Juan Crow & The Future Of Immigration Reform
Going Beyond Debates Over Federalism & Centralism In U.S. Immigration Enforcement
January 6, 2016 Picture: Lizzie Chen/Flickr.
This article is part of The Critique’s And Who Is My Neighbour? Exclusive.
In September of 2006 those dreams were put in jeopardy. As Mancha was getting ready to go to school, armed Immigration and Customs Enforcement (ICE) agents raided her trailer. These agents had neither warrants, probable cause, nor permission to enter Mancha’s residence, but they entered anyway and interrogated Mancha over her and her mother’s immigration status. At the end of this interrogation the agents simply left. Mancha and her mother were not deported. Tragedy was averted because, as Lovato informs us, Mancha and her mother were: “…the wrong kind of ‘Mexicans’; they were US citizens.”[ii]
According to Lovato, Mancha’s experience is not an isolated incident, but part of a larger and more troubling trend. As he writes:
“Mancha and the younger children of the mostly immigrant Latinos in Georgia are learning and internalizing that they are different from white—and black—children not just because they have the wrong skin color but also because many of their parents lack the right papers. They are growing up in a racial and political climate in which Latinos’ subordinate status in Georgia and in the Deep South bears more than a passing resemblance to that of African-Americans who were living under Jim Crow. Call it Juan Crow: the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”.[iii]
To be clear, Lovato is not suggesting that there are no differences between the way African-Americans were treated under Jim Crow and the way Latino/as are treated today. Instead, Lovato is suggesting that as a kind of shorthand for the systematic undermining of the civil rights and equal protections of Latino/a citizens—especially when these violations are the product of local and state laws—the use of the term Juan Crow seems apropos.
“Juan Crow: the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”.
This essay expands on what Lovato has termed Juan Crow by making its connection to stricter immigration enforcement clearer and thereby suggesting that resolving the threat of Juan Crow requires that immigration enforcement be circumvented and not discretionary. This is an especially difficult argument to make in today’s political climate for two interrelated reasons. First, most policymakers currently believe that the question of immigration enforcement has been settled. Regardless of whether one supports an “enforcement-first” or “comprehensive” model of reform, stricter immigration enforcement is assumed to be a necessary part of any “viable” proposal. Second, when the topic of enforcement does come up for debate it is usually confined to questions about where the power to control immigration ought be located. Should it be dispersed throughout local, state, and national governments (i.e., federalism) or should it be concentrated at the highest level (i.e., centralism)?
Because of the consensus that has formed around the need for increased immigration enforcement, discussions about Juan Crow are at best relegated to the debate between federalism versus centralism. Much like its predecessor Jim Crow, in these debates Juan Crow appears to highlight a fundamental flaw with the federalist system of government and appears to speak in favor of a more centralist approach to address the immigration issue. This essay, however, attempts to turn this conventional way of thinking about Juan Crow on its head. It argues that Juan Crow is actually a challenge to the consensus that has formed around the need for increased enforcement and that in fact it has little to do with the debate between federalism versus centralism. The argument in this essay therefore proceeds in the following manner.
The first section offers a general overview of federalism and provides some reasons as to why it is actually a very attractive option for addressing the immigration issue. The second section outlines some of the dangers of centralism, especially when national governments are given complete discretion over matters concerning immigration. The third section then presents the opposite view; it highlights the underside of federalism while providing examples of how decisive and unilateral action by the national government has protected the civil rights and equal protections of minority citizens.
Given that neither federalism nor centralism on their own offers a definitive solution to Juan Crow, the fourth section of this essay reopens the question of enforcement. It argues that an effective response to Juan Crow would require that immigration enforcement adhere to two standards, equality of burdens and universal protections. These standards appeal to our shared intuitions of fairness and personal liberty, but would entail a more open and less draconian immigration policy than we have today or that any legislator is currently proposing.
The Federalist Option
Philosophers working on the ethics of immigration face a difficult challenge. It is assumed that political legitimacy depends on a political community being both democratically self-determined and respectful of human rights. Yet the issue of immigration (maybe more so than any other issue) exposes a deep tension between these two commitments.[iv] For example, a commitment to democratic self-determination would seem to suggest that a political community has a presumptive right to control its borders and determine its own criteria for citizenship.[v] However, a commitment to individual freedom or universal equality (i.e., two fundamental pillars of human rights) seems to speak in favor of open borders; either because respecting an individual’s right to freedom of movement is weighty enough to override most of the reasons a political community would have to deny him or her admission[vi] or because restrictive borders help to perpetuate or create unjust global inequalities.[vii]
This is an admittedly simplistic way of outlining the current philosophical debate over immigration, so it’s worth mentioning that there are some nuanced positions that do not fit neatly into this pro or anti open-borders divide. For example, Arash Abizadeh has argued that a commitment to democratic norms does not necessarily entail that a political community has a unilateral right to control its own border [viii], while Peter Higgins and Lea Ypi have argued that open borders would not necessarily promote universal equality and in fact could do the opposite by harming those who are already the least well-off (i.e., those without the means to migrate).[ix] [See Blake and Lamey for further discussion of the philosophical scholarship on immigration]. Still, the philosophical question surrounding immigration has remained primarily focused on how best to reconcile commitments to both democratic self-determination and human rights.
Out of all the possible contenders that have emerged within this debate, the one that seems to hold the most promise is federalism. Federalism proposes a dispersed notion of sovereignty, which is opposed to the unitary versions of sovereignty promoted by such theorists as Thomas Hobbes and Carl Schmitt. Under a federalist system of government political authority over a territory would operate at various different levels. These levels would have one top level, for example a central government or a supranational institution, and smaller subdivisions that operate underneath, such as provincial, state, or local governments. On this model, the power to make and enforce laws would operate at all these different levels and each level would enjoy a certain degree of autonomy from the others.
With respect to citizenship, federalism would also allow people to have certain citizenship rights without necessarily having membership at every level. For example, a person could be a citizen of the European Union and of the city of Berlin, and therefore be lawfully present in Germany and even be eligible to vote in certain elections, without necessarily being a citizen of the German state. Federalism therefore offers a notion of sovereignty that is consistent with democratic norms (especially with regard to democratic representation at the transnational and local levels) while also allowing for more porous national borders. Within the immigration debate, Thomas Pogge[x], Veit Bader[xi], Seyla Benhabib[xii] and to some extent William Flores[xiii] and Renato Rosaldo[xiv] have championed some version of federalism.
For supporters of immigrant rights in the United States, this approach seems to hold a lot of promise. After all, while attempts to pass immigration reform at the national level have stalled for over a decade, there has been a groundswell of local and state actions during that time aimed at protecting immigrants and extending benefits to all residents (including undocumented immigrants). For example, cities, such as San Francisco, Denver, and New York, have become sanctuary cities. Sanctuary cities are those that prohibit their employees (including police offers) from inquiring into people’s immigration status and in general refuse to let their resources be used to enforce national immigration laws. There have also been actions taken at the state level, where states such as California, Washington, and Nebraska have granted drivers licenses, in-state tuition, and healthcare to all of their residents regardless of immigration status. And even states that support stricter immigration enforcement, such as Texas and Utah, have proposed their own guest-worker programs tailored to meet their particular state’s needs, as opposed to the current one-size-fits-all national program. While guest-worker programs are not always good for immigrants, if these states were allowed to implement their guest-worker programs, many undocumented immigrants who are already working in those states would become eligible to obtain a kind of legal status that would bring them out of the shadows.
Conservatives in the United States have complained that these actions taken by local and state governments violate the U.S. constitution and that the national government should step in and stop these kinds of rouge actions.[xv] However, a more federalist reading of the constitution would suggest that local and state governments are acting completely within their rights. For example, the U.S. constitution only mentions matters directly relating to immigration twice and neither time does it say much about where the power to establish or enforce immigration law should reside.[xvi] Add to this the 10th Amendment (i.e., the federalist amendment), which maintains that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” and it seems that there is nothing necessarily unconstitutional about the aforementioned actions taken by local and state governments. In fact this is the argument the city of New York used (albeit unsuccessfully) to defend its sanctuary policy.[xvii]
The Dangers of Centralized Plenary Power
As alluded to in parentheses above, a federalist reading of the U.S. constitution is not really en vogue these days. This section therefore provides a brief history of how the centralized approach to immigration became the dominant approach in the United States and what some of the dangers with such an approach are and have been. While the focus of this section is on the United States, the worries expressed here can easily be generalized to other contexts as well.
In 1789 the U.S. constitution was ratified, but it did not take long for disagreements to start about whether the document should be read in a more federalist or centralist manner. One of the first such disagreements had to do with the power to control immigration and specifically the power to deport noncitizens. This disagreement began in 1798 when President John Adams signed into law a set of bills that have come to be known as the Alien and Sedition Acts. These bills were signed in the aftermath of the French Revolution, during a time that is now commonly referred to as the Quasi-War with France. The stated aim of these bills was to root out the “Jacobin” threat posed by French immigrants. Among other things, these bills increased residency requirements for naturalization from 5 to 14 years, made speech critical of the U.S. government a punishable offense and allowed the president to imprison or deport any noncitizen who was either considered “dangerous” or a citizen of a hostile nation.
In the Kentucky and Virginia Resolutions, Thomas Jefferson and James Madison presented a federalist response to the actions taken by the national government. Jefferson, for example, argued that these actions were unconstitutional because:
…if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes & punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction:[xviii]
Jefferson’s worry was that the national government, and specifically the executive branch, was using the threat of a foreign menace as merely an excuse to consolidate powers that the constitution had not intended for it to have. This consolidation of power was troubling for Jefferson because, even if these powers were only intended to be used against noncitizens, eventually they could be turned on citizens as well. As Jefferson warns further down in this resolution:
“the friendless alien has indeed been selected as the safest subject of a first experiment: but the citizen will soon follow, or rather has already followed; for, already has a Sedition Act marked him as its prey…”[xix]
Jefferson ultimately lost this debate and in the years that followed the power to control immigration became more entrenched at the national level. The first set of Supreme Court cases that solidified this centralized approach in U.S. immigration policy are known collectively as the 1849 Passenger Cases. In these cases, the question before the court was whether it was constitutional for individual states to assess taxes on foreigners who disembarked on their ports. The court found that these sorts of state level taxes were unconstitutional because they violated the Commerce Clause. The Commerce Clause grants the national government, as opposed to local and state governments, the exclusive power to regulate interstate commerce as well as commerce with foreign nations.[xx] But while the central issues in the Passenger Cases were taxation and commerce, the Court’s decision also had implications for immigration. These cases set the precedent that the national government, as opposed to local and state governments, had exclusive control over the admission of noncitizens.
Beginning with the passage of the 1875 Page Act, culminating in the national origins quotas of 1924, the U.S. embarked on a regrettable period of explicitly racist national immigration laws and policies. During this time period the Supreme Court consistently ruled against noncitizens that challenged the constitutionality of these laws and polices. In all of these cases, the Supreme Court consistently appealed to a more unitary understanding of U.S. sovereignty. For example, in the 1889 Chae Chan Ping v. United States case, Justice Stephen J. Field argued that Mr. Ping had no right to be readmitted into the United States, even though the U.S. government had issued him return voucher upon leaving and then changed the law as he was returning. This clear case of ex post facto lacked standing, however, because:
…the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.[xxi]
This and the rulings in the other Chinese exclusion cases have come to form the legal backbone of what is known as the Plenary Power doctrine. This doctrine gives the U.S. national government full discretionary control over matters concerning immigration and makes its actions in that particular area non-reviewable by the judiciary. The lack of judicial review means that constitutional protections (e.g., right to a trial by jury, right to court appointed legal representation, and freedom from unreasonable searches and seizures) do not apply to cases involving the admission, exclusion, and deportation of noncitizens.[xxii]
These historical examples help to underscore the following worry: there is a very real danger in a centralized approach to immigration policy, especially when the national government is given complete discretionary control over the admission, exclusion, and deportation of noncitizens. In light of this worry, a federalist approach to immigration reform seems like the more appealing option. After all, federalism at least offers a way to break-up or check this concentration of power and at the same time does not altogether give up on the notion of sovereignty (i.e., self-determination). With that said, there is an underside to federalism that the following section will take up. This underside is exemplified in the case of Jim Crow, but can also be found in the case of Juan Crow. If this underside of federalism is real, then it seems to leave us in a bit of an immigration quagmire.
The Underside of Federalism and the Supremacy Clause
As most people are aware, the U.S. Civil War put an end to chattel slavery and annulled the infamous Dred Scott decision, which denied U.S. citizenship to people of African descent. These achievements were constitutionally enshrined with the passage of the 13th, 14th, and 15th amendments. Immediately following the passage of these amendments, however, local and state governments of the former Confederacy began to pass their own laws designed to circumvent the spirit of these new amendments. Many of these local and state laws even gave the appearance of neutrality, but when implemented they established a form of legalized racial segregation that has come to be known as Jim Crow.
The constitutionality of these laws were repeatedly tested in the Supreme Court and notoriously upheld in cases such as the 1883 Civil Rights Cases and the 1896 Plessy v. Ferguson case. These cases provided the legal precedent of the now defunct Separate-But-Equal doctrine. This doctrine basically stated that so long as facilities and institutions were equal, racial segregation was not in-itself a breach of the 14th Amendment’s equal protection clause. The ruling in Plessy v. Ferguson is especially disconcerting for proponents of federalism because the state of Louisiana specifically appealed to the 10th Amendment (i.e., the federalist amendment) in making and winning its case.
Jim Crow segregation was therefore legally in effect throughout much of the former Confederacy from the end of Reconstruction (1877-ish) until the 1954 Brown v. Board of Education decision. The Brown decision brought an end to de jure segregation, but did not settle the matter. In 1957, Arkansas Governor Orval Faubus defied the court’s decision by calling out the state’s National Guard in an effort to prevent black students from entering Little Rock Central High School and made an appeal to “states’ rights” in justifying his actions. President Eisenhower responded to Faubus’s actions by deploying the U.S. army and nationalizing Arkansas’s National Guard. Then in 1963, Alabama Governor George Wallace—living up to his inaugural address promise of: “segregation now, segregation tomorrow, segregation forever”—had his infamous Stand in the Schoolhouse Door debacle where he physically stood at the entrance to the University of Alabama in an effort to prevent black students from enrolling. Again, it took executive action, this time on the part of President Kennedy, to remove him.
So it seems that one lesson that can be drawn from the struggle against Jim Crow is that when local or state governments deny members of socially disadvantaged groups the civil rights and equal protections they are owed, executive action at the national level is one of the best and most effective remedies. This takeaway presents a further complication for proponents of federalism. The successes against Jim Crow was ultimately due not to an increase or refinement in democratic procedures—since the majority of residents in Alabama and Arkansas would likely have favored more rather than less segregation—nor did it depend on the decentralization of political power—as it was only through decisive action on the part of the national government that the practice of segregation was finally brought to an end. Instead, it appears that the federalist system was not only consistent with Jim Crow, but offered no real way to resolve it.
If this is correct, then it seems that federalism—which had shown so much promise in the first two sections of this essay—could be responsible for facilitating the conditions that have given rise to Juan Crow. Furthermore, it would also suggest that the best and most effective way of remedying Juan Crow would be through autocratic action on the part of national government. While there are some good reasons to think this, the rest of this section will try to show why it’s not totally the case and why framing the issue of Juan Crow as a struggle between federalism and centralism misses the larger point.
In recent years, citizens like Marie Justeen Mancha have been migrating to parts of the United States where Latino/as have not historically had much of a presence. Specifically, Latino/as have started to make homes for themselves in parts of the former Confederacy. The immediate assumption of many of the residents in these parts of the country is that the new migrants do not belong there and that their presence is evidence enough that the national government is failing to do its job of enforcing immigration law. For many, these concerns are grounded in xenophobic attitudes and beliefs. This means that merely pointing to the facts (e.g., that the actual number of undocumented immigrants has remained steady at about 10-12 million for close to a decade now and that in recent years the U.S. national government has actually been deporting more undocumented immigrants than ever before, close to 400,000 annually) does little to change their minds.
For these long-time residents of the former Confederacy, the facts about undocumented immigration do not match their everyday felt experience. As they experience it, undocumented immigrants are swarming into their neighborhoods and the national government is failing them by their inaction. This perception, erroneous as it is, has emboldened residents to democratically pass a variety of anti-immigrant laws and ordinances both at the local and state level. The idea behind almost all of these anti-immigrant laws and ordinances has been “enforcement first.” In other words, these laws and ordinances are not meant to try to reform or repair the current system of immigration, but instead their aim is to more effectively preserve it.
Most proponents of “enforcement first” immigration reform have also come to realize the near impossibility (not to mention immorality) of physically rounding up and deporting 10-12 million human beings. So as part of the effort to deal with this practical difficulty, most of these anti-immigrant laws and ordinances have gone beyond the traditional channels of immigration enforcement. They have started to encroach onto areas that normally were not seen as sites of immigration enforcement (e.g., employment, housing, healthcare, local policing, and schooling). The idea behind expanding immigration enforcement into these other areas is that by doing so they would make the day-to-day lives of undocumented immigrants so unbearable they would begin to “self-deport” (i.e., leave voluntarily). This “self-deportation” would then take care of the unpleasant task of having to roundup and deport 10-12 million human beings. This “self-deportation” strategy has been dubbed: “attrition through enforcement.”[xxiii]
“Most proponents of “enforcement first” immigration reform have also come to realize the near impossibility (not to mention immorality) of physically rounding up and deporting 10-12 million human beings”.
However, as we saw in the opening case of Marie Justeen Mancha, not all Latino/as who migrate to parts of the former Confederacy are foreigners. In fact most Latino/as in the United States are a lot like Mancha, they are U.S. born citizens who are finding their civil rights and equal protections violated by an overzealous enforcement of anti-immigrant laws. In this regard, the anti-immigrant laws and ordinances that have come out of the “enforcement first” and “attrition through enforcement” strategies are a lot like the laws that came out of the “separate-but-equal” strategy during the Jim Crow era. They both produce laws and ordnances that might appear neutral on the surface and are backed by an overwhelming majority of the residents, but when implemented have a disparate impact on a minority segment of the population.
“The anti-immigrant laws and ordinances that have come out of the “enforcement first” and “attrition through enforcement” strategies are a lot like the laws that came out of “separate-but-equal” strategy during the Jim Crow era”
If the comparison between Juan Crow and Jim Crow holds up, then the recent actions taken by the Obama administration would seem consistent with earlier actions taken by presidents Eisenhower and Kennedy. Starting in 2010, the Obama administration sued the state of Arizona for its “attrition through enforcement” inspired Senate Bill (i.e., SB 1070). That lawsuit went all the way to the Supreme Court where the state of Arizona defended its actions in the same way the state of Louisiana had in Plessy v. Ferguson, by appealing to the 10th amendment. This time, however, the court found that Arizona’s anti-immigration bill was largely unconstitutional. It found the bill to be unconstitutional, however, not because it violated the rights of noncitizens or because it could have a disparate impact on Latino/a citizens, but because its actions were in conflict with the Supremacy Clause (i.e., the centralist clause). The Supremacy Clause is found in Article XI, Clause 2 of the U.S. Constitution and it states that when state law conflicts with national law, national law wins out. This is commonly referred to as preemption and it gives the national government exclusive power to legislate over such areas as war and commerce. If the reader recalls, this is a view about U.S. sovereignty that was expressed as early as the 1849 Passenger Cases.
Following his victory in the courts and at the behest of DREAMer activists, President Obama went on to issue an executive order granting deferred action (i.e., protection from deportation) to undocumented immigrants who entered the country before the age of sixteen (i.e., DACA). This deferred action also came with a work permit that in some states has also allowed undocumented immigrants to apply for driver’s licenses and in-state college tuition. Then, this past November, Obama extended his deferred action to include undocumented immigrants who are the parents of either U.S. citizens or legal permanent residents (i.e., DAPA). This latter action, however, has been challenged by 26 states and its constitutionality is still currently being debated in the courts. Again, most of the states that have challenged the president’s use of deferred action also happen to be states of the former Confederacy and are again appealing to a kind of federalism (i.e., states’ rights) in their complaint against the Obama administration.
With an eye towards addressing Juan Crow, the recent actions taken by President Obama seem like a step in the right direction. These actions have stymied the “enforcement first” and “attrition through enforcement” strategies of local and state governments that have ensnared Latino/a citizens and badgered them into leaving the city or state.[xxiv] But while these actions should be applauded they are at best incomplete and at worst Pyrrhic victories. President Obama’s use of executive action has undoubtedly provided some undocumented immigrants some relief, but they have not gone far enough to dismantle the system of Juan Crow and as history has shown these sorts of executive actions can always cut both ways.
One of the more sobering examples of the double-edged nature of executive actions is President Roosevelt’s Executive Order 9066. This order was issued three months after Japan bombed Pearl Harbor and it ordered the forced removal of about 110,000 to 120,000 mostly U.S. citizens of Japanese descent from their homes. The reason behind their removal was the belief that lurking within this particular segment of the citizenry were potential spies who would relay signals to the Japanese navy if allowed to remain close to the Pacific Ocean. The case of Japanese interment is now recognized as one of the more disgraceful moments in U.S. history, but it still serves as a poignant reminder of how executive actions can just as easily violate the civil rights and equal protections of minority citizens, even when the stated aim of such actions is to protect the citizenry.
Another reason to be wary of looking to the national government to provide relief from Juan Crow is that most of the enforcement measures that help to sustain this system of legalized discrimination are already in place at the national level. For example, the national immigration and welfare reform laws that were passed in 1996 allow for the commandeering of local police to take up immigration enforcement duties, require employers to check the immigration status of their employees, and makes immigrants ineligible for various benefits such as welfare and Medicare.[xxv] Again, while the letter of the law does not single out any particular social group, the application of these laws have disproportionately impacted U.S. citizens of non-European descent and especially citizen children who under the law are entitled to various services and protections from the state, but whose parents lack proper immigration status.
Immigration Reform without Juan Crow
At this point in the argument it might start to seem as though opponents of Juan Crow want to have it both ways. As we saw in the first section of this essay, they champion a federalist approach to immigration when local and state governments provide the relief and protections needed to disrupt Juan Crow. But then, as we saw in the third section, they are also happy to endorse a centralized approach when the national government acts in ways to block local and state governments from enacting laws or policies that disproportionately target minority citizens. If the only available options to deal with Juan Crow were either upholding the 10th amendment (i.e., federalism) or championing the Supremacy Clause (i.e., centralism), then opponents of Juan Crow would indeed find themselves in a kind of bind. Fortunately, that is not the case. As it turns out and as it is hopefully becoming clear, the struggle against Juan Crow has less to do with locating the power to control immigration and more to do with circumventing that power, at every level, so that minority citizens are not ostracized in the application and enforcement of immigration law.
“The struggle against Juan Crow has less to do with locating the power to control immigration and more to do with circumventing that power”.
Understanding the struggle against Juan Crow in this way helps to explain why federalism and centralism have had their moments of success and failure. As we have seen with the use of sanctuary cities, “self-deportation” strategies, and executive actions, the successes and failures of federalism and centralism have largely been the result of improvised or reactionary responses to perceived threats and injustices in the immigration context. In other words, there is nothing inherent in either federalism or centralism that makes them pro- or anti-Juan Crow. They both have shown that they can go either way. This is not to say, however, that there is not a shared common core in the improvised responses that have had success in ameliorating Juan Crow. In the reminder of this section, I will argue that this common core can be distilled into two standards, equality of burdens and universal protections, which if implemented in immigration policy would thwart the potential for Juan Crow.
As we have seen, one of the defining features of both Jim and Juan Crow is that they undermine the civic standing of minority citizens through the application or enforcement of democratically sanctioned laws or ordinances that in many cases appear neutral on the surface. Because these laws and ordinances have been both democratically endorsed and give the appearance of neutrality, it is not easy to criticize them by appealing to conventional understandings of formal equality.
For this reason, the application or enforcement of immigration laws or policies must adhere to what I’m calling an equality of burdens standard. This standard requires that the allocation of burdens that result from implementing or enforcing an immigration policy should be distributed as equally as possible among the citizenry. For example, if agents are allowed to conduct raids of private homes or places of work, then EVERY citizen’s home or place of work should be as likely to be raided as anyone else’s. Meeting this standard will undoubtedly make immigration enforcement much less efficient and will inconvenience more citizens than are currently inconvenienced, but there are at least two reasons why immigration policy should nonetheless have to meet this standard.
“If agents are allowed to conduct raids of private homes or places of work, then EVERY citizen’s home or place of work should be as likely to be raided as anyone else’s”.
First, adhering to this standard would make citizens more reflective about the kind of enforcement they are willing to let their (whether it is local, state, or national) government deploy. As things currently stand, a majority of citizens do not feel as though they have anything to worry about with respect to internal immigration enforcement. This disconnection between their daily experiences and the reality of excessive immigration enforcement hides the true cost of intensifying enforcement. As immigration enforcement is ratcheted up and expands into other areas, incidents like Mancha’s increase in number and frequency.
Since most citizens happen to be insulated from such incidents, most citizens do not see these excesses as too steep of a price to pay to effectively carry out the immigration system currently in place. An equality of burdens standard, however, would turn this on its head. While the American public has shown itself willing to accept stricter immigration enforcement when a minority of citizens foots the bill, it would be interesting to see what would happen to this support if all citizens had to share the cost equally? Meeting the equality of burdens standard therefore would distribute the cost of enforcement in a much fairer manner and by doing so would impact its democratic support.
Second, while meeting this standard might not change deeply entrenched social attitudes on race, ethnicity, or culture, it would prevent those attitudes from unduly influencing the course of enforcement and in the process self-affirming negative stereotypes about minority citizens. Under the equality of burdens standard selective enforcement that disproportionately harms citizens for morally arbitrary reasons (i.e., facts about persons that should garner neither praise nor blame) would be strictly prohibited.
In other words, even if increased scrutiny on people who are identified with a particular religion (e.g., wearing a headscarf or turban) or with particular part of the world (e.g., looking Latin American) would yield more efficient immigration enforcement, this practice would nonetheless be prohibited. Using or relying on morally arbitrary factors to help enforce immigration policy disproportionately harms citizens who, like Mancha, simply happen to share those factors through no fault of their own. Again, even if relying on these factors would make enforcement more efficient (which is a dubious assumption to begin with), a commitment to maintaining the political equality of citizens would outweigh such supposed benefits.
Along with an equality of burdens standard, there is a need for a universal protections standard. This standard would complement the equality of burdens standard by putting in place certain mechanisms for oversight and restrictions against excessive government action at all levels. The idea here is that even if citizens would equally share the burden, there are certain enforcement measures that should always be off the table (e.g., indefinite detention) or at least carefully circumscribed when used (e.g., searches and seizures). In other words, actions such as indefinite detention and unreasonable searches and seizures are unjust not simply because the burdens are somehow unequally distributed, but are in-themselves always unjust.
There is a difficulty in specifying what particular types of oversight or restrictions a universal protections standard would demand, since different communities have their own unique set of circumstances and challenges. With that being said, there is at least one universal restriction that this standard would seem to always entail: there must at least be a “presumption of innocence” restriction. In the immigration context this would mean that all persons present should be treated as though they are lawfully present until their status has been confirmed to be irregular and even then should be treated with the dignity that is due to all human beings.
In more concrete terms, if U.S. immigration enforcement policy were to adhere to something like a universal protections standard it would need to give all persons present, regardless of their immigration status, such basic protections as the right to due process, equal protection under the law, freedom from unreasonable searches and seizures, a right to a court appointed attorney, and protection from indefinite detention. Protections like these are essential because without them immigration controls could easily infringe on both the rights of citizens and the human rights of all persons present.
When taken together, these two standards form a canopy of protections that ameliorate, if not eliminate, the threat of Juan Crow. For example, the raid that took place in Mancha’s home would be prohibited by a policy that adhered to these two standards. In the Mancha example, federal agents would have (a) needed a warrant to meet the universal protections standard and (b) under the equality of burdens standard that warrant could not have been obtained by merely appealing to Mancha or her mother’s ethnicity or occupation.
Similarly, this canopy of protections would prohibit most of the other aspects that make Juan Crow possible, such as the commandeering of local police for immigration enforcement purposes, requiring employers to verify the immigration status of their employees, landlords of their renters, school officials of both parents and children enrolling in the school, and many other everyday activities that “attrition-through-enforcement” schemes have encroached on. In developing their immigration enforcement schemes, these areas of everyday life would be out-of-bounds for immigration policies that adhere to these two standards.
One last point to make is that these standards would obviously limit the discretion political communities have in controlling immigration and given today’s political climate most people would say that such a position on immigration is a nonstarter. This is probably a correct assessment, but in that case we need to begin a conversation about why sacrificing the civil rights and equal protections of minority citizens is worth enforcing an immigration policy that all sides of the debate seem to consider broken? Instead, the standards I have proposed would entail that a country adopt an immigration policy that better reflects global realities as opposed to xenophobic fears. It is true that such a revised system would require much more open borders than most Americans are currently comfortable with, but no one ever said that doing the right thing would be easy or popular.
The connection Roberto Lovato draws between African Americans living under Jim Crow and Latino/as currently living in parts of the former Confederacy where “attrition through enforcement” style laws are becoming the norm is helpful in getting us to see the similarities in both sets of harms. The comparison, however, can also be a bit misleading in that it seems to suggest that the problem of Juan Crow is a problem inherent in federalism and that therefore the recent actions taken by the Obama administration are the proper corrective—as the actions of Eisenhower and Kennedy were in the case of Jim Crow. This essay has tried to argue that federalism is not itself the problem and that centralized approaches to immigration can be just as dangerous and discriminatory as actions taken by local and state governments. Instead, this essay has argued that Juan Crow is an inherent problem of “enforcement first” approaches to immigration reform.
This essay began with the story of Marie Justeen Mancha because her story helps to make this point clear. Regardless of one’s own position on immigration, it is difficult to argue with the fact that what happened to her was wrong and that a just society has a responsibility to make sure that there are safeguards in place to prevent those sorts of incidents from ever taking place. This belief is undergirded by an intuition that most of us share: legitimate political communities have a responsibility to make sure their citizens are treated as political equals and to not excessively or without warrant intrude into their lives. This intuition is expressed in what I have called the equality of burdens and universal protections standards. These two standards might not be sufficient to end racism and xenophobia, but if immigration enforcement had to adhere to them they would prove adequate to thwart the conditions that give rise to Juan Crow.
Footnotes & References
[i] The term DREAMer comes from the acronym for the Development, Relief, and Education for Alien Minors Act, which if passed would regularize the status of most undocumented immigrants who arrived in the United States before the age of sixteen. Immigrant rights activists have now begun to use this term to refer to this particular subset of the undocumented immigrant population.
[ii] Roberto Lovato, “Juan Crow in Georgia” The Nation, May 26, 2008. http://www. thenation.com/article/juan-crow-georgia. Accessed December 21, 2014.
[iv]See Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge, UK: Cambridge, 2004); John Exdell, “Immigration, Nationalism, And Human Rights,” Metaphilosophy 40.1 (2009); and Eduardo Mendieta, “The Right to Political Membership: democratic morality and the right of irregular immigrants,” Radical Philosophy Review 14.2 (2011): 177-85.
[v] See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality, (New York: Basic Books, 1983); Christopher Heath Wellman, “Immigration and Freedom of Association,” Ethics 119 (2008): 109-141; David Miller, “Immigration: The Case for Limits.” Contemporary Debates in Applied Ethics, ed. Andrew I. Cohen, and Christopher Heath Wellman (Malden MA: Blackwell Publishing, 2005):193-206 and “Immigrants, Nations, and Citizenship,” The Journal of Political Philosophy 16. 4 (2008): 371-90.
[vi] Chandran Kukathas, “The Case for Open Immigration,” in Contemporary Debates in Applied Ethics, ed. Andrew I. Cohen, and Christopher Heath Wellman (Malden MA: Blackwell Publishing, 2005): 376–388; Michael Huemer, “Is There a Right to Immigrate,” Social Theory and Practice 36.3 (2010): 429-61; Javier S. Hidalgo, “Freedom, Immigration, and Adequate Options,” Critical Review of International Social and Political Philosophy 17.2, (2014): 212-234.
[vii] See Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders,” in The Rights of Minority Cultures, ed. Will Kymlicka (Oxford: Oxford University Press, 1997); Phillip Cole, Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh: Edinburgh University Press, 2000).
[viii] See Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders.” Political Theory. 36.1 (2008): 37-65.
[ix] See Peter Higgins, “Open Borders and the Right to Immigration,” Human Rights Review 9.4 (2008): 525-535; Lea Ypi, “Justice in Migration: A Closed Borders Utopia?,” The Journal of Political Philosophy 16. 4 (2008): 391–418.
[x] Thomas W. Pogge, “Cosmopolitanism and Sovereignty.” Ethics 103.1 (1992): 48-75.
[xi] Veit Bader, “Citizenship and Exclusion: Radical Democracy, Community, and Justice. Or, What Is Wrong with Communitarianism?” Political Theory 23.2 (1995): 211–246.
[xii] Benhabib, The Rights of Others, 2004.
[xiii] William V. Flores, “New Citizens, New Rights: Undocumented Immigrants and Latino Cultural Citizenship.” Latin American Perspectives 30. 2 (2003): 295-308.
[xiv] Renato Rosaldo, “Cultural Citizenship and Educational Democracy.”Cultural Anthropology 9.3 (1994): 402-411.
[xv] See Jim Patterson, “Sanctuary Cities and States’ Rights.” The Hill (August 07, 2015), http://thehill.com/blogs/pundits-blog/immigration/250496-sanctuary-cities-and-states-rights; and Jessica M. Vaughan and Russ Doubleday, “Subsidizing Sanctuaries The State Criminal Alien Assistance Program.” Center for Immigration Studies (Nov. 2010), http://cis.org/subsidizing-sanctuaries.
[xvi] The first mention comes in Article 1, Section 8, Clause 4 where among a laundry list of things it states that: “Congress shall have the power…To establish a uniform rule of naturalization.” Naturalization, however, is not the same as immigration. Establishing the rules of naturalization has to do with setting the requirements to become a citizen and not with rules for admission, exclusion, or deportation. People can, after all, be legal permanent residents (LPRs) without ever becoming citizens. The other mention comes in Article 1, Section 9, Clause 1 where it states that Congress shall not prohibit the migration or importation of persons, but this clause is specifically talking about slavery and also expired in 1808.
[xvii] City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).
[xviii] Thomas Jefferson, “Resolutions Adopted by the Kentucky General Assembly,” in The Papers of Thomas Jefferson Digital Edition, ed. Barbara B. Oberg and J. Jefferson Looney. (Charlottesville: University of Virginia Press, 2015), 553-54.
[xix] Ibid., 554.
[xx] Smith v. Turner; Norris v. Boston, 48 U.S. 283 (1849)
[xxi] Chae Chan Ping v. United States, 130 U.S. 581 (1889).
[xxii] See Robert Senh. 2009. “The Liberty Rights of Resident Aliens: You Can’t Always Get What You Want, But if You Try Sometimes, You Might Find, You Get What You Need.” Oregon Review of International Law 11(1): 137-178; and Daniel Kanstroom. 2007. Deportation Nation: Outsiders in American History. Cambridge MA: Harvard University Press: 16-17.
[xxiii] Mark Krikorian, “Attrition Through Enforcement Will Work,” San Diego Union Tribune, April 2, 2006, accessed May 23, 2015, http://www.utsandiego.com/uniontrib/20060402/news_mz1e02krikor.html.
[xxiv] See Elizabeth Jamison, “State-based Immigration Efforts and Internally Displaced Persons (IDPs): An Experiment in Alabama,” in Migration Policy Interventions, ed. Harald Bauder and Christian Matheis (New York, NY: Palgrave, 2015); and Edward M. Olivos and Gerardo F. Sandoval, “Latina/o Identities, the Racialization of Work, and the Global Reserve Army of Labor: Becoming Latino in Postville, Iowa,” Ethnicities 15.2 (2015).
[xxv] 1996 Personal Responsibility and Work Opportunity Reconciliation Act, H.R. 2260; Pub.L. 104-193; 110 Stat. 2105. 104th Cong., (August 22, 1996); and 1996 Illegal Immigration Reform & Immigrant Responsibility Act, H.R. 3610; Pub.L. 104-208; 110 Stat. 3009-546. 104th Cong., (September 30, 1996).