Arguing for Amnesty

With growing populations of irregular immigrants in many liberal states, and rising, virulent backlash in response, supporters of immigrants and their rights find themselves struggling over how to conceptualize and articulate this support. As a shorthand, I will characterize this group of immigrants’ rights supporters – among whom I include myself – as “pro-immigrant progressives.” Exactly what being a pro-immigrant progressive might mean will be controversial; there will be consequential differences among those who would locate themselves (or be located by others) in this camp. And certainly, dilemmas of conceptualization and strategic framing will vary across national settings. I am writing as a legal scholar from the United States and I primarily focus on the difficulties faced by pro-immigrant progressives here, but versions of many of the dilemmas I examine face scholars and activists in other liberal national locations as well. My purpose is to offer a few reflections on some of the intellectual and political challenges encountered by those of us supporting resident undocumented noncitizens in the early 2000’s. I will suggest that the nature of our arguments on behalf of immigrants can sometimes give too much ground to current social conditions, and that we may – in our efforts to remain immediately policy-relevant – relinquish the opportunity to develop more fundamental social criticism of existing immigration relations.

Pro-immigrant progressivism, I will posit, entails a few basic commitments. Some are epistemological. Briefly, pro-immigrant progressives are committed to considering not simply the effects of immigration on the receiving society but the experiences and interests of the immigrants themselves. They make the lives and realities of the immigrants a subject of focus and concern. Other commitments are methodological, informed by empirical suppositions. Pro-immigrant progressives recognize that the presence of immigrants in a national society is a function of global economic and political relationships. They regard the receiving nation as globally embedded and inextricably imbricated with migrant sending societies. They acknowledge the centrality of the labor demand-side of the migration process, and the crucial structural role that immigrants play in domestic economic life.

Being a pro-immigrant progressive also involves certain normative commitments – commitments which strive in various ways toward justice for immigrants. Among these are commitments to various rights agendas: basic civil and human rights for undocumented immigrants, commitments to labor and employment protections, and to opportunities for family unification and security. It also involves a commitment to racial justice and cultural recognition, and an understanding that at least some portion of what drives anxiety about undocumented immigration is antipathy to, and fear of, cultural difference.

Additionally, I would venture that this group of scholars and activists generally takes a common outlook on issues of “illegality” of status. We think that many, if not most, of the laws defining and penalizing undocumented immigrants are unjust. We are aware that unauthorized immigrants are constructed as irregular, illegal, undocumented by law; we criticize conceptions of irregular immigration that lack a historical understanding of that construction. And most of all, we concur that restrictive laws which construct large categories of people as illegal need drastic overhaul.

For many of us, the centerpiece of any real legal overhaul ultimately must be legalization or regularization – or, in the United States – amnesty. By regularization or amnesty, I broadly mean policies that lift or eliminate the illegality of status imposed on these individuals and that incorporate them into the body politic. I will return to the discussion of amnesty shortly.

But first, a more general point about my composite characterization of pro-immigrant sympathizers or advocates. This sketch that I have set out could be drawn differently, and advocates might say that they identify with some, but not all, of these commitments. My broader purpose, however, is to propose that we are part of a cohort of people situated ethically and politically in a particular (though not precisely delineated) space, and to devote some attention to thinking about what it means today to be in this space. I believe we need to look reflexively at our own political imaginaries and practice.

I realize that self-examination of this kind is difficult when simply doing the front-line work of protecting undocumented immigrants from most egregious forms of aggression and subordination seems all-but impossible. Moreover, we might not want to publicly air our ambivalences and our divides given the political stakes and the possibilities for political exploitation by opponents. But I want to resist that reluctance. It seems to me that in spirit of critical social and political theory, we have to be able to turn our sights on our own ideas and practices – and recognize them as part of the social world we are engaged with and that we are studying.

As an analogy to an effort like this, I have been thinking about how scholars look back on the history of slavery in the United States. Historians examine not merely the institutions of chattel slavery themselves, but also the political and social and intellectual movements associated with opposition to slavery – what we now call the anti-slavery or abolitionist movements. There is an extensive and fascinating scholarship about the divisions, strategic and principled, between strands of anti-slavery thinkers. ¹ This work outlines debates between the gradualists and the radicals, between free labor advocates and the humanitarians, and between those who urged recolonization of Africa with manumitted slaves and those who sought their integration and equality domestically. I would urge us to see our own oppositional stance in the immigration debate as an analogous form of political thought and practice deserving of study.

Let me note that in making an analogy to abolitionism, I do not mean to assert that unauthorized immigration is slavery or is tantamount to slavery. There are aspects of the system of unauthorized immigration that produce slavery-like conditions, or resemble slavery in other respects, but not always and not comprehensively. Certainly, the deployment of slavery discourse in the immigration debates is fascinating and significant; this is something I am writing about elsewhere. ² But here, my focus is on the intellectual dynamics of our opposition to the institution and maintenance of irregular migration, and I raise the anti-slavery effort as a kindred or analogous enterprise to what we now regard as part of our intellectual and social-movement history.

Of course, it is not so easy to look at ourselves in these terms. Doing “history of the present” is always difficult; there are limits to what we can know of ourselves when we are in the midst of things. Also, in the immigrants’ rights setting today, there are not as many identifiable formal factions – and, in fact, there is a less defined and developed intellectual movement overall – as there ultimately were in the anti-slavery context. But someday, there will be histories written about political thought on immigration during the late twentieth and early twenty-first centuries. And these won’t be just histories of political battles between free marketeers and social conservatives, establishment liberals and grassroots radicals, but also histories of political and social theory and its premises. What are the historians of ideas going to say about us? And, in turn, how will our thinking on immigration now shape future understandings of social and political justice more generally?

As part of an effort to do self-conscious theory regarding progressive immigration thought, I want to focus on the issue of amnesty. As a starting point, this would be the moment to say something about my use of this amnesty term. Some advocates eschew the word, on grounds that it reinforces the tendency to blame the immigrants, by way of what George Lakoff and Sam Ferguson call “the illegal frame.” As Lakoff and Ferguson write: “Amnesty is a pardoning of an illegal action – a show of either benevolence or mercy by a supreme power. It implies that the fault lies with the immigrants, and it is a righteous act for the US Government to pardon them.” ³ At the same time, conservatives often take pains to distance themselves from the idea “amnesty” – even when they accept forms of eventual earned regularization of some irregular immigrants – on grounds that it implies capitulation to, or rewarding of, past lawbreaking. ⁴ While I am sensitive to the politics involved in choice of terminology, I do not want to disavow the idea of amnesty. I am interested in the term in part because it is so assiduously avoided by many on both sides of the debates, but also because I think its associations are generally positive for this context. ⁵ In its etymology, the term denotes forgetting (amnesia) or erasure. I find more attractive the demand that state imposition of illegal status be erased rather than forgiven or pardoned. ⁶ In any event, it is one term, among others by which the issue of regularization is discussed in this political setting, and I will approach it as such.

I will assume we – pro-immigrant progressives – are in agreement that some form of amnesty/legalization/regularization is essential. That means I will put to one side the various objections opponents have – on grounds that it will reward lawbreakers or incentivize future unauthorized migration. I will assume that we agree that regularization of some kind is an indispensable part of the solution to the problem of undocumented immigration. Maybe we could say that “amnesty” in some version is the core of our contemporary abolitionism. What is to be abolished is a system whereby several million individuals who live and work in this country and provide needed labor are designated as legal and social outsiders for many purposes, and function as the repository of a great deal of social animosity.

Still, even starting from here, countless questions remain. First of all, there are all the questions about what such a legalization program will look like. Legalization for precisely whom, and on what terms? Will it provide a real “path to citizenship” or a protracted and limited denizenship? What conditions will be imposed, what eligibility criteria attached? ⁷ And how do we regard partial legalization programs, such as the DREAM Act for undocumented youth?

Here, we find ourselves in the midst of strategic debates over what is politically possible and how much we are willing to concede in order to get a portion of what we want. How much get-tough border policy will we swallow as a price for possible regularization down the line? But my interest is not so much with the push-pull of interest politics on the ground as with political theory and social vision. Let’s assume we are located a couple of steps removed from the tactical skirmishes of the Beltway and our recent failures there. ⁸ The question is: what sort of ethical worldview animates our commitment to regularization? What kinds of arguments and justifications do we make to support amnesty? What do we understand to be wrong with the current system that needs to be made right via amnesty?

Likewise, what issues do we tend to avoid in our amnesty arguments? What intellectual compromises are we willing to make and why? And what may be unintended consequences of the framings that we make?

I want to highlight two broad categories of argument we tend to advance on behalf of amnesty, which I will broadly call the moral argument and the pragmatic argument. Each is essential to the debate; we clearly need both, because – to put it crudely – the existing system is both morally wrong and hopelessly stupid. But in practice, I want to suggest that the way we frame these arguments may sometimes concede too much to existing conditions and may sacrifice deeper, more thoroughgoing social criticism.

Let’s begin with moral argument: There are various versions, but here is a composite, which goes something like this:

– It is wrong to treat people who live and work in this country as perpetual outsiders – outsiders to social rights and benefits, and outsiders in the sense that they are always subject to expulsion and to the vulnerability that the threat of expulsion represents. Justice requires recognizing the de facto membership of individuals who have lived here for years, and who have made critical contributions to the national society.

– It is wrong to rip people away from their homes and the relationships they’ve developed over time – their ties with family members and neighbors and coworkers and fellow congregants and so forth – via deportation. It is especially wrong when the immigrants were brought to this country as young children. You cannot punish children for the choices made for them by their parents. The children, especially, should be recognized as members.

– And, it is wrong for a purportedly democratic society to profit from the labor of these people while treating them as outcasts. It is dishonest and self-serving to rely on them while assigning them to pariah status. Justice requires recognizing our own responsibility for conditions that produce the flow of immigrants, and honoring the essential contribution they have made.

Again, this is a synthetic sketch; different people emphasize different facets. But these are all moral arguments of some kind. And they are all vital, compelling arguments which need to be made.

Still, I want to suggest that these claims have an underside as well. They involve framing the problem in ways that may tie our hands somewhere down the line. As we elaborate reasons for moral concern, we are implicitly excluding some classes of people and some reasons for concern, and this is what I want to focus on.

First, in regard to those claims that emphasize special worry about children – the “innocent children” argument. Certainly it seems right that children should not be held accountable for the situation they find themselves in. But notice the unstated implication: the adults who brought the children here are not innocent at all. In fact, the argument ultimately emphasizes the adults’ culpability. This is a framing we see set out in Plyler v. Doe – the undocumented children’s access-to-education case – where Justice Brennan wrote:

The children who are plaintiffs in these cases are special members of this underclass [of unauthorized immigrants] … The children of … illegal entrants can affect neither their parent’s conduct nor their own status … Legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice. ⁹

It is also a rhetoric central to the long-pursued DREAM Act, which would offer a form of regularization for young undocumented immigrants who arrived as children. As one Senator who supported the Act stated, “[t]hese are not children who made a decision to break the law. These children were simply the victims of adults who were law breakers.” ¹⁰

So, while recognizing the moral power of the claim on behalf of immigrant children, the argument works to reinforce fault-based conceptions of responsibility among the adults. As Justice Brennan put it in the Plyler case: “those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.” ¹¹

Additionally, all of these arguments for amnesty that emphasize the significance of the long-term residence of some immigrants – call this the “time counts” argument – also necessarily imply that shorter-term residence makes immigrants less deserving of solicitude. Initially, the argument raises line drawing problems: how many years of residence suffices to put someone over the line? Is it five? Seven? Ten? But the problem is not merely operational; it also goes deeper. What is it about being here over time (however long the time-requirement is) that matters morally? Arguably, time stands in for the development of ties and affiliations; it is the relationships established during residence that the rule purports to capture. But on reflection, time is not always the best proxy for relationships. After all, there are plenty of people who have always been here who are not closely tied to the community, and plenty of people who have been present very briefly (or indeed, may have never been territorially present) who are nevertheless very deeply imbricated with many people and institutions here. ¹²

Moreover, we have to ask about those people whose length of stay falls short of the magic cutoff number. If we are going to credit “time here” as morally significant, we are impliedly treating shorter-term immigrants as less deserving. In other words, if an irregular immigrant has been here for less than 5 or 7 or 10 years, then the case for amnesty concededly falls away. And what then?

This time-counts position maintains an embedded premise about the legitimacy of national border control and deportation authority: deportations of those who don’t manage to stay undetected for a certain period are acceptable, as is, correspondingly, the initial border control laws that defined these immigrants as irregular to begin with. This commitment is sometimes made explicit in these arguments. In a 2009 article in the Boston Review, the political theorist Joseph Carens argues for amnesty for undocumented immigrants. In it, he maintains that time present matters morally; as he puts it, “the longer the stay, the stronger the claim”. And he says people who have been here for some number of years (5 or 7; he does not commit) should be granted legalization. But Carens also writes as follows:

Nothing in my argument denies a government’s moral and legal right to prevent entry in the first place and to deport those who settle without authorization, so long as these expulsions take place at a relatively early stage of residence. ¹³

While he is not making an affirmative case for state border control and deportation authority, he patently accedes to them, and the effect is legitimizing. I would suggest that this legitimizing quality is not incidental; it is inherent in the “time matters” argument. By treating shorter-term irregular immigrants as unproblematically deportable, the position works to reinforce the default notion that states may legitimately control their borders via exclusion and expulsion – and this is a concession which excludes from the regularizing purview of amnesty a large proportion of the currently present undocumented population. ¹⁴

My conclusion is that, while amnesty for longer-term undocumented immigrants is crucial, it is a half measure. To go back to the slavery analogy, it is akin to doing away with the international slave trade (as the US did in 1808) without abolishing the institution of slavery itself. The reality is that as long as there are border controls, new undocumented immigrants will continue to be produced. And as long as there are time bars to legalization, then we will still have people living and working among us as legal and political outsiders. In other words, we will not have abolished the system at all – we will just have cut down on the numbers somewhat for a period of time.

As for the pragmatic arguments for amnesty, they tend to go something like this: Maintaining a class of people who reside here as legal and social outsiders is, overall, negative for our society. It is bad for public health since sickness spreads without access to healthcare, and costs rise when health care services are provided in the emergency room. Having a caste of resident outsiders is also bad for public safety; all of us are worse off when a group of residents is afraid to go to the police. And it is bad for the rule of law; these are laws which are routinely flouted and their flouting is selectively tolerated.

These are, of course, consequentialist arguments – arguments according to which we evaluate a practice normatively based on the outcomes they produce, not on their inherent value. But in the case of amnesty, these consequentialist arguments are importantly conjoined with an empirical claim. The claim is that it is impossible to stop the flow of immigrants into the United States, especially from Mexico and Latin America. Sociologist Douglas Massey has repeatedly articulated this view: we have a robust and increasing demand for low-skilled labor, coupled with an expanding supply of such labor abroad. We face the reality of deeply integrated economies, and adjacent societies divided by massive inequality. Finally, we have witnessed decades of the development of family and community networks across borders, which serves to ensure perpetuation of the migration process. ¹⁵

This empirical claim – that it is “impossible to stanch the flow” – means that the various ills associated with the current regime cannot be remedied through revving the enforcement engine and tightening the border. The claim says that is a fantasy. It means that the only realistic remedy for all of the deleterious consequences produced by unauthorized immigration is full legal and social incorporation of irregular immigrants who are here, along with programs that rationalize future flows through various means.

In regard to these arguments: Here, again, I am convinced they are necessary in our political discourse. They certainly are compelling to many. ¹⁶ Furthermore, it is true that marginalizing these immigrants overall cuts against the national self-interest, and it is true that ramped-up restriction is not a viable answer. But there are some downsides to these arguments as well. For one thing, when we say we should support amnesty because the current system is bad for us, we are saying, implicitly, that if the consequences were different – if benefits of the current system were greater, if the costs to us were lower – then it would make sense to leave things as they are – because it would be to our advantage. The interests and experiences of the immigrants disappear in these arguments; the concern is maximizing our well-being in measurable social and material terms. When we say: “Excluding immigrants from healthcare is bad for us,” we are effacing the consequences of such policies for the immigrants themselves. Furthermore, the “us” we are invoking is a national us. We are, in other words, reinforcing nationalist frames of value while dismissing the immigrants as exogenous factors in an insular self-interest equation.

Notice also that the reliance in this argument on the claim that “we can’t stop the ingress anyway” contains an insistent, unspoken question, which is: what if such control over the borders were possible? What if we were able to redress all of these bad consequences that the system of undocumented immigration entails by cracking down, tightening borders, expelling everyone? This, too, would constitute abolition of the system of undocumented immigration; it would be abolition through exclusion and enforcement. Doesn’t the argument that we cannot realistically do anything to stop the flow implicitly suggest that if we could, then abolition through exclusion might possibly be preferable? At least it begs the question.

Once again, it is interesting to draw analogies here with anti-slavery thought. There were plenty of abolitionists who opposed slavery not on humanitarian grounds but on grounds of economic or political self-interest – on grounds that the system of slavery was undermining American capitalism, exacerbating sectional conflict, and bringing America down. Today, many of us would find ourselves squirming to hear utilitarian arguments against slavery. It can’t be that this was what was wrong with slavery. And yet in the immigration context, our most successful arguments tend not to be the humanitarian ones but the utilitarian ones – the ones emphasizing how it is bad for us. What does this mean, and how do we feel about it?

The foregoing are preliminary reflections on some of the ways in which we frame our critiques of the current regime of undocumented immigration and how we argue for amnesty as a remedy. Again, I start from the premise that amnesty is essential. Anything short of it (for example, strategies that would focus only on establishing a temporary worker program, or affording greater degrees of due process in the removal setting) will ameliorate some of the system’s worst effects, but will still leave the system in place. Amnesty is the core of our abolitionism. And yet, like anti-slavery abolitionism, our abolitionism is driven by arguments that cut in contradictory directions. Sometimes, they reveal that amnesty represents a half measure – one driven by a logic that reinforces rather than undercuts the foundations of the problem we are trying to address.

By way of conclusion, I want to turn back to Joseph Carens’ recent pro-amnesty piece in the Boston Review. The Carens piece and its setting instructively illustrate some of the tensions I am highlighting here. Again, Carens’ main argument was that “time matters” morally, and that once an individual is present for several years, he or she is entitled to be formally placed on a path to membership. Long-term illegality is unsupportable. In the same journal issue, there were 12 responses, including one by me. Most of them criticized Carens as going too far in favor of regularization. The legal scholar Gerald Neuman wrote: “A liberal democracy cannot have an obligation to provide such an orderly avenue to future membership for the migrants who clandestinely enter or remain. Amnesty [cannot be] a bonus promised to all who persevere.” ¹⁷

I came at Carens from the other side, pressing some of the points I have made here. I said that his approach implicitly excludes millions of shorter term immigrants, and that it legitimizes border enforcement, which is what produces undocumented immigrants in the first place. In the response, I also noted something else. There is a real irony involved in being in the position of critiquing Carens for embracing exclusionary border restrictions. Many scholars are familiar with Carens’ early essay entitled “The Case for Open Borders” in which he set out a stringent critique of border restrictions on grounds of liberal political theory. He argued there, essentially, that restrictions on free movement in a world of assigned citizenship at birth maintain global inequality. This is the piece that long has been regarded as the most systematic defense of open borders in the political theory literature. What, I asked, happened to that Joseph Carens?

What is interesting is that Carens wrote a different article about twelve years ago in the journal International Migration Review (midway between the time he wrote the open borders piece and the more recent amnesty essay) which suggests an answer. In the piece, called “Realistic and Idealistic Approaches to the Ethics of Migration,” Carens ends up defending “realism” over “idealism” in some situations. Specifically, he argues, “whatever we say ought to be done about international migration should not be too far from what we think actually might happen [and from] what we think our community might do.” ¹⁸ His Boston Review piece on Amnesty is written from within a realist framework.

I understand this impulse to realism, and in many settings, I make realist arguments as well. These are the arguments with possible payoff in the political present. From the perspective of doing realistic theory, Carens’ article about amnesty is wonderful, and for purposes of the current immigration debate, I am definitely on his team.

But I also do not want to give up on efforts to critique national border control, to critique deportation, critique “the national imagination.” ¹⁹ In our scholarly work, I think it’s essential we do not give up on idealistic theory. Legalization for long term undocumented immigrants may be “the best we can hope for” into the foreseeable future. But as theorists, it seems to me our job requires more than figuring out what might fly politically. We need to keep asking the hardest questions, which in this setting come down to questions about borders and their paradoxes: Borders produce injustice, but also make possible the very contexts in which we pursue justice. The call for amnesty challenges national borders but it also fundamentally concedes them. It is critical theory’s job to surface these paradoxes, to defamiliarize the terms of the debate in which we find ourselves in, in the hopes of opening up new directions in political thought and practice. And it is the critic’s job to ask whether and when pursuit of the possible runs the risk of impairing the ideals of justice and equality that motivate our advocacy in the first place.

Therefore, we certainly need to continue working for amnesty, insisting upon it, defending it. But we also need to reflexively think about what our efforts for amnesty entail – about what is lost as well as gained – and in this way – to eventually think beyond it.