Fixing The Cracking In The Global Liberal Order

January 15, 2017 Picture: Lucy Nicholson/Reuters.

This article is part of The Critique’s January/February 2017 Issue “Stick It To The Man: A Year Of Anglo-American Populist Revolt Against A Changing Culture And An Obtuse Political Establishment.”

A Decline in Liberal, Cosmopolitan, and Democratic Values?

Almost two years before the “Brexit” vote, and nearly two and a half years before the election of Donald Trump, in the course of introducing a Crooked Timber blog book symposium on Joseph Carens’ long-awaited book, The Ethics of Immigration,[1] philosopher Chris Bertram made a number of prescient and, in retrospect, deeply insightful comments. Carens’ arguments, not just for open borders but also for other significant moral limits on states’ discretion in setting their own immigration policies, depended on the idea that there are in liberal democratic societies, “widely-accepted democratic norms” that place significant limits on acceptable immigration policies.[2] However, these norms – perhaps more broadly seen as liberal, democratic, and cosmopolitan – might not in fact be broadly, or at least deeply held, Bertram argued, being rather really only the province of a “minority liberal elite”.[3] To those in the “minority liberal elite”, such as most scholars writing on immigration and likely most of the readers of this journal, such thoughts were disturbing enough, but Bertram pushed further towards an even darker worry. Bertram speculated that, when those who do not share these liberal, cosmopolitan, democratic beliefs, or at least do not hold them deeply, are pressed with the notion that politically unpopular ideas such as “granting membership to long-term irregular migrants” or perhaps accepting a non-trivial number of refugees, mostly Muslim, from the middle-east, are requirements of liberal, democratic, cosmopolitan norms, then, “as the saying goes, one person’s modus ponens is another person’s modes tollens. Faced with such implications, [the public] may choose to save the situation not by accepting the conclusion but by revising their commitment to the antecedent principle.”[4]

Recent elections – most recently the “Brexit” vote and the election of Donald Trump, but more generally the advance of nationalist, sometimes openly anti-liberal, anti-democratic, and anti-cosmopolitan, parties across Europe, show these fears to be of significantly more consequence than mere theoretical interest. Nationalist and anti-immigrant parties had been on the rise in Europe for some time, but the “Brexit” vote, motivated at least to a significant degree by explicitly anti-immigrant sentiment, and the election of Donald Trump, with his constant anti-immigrant rhetoric during the campaign, have come as a shock and blow to those who had come to take the holding of liberal, democratic, and cosmopolitan norms for granted. Donald Trump ran and was elected not only on the basis of false claims that Mexican migrants are “criminals” and “rapists”[5], and on seemingly absurd claims that he would force Mexico to pay for a wall between it and the U.S., but also on the more concrete claim that he would create a new deportation force to remove the nearly 11 million unauthorized immigrants living in the U.S., that he would reverse the program of Deferred Action for Child Applicants (“DACA”) for migrants who had entered the U.S. as children, and that he would (depending on the day), either ban immigration by Muslims, or subject them to special registration requirements, or subject them the “extreme vetting” (whatever that meant) before allowing them admission. [6] Such developments, seemingly embraced by larger percentages of the population, even in mature democracies and long-standing countries of immigration, such as the U.S., ought to give us significant cause for concern when trying to base arguments for immigration reform on supposedly shared values. If these values are not in fact shared, or at least if the commitment to them is not deep, there is significant potential for such arguments to backfire.

The cause of the decline in, or rejection of, liberal, democratic, and cosmopolitan values in this area is difficult to know. Whether it is part of a larger backlash to globalism, or a perverse response to increasing inequality within states like the U.S. and the U.K., or caused by some other factors, is not something that I will attempt to answer in this paper. (Such causes, if they can be determined at all, will largely be for social scientists to study.) It is, however, relevant that significant concern about immigration was a strong predictor of a voter being a Trump supporter in U.S.[7] or supporting “Brexit” in the U.K[8]., and that, intriguingly, these views were often most strongly felt in areas with relatively low immigration. Importantly, however, while these areas had low total levels of immigration, they were often undergoing a rapid increase from a low base-line. Such changes, even if small in absolute numbers, are often very salient to people, leading them to fear cultural change, or to hold unfounded fears of being “swamped”.[9] Even when such fears are ungrounded, they may be significant enough to encourage major portions of the population to give up liberal, democratic, and cosmopolitan values that are not deeply held.[10] The more important immediate question is what those of us who do hold fast to liberal values can and should do in the immediate future. In the rest of this contribution I provide some suggestions for how to minimize the damage done to the rights of migrants in the coming days, and perhaps how to set a base for larger and better progress in the future.

What is to be Done? First, Protect the Vulnerable

What can be done in the face of these challenges? The first requirement is that we not abandon our liberal, cosmopolitan and democratic values. Even if we have found these to be less widely or deeply shared than we have hoped, nothing has been done or shown to discredit them as values. However, in the face of our current difficulties, it makes good sense to reassess our priorities and strategies. In what follows, I offer some suggestions and guidelines as to how to do this, seeking to both limit the damage that will come from the Trump administration and other nationalists, anti-liberal and anti-cosmopolitan movements, and preparing for future better days.

A first strategy for limiting harm in a Trump/Brexit world is to focus on groups that are both highly vulnerable and also potentially widely sympathetic. This would include so-called “Dreamers” or DACA recipients in the U.S., and refugees, both in the U.S. and beyond. We should not have illusions here. Even though these groups – people brought to the U.S. as children, and who have grown up in the U.S., or people fleeing persecution or other similar harms – are or ought to be highly sympathetic, providing protection for them has been a difficult, up-hill battle, and will remain such. Unless a significant, sustained, effort is made, even these vulnerable, sympathetic groups will face real danger in Tump’s America and from broader nationalist movements. My advice on how to move forward is as follows.

First, establishing and publishing clear rules as to who is protected, how much, and for how long, by various programs, can help draw support for them, and rebut attacks. The existing DACA program is largely a successful example of this, applying only to a limited, highly-sympathetic group[11], and providing relatively clear benefits. If anything, the limited nature of the current program, with its legalistic and nebulous legal status and unclear time limits, make it less of a pure model than would a more generous program with clearer defined benefits[12] and end goals of full membership in society. Now may be an especially appropriate time to push to change the administratively-initiated DACA program into a full-fledged program of legalization for “Dreamers” – those who came to the U.S. as children and who have grown up here. Whether the relatively stingy requirements for the DACA program – especially the education requirements – should be maintained in order to increase the sympathy level of the group is a difficult question. But, making the program even more transparent, and giving it a clear goal of full social integration, should make it more understandable and more defensible.

Programs designed to help those fleeing persecution and war can also be improved and made more attractive to skeptical members of the public by providing and making public clearer rules on eligibility, levels and types of support, and duration of benefits. For the U.S., the easiest and most relevant modification to existing programs would be to better publicize and make known the sort of highly-detailed background checks that refugees hoping to be re-settled in the U.S. must undergo. These background checks are, if anything, probably too onerous, making it difficult for many otherwise eligible refugees, typically desperately in need of relocation to safe countries, to receive protection. While current U.S. requirements are almost certainly too stringent, their difficulty is useful for putting the lie to the oft-repeated claim by Donald Trump that there is “no system to vet” would-be refugees.[13] Although this false claim has already been attacked many times, making explicit, as many times as needed, the rigorous screening used should help address this issue. Secondly, for the U.S., being explicit on the potential number of people eligible for resettlement each year, and how the system works, can help combat the sort of misinformation used by the Trump campaign. Addressing local news sources may be particularly effective in this area.

“Making explicit, as many times as needed, the rigorous screening used should help address the lie that there is “no system to vet” would-be refugees.”

The refugee situation currently faced by Europe is more pressing and complex than that faced by the U.S. at this time. Here, clearer rules on admission and benefit eligibility may be useful. Clear rules distinguishing the sorts of protection offered for people established to be “convention” refugees, for people who are granted other sorts of “complementary” protection, despite not qualifying as “convention” refugees, and more purely humanitarian aid of a clearly temporary nature to be given to those who do not fit these groups, may help assure people that they can fulfill duties of assistance without giving up too much that is important to them. To make even clear laws fully useful in this way, governments will need to devote sufficient resources to screening and administrating would-be recipients of aid in a timely manner. This may be hard to achieve, but not impossible. Mass flights have been dealt with before, after all. Agreement on all sides that those who do not meet clear and reasonable standards should not be granted indefinite stay, and so should be removed, will help convince the skeptical that the refugee system is not being used as a back-door way to attack the very idea of democratically controlled borders. This commitment to clarifying, applying, and sticking to clear categories for refugee and other complementary protection should in turn be joined with a commitment on our part to fight any attempts to lower refugee resettlement quotas or to tie refugee resettlement to other limits on immigration benefits.[14] Refugees, and others who need protection, are some of the most vulnerable among us, and those of us who do accept liberal and cosmopolitan duties ought to be willing to fight to maintain and expand current protections, even while working to make them clearer, more efficient, and more strictly followed.

It is likely, however, that even these modest goals will face opposition. What should be done when this happens? Public actions of different sorts to draw attention to those facing danger will be essential. Brave individual and group action by “Dreamers” – essentially “outing” themselves to authorities and daring immigration officials to deport them – was essential in encouraging the Obama administration to bypass an intransient congress and put in place the DACA program. Any attempts to roll back this program ought to be met with widespread and public opposition, not only by those who benefit from it, but also from others with power in this area. Already, the public letters from many university administrations, noting that they support undocumented and DACA students on their campus, and will resist complying with any attempts to remove them, provide an example.[15] This example can and should be pushed further. The approach should be broadened to include not only universities, but also heads of public schools and employers. Furthermore, these same groups should take the additional step of calling for and supporting a permanent legislative program to replace the insecure administrative steps that make up DACA. When leaders in education and employment call for defending young immigrants and for further reform, it will be harder for those who reject liberal, democratic, and cosmopolitan values to see the beneficiaries as outsiders, not deserving of protection. In the case of refugees, actions by religious groups, many of whom provide basic legal and social services to refugees, may be particularly helpful.[16] Presentations at church meetings, while not the typical fora for scholars and many activists, may help to sway public opinion.

The next important immediate project for those of us who favor liberal, cosmopolitan, and democratic values will be to resist the imposition of racist or otherwise bigoted changes to immigration policy. Donald Trump has proposed such changes, including his call to either ban immigration by Muslims, subject them to special registration requirements, or at least subject them to “extreme vetting”, a term that is unclear but which at least suggests unreasonable discriminatory treatment. Similarly discriminatory proposals were at the heart of much of the support for “Brexit”. These proposals, while clearly incompatible with liberal democratic values, are unfortunately popular with significant percentages of the population in both the U.S. and the U.K. While this will make opposition difficult, it is not impossible. A first step to oppose such measures will be basic coalition building, encouraging all who accept liberal, democratic, and cosmopolitan values to speak out against these policies. Encouraging and seeking to build solidarity among different immigrant groups, and preventing “divide and concur” tactics, will also be essential. Another possible tactic will be to make those who promote racist or bigoted restrictions on immigration “bite the bullet” and “own” those unfavorable positions. They must be made to publicly own up to their views and be explicit in their promotion of race or religious based restrictions. This approach is not without hazard, however, as it may serve to normalize bigoted and racist opposition to immigration as “soft” supporters of such views see it explicitly espoused by politicians. This risk is real, but perhaps best met by direct opposition and attempts to reaffirm that the targeted groups are the friends, neighbors, and colleagues of all citizens.

A final early strategy to follow will be to work to prevent the imposition of needlessly mean and stingy restrictions on immigration. Examples of such restrictions include the trend in the U.K. over the last several years to increase the financial support requirements for someone wishing to sponsor a family member vastly beyond the level needed to keep the would-be immigrant from becoming a public charge, as well as attempts to reduce the family-immigration categories in the U.S. As in many areas of immigration law and policy, the justifications for both current and proposed policy are often unclear and obscure to the general public. To oppose changes along these lines, it will be necessary to educate the public about how they are not needed, and serve no legitimate purpose. For example, if significantly lower support requirements than are in place now in the U.K. would ensure reciprocity between current and would-be members of society, then putting in place higher support requirements is nothing but a tax on marriage or other family relations for those who are married to a non-citizen. When presented in this way, such policies are unlikely to be supported even by those who have only a very thin attachment to liberal, cosmopolitan, and democratic values.

Beyond the strategies mentioned above designed to be pursued largely on the national level, it is worth mentioning some more local steps that might be taken. These include decisions by schools and universities to not engage in active cooperation with immigration enforcement on campus, by local police departments to not cooperate with or share information with immigration enforcement officials in most cases, and by cities and states to take active steps on their own to welcome and integrate migrants. Sometimes these programs are cast in terms of providing “sanctuary”. I am unsure whether this is a useful term here. My worry is that this approach implies that lawbreaking is being protected, an approach which is likely to further inflame those who are already skeptical of liberal immigration policies, and further push them away from liberal, cosmopolitan, and democratic values. A better characterization of legitimate strategies in this area might be as providing steps towards the full integration of immigrants into society. Seen as such, localized efforts of this sort can be conceptualized not as, or at least not only as, opposition to national immigration policy, but as constructive attempts to develop a fairer system, by providing education, growing the economy and building trust between immigrants and law enforcement.

What is to be Done? Building towards the Future

So far I have largely discussed reactive or defensive steps that those committed to liberal, cosmopolitan, and democratic values should take in the days ahead of us. But, this will not be enough. It is also necessary to provide a positive vision of what progressive immigration reform can be. This is necessary both to inspire those moved by liberal, cosmopolitan, and democratic values to do the necessary hard work that lies ahead, and to assure our fellow citizens that we have a vision worth working for, one that they, too, should be willing to accept. This will require showing a vision of immigration reform that provides a policy that can be seen as working for and promoting the good of everyone, current citizens and would-be immigrants alike. This must be a vision that current citizens can embrace without fear that they will have to give up legitimate goods that are valuable to them,[17] but also one that treats would-be immigrants fairly. The most important feature of such a program, I contend, is that it will seek to ensure reciprocity and respect for basic rights among all involved.

Perhaps surprisingly, an important feature of a system that could gain wide-spread support and maintain reciprocity should be an increase in legal immigration. The current system in the U.S., and in other ways Europe, is broken, in that it allows, and even depends on, a large amount of unauthorized migration. Such a system is inherently unstable and unfair, and bound to ferment resentment and distrust in society. Significant improvements can be made by finding ways to make more of this migration legal and rule-bound. This migration need not be “permanent” migration. Despite the bad experiences of the past, there is good reason to think that well-crafted temporary labor migration programs can both be fair and address many of the actual needs of developed societies.[18] Furthermore, the work of Douglass Massey and his co-authors strongly suggests that such programs can be acceptable to would-be migrants too, many of whom do not have strong initial desires to remain in the host country permanently.[19]

Well-crafted temporary labor migration programs are just one example of the sort of approach that those seeking to provide a positive vision of progressive immigration reform should favor. The guiding principles for any such reform should be to ensure reciprocity among current and would-be members. This can be done through two complementary methods. First, when appropriate, steps should be taken to ensure that new voluntary immigrants do not draw on public funds whenever possible. Basic, relatively low “public charge” provisions in immigration laws are typically sufficient to ensure this. Second, programs working to actively integrate immigrants, both voluntary immigrants and refugees, by providing language training and, for refugees, assistance in finding work, can ensure that immigrants will become contributing members of society. When such guiding principles are in place, and known to be in place, all persons involved can see the programs as working towards mutual benefit, while still respecting everyone’s rights.

Conclusion

For anyone interested in fair and just immigration policies, or for protecting vulnerable populations, the “Brexit” vote and the election of Donald Trump were great shocks and disappointments. That significant percentages of our fellow citizens were seemingly willing to reject the liberal, democratic, and cosmopolitan values that must underlie any just immigration policies is frightening and depressing. It is important that those of us committed to these values do not despair, or retreat from them, even if we must find new ways to promote them, and must, in the meantime, focus on the protection of especially vulnerable and sympathetic groups. I have tried to outline some possible strategies for doing this, and suggested some ways in which those of us committed to these values might move forward in the future. While I do not assume that my proposals are the only possible ones, I believe that they contain essential aspects of any successful developments for the near future.

Footnotes & References

[1] Joseph Carens, The Ethics of Immigration. Oxford, Oxford University Press, 2013

[2]Chris Bertram, “Some worries about Carens’s democratic consensus”, http://crookedtimber.org/2014/05/26/book-symposium-on-joseph-carenss-the-ethics-of-immigration/

[3] Id.

[4] Id.

[5] http://time.com/4509413/presidential-debate-donald-trump-immigration/

[6] http://fortune.com/2016/06/28/donald-trump-muslim-ban/

[7] http://www.pewresearch.org/fact-tank/2016/08/25/5-facts-about-trump-supporters-views-of-immigration/

[8] https://www.theguardian.com/politics/2016/jun/24/voting-details-show-immigration-fears-were-paradoxical-but-decisive

[9] See, for a representative discussion, the imposition of harsh anti-immigration laws in Alabama, a state with low total immigration, but rapid change from a very low base-line. http://www.msnbc.com/msnbc/undocumented-workers-immigration-alabama

[10] These fears may also encourage such populations to abandon religiously grounded values, such as charity, providing service to those in need, and so on, but this is outside of my main concern in this paper. Of course, such values may have secular foundations as well, but given the claimed religiosity of those in many of the areas in question, we might have hoped that the exhortation in Matthew 25:40 would have had more impact than it seems to have had. These hopes also seem to have been dashed by the Trump election.

[11] Currently, to be eligible for deferred action and other related benefits under the DACA program, the applicants must have been under 31 years old as of June 15, 2012, have come to the U.S. before his or her 16^th birthday, have resided continuously in the U.S. from 2007 until the time of application, have been physically present in the U.S. on June 15, 2012, have no lawful status in the U.S. at that time, not have been convicted of a felony, significant misdemeanor, of three or more other misdemeanors, and not otherwise pose a threat to public safety, and either be in school, have graduated from high-school, earned a GED, or be serving or have honorably served in the U.S. military. Some further qualifications to these rules apply, but these are the general eligibility requirements. As can be seen, the applicable group is highly limited, in part in ways designed to make it more sympathetic. See, https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[12] The primary benefits of being eligible for the DACA program include protection from removal from the U.S. (absent other removal grounds), eligibility for a three-year work permit, potentially renewable, the ability to apply for a social security card, and the ability to obtain a driver’s license in many states. Some states also offer in-state tuition benefits for DACA approved college students. DACA recipients may also apply for “parole”, allowing them to travel outside of the U.S. and return. This last benefit is especially at risk now. See, http://fusion.net/story/375269/dreamers-daca-travel-donald-trump/

[13] http://www.politifact.com/truth-o-meter/statements/2016/jun/13/donald-trump/wrong-donald-trump-says-theres-no-system-vet-refug/

[14] As has been suggested, for example, by David Miller. See Miller, Strangers in our Midst: The Political Philosophy of Immigration. Cambridge, MA, Harvard University Press, 2016, p. 93.

[15] https://www.insidehighered.com/news/2016/11/21/college-presidents-call-continuation-obama-administration-program-protecting

[16] In the U.S., for example, low-cost or free legal and social services for refugees are provided by Jewish (HIAS), Catholic (Catholic Charities) and Lutheran (Lutheran Immigration and Refugee Service).

[17] Of course, not all “goods” valued by people are legitimate. Racial or ethnic homogeneity, let alone domination, is one such item. Cultural stasis, as opposed to some degree of continuity, is another supposed good sometimes valued, but not legitimately. Discussing this issue further would take me too far afield from the main purpose of this essay, other than to note that there are potentially significant practical problems here.

[18] See here my article, “Justice and Temporary Labor Migration” 29 Georgetown Immigration Law Review 95 (2014).

[19] See, for example, the discussion of pre-Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”) of 1996 migration patterns to the U.S. from Mexico in Massey, et al., Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration. New York, NY, Russell Sage, 2003.