The Supreme Court’s ruling of Tuesday, June 26 culminates an unrelentingly bleak year and a half of US immigration news, dating from the January 27, 2017 issue of the original travel ban. Those of us who hope that the arc of the moral universe bends toward justice predict that the decision will one day be viewed on par with Korematsu v. United States which upheld Franklin D. Roosevelt’s 1942 executive order condemning Japanese Americans to internment camps. Perhaps we will look back to Justice Sotomayor’s dissent and admire her prescience and moral decency:
Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
Today it is no longer possible for a reasonable person to deny the racism, misogyny, and sadism of our immigration system.
Racism: The Muslim Ban is part of continuous efforts by the Trump administration to dehumanize immigrants. Consider President Trump’s recent tweet that “Democrats are the problem. They don’t care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13.” The word “infest” is not coincidental and it is important to point out how this language is connected to crimes against humanity. We can connect this racism further to the administration’s misogyny: Attorney General Jeff Sessions has ruled against domestic violence as grounds for asylum, while promoting the immigrant detention industry which perpetrates sexual violence against thousands of women. Finally, sadism: The deportation regime has always separated families and the United States is built on separating children from their families. Nonetheless, it is harrowing to hear an agent joke over the cries of children ripped from their parents: “we have an orchestra in here”. Philosopher José-Antonio Orosco aptly applies Phillip Hallie’s idea of “institutionalized cruelty” under the Nazis to the normalization of violence in the US immigration enforcement regime.
In the political philosophy of migration, a fault line separates those who think that existing systems can be improved and those who think they need to be transformed or abolished. In one camp, we have the reformers. In the other camp, the radicals. So far, the reformers have carried the day. Under the reform model, the task of political philosophy is to reveal how liberal, democratic states fail to live up to their own values. For example, liberal states fail to recognize that freedom of movement entails a right to move more freely across borders. Or they do not see how our commitments to democracy or equality demand a pathway to legalization.
Joseph Carens is the leading philosopher of the reformist camp. Carens’ Ethics of Immigration is humane, nuanced, and brilliantly argued. It is also unrelentingly moderate. Even Caren’s commitment to “open borders” (at least in principle) is in many respects conservative, largely leaving the existing state-system intact. One of Carens’ virtues is his charity toward his interlocutors, carefully considering the positions of those who favor more restrictive, more exclusionary immigration policies in the most plausible light. There is much to be said about this approach when discussing immigration with people committed to moral equality and human rights. But when we turn to actual immigration policy, it is harder and harder to find evidence of these commitments.
We should take the US withdrawal from the Human Rights Commission or Trump’s assertion that immigrants should receive neither due process nor the right to seek asylum at face value. We can no longer pretend that our so-called liberal or democratic societies are simply falling short of their own ideals. Rather, immigration enforcement is governed by the logic of segregation. It is the logic of apartheid, Jim Crow, the Jewish ghetto and the colonial towns. It is built not only on “us vs. them”, but on the conviction that “they” are less than human.
Optimism is misplaced here, but there may be an opportunity if we recognize how difficult it is to maintain with good faith that the immigration system can be reformed. Political philosophy of immigration took a wrong turn when it tried to operate within the categories provided by present power structures. Against the reformist tendencies of the discipline, we need to put forward a radical philosophy of migration. Such a philosophy will start with two observations. First, as a cursory glance at immigration history shows, immigration policy is founded on and sustained by white supremacy. The construction of illegality is a process in which groups are racialized to create and uphold hierarchies so that they can be dominated and exploited – and deported when they resist. Second, the state system is founded on the insistence that violence is an acceptable means of maintaining an opposition between “us and them”. Citizenship, as a form of inclusion, is also a mechanism for maintaining inequalities and exclusions. The quarantining of refugees to camps, the interception of boats, the prison-industrial complex, are expected outcomes of this system, not aberrations.
The upshot is that justice will only be achieved through structural transformation. The solution to migration injustice is not reform – demanding that states abide by standards they purportedly endorse – but abolition. We need to abolish ICE and the Border Patrol (and more generally the industrial-prison complex that enables immigration enforcement). A society that illegalizes millions of people, then hunts them down, jails them, and deports them is not, by any definition, just.
Moreover, we need new narratives and categories for a radical philosophy of migration. A radical philosophy of migration doesn’t simply recognize that racism is wrong; it is resolutely anti-racist. It doesn’t advocate for the humane treatment of strangers; it refuses to see some people as strange because they were born elsewhere. And it doesn’t seek to merely call for more open borders; it asks us to recognize how borders promulgate noxious inequalities and how we can redraw them to promote human flourishing, rather than violent exclusion.