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Why Liberal States Accept Unwanted Immigration

Author(s): Christian Joppke


Source: World Politics, Vol. 50, No. 2 (Jan., 1998), pp. 266-293
Published by: Cambridge University Press
Stable URL: http://www.jstor.org/stable/25054038
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LIBERAL STATES ACCEPT

WHY

UNWANTED

IMMIGRATION

By CHRISTIAN JOPPKE*

of the more popular watchwords of our time is that the na


tion-state

ONE

is in decline?"too

small" to solve global problems,


is often made
related argument
states

to control

immigration.

to solve
"too
big"
regional problems,
as the
goes. A
topographical
metaphor
an
of
increasing
regarding
incapacity
was the alarmist
at the
"Strangers
gate"

cry heard in the wake of 1989 and all that. The Economist (March 15,
1991) showed a ramshackle border guardhouse being overrun by a
(and strangely
giant bus bursting with all sorts of foreign-looking
Such hyperbole
has since disappeared,
characters.
cheerful)
across Western
a result of
for
asylum
procedures
tightened
a restrictionist
control
there still seems to be a gap between
an

as
partially
states. But
rhetoric

and

volume
immigration
reality. An influential
comparative
na
the
between
control
"[T]he
gap
argues:
immigration
goals of
. . . and the actual results of
in this
tional immigration
policies
policy
expansionist

on

area (policy outcomes) is growing wider


democracies."1
gion

accept

Why
more

in all major industrialized

re
of the North Adantic
the developed
rhetoric
restrictionist
than their generally
immigrants
do

states

and policies intend?


reflects the gap between
immigration
outcomes. Unwanted
immi
goals and expansionist
as in the
not
is
solicited
states,
by
legal quota immigra
gration
actively
it is accepted
tion of the classic
settler nations.
Rather,
by
passively
reasons and in
of individual
states, either for humanitarian
recognition
The

phenomenon
restrictionist
policy

of unwanted

as in
of labor migrants,
and family reunification
asylum-seeking
rights,
or because of the states' sheer
to
out, as in il
keep migrants
incapacity

as the
legal immigration. The gap hypothesis can thus be reformulated
question,Why do liberal states accept unwanted immigration?2
*
This

Patterns and the


article was first presented at the conference "Effects of Policy on Migration
thanks to
of Berlin, November
of Immigrants," Humboldt
1-2,1996.
University
My
Integration
Rainer M?nz
for the invitation.
1
and James Hollifield,
(Stanford,
eds., Controlling Immigration
Cornelius,
Philip Martin,
Wayne
Calif.: Stanford University
Press, 1994), 3.
2
for example, Gary Freeman, "Can Liberal States
While
frequently used in the literature?see,
and Social Science 534
Annals
Control Unwanted
Migration?"
of Political
of theAmerican Academy

WorldPolitics 50 (January1998), 266-93

267

LIBERAL STATES& UNWANTED IMMIGRATION

one of their
contradicts
accept unwanted
immigration
over the admission
and expulsion
of
the sovereignty
prerogatives:
an eye to its totalitarian
wrote with
aliens. As Hannah
aber
Arendt
more
is nowhere
than in matters
of
absolute
rations,
"Sovereignty
states

That

core

naturalization,

emigration,

nationality,

and

expulsion."3

Does

the ac

ceptance of unwanted immigration indicate a decline of sovereignty? A


quick

"yes,"

as in David

Jacobson's

Rights

across Borders^

is premised

on

a simplistic and static notion of sovereignty, thus denying its historical


and chronic
variability
imperfection.4
two
To answer the question
First,
fully,
things should be considered.
to
two separate aspects of sover
it is important
between
distinguish
to im
and the empirical
eignty, formal rule-making
authority
capacity
to international
rules.
The
former
relations
plement
belongs
theory, in

which

sovereignty is the defining characteristic of individual states as

the units

of the

international

state

system;5

the

latter falls within

the

domain of political and historical sociology, which has preferred the


notions

of state

torically

varying

or
to
the his
autonomy
strength,
capacity,
investigate
embodiments
of the modern
state.6 Gary Freeman
has

demonstrated that in both aspects there is little evidence for a decline


to accept or
of sovereignty
control:7 the decision
regarding
immigration
not been
to actors other than the state, and
aliens
has
reject
relegated
states has not decreased,
the infrastructural
but in
capacity of modern
creased, over
ical capacity,
Arendt

time. Second,

sovereignty
s characterization.

dependence
admittance

have

whether
has

rarely been

Internationally,
put the brakes

always
because

practices

seen as

hostility

or
judicial authority
empir
as absolute
as
conveyed
by

the exigencies
of state inter
on erratic
or non
expulsion
against

an

alien

might

be

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

39 (1995) ,213-33.
terly
6

See Peter Evans, Dietrich


and Theda
the State Back In
eds., Bringing
Rueschemeyer,
Skocpol,
(New York: Cambridge University
Press, 1985).
7
to theNation-State:
of Sovereignty?"
in Christian
Gary Freeman, "The Decline
Joppke, Challenge
inWestern Europe and the United States (New York: Oxford University
Press, 1998).
Immigration

268

WORLD POLITICS

interpreted as hostility against her state. In addition, international law


both

prohibits

expulsion
of the victims

of race and the


grounds
in other states. Not
persecution

or nonadmittance

on

of political
refoulement
are
under
but
also
international
states,
individuals,
only
legal subjects
are
states
law?a
of
the
era?and
postwar
increasingly
novelty
obliged
to respect an emergent
states
"law of
Western
Domestically,
migrants."8
states are bound
in
qua constitutional
by the rule of law, which
impor
tant respects protects
and not just of citizens.9
the rights of persons
Various

authors

have

argued

constraints
that global
force states to
two such
Saskia Sassen has identified

accept unwanted
immigration.
on state
constraints
external
sovereignty:
an
rise
the
of
international
human
rights

economic

and
globalization
The
of
penetration
regime.10
countries
has
multinational
created
the
by
push
peripheral
corporations
of an uprooted
and mobile
labor force seeking entry into the core coun
in the
tries of the world
the secondary
labor market
system. In addition,
emer
a
countries
for immigrants. An
receiving
powerful
pull
provides
human
international
gent
rights regime protects migrants,
independent
of their nationality,
national
devaluing

limiting

the discretion

of states

toward

aliens

and

the work of Jacobson,


Sassen
a
an
shift
"from
has
argues
legitimacy
undergone
on the
to self
of
the
and
exclusive
sovereignty
right
emphasis
people
... to
of nationality."11
determination
rights of individuals
regardless
the au
Taken
and political globalization
"reduce[s]
together, economic
that the basis

tonomy
desperate
populist

citizenship.
of state

of the state
attempts
restrictionism.

Echoing

in immigration
to renationalize

the state's
policy making,"12
despite
this policy area under
the sign of

The diagnosis of globally diminished sovereignty indicates that the


has partially
created what
not answer
it
But
does
gration.

West

it seeks

to contain?international

mi

as to
states
the question
why Western
First, the space-indifferent
accept unwanted
immigrants.
logic of glob
as the
some states,
cannot
alization
such
immigrant
explain why
at
states of the
Middle
East, are very efficient
oil-producing
receiving
8
24 (1986), 699-715.
International Migration
R Perruchoud,
"The Law ofMigrants,"
9
identification of individual rights with citizenship
rights,
Luigi Ferrajoli decimates T. H. Marshall's
is then construed as a departure. Instead, Ferra
from which a new postnational
"logic of personhood"
never been invested in na
joli shows that most individual (legal and social) rights in liberal states had
tional citizenship
and had always revolved around universal personhood.
Ferrajoli, From the Rights of
the Citizen to Rights of the Person (Manuscript, European Forum on Citizenship,
European University
see Yasemin
to
1995-96). On the logic of personhood,
Institute, Florence,
Soysal, Limits
Citizenship
of Chicago
Press, 1994), chap. 8.
University
(Chicago:
10
Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization
(New York: Columbia Uni
versity Press, 1996), chap 3.
11
Jacobson (fh. 4); Sassen (fn. 10), 95.
12
Sassen (fn. 10), 98.

LIBERAL STATES& UNWANTED IMMIGRATION


or

out,

keeping

unwanted

back,

sending

immigrants.13

Only

269
liberal

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

of the late
the world
transactions,
one hundred years
no less
world
than
the
century
global
to stay, while
later.14 If the Bonn Republic
its guest workers
allowed
resolute rotation and mass expulsions,
Wilhelmine
Germany
practiced
a state weakened
cannot be the
economic
by
globalization
explanation.
was

nineteenth

The state always had to vindicate itselfwithin and against an inherently


to
and related to this, the very reference
capitalism. Third,
to
states accept
is insufficient
immi
factors
explain why
or unwanted.
the mo
Economic
grants, wanted
explains
globalization
as
in the
of
bilization
well as the
immigrants
sending societies,
potential
globalizing
economic

in acquiring
them, but not their actual
employers
one subscribes
states.
to the ques
the
Unless
acceptance
by
receiving
a
state
is always
tionable view that the
the task would
tool of capitalism,
em
be to identify
the domestic
which,
say, expansionist
processes
by
out the restrictionist
in
interests
interests
cancel
of
the
ployer
public
interest

of domestic

turn out to be in
sovereignty would
not
human
diminished.
the international
Fourth,
ternally,
externally,
not so strong as to make
states fear and tremble. Jack
is
rights regime
it as a "relatively
characterized
strong promotional
Donnelly
regime,"
on
norms and values, but lacks
rests
which
widely
accepted
implemen
times

specific

tation

and places.

and enforcement

ternational

human

discourse.16

This

tent with
tailed

listing

But

then

powers.15

rights
is better

formal

process-tracing"

Devoid
consists

of hard
of the

the in
legal powers,
soft moral
power of

regime
But globalists
than nothing.
have been con
the "de
titles, avoiding
treaty and convention
which
their
become
soft
may
power
by
to trace.
be little process
there would
Perhaps

effective.17
domestically
across
For instance,
the recent
law and policy
of asylum
tightening
states demonstrates
Western
that these states have been extraordinarily
inventive

in circumventing

tional human

rights

regime,

the single strongest


the non-refoulement

norm

of the

interna

obligation.18

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

270

WORLD POLITICS

In the following, I propose an alternative explanation. The capacity


of states

to control

has not diminished

immigration

but

increased?as

every person landing at Schipohl or Sidney airports without


visa would

entry

notice.

painfully

But

for domestic

a valid

reasons,

liberal

states are kept from putting this capacity to use. Not globally limited,
but

self-limited

sovereignty

explains why

states accept unwanted

immi

grants.

Gary Freeman identified the political process in liberal democracies


as one

element

major

of self-limited

sovereignty.19

In contrast

to the

Western
globalist diagnosis of vindictive yet ineffective restrictionism in
an

starts with

states, Freeman

observation
that the politics of
opposing
in fact,
in liberal democracies
and
is,
"broadly expansionist
immigration
reasons.
two
immi
benefits
of
for
which
he
the
First,
inclusive,"20
gives
are concentrated,
families)
(such as cheap labor or reunited
gration
or
are
as
its costs (such
social expenses
while
increased
overpopulation)
diffused.

action
poses a collective
of concentrated
beneficiaries

That

organizable
ethnic groups)

will

prevail

over

in which

the easily
or
as
(such
employers
the difficult-to-organize
bearers of dif
dilemma,
benefits

fused costs, that is, themajority population. Borrowing from J.Q^Wilson,


in liberal states is "client poli
Freeman
argues that immigration
policy
in which
small and well-organized
tics ... a form of bilateral
influence
a
in policy develop
close working
relation
interested
groups
intensely

Taking place out of public view


shipswith officials responsible for it."21
and with little outside interference, the logic of client politics explains
the expansiveness

of liberal

states

vis-?-vis

immigrants.

Second,

the

universalistic idiom of liberalism prohibits the political elites in liberal


of migrant
the ethnic or racial composition
from addressing
streams. Freeman
norm." Its most potent ex
calls that the "antipopulist
in the classic set
is the principle
of source country universalism
pression
screen
no
for their ethnic
der nations, which
potential
immigrants
longer
norm will induce elites to seek consen
or racial fitness. The
antipopulist
to remove the issue from
sus on
partisan politics.
immigration
policy and
a
under the sway of client
domestic
As I shall argue,
process
political
liberal states accept unwanted
is one reason why
immigration.
politics
to Freeman's model.
But I suggest two modifications
states

19
States," International Mi
Gary Freeman, "Modes of Immigration Politics in Liberal Democratic
Review 29, no. 4 (1995).
gration
20
Ibid., 881.
21
notion of client politics is built upon Mancur Olson's theory of col
Ibid., 886. James Q?Wilson's
states that the organized and active interest of small groups tends to
lective action dilemmas, which
over the nonorganized
interest of large groups. The premise of this expected
and nonprotected
prevail
outcome
action on part of the individual. Wilson,
is rational, self-interested
ed., The Politics ofRegula
tion (New York: Basic Books, 1980); Olson, The Logic of Collective Action (Cambridge: Harvard Uni
versity Press, 1965).

LIBERAL STATES& UNWANTED IMMIGRATION

271

as a second
source of ex
legal process
toward immigrants
in liberal states. In fact, the political
pansiveness
to
is
vulnerable
sentiments
process
chronically
populist
anti-immigrant
?even
as
in the United
the
States,
Congressional
anti-immigrant
Freeman

First,

the

ignores

backlash in thewake of Californias Proposition 187 testifies. Judges are


as
are
to the
such pressures,
they
only obliged
of statutory and constitutional
law. The
legal pro
cess is crucial to
states continued
explaining
why European
accepting
since the early
immigrants
despite
explicit zero-immigration
policies
shielded

generally
abstract

1970s.
from

from

commands

In open opposition
client politics

elitist

to a restrictionist
to

popular
and constitutional

voked

statutory
In Europe,
migrants.
why

executive, which
interest politics,

national

switched
courts

in

and family rights for im


the political process explains

residence

the legal rather


unwanted
(family)

than

states accept
In a second modification
variations

important

immigration.
to Freeman's model,
I suggest that there are
not
in the processing
of unwanted
immigration

just between the United States andWestern


states

themselves.

European
and postcolonial-based

Freeman

lumps

Europe but within West


together
guest-worker
and thus overlooks
their

immigration
regimes
such as Germany's,
In a guest-worker
the state
regime,
at one
into
lured
the
(de facto) immigrants
country, and
point actively
not to
at will once it de
thus is morally
of
constrained
them
dispose
a
a
course.
In
cides upon
of
such as
regime,
change
postcolonial
was
never
solicited
but
toler
Britain's,
actively
immigration
passively
ated for the sake of a secondary goal?the
maintenance
of empire. Im
different

logics.

migration policy is thus by definition a negative control policy against


immigration

that at no point

has been wanted.

Differently

developed

moral obligations toward immigrants in both regimes (among other


factors) help explain variations
ness toward
immigrants.

in European

states' generosity

or firm

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 theUnited States to control illegal immigra


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

WORLD POLITICS

272

is due primarily to the logic of client

tion, particularly from Mexico,


and

politics

strong

self-description

emphatic

norm
antipopulist
as a universal

that

feeds

"nation

upon

of

America's
and

immigrants"

upon the civil rights imperative of strict nondiscrimination. In Europe,


legal

and moral

immigration

constraints
after

policies

zero
states from
rigorous
pursuing
kept
new
and guest
the closing of
postcolonial

worker immigration in the late 1960s and early 1970s, respectively. Jux
cases

the extreme
taposing
that these constraints

were

I further

of Germany
and Britain,
most
distributed
unevenly

across

suggest
Europe,

partially reflecting the different logics of guest-worker and postcolonial


regimes.

Immigration

Illegal
America's

enduring

in the United

to control

incapacity

illegal

States
is the root

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
policymakers

alike, was

academics

and

1981 report of the U.S.

Select Commission

on Immigration

Policy,
Refugee
Immigration
Policy
was "out of control,"
lated that immigration
policy

and

Interest.

in theNational

U.S.

by the

established

powerfully

It stipu
and that the contain

ment of illegal immigration had to be the first step in regaining control.


That

stating

perspective,

a sequence

of loss and recovery,

is mislead

ing; there had never been a golden age of control. The problem of ille
a unified,
gal immigration is a by-product of the attempt to build
national
Western

system

of

control,
The
immigration.

immigration

hemisphere

which

no

three-step

longer
effort

exempted
entailed:

(1) stopping (under the pressure of domestic labor unions) the Bracero
guest-worker

program

in 1964, which

for more

than

two decades

had

providedWestern growers with cheap foreign fruit pickers; (2) estab


a ceiling of 120,000 immi
lishing through the 1965 Immigration Act
grant

visas

for

the Western

hemisphere,

which

had

formerly

been

exempted from numerical restrictions; and (3) applying, in 1976, the


Eastern

hemisphere
nual visas toWestern

instantly developing
and
nationalization

an
thousand
limit of twenty
individual-country
in
Mexico
which
resulted
countries,
hemisphere
a loss of control, but the
a severe visa
backlog. Not

is the
control
of U.S.
immigration
of
the
proper premise
origins
illegal immigration.
of the stock
used as indicators
figures?widely
apprehension
Tellingly,
in
and flow of illegal immigrants?rose
steeply after the end of Bracero
standardization

for understanding

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
criteria

control

to Eastern

and Western

was

countries,

Hemisphere

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.
Given

caveat

this

of a control

that never 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
(irca),

and,

second, through the failure


in the 1990s.
controls

immigration
IRCA carried

its restrictionist

to be
vastly

however,

expansionist,

of the U.S.

intention
legalizing

to establish

effective

in its name.

It turned out,
the status of three million

illegal immigrants in theUnited States, while failing to establish effec


tive measures

The

ence

the inflow of new illegal immigrants.


against
is responsible
client groups
for this outcome:
civil rights groups, who
and
mobilized
effectively
argued
and employers,
sanctions;
legedly discriminatory
employer

ethnic

and

against

al

of two

influ

particularly
a
for
that
became
growers,
program
pushed
guest-worker
a second,
of
the
features
small
acceptable
only
through
adopting
workers.
for
amnesty
temporary
In a settler nation, where
immi
nation building
has coincided with
who

Western

gration, immigration policy is a highly


which

pro-immigrant

policy-making.
ranks among

During
the more

interests

have

the first round


embattled

institutionalized

legitimate,
of the six-year

process, in

entrenched

role

in

IRCA saga, which


of recent times, the op

legislations
to the introduction
interest groups
of Hispanic
of employer
was
on
to
any legislation
key
preventing
temporarily
illegal
in
As
recommended
the
Select
Commission
the
1981,
immigration.
by
stick of employer
sanctions was to accompany
the carrot of amnesty.

position
sanctions

Unless
oned

itwas

illegal for employers


the Select Commission?the

viso was

not

to be beaten.23

to

employ
illegal workers?so
of
the infamous Texas
legacy

But because

formed

reck
Pro

the majority
illegal immi

Hispanics
in the U. S., any measure
illegal immigrants
against
as
senator
As Republican
grants must have appeared
anti-Hispanic.
a
re
Alan
ofWyoming,
leader of immigration
congressional
Simpson
of

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

274

WORLD POLITICS

form throughout the 1980s and 1990s, put it, "Any reference to immi
turns out,
to be a code word for
unfortunately,
em
to the
In their opposition
"anti-Hispanic"

or control
gration reform
ethnic discrimination."24

ployer sanctions, the Hispanic

lobby skillfully exploited the fact that

was
the slightest hint of ethnic or racial discrimination
over
in the era of civil
in
In
the
battle
fact,
rights.
employer

even

anathema
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
in the

able majorities

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 the
Hispanic

acceptable

Caucus."25

The Hispanics were joined by civil rights groups, who feared that the
of an employment

introduction

verification

(dubbed

system

a "national

ID card")would be detrimental to civil liberties in general, and lead to a


"culture of suspicion."26 This perception was
columnist
spectrum. A leading conservative

shared across

the ideological
of
the introduction

branded

con
an ID card as "this
generation's
largest step toward totalitarianism,"
to tolerate the
movement
aliens
that
is
and
"it
better
of
cluding
illegal
even criminals
than to tolerate the constant
of the free."27
surveillance
In his

refusal

Mazzoli

a vote

to have

on

the

second

version

of the Simpson

struck a similar chord: "Hitler did this to the Jews,

bill, O'Neill

them wear

you know. He

made

sition, which

linked the civil rights imperative of nondiscrimination

with

traditional

American

dog

antistatism,

tag."28 Against
the plan

such wide

of a standardized

oppo
em

ployment verification scheme had to be dropped. A first severe crack in


the control dimension of IRCAhad been inflicted.
During

the second
broke

their

round
initial

of IRCA, compromise-seeking
agricultural
the less compromise-prone
alliance with

employers
as the
a
ethnic and civic groups, but demanded
program
guest-worker
an
in
for
their
of
law.
control
The
support
price
immigration
growers'

satiable appetite for cheap immigrant laborwas equally disliked by

was
honest
but quixotic mission
Simpson, whose
in the national
interest: "The greed
law and policy

to craft

immigration
is
of the growers...

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

A27.

LIBERAL STATES8cUNWANTED IMMIGRATION


insatiable.

There

is no way

can be satisfied.

they

Their

entire

275
function

in life is thatwhen the figs are ready, the figs should be harvested and
need

they

four

thousand

human

to do

beings

third, more

that."29 A

drastic version of the Simpson Senate bill, introduced in spring 1985,


brought themoderate part of theHispanic lobby aboard by threatening
to drop the amnesty provision altogether. In this "final inning" of the
Simpson-Mazzoli

saga,30

the joint

energy

of

control

immigration

ad

vocates and of the ethnic and civil rights lobby focused on neutralizing
the growers'

initiative

for a guest-worker

program.

This

spearheaded by the later immigration foe PeteWilson,


can

initiative

was

then aRepubli

from California,
who
asked for an annual contingent
of
to
to
workers
harvest
for
nine
fruits
350,000
up
foreign
perishable
a year.
months
was liked
no one except
the idea of guest workers
Interestingly,
by
the growers, with
in mind.
the European
negative
firmly
experience
senator

to consist

of

beefing up the civil rights of the workers they asked for.Mediated

by

The

inevitable

with

compromise

the growers

thus had

trans
liberal Congressman
Charles
the eventual compromise
Schumer,
into a second amnesty. The
so-called
formed the guest-worker
program
a part of IRCA,
Schumer
which
became
permanent
proposal,
provided
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.

said an exuberant

Lawrence

"For the first


Fuchs,

time

"outsiders

in American
brought

temporary jobs would be given the full Constitutional


many

of the privileges

history,"
in to difficult,

protections and

of insiders."31

Signed into law in earlyNovember

1986, the Immigration Reform

a "left-center

Act was

the control
bill,"32 inwhich
certainly
to an end the Texas
IRCA im
visible.
aspect
barely
Putting
proviso,
on
a sanction
who
hired
scheme
knowingly
illegal im
posed
employers
a
to
and employers,
sanctions
concession
But in
Hispanics
migrants.
and Control
was

would be abolished if the General Accounting Office were to find dis


crimination
tantly,

or undue

IRCA included

on

in the future. Most


impor
employers
that
antidiscrimination
provision
far-reaching

burdens

29
Lawrence Fuchs, "The Corpse That Would Not Die:
of 1986," Revue
Internationales
Europ?enne desMigrations
30
1990. "The Immigration Reform
Aristide Zolberg,
ed., Immigration
spective,'' in Virginia Yans-McLaughlin,

The Immigration Reform and Control Act


6, vol. 1 (1990).
and Control Act of 1986 inHistorical
Per
Reconsidered (New York: Oxford University

Press, 1990), 326-35.


31
Fuchs (fn. 29).
32
Charles
Congressman

York Timesy October

Schumer,

quoted

in the New

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.
This

to the
"only expansion

amounted

whole
Of

of civil rights

in the

protection

era."33

Reagan
IRCA s dual

amnesty-sanctions

agenda,

only

the amnesty

compo

nent worked as intended. Nearly 1.8 million illegal immigrants applied


status under

for legal

the general

legalization

and 1.3 million

program,

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
less to the effectiveness

1988?attributable
and-see

than to await

of sanctions

1989 the illegal


among potential
response
immigrants?by
back to pre-IRCA levels.34 In 1993 the size of the illegal popu
as ten years
to be as
in the U.S. was estimated
high
ago?be
three and four million
persons.35

flow was
lation
tween

Why

did IRCAfail to control illegal immigration? A major reason is

a toothless

sanctions

resulted from the "odd coalition"


scheme, which
and employers.36
From early on, a good-faith
pressure
by Hispanics
clause had been inserted into the Simpson-Mazzoli
released
bill, which
from

any obligation
a document
check

employers
documents:
"affirmative

to check
conducted

the authenticity
in
good faith

of employees'
an
constituted
not

had
that the respective
employer
In effect, employers
hire" misdemeanor.37

defense"

the "knowing

committed

were

immune

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

some
been blocked,
twenty-nine
documents?including
to
so-called breeders?served
U.S.
faked
birth
certificates,
satisfy
easily
incentive was
affirmative-defense
the control requirement.
The positive
ID card had

a
incentive:
antidiscrimination
demanding
by
complemented
negative
an "unfair
a
ID constituted
related
immigration
employment
specific
were better off
the document
So employers
pas
accepting
practice."

sively offered by the prospective employee. As David Martin

put it,

33Swartz(fn.26).
34
to the United
and Jeffrey Passel, eds., Undocumented Migration
See Frank Bean, Barry Edmonston,
States (Washington,
D.C.: The Urban Institute, 1990).
35
in the United States and U.S. Responses,''
Demetrios
Papademetriou,
"Illegal Mexican Migration
International Migration
31, nos. 2-3 (1993), 314-48.
36
reason for IRCA's failure is that it does not even touch the problem of visa overstayers,
Another
to
"The Obstacles
which account for over 60 percent of the undocumented
population. David Martin,
of the Immigration Laws in the United States" (Paper presented at the
Effective Internal Enforcement
on German-American
and Refugee Policies, Cambridge, Mass.,
AAAS/GAAC Conference
Migration
March 23-26,1995),
37
Kitty Calavita,
(fh.l),71.

3.
"U.S. Immigration

and Policy Responses,"

in Cornelius,

Martin,

and Hollifield

277

LIBERAL STATES& UNWANTED IMMIGRATION


IRCA's sanctions
even

avoid

scheme

"tells

employers
of discrimination

an appearance

that

it is more

important
it is to wind up em

than

to

ploying unauthorized workers."38The civil rights imperative of nondis


crimination has obviously stood in the way of effective immigration
control.
As

Iwould

movement

like to argue in a second step, even the anti-immigration


to do away with
of the 1990s has been unable
expansive

client politics. The inability of political elites to deal effectively with il


legal immigration provoked the biggest anti-immigrant backlash in
In November

years.

seventy

passed Proposition
which

overwhelmingly

187, dubbed the "SaveOur State" (SOS) Initiative,

bar

health

most
by the

Transmitted

earthquake.

voters

Californian

most
in
services,
illegal aliens from
state-provided
care and education.
This was no less than a political

would

cluding

1994,

conservative

in half

Congress

control in the same

century, with both houses falling to Republican


was

felt inWashing
immediately
only of illegal, but also of legal immigra
to be in the
tion seemed
the clock back before 1965,
turning
making,
to mass
the legislative
of
Two years
America
immigration.
opening
a
to
tremor.
is
restriction
the
reduced
of
The
later,
earthquake
planned

November
ton. A

the aftershock

elections,
overhaul
sweeping

not

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

tion was watered

down

significantly.

Once

again,

client

came

politics

in

theway of "put[ting] the interests of America first."39


It is no accident

that the anti-immigrant

earthquake

had

its epicen

ter inCalifornia. Initially rural and peopled by thewhite farmers' flight


from the dust-bowl misery of 1930s Oklahoma, California not only
lacks
with

the "nations

of the East Coast


of immigrants"
cities,
nostalgia
more
im
but
of Liberty
and other new world
symbols,
it also is the residence of almost half of the estimated
national

the Statue

portantly,

total of four million


that they cost
gency medical
lion
aliens

in state
appear

illegal immigrants. The Urban Institute calculated


emer
in education,
the
mil
$732
this,

the state close

to $2 billion

per year

and

incarceration.

Against
and income

services,
revenues
from

sales, property,

taxes on

illegal

paltry.40

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

his sweep
to Cut Im

278

WORLD POLITICS

California epitomizes three problems of contemporary immigration


its extreme

to the U.S.:
costs

incurred

terms

of federal

federal
welfare

concentration;
regional
state governments,
while

some

by

taxes

and

the disproportionate
the main benefits
are

social

in

by the

security payments
reaped
and the increasing focus on immigration's
negative
labor-market
the
leaders
implications.
Accordingly,
Wil
staunchest
Pete
governor
supporter, Republican

government;
rather than

of SOS and
son, went

their

out of their way

to stress that
Proposition

187 was

not about

immigration control (which is the prerogative of the federal govern


but about a squeezed budget. The
crunch was real, given
ment),
budget
was
severe economic
most
that California
recession
its
just undergoing
war restruc
resulted from the post-cold
since the first oil crisis, which
turing of the U.S. defense
industry.

Itwas clear up front that Proposition 187, which openly defied the
v. DoeyA1 would
get stuck in local and
ruling in Plyler
Supreme Court
courts.
also supported by one-third
and the
federal
of Latino
However,
was
a
187
Asian
and
black
of
voters,
essentially
majority
Proposition
re
measure
so
to the
elites
who
had
evaded
symbolic
political
recklessly

alities and responsibilities for years.And ifCongress picked up the ball


at the national

level

the more

(this was

than

and eventually

Congress
on

mission

state

the restrictionist

uphold

of the

reasoning

symbolic

initiative leaders) the Supreme Court might

reconsider Plyler v. Doe

law.

indeed picked up the ball without delay. A federal Com


Reform

Immigration

immediately

drastic

proposed

changes

of existing immigration law and policy. Headed by Barbara Jordan, the


and spiked by liberal pro
black Congresswoman
from Texas,
in its final report
and academics,
the commission
immigrant
politicians

former

inMarch

1995 recommended that legal immigration should be cut by


the extended

one-third,

family

should

categories

be

scrapped

alto

gether, and employers should find itmore difficult and costly to hire
foreign

professionals.

Interestingly,
but
myth,

nation-of-immigrants
to be a nation
should continue
ported

also

Proposition

by

the Clinton

the commission
stated

that

did not

"the U.S.

touch

has been

of immigrants."42 But this proposal,


even further
went
administration,

187 and Governor Wilson,

the
and
sup
than

who had targeted only illegal

immigration.
41

In its Plyler v. Doe decision


(1982), the Supreme
a
grants have the constitutional
right to public school
political process under the sway of client politics, the
in the U.S. For the lack of space, I cannot
immigrants
"The Transformation
42
Barbara Jordan,

of illegal immi
to a
Plyler indicates that, in addition
legal process has bolstered the position of illegal
discuss this further here, but see Peter Schuck,
of Immigration Law," Columbia Law Review 84, no. 1 (1984).
"The Americanization
11,1995.
Ideal," New York Times, September
Court

ruled that the children

education.

LIBERAL STATES& UNWANTED IMMIGRATION

279

Regarding illegal immigration, the commission already in late 1994


a national

had advocated

verification

system, which would


of all citizens and
legal
it mandatory
and make
for em

employment
social security
to work
in the U.S.

the names

and

compile
aliens authorized

numbers

ployers to call it up before hiring new workers. The proposal stopped


a national

short of introducing

ID card, which

to be anath

continues

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

commission's

The

disguise.

were

recommendations

incorpo

rated in similarHouse and Senate bills, introduced by Lamar Smith, a


from Texas,
congressman
Republican
bills centered
around three measures:
the nonnuclear

family

and Senator
cut
and

categories

legal

reducing

Alan

Simpson.

Both

immigration
by slashing
skilled
immigration;

combat illegal immigration by screening the workplace more tightly


and fortifying

the borders;

in a windfall

and,

from

the parallel

congres

sional effort of welfare reform, making illegal and legal aliens ineligible
for most

public

services.

Hardly had the ink dried, when the machine of client politics was set
in motion.

An

unusually

broad

on

Coalition

"Left-Right

Immigration"

included not just the usually odd immigration bedfellows of employers


and ethnic and civil rights groups, but also theHome School Network,
a Christian

fundamentalist

group

sures to curtail

rallying against the antifamily


Americans
for Tax Reform, who

legal immigration;
with Microsoft,
Intel,
liked?along
Manufacturers?to
have employers

mea
dis

and

the National
Association
of
a
on
tax
each
pay
heavy
foreign
worker
and the National
Rifle Association,
upset by
they sponsored;
to
the employment
verification
system (If you're going
register people,
not
to the
Richard
the
chief
counsel
shouted).43
why
guns? they
Day,
Senate

Subcommittee,

Judiciary

"Washington
groups" against
for "some breathing
space" from
as client
migration
politics.
The

first

success

characterized

this unusual

"the American

who

immigration.44

of the client machine

was

as
line-up
had asked

people,"
Such is the logic of im
to

split

the omnibus

bill

in two.The machine was helped in this by divisions within the Repub


lican Party. A

large

section

of free-market

and family-value

Republi

cans (such as Jack Kemp, William Bennett, and Dick


Armey) favored
In
from
addition, Republicans
California, where the
legal immigration.
problem

of illegal

immigration

was most

pressing,

feared

that rifts over

43

"The Strange Politics of Immigration," New York Times, December


31,1995.
44
over
Plan," New York Times, October
"Unlikely Allies Battle Congress
Anti-Immigration
1995.

11,

WORLD POLITICS

280

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 postpone

on

legislation

legal

immigration

and to concentrate

on ille

gal immigration first.The "big one" had suddenly shrunk to a smallish


tremor.

immigration

Only

a few months

earlier,

Republican

Lamar

Smith had boasted that "the question is no longerwhether 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
After
lobby

an angry
wrote
foe.46
immigration
opinion,"
the omnibus
bill, the effort of the pro-immigration

than public
cracking
concentrated

on

smoothening

some

drastic

features

of the re

maining bill on illegal immigration. One target was the proposal for a
mandatory,
a libertarian
Senator

verification
system, denounced
by
employment
"47
An amendment
'1-800
Brother.'
by
"dialing
Big
down the proposal, which was to be
Kennedy watered

nationwide,
critic as

Edward

to a
in
variety of voluntary
pilot programs
eight years,
after three years.
states, to be reviewed by Congress
high-immigration
new
meant
that
there would
without
The weakened
legislation,
proposal
an
was
This
be no nationwide
verification
system.
impor
employment
on Immi
tant step away from the recommendation
of the Commission
national
which
had called a mandatory
verification
Reform,
gration
in

place within

an
In addition,
system the linchpin of combating
illegal immigration.
a
Orrin
amendment
Senator
Hatch,
pro-immigration
Republican
by
a
in fines against
increase
from Utah,
eliminated
hefty
employers who
owners.
for
small
business
hired
aliens?a
victory
knowingly
illegal

When
signed into law by President Clinton in early October 1996,
the "Maginot line against illegal immigration"48 looked more like a
Swiss

cheese, with

big holes

eaten

into it by America's

clients

of immi

gration policy. The drastic Gallegly amendment in the House (named


after its sponsor, California Republican Elton Gallegly), which would
states

to bar the children

from public schools


of illegal immigrants
turn into national
law California's
and thus would
187, was
Proposition
veto.
from the final bill, also because of a safe presidential
dropped
to fix
is
verification
A watered-down
system
unlikely
employment
allow

the biggest deficit in illegal immigration control, ineffective workplace


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

281

LIBERAL STATES& UNWANTED IMMIGRATION

in the new law


and employer
sanctions. The control
screening
impetus
thus boils down to stricter border enforcement;
the number
doubling
of border patrol agents to ten thousand
2000:
the
the
year
by
requiring

Service (INS) to build a fourteen-mile

Immigration and Naturalization


long,

ten-foot

high,

fence

triple-steel

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
operations,

or "Hold

"Gatekeeper"

the Line,"

the Clinton

administra

tion had cleverly preempted Republicans from monopolizing


discourse during the 1996 Presidential
migration-control

the im
election

means
it chooses,
the
It must be conceded
that, whatever
campaign.
to
United
States can perhaps never expect to reduce illegal immigration
zero. As Peter Schuck
nation
"A
with
vast, prosperous
correctly noted,
values and a 2,000-mile
border
strong due process and equal protection

with

the Third World

hope

to manage

cannot eliminate illegal migration;


are that

it."49 Chances

the Immigration

it can only

Control

and

Financial Responsibility Act of 1996 will not be of much help in ac


complishing

this task.

Family
Whereas

America's

debate

in Europe

Immigration
about

illegal

immigration

is alive and evolv

ing every day, Europe's debate about family immigration is historically


on both
a fundamental
in immigration
difference
closed,
reflecting
a
recurrent
In the United
is
sides of the Atlantic.
States,
immigration
even
severe
most
in
the last
backlash
the
Not
process.
anti-immigrant
mass
to
immi
and
the
Golden
has
slam
Door,
seventy years
managed
continues
unabated.
and
By contrast,
Europe
gration
(legal
illegal)
over twenty years ago. Postwar
im
closed its doors to new immigration
a nonrecurrent,
to
has
been
unique pro
historically
Europe
migration

cess, with immigrants acquired not by will, but by default.


The

family

became

colonial

immigration,
ual rights of migrants

and post
the site for closing down guest-worker
vectors of the individ
the opposite
states to admit or reject
and the right of sovereign
torn between

aliens. In this, European family immigration differs from American


family immigration, which is defined in the language of quotas, not
rights,

and has become

the chief mechanism


states did not

immigrants.
European
of the spouses and children,

not

new wanted
of acquiring
solicit the belated arrival

actively
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

acceptance

in terms

be understood

no entrenched pro-immigration
United

States.

the

After

to

shift

of client

is

There

politics.

lobby in Europe comparable to the


zero-immigration

from

policies

the

late 1960s to early 1970s, the European politics of immigration became


national

interest
client,

strongest

now

States

politics.

uniformly
in cheap
interested

employers

their single
disregarded
labor, and acted
foreign

on behalf of collective goals such as social integration or the integrity of


nationhood. The immigration that still occurredwas as of right ormorally
a state that would

tolerated
pen

It pitted
immigration.
the
against
immigrant who

unity.
deny?family
In handling
family
of
and
guage
primary
United

States.

worker

regime,

only

immigration,

sought what
European

secondary

immigration
is actively
immigration

Primary
or
passively

tolerated

in a

rather not

states

liberal
states

that

see it

accepted
is unknown

hap
cannot
a lan
in the

as in a
guest

recruited,
as
in the absence of restrictions,
occurs after the re
immigration

regime. Secondary
postcolonial
cruitment
in recognition
of restrictions,
of the
stop or the introduction
state there is a
of
In
each
family rights
immigrants.
primary
European
core of
such as South Asians
historically
primary
particular
immigrants,
or Afro-Caribbeans
a
in Great Britain or Turks
in Germany,
for whom
moral
elaborate
discourse
of
and
evolves.
specific,
rights
obligations
states to act
This
and gen
approach has allowed European
humanely
once
those
the door to every
admitted, while
erously toward
slamming
one

else. In this sense, the principle


of source-country
and
universalism
of not addressing
the ethnic composition
of migrant
streams,
saw
across liberal states, has not
which
Freeman
established
universally
were
established
itself in Europe.50
Primary
immigrants
simply sub
to the
as usual;
not trans
nation
of
did
jected
exigencies
building
they
into self-conscious
form Europe
nations of immigrants. Thus,
toward
the norm

the outer

layers of secondary

(or even

tertiary)

immigration,

the sense

of moral obligation and the family rights of migrants had to become


successively weaker.
gration would have
immigration

would

In the absence
forever
have

of such gradations,
immi
primary
new
nonrecurrent
off
and
spun
immigration,
turned into recurrent
U.S.
immigration,
style.

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

liberal

& unwanted

immigration

283

in Germany

Generous
A

states

in scholarly writings
about German
immigration
tendency
the state for its "not a country of immigration"
philosophy,
so
immi
No
the
denies
country's
immigration
reality.51
patently

tiresome

is to chastise
which

ever contradict
it is
because
the state's philosophy,
reality could
gration
a normative
statement
Bonn Republic's
the
self-description
reflecting
as a homeland
in communist
East
of the subjugated German
diaspora
ern
formula was
In fact, the not-a-country-of-immigration
Europe.52

introduced when fourmillion foreigners already resided in (West) Ger

does
many and showed no signs of leaving. Only
against this backdrop
unre
make
the philosophy
any sense at all. Further
complicated
by its
more
solved national
articulated,
only
extremely,
question,
Germany
of immigration.
countries were?not
countries
all European
on
German
A second shortcoming
of scholarly writings
immigration
a
on the
is their fixation
process,
grim picture of de
drawing
political
as
state. That perspec
of a repressive
facto immigrants
hapless victims
al
of the legal process, which
tive overlooks
the pivotal
importance
to turn into settlers with
lowed guest workers
permanent-resident

what

rights

and even

to grow

in numbers

family immigration.
To be sure, the invocation
unfettered

constitutionally

protected

rights for guest workers


law that enshrined
of an immigration
no
to
and conceded
rights whatsoever

of constitutional

the backdrop
against
executive
discretion

occurred

through

the foreigner. Paragraph 2(1) of the Foreigner Law of 1965 stipulates:


of the foreigner
does
permit may be issued if the presence
Residence
of the Federal
the interests
permits
Republic."
were
issued for a year, on a renewable
basis, but initially there were no
than temporary
for more
stays on German
territory. Before
provisions
"A residence

not harm

of 1978,
regulation" ??ufenthaltsverfestigung)
not stabilize,
the foreigner's
but jeopardized
long-term
status because
the official "no-immigration"
it contradicted
policy. Fol
of the for
conceived
the logic of a guest-worker
regime, which
lowing
as a return-oriented,
of
carrier
of
labor
isolated
power, devoid
eigner
no
De
reunification.
rules
for
ties,
family
originally
provided
family
the so-called

"permanence
did
residence

tailed rules for reuniting foreign families were not devised before 1981,

and their
after

thrust was

the recruitment

51

to close

major

source

of unwanted

immigration

stop.

See Thomas
Faist, "How to Define
52
"Ausl?nderrecht
Kay Hailbronner,

(1983), 2113.

no. 2 (1994).
Foreigner?" West European Politics 17,
und Verfassung," Neue Juristische Wochenschrift
36, no. 38

WORLD POLITICS

284

For
of government
years, the political branches
twenty-five
managed
an archaic
to escape their
to
Law to the
adjust
responsibility
Foreigner
new
and to replace the rule by adminis
reality of de facto immigration

trative decree by the proper rule of law.An activist judiciary stepped


into this vacuum,
and expansively
and defend
aggressively
interpreting
on
so
could do
the basis of a consti
ing the rights of foreigners. They
tution that drew two fundamental
lessons from recent German
history:
first, to subordinate
to grant the most
tionality. The
human
rights,

state power
fundamental

first

seven

independent

to the
and second,
rights of individuals;
to na
of these rights without
respect
articles of the Basic Law protect
universal
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
and "protect" the dignity
of the individual.
In a
state tradition,
from
the Ger
Germany's
departure
"strong"
Basic Law puts the individual first, the state second; it is conceived

state

the

to

"respect"

conscious
man

in the spirit of limiting state sovereignty by individual rights.


a series of Constitutional
these grounds,
Court
rules obliterated
the official
In the so-called
policy.53
"not-a-country-of-immigration
case of 1973,
an immediate
Arab
the court invalidated
deportation
On

contacts with
ter
accused of harboring
against two Palestinians
rorist groups,
that
constitutional
the
had
arguing
plaintiffs
liberty rights
that outweighed
the public
interest in their immediate
removal.
In the
so-called
Indian case of 1978, the court repealed a lower court rule that
to an Indian who
had affirmed
the nonrenewal
of a residence
permit
order

since 1961. Instead,


the court ar
continuously
routine renewal of residence permits had created
gued that the previous
a
on part
"reliance interest" {Vertrauensschutz)
constitutionally
protected
of the plaintiff
in continued
residence. Against
this reliance interest, the
had

lived

official
dence

in Germany

no-immigration
permit renewal

policy
it is not

was moot:
sufficient

"For a
to

of the resi
rejection
to the
general maxim

point
is no country of
Republic
immigration."54
were
Once
the residence
secured,
rights of guest workers
stitutional
Court
turned to the issue of family reunification?a

that the Federal

the Con
much

trickier terrain. It did not involve the rights of established residents but
of new residence
Since
the recruitment
granting
permits.
of families of guest workers was (next
stop of 1973, the chain migration
to
one of the two
avenues of
flows
asylum)
major
continuing
migration
the

New

initial

53
See Gerald L. Neuman,
and Judicial Review
"Immigration
York University Journal of 'International Law 23 (1990).
54
Decision of 26 September 1978 (1 BvR 525/77),
186.

in the Federal Republic

of Germany,"

LIBERAL STATES& UNWANTED IMMIGRATION


to

Germany,

in patent

to the official

contradiction

icy.55Since December

no-immigration

285
pol

1981, the federal government has recommended


states

spouses
severely restrict the entry of foreign
was to
Such family reunification
guest workers.
an
residence minimum
of the resident
eight-year

that the responsible


of second-generation
be contingent
upon

spouse and a postmarriage


restrictions were
imposed

no
one year.
By contrast,
period of
waiting
on
The
fed
workers.
guest
first-generation

eral government defended this differential policy before the Constitu


tional Court

on moral

grounds:

"Because

of its recruitment

of foreign

workers the Federal Republic has accepted a special responsibility to


wards

the recruited;

spanning
federalism,
tions on

it has not obliged


itself to accept a generation
of German
of family members."56
Typical
the
federal
recommenda
{L?nder) implemented

but

immigration
the states

unevenly.
immigration
highly
marriage
second-generation
to five years; restric
Hesse
lowered the residence
requirement
to three years;
the waiting
tionist Bavaria
increased
period for spouses
the
elite
broke
and hyper-restrictionist
existing
Baden-W?rttemberg
ex
consensus
not
of
immigration
by
marriage
limiting first-generation

Liberal

the three-year
tending
workers.
guest

waiting

period

from

second-

to

first-generation

In theTurkish and Yugoslav case of 1987, the Constitutional Court


stopped short of recognizing a constitutional right of family reunifica
to Article
deci
6 of the Basic Law.57 In a complicated
tion, according
to control
a reluctance
to restrict the state's
sion that betrayed
capacity
a
source of unwanted
6
the court held that Article
immigration,
major

(which protects the integrity of the family) did not imply a constitutional

right of entry for nonresident


nonresident
proportionality,

spouses. But
family members

to the
of
according
principle
still possessed
family rights

under Article 6 that foreigner law and policy had to respect.58 In this
court
residence requirement
the challenged
eight-year
upheld
light, the
measures
were neces
these
that
and the one-year waiting
rule, arguing
to
of
the resident
economic
and
the
social
sary
guarantee
integration
55
inWest Germany
fell from 2.595 mil
Between
1973 and 1980, the number of foreign workers
lion to 2.070 million; during the same period, the absolute number of foreigners increased from 3.966
1880-1980
to 4.450 million. Ulrich Herbert, A History
million
(Ann
of Foreign Labor in Germany,
Arbon University
of Michigan
Press, 1990), 188. Because the number of asylum seekers was small be
can account for the increase.
fore 1980, only family reunification

56
Quoted inDecision of 12May 1987 (2BvR 1226/83,101,313/84), p.33f.
57

Court thus did not go as far as the French Conseil d'Etat, which
The German Constitutional
(in
in a famous 1978 decision.
effect) recognized a constitutional
right of family reunification
58
had rights under the Constitu
The Court thus argued that even aliens not residing inGermany
tion. As Neuman
(fn. 53) notes, this went far beyond the most generous rulings of the U.S. Supreme
Court regarding the rights of aliens.

WORLD POLITICS

286

and to prevent
sham marriages,
But
the court
spouse
respectively.
struck down Bavaria and
rule
three-year waiting
Baden-W?rttembergs
as
and
destructive
of
young marriages.
disproportionate
Interestingly,
the court criticized
extension
of the
especially
Baden-W?rttembergs
three-year

rule to the first generation,

waiting

it violated

because

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 development

process.

may

be read as the successive

canceling

out of

drastic solutions, culminating in the liberalized Foreigner Law of 1990.


rested not just on a negative
of legal
recognition
consensus
but on an emergent moral
the
among
political
re
to cope
with
the consequences
of the guest-worker
humanely

This

liberalization

constraints
elites

cruitment.
moderate

consensus

That

ical moments

when

and centrist
after

Immediately

in three crit
forged and reinforced
as
to a
solutions
emerged
competitors

became

drastic

foreigner policy.
the recruitment
stop of November

led federal government

1973,

the SPD

declared that "no legally employed foreign


to return home," while
the proposal
rejecting
set
terms
the
for the strictly vol
system.59 This

shall be forced

worker...
to introduce

a rotation

the return migration


of unem
inducing
especially
were
schemes
that
from
France
without
ployed guest workers,
copied
success in the
a "reason
much
1980s.
A
for
early
right-wing
proposal
rotation
able and humanitarian
system" emerged
during the first soci
schemes

untary

of

in the early 1980s,


debate
the minister
guest worker
ety-wide
allowing
of the interior to make
the moral obligation
toward the guest workers
In
have not come here spontaneously.
explicit: "[The foreign workers]
...
we
have brought
them into this country
since 1955
if
Even
stead,
are without
we have
jobs,
they
obligations
was the conservative
ical moment
crusade
tion

of

minister

children
under

six years,
fought
the new Kohl government,
above

them."60 A

third crit

against the family


by the hard-line

immigra
interior

toward

Friedrich

Zimmermann

(CSU).Aside from being constitutionally questionable, this drastic pro


posal

the threshold
of the morally
or
in
North America,"
Europe

crossed

country

"No comparable
acceptable.
Commis
said the outraged

sioner for Foreigner Affairs Lieselotte Funcke (FDP), "would condone


such a family-hostile

proposition."

Pointing

at the moral

59
November
9,1974.
60Frankfurter Allgemeine Zeitung,
Gerhard Baum (FDP), quoted inDas Parlament 32, no. 9 (1982).

impossibility

287

LIBERAL STATES& UNWANTED IMMIGRATION

of implementing thismeasure, her colleague Burkhart Hirsch (FDP)en


visioned "with horror what would happen here if an older child who
a visit was
from its parents
and thrown
overstayed
forcibly
separated
out of the
veto
FDP
Genscher,
by Hans-Dietrich
country." An unusual

chief and foreign minister for whom opposition to the interior minis
ter's illiberal foreigner policy became a litmus test of party identity
within

the new

coalition

government,

the proposal.

buried

The new Foreigner Law of 1990 only put into lawwhat administra
tive and

constitutional

country-of-immigration
of encouraging
objective

court

not-a
The
long established.
to be found in its text. The
is nowhere

rules had

formula

the return 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
to constitutional)
and
residence
(in addition
statutory
even
went
In
the
law
several
respects,
beyond
existing ad
family rights.
and
ministrative
period for second
legal practice. The one-year waiting
eigners

now have

marriages,
okayed by
In addition,
spouses
of
residence
rights, independent
third-generation
foreigners who

generation
abolished.

given

the

workings

in 1987, was
their own
granted
the head of family. Finally,
second- or
had temporarily
returned home were

the Constitutional
and

measures
to return. These
right
not
of moral
obligations,
just of

Court

were

children

indicate
legal

the

constraints.

independent
The new

Foreigner Law sticks to the old premise of wrapping up a historically


unique
ization
eigner

immigration
as
possible

episode, while perhaps


within
the inherently

as much
containing
limited
framework

liberal
of

"for

two

con

policy."

Firm in Britain
In Britain

also,

family

immigration

has been

subject

to the

flicting imperatives of controls and rights: closing down a historically


the family rights of im
respecting
episode, while
immigration
case the
came to
in
But
the
German
whereas
migrants.
rights
predom
case the
in
inate over the controls
the
British
opposite
imperative,
unique

are at least two reasons for this outcome:


the pecu
happened.61 There
awritten
and
the
absence
liar character of postcolonial
of
immigration

constitution protecting individual rights.


has been, from
immigration
its political
processing
Accordingly,

Postcolonial
gration.
61
This

immi
the start, unwanted
can at no
point be under

is recognized in the literature as the "exceptional" efficacy of British immigration control. Gary
even argues: "The British experience demonstrates
that it is possible to limit unwanted
immi
and Hollifield
(fh. 1), 297.
gration." Freeman, 1994b. "Britain, the Deviant Case," in Cornelius, Martin,

Freeman

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
to

In contrast

policy.63

Germany

or France,

the first oil crisis marks

no

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 initial
This

to

approach

immigration
to the illusion

long

was

of an empire

passing of the first Commonwealth


million

subjects

of

the Crown,

in which

was

similar.
strikingly
too
elites
who
stuck
by
the sun never sets. Until
the

immigration
postcolonial
at best
tolerated
passively

Immigrants Act in 1962, some 800


inhabiting

one-fourth

landmass, had the right of entry and settlement


hostile
modern

most
dramatic
secular decline
that a
by the
aggrieved
had ever gone
shook the elites out of their
through,
As if to compensate
for past inattention,
successive Tory
to
stern
alike
have
since
stuck
the
governments
imperative

that New Commonwealth


but

the earth's

public,
nation

complacency.
and Labour
moral

of

in Britain. Only a

immigration had to be stopped. A sense of

even

not been
obligation,
guilt, has
it has been channeled
into the buildup

absent among
of an elaborate

British

elites,
race relations

never known an active


immigration
regime. British
policy has
phase of
it has been from the start a negative
control policy to keep
recruitment;
out. Directed
tout court,
against unwanted
immigration
immigrants

British

immigration policy has been only weakly affected by moral

considerations.
Nor

it been mellowed

has

reason

is the second

why

constraints,
by legal-constitutional
over the
the controls prevailed
rights

which
impera

tive inBritish family immigration policy. In Britain, which lacks awrit


ten constitution

and the principle


of legal review, there has been little
the
branches
of government
blockading
political
by recalcitrant
courts.
is
in Parliament,
and
invested
firmly
Sovereignty
unequivocally
no
to
which
its lawmaking
knows
constitutional
limits
In im
powers.
of

entails a dualism of ex
arrangement
executive
in the absence
and
closure, which,
openness
legislative
to the interests of
is detrimental
of a client machine,
Par
immigrants.

migration
treme

policy,

this institutional

in the formulation
of immigration
openness
policy keeps
restrictionist
within
the confines
of a pervasively
public
a
Once
closure
policy has been decided upon, there is executive

liamentary
lawmakers
opinion.

in its implementation, with theHome Office firmly and uncontestedly


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

289

LIBERAL STATES& UNWANTED IMMIGRATION


in

charge.

In the orthodox

view, Britain's

"political

constitution"64

is

good

for democracy because it lets elected officialsmake decisions that, in other


in practice
it entails executive,
rather
systems, unelected
judges make. But
or
it
with
than
and
leaves
with
minorities,
sovereignty,
parliamentary
out
to the whims
of the majority.
vulnerable
extremely
citizenship,
over the
in
the controls
of
The
rights
imperative
predominance

British family immigration policy can be demonstrated along the fate


its abolishment in
of Section 1(5) of the 1971 Immigration Act?until
in
It secured for all
British
law.
the
1988,
immigration
only family right
New Commonwealth men legally settled in Britain before 1973 the
right to be joined by their nuclear family from abroad,without any state
thus expressed
Britain's
and
special moral
it
when
its
However,
primary
legal obligations
immigrants.
came into the way of
Section
1(5)
secondary
immigration,
controlling
was
a
vote in Parliament.
abolished
by
simple majority
simply
interference.65

Section

1(5)

toward

story of the slashing of Section 1(5) is amost extraordinary

The

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
and fianc?s of fe
the foreign husbands
government
against admitting
treatment
to Britain.
male
of men and
Such
immigrants
asymmetrical
an
women
law shot
drastic
of
is only a more
immigration
example
on the
sex discrimination,
that
the wife
with
premise
through
operating
as head of the
was. But most
im
should be where
the husband
family
thus blurring
and fianc?s were male
husbands
immigrants,
portantly,
were
the line between
Husbands
and
secondary
primary
immigration.
a strained
as stealth
labor
primary
immigrants,
crowding
perceived

market. Accordingly, theMinister of State defended his new immigra


tion rules of 1979-80, which barred foreign husbands and fianc?s from
settlement

in Britain:

"We have

particular

cut back

aim?to

on

pri

male

mary
When
review
band

immigration."66
on Human
the European
Commission
the cases of three British
immigrant wives

rule, the British

government

responded

with

Rights
harmed
a

for
accepted
the
hus
by

prophylactic

rule

The Modern Law Review 42, no. 1 (1979).


"The Political Constitution,"
64J.A. G. Griffith,
65
Section 1(5) of the 1971 Immigration Act stipulated: "The rules shall be so framed that Com
at the coming into force of this Act and their wives
monwealth
citizens settled in the United Kingdom
in the rules, any less free to come into and go from the
and children are not, by virtue of anything
United Kingdom
than if this Act had not been passed."
66
in P. Thornberry,
"Seven Years On: East African Asians, Immigration Rules and Human
Quoted
Rights," Liverpool Law Review 2 (1980), 146.

290

WORLD POLITICS

change in 1982-83. Whereas


rules exempted
ther born or

from

(in racially discriminatory intent) the old

the husbands

ancestrally

related

ban only (white) "patrial" women


to the U.K.,
the new rules allowed

ei
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
still remained
settled, noncitizen
immigrant
never
their
husbands.
there
has
been a con
However,
separated
was
a new re
not offset
in British
that
cession
by
immigration
policy
a
the old immigration
rules contained
elsewhere.
striction
Already
ex
women
were
to those
who
number of "safeguards"
applied
patrial
because

matter,

from

empted from the husband ban: most

importantly, they and their

was
to prove that the
spouses
"primary purpose" of their marriage
were
not
In
the
1982-83
these
rules,
immigration.
safeguards
tightened
had

through shifting the burden of proof from the state to the applicant.
its venomous
rule could unfold
now, the primary-purpose
pow
Only
the perfect
the government
tool to close the loop
with
ers, providing
front.
hole that had opened up at the sex equalization

Predictably, the European Court of Human Rights, in itsAbdulaziz,


Cabales and Balkandali landmark decision ofMay 1985, found that the
sex. The
on the
rules were discriminatory
ground of
immigration
remove
trace
to
the
last
of sex
the
rule forced
government
Strasbourg
rules. As Home Minister
Leon
from its immigration
discrimination
1980

Brittan
two

reckoned

in the House

sets of choices.67 The

of Commons,
the government
faced
or
between
"narrowing"
"widening"
in
settled immigrant men from bringing

first was

rule: to prevent
their spouses, or to permit
settled immigrant wives
the government
would
Narrowing
imply dishonoring
the husbands

to

bring in theirs.
to
commitment

the family rights of settled immigrant men, enshrined in Section 1(5).


But in that case, the
the government
opted for widening.
Accordingly,
two thousand more
annual intake of an estimated
additional
immigrant
husbands
had to be offset by new safeguards. That decision
predeter
or "ex
the government's
second choice between
mined
"abandoning"
to
tests
tests. To
currently
applied
drop the
to strict
be to go back on our firm commitment
to be
control." But if the tests were
kept, the mandate
immigration
men and women.
was
to
to
of the Strasbourg
rule
apply them equally

tending"
husbands

its marriage
only "would

As the home minister concluded his sharp syllogistic exercise, "[W]e


cannot
giving

Court
expect the European
treatment
wives
preferential

67Parliamentary Debates,

Commons,

...

to endorse

vol. 83 (1985),

by

not

making

cols. 893-96.

the continuation
them

subject

of
to

291

LIBERAL STATES& UNWANTED IMMIGRATION


the same

a Labour

railed against
front-bencher
one
must
the government's
and
vindictive
admire
course,"68
"spiteful
court indictment
the cleverness
of turning a European
into a means
of
even firmer
control.
immigration
As

While

requirements."

sharp

as it
appeared,

the home

minister's

syllogism

was

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 Section
1(5) was
safeguards. As long
the
rule, could
primary-purpose
cluding

in force, the marriage


tests, in
men
not be used on
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 the one bit of
ilege. Accordingly,
generosity
to
the
rule was a chimera.
response
Strasbourg

in the government's

Because Section 1(5), which finally stood in the way of full sex
equality inBritish policy on secondary immigration, had the status of a
statutory

right,

it could

be removed

only

through

change

of statutory

successfully removed Section 1(5) in

law.The 1988 Immigration Act

law in seventeen
years. Marked
by lit
change of immigration
or
an
of
Section
the
was,
1(5)
nonetheless,
protestation,
repeal

the first
tle noise

extraordinary event; it had been the only family right that had existed
in British

under massive
law. Only
pressure,
including
immigration
rule
the House
of Lords, had it been elevated from discretionary
to statutory law in the 1971
Act.
Successive
governments
Immigration

from
had

reaffirmed

But

to honor

their commitment

all rights are relative

in British

this right.
as
the painless
law,

removal

of Sec

tion 1(5) by a simple parliamentary majority epitomizes. In dropping it,


the one moral
commitment
it had un
the government
also abandoned
its primary New Commonwealth
dertaken vis-?-vis
immigrants.69 Now
no
limit to the sway of firm immigration
there was
control, affecting even

ordinary Britons. Section 1(5) had so far protected white patrial men
from

the excrutiating
too. The
immigration

marriage
tail came

were
subject
they
the vast nonimmigrant

tests. Now
to beat

to them
rest.

Conclusion
"Can
recently

liberal

states

asked.70 His

control
answer

unwanted
was:

yes,

Gary
migration",
but, it depends?yes,

Freeman
because

68
Gerald Kaufman, quoted in ibid., col. 901.
69
Renton
of State Timothy
by
sought to soften this break of commitment
Interestingly, Minister
out that those who now profited from Section 1(5) had been infants in 1971: "Those who are
pointing
are not those who were adult males at the time of the 1971 Act but
receiving the benefit of section 1(5)
the young children who had then just been born.* Renton, quoted in Ibid., col. 856.
70
Freeman (fh. 2).

292

WORLD POLITICS
states

modern

of considerable

dispose

infrastructural

powers

that have

not diminished, but increased over time; it depends, because capacity


varies

across

Such

attention

and across

states

to context

swer of the yes-or-no


Freeman's
Turning
in the cases
ally do

variety.
1994 question

that liberal

so. That

to control.
the type of migration
subject
a
an
and detail precludes
quick and generic

liberal

states

accept
states do so on a

edged in Cornelius, Martin,


a

identifies

growing

this article

around,
unwanted
large

and Hollifield's

gap between

explored

why,
actu

immigration,
they
scale has been acknowl

"gap hypothesis," which

restrictionist

policy

intent

and an ex

pansionist immigration reality.A variety of globalist analyses explained


this gap in reference to an externally
conditioned
decline of sovereignty.
views
of
mobilized
and par
These
analyses offered generic
immigrants
the actual mechanisms
that make cer
alyzed states, without
identifying
tain states

certain

accept

types of unwanted

immigration.

the diagnosis of globally limited sovereignty, this article

Against

an alternative
start
of self-limited
sovereignty,
suggested
diagnosis
the
with
interest
Freeman's
observation
that
of
group pol
dynamics
ing
in liberal states makes
itics ("client politics")
them inherently
expan
is only one pillar
sionist vis-?-vis
But the political
process
immigrants.
a
one that is
of self-limited
sovereignty,
fully entrenched
only in classic
settler

States.

had

like the United


regime,
client politics
only until

the oil

regimes
European
guest-worker
crisis, and a pure postcolonial

regime (like Britain) never had it.Thus, other factors must be respon
sible

if such

states

legal constraints

accept unwanted
in combination
with

In European
states,
immigration.
moral obligations
toward histor

the logic of client poli


immigrant
ically particular
populations?not
tics?account
for continuing
(family)
immigration
general
despite
are
constraints
But these legal and moral
policies.
zero-immigration
across
states.
distributed
with
highly
unevenly
Germany,
European
both a strong constitution
human
and
the moral
celebrating
rights
an extreme
case of self-limited
sov
is
burdens
of a negative
history,
one of the most
it
ereignty, making
expansive
immigrant-receiving
countries

in the world.

immigration
but
world,
citizens.

more

Britain

has managed
than any other

effectively
at the cost of
trampling

on

to contain

unwanted

in the Western
country
own
the family
rights of her

the risk of stating a tautology,


unwanted
is
accepting
immigration
in the liberalness
the hegemony
inherent
of liberal states. Under
of the
At

United

States, liberalism has become the dominant Western

idiom in

293

LIBERAL STATES& UNWANTED IMMIGRATION


the postwar
period,71
and the rule of law. At

indicating
the same

human
respect for universal
semantics were
time, nationalist

rights
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
course"
sis these

around
liberal
states

Western

the world.

It is therefore
now

principles
that are reduced

strange that in globalist


analy
as external
on
constraints
reappear
to the nationalist,
sovereignty-clinching

caricatures they perhaps had been hundred years earlier, in the high
noon

of

imperialism.

Among

the global

factors

either

absent

or inef

fective in this discussion of the political and legal processing of un


wanted
perhaps
discourse.
that has

has been the "international


immigration
the single most
inflated construction
Of

its absence
course,
to be demonstrated.

may

human
in recent

be the flaw

rights regime,"
social science

of this analysis.

But

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