Immigration

Susan Sterett, Susan Sterett

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351928519
• Edition: 1
• Topic: Droit
• Subtopic: Droit de l'immigration

Whilst immigration policy is a highly controversial topic in the West, states continue to receive people who settle, whether as asylum-seekers or refugees, or as family members of existing migrants or labour migrants. Many who move violate the immigration rules either in entering a country or staying beyond the time allowed. The problems illegality entails for migrants shape much of the law and society scholarship in this area and this volume brings together the key articles which shape current thinking. The main topics covered include illegality, mercy and the language of deservingness; transnationality; family and identity; refugees and asylum-seekers.

Part I

Illegality, Mercy and the Language of Deservingness

[1]

Opposing Prop. 187: Undocumented Immigrants and the National Imagination

Linda S. Bosniak^*

* Associate Professor of Law, Rutgers Law School-Camden. B.A., 1980, Wesleyan University; M.A., 1988, University of California-Berkeley; J.D., 1988, Stanford Law School. For their very helpful critical readings of earlier drafts, I want to thank Alex Aleinikoff, Perry Dane, Richard Delgado, Karen Engle, David Frankford, Hiroshi Motomura, Judy Rabinovitz, Jamie Raskin, Peter Spiro, Allan Stein and members of the Faculty Workshop at New York University Law School. Thanks are also due to Lina Avidan and Robert Rubin for extremely useful conversations about Prop. 187 and its associated campaigns, and to Josh Byrne and Gueneviere Van Best for excellent research assistance. I was supported during the writing of this article by a summer research grant from Rutgers Law School.

“Political imagination is, almost always, national imagination.”¹

I. INTRODUCTION

Among the many bruising battles engendered by the recent immigration wars in this country, the battle over California’s Proposition 187 has touched an exceptionally deep nerve. Approved by the state’s voters in 1994, this “anti-illegal alien initiative” will—if the courts uphold it—deny health care, education and other public services to undocumented immigrants and require social service providers to report any service user they suspect of undocumented status to law enforcement authorities.² Support for Prop. 187—and now for its progeny in other states³—has been wide and deep; in fact, these measures have served to mobilize reserves of mass disaffection with immigration the likes of which have not been seen for nearly eighty years.⁴ Despite the substantial popularity of such measures, however, political liberals and progressives have almost uniformly opposed them, finding them wrongheaded as a matter of policy, and often offensive as well. Prop. 187 has become, for its critics, a symbol of the excesses of the current wave of anti-immigrant anxiety in this country, and the shorthand for a dangerous politics of ressentiment.⁵

Much has been said elsewhere about the nature of the Prop 187 enterprise, including the nature of the support it has received.⁶ My concern in this article is, instead, with its critics. The question I want to examine, in general terms, is this: What is the basis for the deeply-felt antipathy toward Prop. 187 and similar restrictionist efforts among the initiative’s opponents? What, precisely, do the critics understand to be wrong with Prop. 187? And how far does their aversion to such measures extend?

During the course of the “No On 187” campaign, activists set forth a variety of compelling objections to the proposed initiative. Sometimes the organizations that worked against it disagreed over how to articulate the arguments; their divisions were often divisions over strategy, though at times they diverged over principle as well. In the end, however, there was a striking uniformity in what most critics said, and correspondingly, in what they did not say, when opposing the initiative. In particular, while opponents advanced critical arguments on empirical, consequentialist and normative grounds, arguments invoking the injustice of the measure for the actual objects of the initiative’s provisions—the undocumented immigrants themselves—were rarely heard. Whatever was wrong with Prop. 187, in other words, the problem was apparently not that it treats undocumented immigrants unfairly.

My purpose in this article is to examine the complex political and intellectual challenges faced by critics in opposing Prop. 187 and similar initiatives. I first outline the shape of the opposing arguments that activists set out during the course of the campaign in California and some of the tensions that surrounded their making. I then turn to the question of why the “unfairness” argument was heard so rarely and reflect upon the meaning of its omission. I understand this omission, in significant part, as a pragmatic response to the recent wave of antiimmigrant anxiety that has recently swept this country. In a hostile political climate, emphasizing the initiative’s negative consequences for Americans’ own self-interest is more effective and less risky than representing undocumented immigrants (who are, after all, the apparent source of the public’s anxiety) as legitimate subjects of concern and interest.

Yet I also understand the significance of the omission to extend beyond the realm of pragmatic politics. I suggest that the question of whether measures like Prop. 187 treat undocumented immigrants unjustly—and the question of how to articulate the nature of that injustice, if so—are often extremely problematic for these measures’ critics in both normative and analytical terms. To be sure, the question of the measure’s justice may be perceived as largely irrelevant by some of the initiative’s more mainstream opponents, who understand the unauthorized presence of these immigrants to place them outside the scope of common normative concern by legal definition. But I suggest that for many progressives, including progressive scholars, who instinctively oppose Prop. 187, the matter of the measures’ injustice in principle is far more troubling. For, on the one hand, progressives are fundamentally committed to challenging the systematic exclusion and subordination of classes of people in our society, and by this measure, Prop. 187 and its progeny plainly must be condemned as unjust. At the same time, however, most progressives tend to think about justice in distinctly national terms; they tend to collectively possess what I call a “national political imagination,” one which regards the national community as the predominant community of normative concern and presumes the legitimacy, and perhaps the necessity, of maintaining boundaries around it. This nationally informed vision of social life, I argue, stands in tension with progressives’ broader commitments against social marginalization, and it gets in the way of our ability to robustly articulate the interests of undocumented immigrants in this society.

I should make clear at the outset (if it is not clear already) that I am a staunch opponent of Prop. 187 and similar anti-immigrant measures. Yet I also count myself among those who have struggled to articulate the basis for that opposition—not merely in strategic terms but also as a matter of principle. Addressing the status of undocumented immigrants requires progressives—activists and scholars alike—to confront important tensions within our own commitments (diverse and multiple though they are) concerning the normative significance of national boundaries. The recent wave of immigration-related anxiety in this country presents this question in very stark terms and provides us with an opportunity for critical self-reflection on this difficult subject. The following reading of opponents’ rhetorical efforts to combat measures like Prop. 187, and the various questions I pose in response, are offered in the interests of contributing to such a project.

II.

In order to convince California voters to reject the Prop. 187 ballot initiative, it was up to opponents to provide them with reasons to vote “no.” Articulating these reasons, it turned out, was a delicate task, since the art of political campaigns requires fashioning a message that simultaneously reaches as many and offends as few people as possible—and the possibilities for offense on the subject of immigration are, unquestionably, immense. A variety of opposition groups worked throughout the state to defeat the measure, and they often differed amongst themselves as to how best to frame the arguments. But in the end, the opposition’s message was fairly consistent in outline, and was comprised of three principal claims.⁷

The first claim was that Prop. 187 is objectionable because it is racist or xenophobic. In its most trenchant form, the racism argument charged that supporters of Prop. 187 are motivated by animus against the growing population of Latinos in California, Mexicans in particular; it also charged that the initiative’s “reporting requirements” will allow for a widespread campaign of racial harassment against people of color in the state.⁸ A “softer” version of the argument emphasized that ethnic minorities in the state will be affected disproportionately by the measure, since social service providers will often wrongly assume that people of color are undocumented;⁹ it further stressed that the initiative’s terms will create the perception, if not the reality, of racial scape-goating, thereby fanning flames of ethnic strife in the state.¹⁰ Either by design or inadvertence, therefore, Prop. 187’s measures will make California a less hospitable place for its minority population.

The racism critique is clearly a powerful and indispensable critique of the initiative; there is simply no way to address Prop. 187 without recognizing its deep imbrication in a politics of racial anxiety in this country—and many Californians no doubt recognized as much. But despite its importance, this argument only goes so far. For as it turned out, African-Americans and Asians ended up voting for Prop. 187 in surprisingly large numbers, and the Hispanic vote in favor was substantial as well.¹¹ The likely reason for such broad-based minority support (despite the initiative’s clear racial overtones) is that it formally targets only one relatively small segment of the immigrant population—that is, immigrants without legal immigration papers, or the undocumented.¹² Most voters in the state, including minority voters, apparently saw the initiative less as a referendum on ethnic relations than as a response to the illegal immigration status of one specific group of newcomers and voted accordingly.¹³

The “illegality” issue, of course, lay at the heart of the pro-187 message. Supporters promoted the initiative, in instrumental terms, as a sure-fire method of controlling undocumented immigration; the claim was that undocumented immigrants come to this country in order to obtain social benefits, so that making those benefits unavailable will deter people from coming in the first place—or will induce those who are here to go home.¹⁴ They also promoted the initiative as a much needed method for preventing an outlaw population from brazenly robbing Californians of their hard-earned tax-dollars. As the initiative’s sponsoring organization, “Save Our State” (or S.O.S.) put it, “it’s time to stop rewarding illegals for successfully breaking our laws.”¹⁵ Given the resonance of these arguments for many people in the state, opponents of Prop. 187 had to go beyond a critique of the initiative on grounds of racism to address the specific anxiety over illegal immigration promoted by the “Yes” campaign.

Opponents, therefore, set out two additional arguments against the initiative, each of which addressed the illegal immigration issue directly.¹⁶ First, opponents sought to refute supporters’ instrumental claim that denial of social benefits to the undocumented will serve as an effective method of immigration control. Opponents produced data showing that undocumented immigrants come to this country not to avail themselves of public medical services and public education but to work and to join their families.¹⁷ According to this “no deterrence” argument, Prop. 187 won’t work on its own terms; it won’t do what it is ostensibly meant to do, which, once again, is to control unauthorized immigration.

Second, opponents of Prop. 187 made the consequentialist argument that, far from solving the state’s social problems, the initiative would lead to frightening social pathologies for the people of California. They contended, for example, that to impose illiteracy on a class of children in the state will only undermine both the economy and the democratic fabric of society.¹⁸ Similarly, they pointed out, people afraid to go to the doctor will simply create the conditions for a public health catastrophe and will end up costing the state more money later on.¹⁹

Each of these latter arguments against Prop. 187 was important to make because each appears to be correct as a matter of fact. Research on the causes of undocumented immigration indicates that these immigrants come to this country primarily for employment and family reunification purposes, so that denial of social benefits will poorly serve restrictionist objectives.²⁰ Likewise, both common sense and expert opinion suggest that exclusionary measures such as these will, in fact, produce frightening social pathologies.²¹

Compelling as these arguments are, however, it is worth noting that their precise formulation was sometimes the source of substantial disagreement among different groups of Prop. 187 opponents. With respect to the “no-deterrence” argument, some opposition groups—including the mainstream Taxpayers Against 187—bent over backwards to assure the public that they shared its concern over illegal immigration, and agreed it has to be controlled; they simply contended that Prop. 187 is not the most effective method for achieving that goal.²² As an alternative, they and their allies affirmatively called for sending the National Guard to the U.S.-Mexican border and toughening enforcement of employer sanctions laws.²³ Other opposition groups, like the more progressive Californians United Against Prop. 187, made efforts to avoid such inflammatory restrictionist rhetoric; they commonly charged that Prop. 187 supporters were engaged in “immigrant bashing,”²⁴ and if pressed on the border control issue, they tended to argue that the most effective way to deter undocumented immigration is to enforce the nation’s wage and hour laws.²⁵

There were also differences amongst opposition groups over how to frame the consequentialist “Prop. 187 will be bad for Californians” argument. In particular, Taxpayers Against 187 commonly campaigned against the initiative by warning that its passage would result in an increase in truancy and gang violence in the state—on the theory that kids who are kept out of school are likely take to the streets.²⁶ Taxpayers also warned of the health threats posed by the initiative by declaring that passage of Prop. 187 would result in immigrants “spreading disease throughout the state.”²⁷ Many progressive opponents, on the other hand, strongly objected to what they regarded to be the not-so-veiled appeals to racist and classically nativist anxieties in these formulations.²⁸

III.

Despite these and other differences in style and approach among members of the opposit...