Immigration and American Democracy

Subverting the Rule of Law

Robert Koulish

• Publisher: Routledge
• Year: 2010
• Print ISBN: 9780415996174
• eBook ISBN: 9781135843304
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

While the idea of immigration embodies America's rhetorical commitment to democracy, recent immigration control policies also showcase abysmal failures in democratic practice. Immigration and American Democracy examines these failures in terms of state sovereignty, neoliberalism, and surveillance-based techniques of social control.

The ideological argument for privatization is not new. But immigration has provided a laboratory for replicating on American soil the sorts of outsourcing travesties that have occurred in America's war in Iraq. As an outcome, abusive executive powers—many delegated to state and local governments and private actors—are manifested every day in data collection, spying, detention, and deportation hearings, and in many cases bypassing the Constitution. The practice of privatization extends this leviathan immigration state by clamping down on civil liberties without having to oblige the courts.

Ultimately, Koulish examines the contested terrain between democratic and undemocratic forces in the immigration policy domain and concludes with recommendations for how democratic forces might well still win out.

Chapter 1
Introduction

Immigration Politics within a Post-9/11 Frame

In September 2001, almost immediately following the tragic plane attack on the Twin Towers and Pentagon on 9/11, the Federal Bureau of Investigation (FBI) initiated a massive investigation, called PENTTBOM,¹ to “identify the terrorists who hijacked the airplanes and anyone who aided their efforts.” In the days following 9/11, Michael Chertoff, then Assistant Attorney General for the Criminal Division, led an ungrounded campaign of racial and religious profiling against Muslim, Arab, and South Asian immigrants across the country. In the two months following 9/11 about 1,200 persons were detained and questioned. The names of 762 of those immigrants were added to the Immigration and Naturalization Service (INS) Custody List (OIG, 2003).²

Chertoff had primary authority over this part of the PENTTBOM Investigation, to “make all decisions on who was released and even who was held in solitary”³ (DHS, 2003). He made sure that once on the INS Custody List, immigrants were held indefinitely until the FBI could clear them of connections to terrorism and were seemingly guilty until proven innocent (Dew & Pape, 2004, p. 187). Few detained immigrants ever faced criminal charges or a trial, and no immigrants placed on the INS Custody List were convicted of crimes related to 9/11 or terrorism (Cole, 2003; Janofsky, 2004). Immigrants were held as material witnesses or charged with minor immigration violations that do not normally warrant detention (Brill, 2003; Cole, 2003; Janofsky, 2004). They were denied access to attorneys and family, and were detained under abusive conditions; many were denied access to basic hygiene and medical treatment.

Chertoff was bothered by none of this ethnic and religious profiling. Nor was he perturbed that the Office of Inspector General harshly criticized these arrests and detentions as “indiscriminate and haphazard” (DHS, 2003). Quite the opposite; he “later told Congress that he would have done the same thing all over again” (Whitney, 2005). When choosing between the rule of law (due process) and the arbitrary use of state power, Chertoff chose the latter. Chertoff made the same choice again in October 2001 when he co-authored the Patriot Act, and then again in summer 2002, when he told the CIA that its members would not be prosecuted for waterboarding prisoners.⁴ On Chertoff’s advice, several people were tortured. Rather than acting as a rogue agent, however, Chertoff was merely applying the Bush administration’s policy to immigration. All was fair game in the Bush administration’s “war on terror,” as long as any act that ran roughshod over the constitution could be justified in terms of securing the homeland. Indeed, Chertoff’s activities earned him recognition as a “key leader in the War on Terror,”⁵ for which he was rewarded with the appointment as head of Department of Homeland Security (DHS) in January 2005.⁶

After Chertoff had monitored the racial profiling of immigrants and advised the CIA about torture, he was appointed to the U.S. Court of Appeals for the Third Circuit,⁷ a lifetime appointment that removed him from the line of political fire that might have eventually held him responsible for mishandling these crucial human rights issues.⁸

Just before Chertoff was nominated to the federal bench, Tom Ridge became the first head of the DHS.⁹ As first head of the DHS, Tom Ridge established a revolving door culture for private defense contracting firms where outsourcing and future employment opportunities informed policy (Klein, 2007). Ridge himself owned stock in several of the companies lobbying the Bush administration for defense contracts.¹⁰ One such firm, Unisys, would soon join the Boeing team in soliciting and receiving a several billion dollars SBInet contract, which gave the company the responsibility for designing and implementing a virtual fence at the Mexico border. Thus, Ridge was implying more than dialogue when he told these firms, “You can count on regular contact … We welcome your input” (Theimer, 2002). Regular contact was further institutionalized in a private sector advisory committee (PVTSAC), which Ridge established to solicit advice from “leaders in the private sector on homeland security” (DHS, 2003). Rick Stephens, Executive Vice President at Boeing, was an early member at PVTSAC and this social network helped bring about the Boeing deal. When Ridge left his post at DHS, he quickly secured employment in the IT/security sector (Klein, 2007).

The combination of ideas that informed the Ridge and Chertoff tenures at DHS became popularized as a neoconservative approach to sovereignty and neoliberalism. These ideas germinated in the Nixon “Imperial” White House¹¹ and developed over the quarter century that followed the Church Committee investigations that documented executive branch abuse of power during the Watergate era. Nixon’s demise was a formative moment in the political development of Nixon disciples Donald Rumsfeld and Dick Cheney¹² (Klein, 2007; Hayes, 2007). Regrettably for the nation and world, however, both men spent the next 25 years plotting in both the public and private sectors to recoup the power they decried as lost. In 2001, they returned to the executive branch as evil archetypes of neoconservatism and neoliberalism. In the years following 9/11, no one and no institution dared rein in their efforts to restore and extend the “imperial” excesses first experienced a quarter century before.

The Rumsfeld/Cheney team set the tone for DHS as it began to deploy risk management technologies in the war on terror against immigrants. Risk technologies were a Bush era add-on to Nixonian power politics.¹³ Bush actors extended the notion of sovereignty onto subunits of government and the private sector, largely for the purpose of managing risk, or more precisely as Louise Amoore notes, to make sure “the appearance of securability and manageability is sustained” (Amoore & de Goede, 2008, p. 9). Judith Butler refers to the subunits as “petty-sovereignties,” which denote the immigration officials, mid-level bureaucrats and private actors who render unilateral and unaccountable preemptive security decisions (Amoore & de Goede, 2008, p. 13). As Butler notes, “Petty sovereigns abound, reigning in the midst of bureaucratic … institutions mobilized by aims and tactics of power they do not inaugurate or fully control” (2004, p. 56). As I will argue, such petty-sovereigns were given a mandate to manage risk, and thereby unleashed risk management technologies in the immigration control field.

As Secretary of DHS, Chertoff quickly gained a reputation for extending executive power, mismanaging the federal bureaucracy and hollowing out DHS in a manner similar to the way Donald Rumsfeld managed the Pentagon.¹⁴ Perhaps nothing is more indicative of Chertoff’s belief in arbitrary executive power than the arrogant power grab of April 2008 in which he declared that the DHS would ignore more than 30 laws enacted by Congress.¹⁵ On June 22, 2008, the Supreme Court refused to stop Chertoff from circumventing these laws, which led Oliver Bernstein, Sierra Club spokesperson to say:

This decision leaves one man—the Secretary of the Department of Homeland Security—with the extraordinary power to ignore any and all of the laws designed to protect the American people, our lands, and our natural resources.

(Stout, 2008)

With this decision, Chertoff also smoothed the way for Boeing Inc. to fulfill its obligations under the boondoggle SBInet contract and meet its timeline in constructing the virtual and concrete border fence along the Mexico border.¹⁶

Starting almost immediately after 9/11, as the INS Custody List suggests, immigration became a laboratory for Cheney, Rumsfeld, and their neoconservative acolyte demi-sovereigns—Ridge and Chertoff—to experiment with a distorted version of sovereign power and free-market enterprise in domestic policy. Once the DHS was created in 2003, and the immigration control agencies placed within it, Tom Ridge and then Michael Chertoff had the task of replicating the neoconservative/neoliberal template that Cheney and Rumsfeld had already created in Baghdad.

Why a laboratory? The search for undocumented immigrants is conducive to preemptive risk management strategies. DHS, and immigration more specifically, was a perfect laboratory for experimentation with risk management, an awkward concept that disdains the rule of law, because of its secrecy and office holders’ lack of concern. Consider that immigrants, and the immigration process, politics and bureaucracy have always held a marginal status in the democratic polity (Koulish, 1996). Immigrant interests are more easily ignored and immigrant abuses are more easily shrugged off when few resources and rights and fewer votes are at risk, and when the courts have been stripped of the review authority.

Because immigrants cannot vote¹⁷ in national elections and are excluded by most locals from voting in local elections, they do not matter to election-minded politicians.¹⁸ Neither have immigrants been known for writing checks to political candidates (it’s illegal if they’re not permanent legal residents), or volunteering in political campaigns. Finally, since immigrant populations have been undercounted in the census, their contributions to the economy in terms of social security, and property taxes have also been under-represented.

Before 2003, the immigration agency had been neglected for more than a century, by every one of its host bureaucracies—Treasury, Commerce, Commerce and Labor, Labor and then Justice—ever since federal immigration controls began in the late nineteenth century. Invariably last in line to receive funding, quality staff and other resources, the immigration agency was a bottom feeder in the federal bureaucracy. If an applicant did not score high enough on an aptitude test to join the DEA or become a U.S. Marshall, for example, she might still join the border patrol (Harwood, 1986).

In addition, due process is more diluted in immigration court than in other administrative hearings, in part because immigration courts are neither Article I nor Article III courts,¹⁹ and meet only sketchy approximations of an administrative hearing (Juceam & Jacobs, 1980; Roberts, 1980). For example, the immigration judge has a great deal of discretion to decide how to prepare a case record; determine what is proper court etiquette; to decide what evidence she will hear.²⁰ Unlike judges in other courts, immigration judges may permit hearsay²¹ and exclude from the record arguments in connection with motions, applications, requests, or objections (Koulish, 1992). The immigration judge is technically not even an administrative law judge and holds no contempt powers. As a result, immigration hearings tend to be ad hoc and arbitrary, and when it comes to immigrants “almost all procedural errors are considered harmless” (Koulish, 1992, p. 552).

One recent intervention that helped weaken due process in immigration proceedings is court stripping, a phenomenon of Congress that removes a great deal of the courts’ review authority, starting with the Illegal Immigration Reform and Immigrant Responsibility Act, 1996 (IIRIRA) (Kanstroom, 2006/2007). The IIRIRA eliminated judicial review of non-final orders or rulings primarily involving aliens in removal proceedings, and retroactively rendered permanent residents deportable based on prior criminal convictions.²² It also contained provisions that expedited the removal of prospective asylum seekers without affording them the opportunity for judicial review. Only final removal orders directed at aliens were reviewable. Further, Section 1252(a) (s)(B)(ii), entitled “Judicial Review of Orders of Removal,” provided:

Notwithstanding any provision of law, no court shall have jurisdiction to review … (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) further diminished the government’s commitment to due process for aliens by eliminating judicial review for criminal aliens. According to the AEDPA, “Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against any alien who is removable by reason of having committed a criminal offense …” The Act also deleted the law that permitted habeas corpus review of claims by aliens who were held in custody pursuant to deportation orders.

In 1997, the Supreme Court reviewed the IIRIRA provisions.²³ Speaking for the court, Justice Scalia upheld Sec. 1252(g), which prohibited the courts from reviewing decisions by the Attorney General to “commence proceedings, adjudicate cases, or execute removal orders against aliens under this Act.” According to the Court,

[t]he Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals—and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.

By suggesting that immigration adjudicators did not need to state the reasons for ruling against nationals of a particular country, Scalia discounted the role that facts play in adjudication and instead justified the “kangaroo court” character of many immigration hearings. The Court further noted, “Congress has the power to determine the terms and conditions of a non-citizen’s presence in the United States and has vested in the Attorney General the power to enforce such provisions; therefore it is not for the Court to second guess the other branches’ actions in the typical deportation case …” Once Congress vests power in the Attorney General, it rarely reviews that delegation of power, leaving it to immigration authorities to interpret and enforce the law per whim.

In 2005, Congress enacted the Real ID Act, which precluded judicial review of all discretionary decisions, and removed an entire level of review for immigrants in removal proceedings. Since a huge amount of immigration decisions are discretionary, a great many legal and factual issues now exist beyond the scope of judicial review (Kanstroom, 2006/07, p. 165), which suggests political and ostensibly legal actors may ignore legal norms with impunity. The Act removed the jurisdiction of federal trial courts to review BIA decisions, which is where the judge typically reexamines facts as well as law. Instead, cases are directed into the federal court of appeals, which reviews only matters of law.

In sum, the immigration regime functions in the absence of several important legal standards that are designed to provide checks on executive power. An even stronger interpretation suggests the creation of a “counter law” regime that provides the government with an alternative rationale to bypass legal constraints in its effort to secure the homeland. The regime was solidified in 2003 when immigration was removed from the Department of Justice and placed within the DHS, which has as its mission to “prevent and deter terrorist attacks and protect against and respond to threats and hazards to the nation” (DHS, 2004). By transferring immigration to DHS, the administration furthered the securitization of immigration (Walters, 2008).²⁴ Migrants would henceforth be defined through the lens of security, rather than labor markets or law enforcement.

Immigrants are susceptible to such securitization because as a group they are politically impotent (cannot vote) and have few rights. Further, the regulating agency is susceptible to such top-down change in mandate because of its own structural weaknesses. The immigration agency has a reputation for gross incompetence, broad discretion and loose procedures; and the judiciary is prevented from scrutinizing a great many decisions that are made by immigration actors that ostensibly deal with life and death issues. The absence of such constitutional checks on power encouraged the Bush power elite to make a game of immig...

Table of contents

• Contents
• Preface
• Abbreviations
• Chapter 1 Introduction
• Chapter 2 Framing “Illegal Aliens”
• Chapter 3 Criminalizing Immigration
• Chapter 4 Neoliberalism, Risk, and Immigration Control
• Chapter 5 Privatization of Immigration Control
• Chapter 6 Race, Class, and the Border Fence Fiasco
• Chapter 7 The Federalization of Sovereign Control
• Chapter 8 Immigrant Resistance or Immigrant Control
• Chapter 9 President Obama’s New Emphasis on Immigration Control
• Chapter 10 Conclusion
• Notes
• Bibliography
• Index