversial, I naturally welcome the suggestion that I am too moderate. At the risk of undermining that advantage, however, let me take up their challenges.
Bosniak and Suro worry that ongoing amnesty for long-settled irregular migrants will enhance (or at least fail to reduce) the vulnerability of those not present long enough to qualify. This is a legitimate concern, but the best way to protect them is to enforce the human, civil, and economic rights to which all irregular migrants are legally and morally entitled. The problem, as Bosniak and Suro both note, is that irregular migrants are afraid to claim these rights lest they expose themselves to immigration authorities. The solution is to build a legal firewall between immigration enforcement and the protection of migrants’ legal rights, so that the rights are actually effective. A firewall approach, which I have argued for elsewhere, would complement rather than conflict with the arguments for amnesty offered here and could dramatically reduce the vulnerability and exploitation of irregular migrants not yet eligible for amnesty.
Even with a legal firewall, recently arrived irregular migrants would remain vulnerable to deportation. That seems to me an inevitable corollary of the premise that states are entitled to control immigration. Should we challenge that premise itself? Abizadeh thinks that my argument implicitly does so, while Bosniak thinks that, in accepting the premise for this essay, I have retreated from an earlier, more idealistic and morally preferable position. I respectfully disagree.
My decision to adopt that premise here is not primarily a concession to political realities. It is rather an exercise in democratic engagement. We pursue different kinds of moral reflections for different purposes. In a democracy, we have a moral responsibility to seek common ground in the face of moral disagreement, at least where that is possible. That is what I have tried to do here. Those who think that justice ultimately requires open borders and those who think that states are morally entitled to control entry should be able to agree that, once people have settled for a long time, they become members and should be recognized as such. This is not a covert argument for open borders because it is an argument about membership, not universal rights. Furthermore, one can make arguments for the rights of non-members without committing oneself to open borders. Niloufar Folani, the Iranian woman whose story Abizadeh tells, deserves admission (and asylum) not because she is a member but because she qualifies as a refugee. That is a distinct claim and not one that applies to all potential migrants or to most irregular migrants.
The challenge that troubles me the most is the suggestion made by Eamonn Callan, Schuck, and Carol Swain that we have to choose between granting legal status to irregular migrants and providing assistance to disadvantaged citizens. I view this way of framing the issue as a mistake from moral, policy, and political perspectives.
It is a moral mistake because if one accepts the claim that irregular migrants are (at some point) members who are entitled to legal status, then it is simply wrong to deny them that status for the sake of some other disadvantaged group. Excluding members from a legal status to which they are morally entitled is not a morally permissible policy option. It was precisely this sort of reprehensible rationale—the benefit to disadvantaged whites—that was used by many to justify the legal subordination of African Americans for so long.
It is a policy mistake because it does nothing to improve the situation of the least skilled among current citizens. The firewall proposal I noted above would do more to reduce the conflict between irregular migrants and disadvantaged citizens because enabling irregular migrants to join unions and to demand the minimum wage and other job-related protections would make them less vulnerable to exploitation and so reduce the incentives of employers to seek out irregular migrants in preference to citizens.
Finally, it is a political mistake because it divides disadvantaged groups and sets them against one another instead of building alliances to promote their common interests. On this point, my disagreement with Swain is deeper than that with Callan and Schuck. For Swain to evoke Martin Luther King, Jr.’s “I have a dream” speech immediately after claiming that that Lou Dobbs, Glenn Beck and “some mostly Republican members of Congress” are the ones who really care about the well-being of the poor and dispossessed in America (presumably because of their hostility to irregular migrants) is to make a mockery of King’s commitment to social justice for all. Can anyone doubt where King would stand on this issue, if he were alive today? I share Swain’s concern for “fellow citizens who continue to suffer racial discrimination, wanton neglect and outright rejection.” But we can do more to address this concern constructively by supporting President Obama’s plans for extending health care, improving education, and expanding economic opportunities for all Americans than by seeking to punish and exclude people who are also members of our community.
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