‘Immigration is a political question’

Among the various political arguments raging across the United States, the evergreen debate over domestic border policy is among the most divisive. But beyond the seemingly endless news coverage dedicated to the ‘crisis at the border,’ most of these conversations stop short of delving into the fundamental goals, strategies, and philosophies that underpin the U.S. immigration system, according to a speaker at a recent Harvard Law School event.

At this year’s Francis Biddle Memorial Lecture, Yale University Law Professor Cristina M. Rodríguez provided an expert perspective on what she sees as the ineffectiveness of federal immigration law and the unresolved questions she says perpetuate a dysfunctional system. In her lecture, “Equality, the Polity, and Immigration,” Rodríguez chronicled the evolution of modern immigration policy from the turn of the 20th century onward to explain how today’s “unstable amalgam,” as she describes it, came to be.

Rodríguez, a former U.S. Department of Justice attorney, delivered a clear message about her talk’s overall point and purpose at the outset of her remarks.

“Today, I will focus not on making predictions, setting factual record straight, or unspooling strategic advice,” she said. Instead, she said she wanted to use this political moment to better understand and conceptualize “the place of immigration and immigrants in our political discourse and the life of the nation.”

According to Rodríguez, approximately 284 million people across the globe are immigrants, driven across borders by everything from conflict to climate change. In response, she explained, “countries of the so-called Global North have dedicated record high resources to build border enforcement in recent years.”

“We cannot ignore significant social costs borne by our nation when select groups are denied the means to absorb the values of the skills upon which our social order rests.”

“Deeply rooted historical assumptions that migrants displace host citizens in job markets, fail to engage in local communities, produce crime, and disproportionately rely on state assistance persist all over,” she continued. “It matters less whether these assumptions are true — mostly they are not — than that they are semi-fixed heuristics that host societies and politicians rely on.”

Social science research, Rodríguez explained, shows that people largely view immigration through the lens of how they perceive their own economic circumstances. “In other words, the meaning of immigration is a political question.”

Although the fundamental questions about U.S. immigration policy have remained largely unchanged, Rodríguez said she’s observed in recent decades an important shift in how it is perceived by opposing political parties.

“Immigration has gone from a cross-cutting issue that found supporters and detractors of both political parties in the late 20th century and early 2000s,” she said, “to a nearly perfectly sorted issue by the mid 2010s, with Democratic lawmakers on the side of immigrant rights … and Republican lawmakers favoring enforcement and restriction.” As a result, she said, “[w]hether the United States has control over its sovereignty and demographic future seems likely to be a central issue of the 2024 presidential campaign.”

According to Rodríguez, U.S. immigration policy has evolved along “three conflicting accounts,” or paradigms — self-governance, civil rights, and global networks. “Today’s politics on the issue ultimately involve conflict over three separate accounts,” she said, “each of which has a relationship to influential strains of modern political theory, as well as historical roots and legal and sociological manifestations.” 

“These three accounts are paradigm, so they’re not necessarily mutually exclusive,” she explained. “But they understand the relationship of immigration to the polity in distinct ways and … reflect overlapping ways in which Americans have been constituted as a people.”

The “self-governance paradigm” is a term Rodríguez described as the belief that restricting immigration promotes domestic social welfare and helps democracy flourish. “The need for immigration control is defined and defended both as a means of producing the solidarity and fellow feeling,” she said, “required to ensure a robust democracy, and as a response to the exploitation of nativistic and even racist fears by demagogues.”

She believes this perspective has been particularly influential in the formation of U.S. immigration policy, from the development of national origin quotas in the 1920s to the reports issued by immigration officials under President Bill Clinton.

Rodríguez posited the second account, the “civil rights paradigm,” as the notion that immigration policy should remove “formal racial and ethnic barriers” to establish a system built on procedural equality and neutrality. According to Rodríguez, this perspective emerged in tandem with the 1960s civil rights movement and helped inspire the elimination of national origin quotas.

“Throughout the mid to late 20th century, there was a granular reality to the interrelationship between civil rights and immigrant rights,” she said. “Most prominently, the advocacy of Cesar Chavez, Dolores Huerta, and the United Farm Workers involved the intertwined interests of long-resident Mexican Americans and newly arrived migrant workers.” Organizations originally created to advocate civil rights reforms for U.S. citizens of Latino heritage, she said, “are now largely immigrant rights organizations.”

Lastly, Rodríguez described what she termed the “global network” paradigm as a more modern perspective that the inequality that results from labeling entrants “illegal” is an injustice immigration policy should address. This vision hinges less on measures of domestic inequality among different ethnic and racial groups within the U.S. or inside other developed nations, but instead contrasts the relative prosperity of residents of nations in the Global North with the relative poverty suffered by those in the Global South.

“The role of inequality began to really rise in 18th century Industrial Revolution and what historians call the Great Divergence between Europe and North America on the one hand and Asia and the Middle East on the other,” she said. “It reached its historical high point in the late 20th century, possibly as late as 2000.”

People born in the more prosperous countries enjoy advantages and opportunities that, when viewed through the “global network” paradigm, Rodríguez explained, should be more equally distributed across international borders. To make her point, she cited arguments by University of Toronto Professor Joseph Carens, “that citizenship is the modern equivalent of feudal privilege, an inherited status that greatly enhances one’s life chances, whether we are born in a poor or a wealthy country and our concomitant citizenship are matters of pure luck. Borders and their enforcement entrenched as inequality.”

The only way to solve the problem, the argument goes, is to open those borders and allow the unlucky many to access the same privileges enjoyed by the comparatively lucky few. According to various studies, Rodríguez noted, large percentages of people in lower-income nations would emigrate if they could.

Rodríguez argued that Supreme Court decisions related to immigration since John Roberts became chief justice in 2005 represent a departure from its approach in recent decades.

“The Roberts Court’s immigration jurisprudence is increasingly coming to look like a radical break with the jurisprudential order that underpins the imperfect civil rights paradigm forged in the 20th century,” she argued.

As an example, Rodríguez highlighted Trump v. Hawaii, a case in which the Court “held that an immigration policy — even if we know it to have been motivated by blatant and efficient animus against religion — must be upheld so long as the government offers some rational national security basis for it.” According to Rodríguez, the majority opinion in the case applied a highly deferential standard of review and “for the first time, upheld an action by the political branches that could reasonably have been characterized as a violation of ordinary domestic constitutional law.”

Rodríguez concluded her remarks with a discussion of the steps necessary to address immigration, all rooted in a belief that vitriol induced by the “chaos at the border” has rendered progress on policy reforms politically impossible.

First, she said, we “must understand first that the United States is a nation situated in a set of transnational networks,” adding that “not even a sovereign nation can close its borders as if they were operated by an on-off switch. This means accepting the dysfunction that illegal immigration produces within society and political culture.”

The impacts, she believes, include increased resentment of immigrants, labor exploitation, and “creating whole communities under constant threat of surveillance enforcement.”

Getting to grips with the problem, Rodríguez said, “requires establishing control” at the border, or at least the perception of it for domestic political audiences. According to “some social science research,” she explained, “an increased sense of control over borders can soften anti-immigrant sentiment.”

Creating the conditions for that softening is a precursor, she argued, for any successful effort to address U.S. immigration policy and to reframe its costs and benefits in the American political consciousness.