During Congress’s efforts to pass comprehensive immigration reform in 2006 and 2007, media and academic commentators characterized the activism that animated the immigrant community as the beginnings of a civil rights struggle1—one that would dovetail with the growing political power of the country’s Latino population to produce a major new social movement. These predictions were stirring, and the large-scale immigration marches that helped prevent the passage of a House bill that would have made unlawful status a felony rather than adopt a legalization program illuminated the agency and power of immigrant communities. But the intensity of organization reflected in those marches has been difficult to sustain. In addition, the interests of the Latino electorate and immigrants diverge and sometimes directly conflict, thus making a pan-Latino movement focused squarely on immigrants’ rights a fraught proposition.2
In this essay, I reflect on whether the civil rights paradigm should be invoked in the movement for immigration reform. Do alternatives exist that more accurately capture the stakes involved? Even if the civil rights paradigm does not provide the best framework for debating immigration reform, in what ways do civil rights concerns nonetheless arise in immigration regulation, and what can be done by political and administrative actors to address those concerns?
Civil rights rhetoric and values historically have informed movements for immigrants’ rights and remain relevant in immigration reform debates, but the overarching conceptual frame for the immigration debate should use two other paradigms: a more pragmatic concept of mutual benefit and an appreciation for the rule of law that includes valuation of proportionality, accountability, and fairness. First, I discuss the viability of the civil rights paradigm as a general matter. Though the broad question I pose has relevance to many aspects of immigration reform, I focus on unauthorized immigration—the most urgent issue on the reform agenda. I then address the intersection of civil rights principles with the two alternative paradigms—mutual benefit and rule of law. In particular, I focus on how early shifts in the Obama administration’s enforcement agenda embody the rule of law properly conceived. But whether we think about the immigrant community within the national civil rights narrative—as heir to the struggles against Jim Crow and race discrimination of the 1950s and 60s—or as a community best served by more ordinary antiexploitation and fairness concerns, the main challenge is to create a regime that serves the national interest and advances the rule of law while also respecting human dignity.
Immigration law and policy evolved over the course of the twentieth century alongside the civil rights movement. In a 1948 civil rights message to Congress, for example, President Truman called on the legislature to end the race-based restrictions on naturalization.3 He vetoed the 1952 Immigration and Nationality Act, despite his belief that it made necessary improvements to the immigration regime as a whole, because Congress elected to maintain the racially discriminatory national origins quotas adopted in the 1920s to limit the admission of immigrants from southern and eastern Europe.4 The 1965 Immigration Act that finally abolished these racial quotas emerged from the political and cultural milieu that produced the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and members of Congress defended the new immigration regime as the realization of the antidiscrimination aspirations of that era.5
Consistent with this linkage between civil rights and immigration, courts in the late twentieth century grappled with whether and how to extend equal protection guarantees to noncitizens. Among other things, they addressed whether immigrants could be denied access to the social goods extended to citizens, such as public schooling, welfare benefits, and other entitlements.6 The body of cases that emerged represented a meaningful, albeit incomplete, extension of the judicially crafted constitutional protections developed in the wake of Brown v. Board of Education to secure the rights of African Americans and other racial minorities. In Plyler v. Doe,7 in particular, the Supreme Court advanced a strong antisubordination, anticaste justification for immigrants’ rights by striking down a Texas law that would have denied unauthorized immigrant children access to public schools.
For advocates and social reformers, the appeal of the civil rights paradigm is obvious. It places immigration reform squarely within a central and perpetual national struggle for racial justice and equality. But despite the fact that immigration reform and the civil rights narrative have intersected throughout U.S. history, with the latter helping to shape the former, it remains unclear what it would mean for an immigrants’ rights agenda to form a modern-day civil rights movement. I leave to the side the crucial question of what the movement would look like organizationally—how it would be structured, what coalitions it would entail, what tactics it should use, and how it might learn from the successes and failures of the civil rights movement itself. I focus instead on the substantive question: what would the civil rights claim be?
Defining the core civil rights claim is complicated by the fact that the central question in today’s debate is how to make sense of the unauthorized immigrant—a figure to whose presence there has been no formal, legal consent. Do unauthorized immigrants’ claims to justice and recognition constitute legitimate civil rights demands? Does today’s population of unauthorized immigrants have a claim to social and political incorporation that is similar to the claims made during the civil rights era by black and Latino citizens excluded from full membership by segregation and discrimination?
A civil rights agenda could ignore this status problem by focusing on immigrant workers’ dignity and respect for their rights under labor and employment laws—through a straightforward call for the enforcement of existing laws (which emerged from the New Deal and the civil rights movement) to prevent exploitation in the workplace and protect basic economic interests. In this sense, even for the unauthorized worker, a civil rights claim would be easy to make, not only because unauthorized status can never justify conditions of servitude, but also because the integrity of the labor law regime depends on its enforcement regardless of the status of the workers in question.
But to be properly called a new civil rights movement, these claims would have to be more demanding than a call for basic humane treatment. Recognition of immigrants’ interests would have to be justified by something more than the argument that our society depends on enforcement of labor and civil rights laws. The civil rights demand is ultimately one for justice, equality, and incorporation—at the very least in social life, and ultimately in the political process. On a philosophical level, a civil rights paradigm therefore requires arguing that unauthorized immigrants, rather than being treated as lawbreakers, ought to be regarded as persons entitled to respect and membership.
Justifications for this sort of incorporationist agenda certainly exist. The claim that unauthorized immigrants deserve to be incorporated into our society would stem from the fact that they are already members of that society, as a sociological matter. They are taxpayers, workers, and homeowners whose lives are intertwined with legal immigrants and U.S. citizens. They are persons on whose labor society depends.8
Legal reality does not, however, match this sociological reality. Unauthorized status means subordination and marginalization. Unauthorized immigrants lack the capacity to be effective social actors because their status erases them from the political conversation and makes it difficult for them to advocate their interests to others; the broader society feels justified in ignoring immigrants’ interests because of illegal status. Unauthorized immigrants are subject to almost unrestrained state power because there are few limits on the government’s authority to remove them from the country. That power also facilitates exploitation by employers, and means that unauthorized immigrants risk arrest and deportation when they interact with legal and social institutions. Legal marginalization thus becomes social marginalization. The fact that unauthorized immigrants are overwhelmingly poor and nonwhite deepens the civil rights parallel. Given the sociological characteristics of unauthorized status, then, the desire to situate the debate on the civil rights trajectory makes sense.
Despite the strong resemblance of the unauthorized phenomenon to the conditions that fueled the civil rights movement, the fit between the civil rights paradigm and the case of the unauthorized immigrant remains an uneasy one. The difficulty stems first from the fact that unauthorized immigrants have broken the law. It would be disingenuous to point to the fact that immigrants organize to defend their interests through protest, and transform themselves through their work into de facto members of society, but to deny immigrants’ complicity (at least adult immigrants) in their own status. To be sure, the fact that unauthorized status may be the product of choice does not change the undemocratic nature of the social condition described above. The immigrants’ illegal status is not morally irrelevant in the same way that race, or gender, or other characteristics that have defined successful civil rights movements are.9 This fact alone will make it difficult to transform the movement for immigrants’ rights into a broad social movement that appeals to the larger public’s sense of moral obligation.10 In fact, the expectation that immigrants’ rights become the next great social movement may be overburdening advocates and immigrants themselves with a heavy historical narrative they may not be able to sustain.
Similarly, the claim for immigrant incorporation cannot be justified along the same lines as the civil rights claims made by blacks and Latinos—as a demand for realization of the principle of equal citizenship enshrined in the Constitution. At the core of the civil rights movement was the existence of a constitutional commitment to equal citizenship regardless of race forged through the Civil War and Reconstruction. As constitutional citizens whose entire lives and histories had been lived as part of American society, civil rights movement activists demanded an equal treatment and respect that they already had been promised by the Constitution, whose breach throughout the Jim Crow era amounted to a repeated failure to honor commitments already made.
This is why even the Supreme Court is uncertain about the propriety of extending equal protection principles that protect racial minorities to noncitizens. The Court recognizes that some forms of discrimination on the basis of citizenship status can be justified because noncitizens have not yet been incorporated fully into the polity. This is because we live in a world of nation-states where citizenship is both a formal status and a participatory practice, and it is only more glaring when illegal immigration is at issue.
Given these tensions—that civil rights concerns are inescapably present in the immigration context but that key features of the civil rights framework are not—the question becomes whether the civil rights paradigm should be abandoned or downplayed. Efforts to protect immigrants’ rights and secure immigration reform ultimately can be understood and described through civil rights principles without giving in to the demand that unauthorized immigrants become the next great social movement. To that end, alternative framings of the immigration issue are desperately needed to capture the full range of the interests at stake.
I suggest two alternatives to the civil rights paradigm: mutual benefit and the rule of law. Like the civil rights framework, each of these has been present historically in debates concerning how best to design a regime of immigrant admissions and immigrants’ rights. At the moment, the mutual benefit framework operates primarily as a rhetorical framing device in public discourse. But a conception of the rule of law that incorporates principles of proportionality, accountability, and due process has shaped the Obama administration’s policy in this arena since the president took office. I consider the promise of each framework in turn.
The mutual benefit framework is fundamentally pragmatic and highlights the social gains that would come from the adoption of particular immigration policies. The concept of mutual benefit involves the recognition that immigration in general and legalization in particular can enhance the welfare of immigrants and Americans alike. The gain to immigrants is evident—job opportunities, acquisition of a stable legal status and the opportunity for long-term incorporation, all of which translate into the opportunity to live a better life. The social gains also include family reunification, as well as the general economic gains and growth in productivity that attend an orderly regime of labor migration, increased tax revenues, and the augmentation of a future tax base to support an aging population.11
The case for legalization using a mutual benefit paradigm begins with an acknowledgment of the negative externalities created by illegal immigration. Above I have noted the corrosive effects the present immigration regime has on the labor laws. The vulnerable position of the unauthorized worker, who has strong disincentives to report violations of the law for fear of deportation, makes employer abrogation of labor, health, and safety laws easier. The threat of enforcement places families and communities of mixed status under great economic and social stress, which strains social institutions, such as public schools. The presence of a large unauthorized population also undermines confidence in the government’s law enforcement capacities, which contributes to a general distrust of government.
Mutual benefit relies on the premise that it is not in society’s interests to allow the persistence of an unauthorized population, and the argument for legalization could be made on the ground that it represents the only solution to the problems outlined above.12 A legalization program represents a logical policy response to the mutual benefit claim, just as it would to a civil rights claim, but that does not make the two frameworks interchangeable. The social salience of the mutual benefit paradigm comes from its linking of reform to broader social welfare. In addition, the mutual benefit paradigm might be politically appealing, because it does not necessarily coincide with political inclusion, or paths to citizenship. The procedural details of a legalization regime justified by mutual benefit might differ substantially from the regime created through a civil rights approach. Legalization, instead of being a matter of right or obligation that stems from U.S. complicity in the creation of the problem, would be a benefit, which in turn would provide justification for more demanding eligibility criteria. A mutual benefit paradigm is not inconsistent with a legalization program, but mutual benefit does allow for a broader range of political trade-offs.
Holistically conceived, a rule-of-law paradigm would emphasize not just law and order, but also protection of individuals from arbitrary government action and abusive state power. A rule-of-law framing does not promise a civil rights movement for our time but rather a balancing of different values. Importantly, these values include not just enforcement and policing, but also norms of proportionality, government accountability, and fairness. A rule-of-law agenda in relation to illegal immigration, in particular, would require more procedural protections in the enforcement process, and the channeling of prosecutorial discretion through the lens of proportionality to focus on high-value targets. The principles of due process and proportionality would encourage, for example, skepticism of intrusive enforcement techniques, such as workplace surveillance, and the development of highly effective but expensive identification-tracking technology whose costs must be born by all people, not just unauthorized immigrants.
Understood in this way, a rule-of-law agenda would advance core interests of the two paradigms already discussed, simultaneously furthering the social (and immigrant) interest in reducing the costs of illegal immigration and promoting the civil rights and liberties interests of noncitizens and citizens alike. But because it dovetails with law enforcement concerns, it has two potential advantages over the other frameworks as a device for framing immigration debates in a way that advances civil rights principles. First, an agenda prioritizing enforcement of the law has potentially significant political appeal. In this sense, the rule-of-law framework need not be seen as a substitute for the civil rights or mutual benefit frameworks, but rather as a complement to be mobilized in the face of political obstacles to more ambitious agendas designed to promote immigrant incorporation.
Second, whereas the paradigms discussed above would focus on legislation, a rule-of-law strategy could help guide not only reform efforts in Congress, but also (and primarily) the work of the executive branch, whose primary responsibility is to enforce the law. The challenge of infusing immigration law with civil rights principles is thus not for the legislature alone. Congress enacts major immigration laws only infrequently,13 but the various arms of the executive branch that administer the immigration laws manage the system on a day-to-day basis. Alterations in enforcement policy that emphasize proportionality and due process can thus help shape the normative framework that governs the immigration regime as a whole.
Critics of immigration enforcement policy would contend that, over the last decade and a half, Congress and the president have both moved very far from the sort of rule-of-law agenda I describe, with the rule of law becoming synonymous with state coercion. Indeed, members of both political branches have devoted considerable financial and personnel resources to law enforcement operations, both at the border and in the interior, across several administrations. Secretary of Homeland Security Janet Napolitano has made clear that the Department of Homeland Security (DHS) will build on and expand the enforcement regime maintained by the Bush administration, pursuing an aggressive strategy targeting illegal immigration. The rate of deportation indeed went up in fiscal year 2009,14 and the very fact that the administration’s approach to illegal immigration has been to redouble enforcement efforts underscores that the civil rights paradigm may not be a priority for the government.
That said, the first term initiatives of the Obama administration reflect a willingness to incorporate proportionality, accountability, and due process into the enforcement regime and provide a template for a genuine rule-of-law agenda, making it worthwhile to consider some of what has been actually accomplished. As often happens with new administrations and in most regulatory arenas, the Obama administration reviewed the immigration policies of its predecessors and very publicly revised certain positions within the enforcement regime to advance the president’s own substantive agenda. As early as 2009, Secretary Napolitano announced various new policies that suggested significant shifts in the underlying priorities of U.S. immigration policy, even as those policies reinforced the emphasis on law enforcement.
The emphasis on proportionality has, for example, guided the administration’s approach to the controversial 287(g) program, which allows state and local police to enter into agreements with Immigration and Customs Enforcement (ICE) to participate in the enforcement of federal immigration law, after receiving training and under ICE supervision. In July 2009, ICE announced that all 287(g) agreements would be governed by a new standard-form memorandum of agreement. The new template departs from the agreements signed by the Bush administration in various ways, the most significant of which is that the template articulates a set of clear enforcement priorities. The template agreement identifies three levels of offenders and encourages participants to target level-one “criminal aliens,” or persons convicted of dangerous or violent crimes, as opposed to level-three offenders, who are mere immigration-status violators. This move, in fact, reflects ICE’s stated policy of shifting federal enforcement efforts generally toward the apprehension and removal of so-called criminal aliens through the expansion of programs that target serious offenders.15 By articulating enforcement priorities that reflect principles of proportionality, the DHS appears to be shifting its resources to acknowledge that not all unauthorized immigrants should be regarded as equally in violation of the trust or sovereignty of the United States, thus combining a rule-of-law agenda with an implicit form of humanitarian relief.
Several of the early Obama administration initiatives also advance the accountability component of the rule of law, according to which the use of force, to be justified, must be done by agents accountable for their actions, or subject to supervision to ensure respect for limits on the use of government power, including individual civil liberties. This accountability is also essential to ensuring that enforcement actions produce their intended results—that officers hit the intended targets rather than indiscriminately use force. Changes in the 287(g) program again reflect an intent to promote these values, with ICE promising greater oversight of state and local officials in the program and engaging in more rigorous screening of entrants into the program by requiring that they follow the parameters of the new program template.
In addition to issuing new formal guidelines for reporting and monitoring, the administration also appears to be willing to mete out consequences for failure to conform. In October 2009, several months after the Department of Justice launched an investigation of the use of 287(g) authority by Sheriff Joseph Arpaio in Maricopa County, Arizona, based on accusations that he and his officers engaged in racial profiling, ICE terminated the authority of the sheriff and his deputies to arrest suspected unauthorized immigrants during the ordinary course of policing. This decision, coupled with the more formal references to supervision, may well ensure that Sheriff Arpaio remains an aberrational abuser of the authority granted under the program, rather than a representative example of the consequences of 287(g) programming. The extent to which accountability in form turns into accountability in practice depends on the administration’s implementation of its stated objectives. At the very least, however, the creation of accountability mechanisms represents an effort to advance an enforcement agenda that is consistent with a view of limited government designed to protect basic civil liberties.
Some later efforts to keep government officials in check have also been infused with concerns for due process, fairness, and even the protection of human dignity. The most important advance along these lines could turn out to be the renewed attention to the system of civil immigration detention.16 The head of ICE, John Morton, announced a major overhaul of the detention system in early 2009, with the goal of improving detention center management to “prioritize health, safety and uniformity among our facilities while ensuring security, efficiency and fiscal responsibility.”17 Perhaps the most important long-term commitment made by ICE to this agenda has been the creation of an Office of Detention Policy and Planning, whose responsibilities include to “design and plan a civil detention system tailored to address” ICE’s needs. The administration thus has committed resources to developing a detention regime that better promotes the humanitarian interests of detainees18 and brings the system as a whole into line with the ostensibly civil character of immigration enforcement by eliminating the trappings of criminal confinement.
All of these reforms not only reflect a concern for proportionality, but also reflect a concern for recognition of the greater freedom to which civil immigration detainees ought to be entitled. Moreover, this rule-of-law approach, guided by principles of proportionality, accountability, and fairness, laid the groundwork for the Obama administration’s most visible immigration reform so far—the decision to halt deportations of many undocumented immigrants who arrived in the United States as children.
Taken together, these alterations of enforcement policy reflect a paradigm that places respect for law at the center of immigration policy. Importantly, it is a respect for law informed by principles designed to prevent government overreaching and protect the civil liberties of immigrants and the public alike. Though this rule-of-law agenda cannot by its own force eliminate or even substantially curb illegal immigration, this rule-of-law framing can perform a crucial political function that will help make such transformation possible. If the rule-of-law framework succeeds in restoring public confidence in the government’s willingness to enforce the law, but in a manner that is humane and advances the interests of society as a whole, this enforcement policy may clear the ground for future reform.
Despite promising to tackle immigration reform during his campaign, President Obama did not make the issue a serious priority during his first term, nor did it rise to the top of his legislative agenda. The shape that immigration reform takes and whether and how that reform becomes law, will depend in part on how lawmakers and other interested parties frame the issue. In this essay, I have described three approaches to understanding and addressing the phenomenon of illegal immigration: a civil rights paradigm, a mutual benefit framework, and a rule-of-law agenda. These approaches are not mutually exclusive, nor would a legalization program be wholly incompatible with any of them. But they each appeal to distinct audiences and have been useful at different political moments in time.
The civil rights paradigm, invoked during the dramatic marches organized by immigrants and their allies in the spring of 2006, seeks to frame legalization as a means of fulfilling the promise of the civil rights movement by providing a path out of second-class status for millions of immigrant workers and families. The paradigm demands incorporation in order to bring the legal reality of status in line with the sociological reality of membership. But the limitations of the civil rights paradigm will make it difficult to advance a reform agenda using only the momentum that the paradigm affords—a momentum based on demands that we live up to our ideals as a nation. The general public will demand a justification for immigration reform that links it to their own interests and the “good” of the country—a factor that makes the development of a mutual benefit framework vital. That framework would emphasize that the gains from legalization to immigrants and the broader public would outweigh the costs. All of that said, even if the momentum behind immigration reform and immigrants’ rights cannot be built into a morally tinged social movement, important civil rights goals can still be advanced through a rule-of-law agenda focused on enforcement guided by principles of proportionality, accountability, and fairness.
In reality, a complete answer to the civil rights dilemmas that illegal immigration presents will come only by figuring out how to prevent illegal immigration from arising in the first place, or how to reduce it from a large-scale social phenomenon to a nuisance. The focus on legalization, though urgent, is therefore incomplete. In thinking about the future, each of the paradigms I have described may have a role to play, but the usefulness of each paradigm is different when talking about the future versus the current debate over legalization. The civil rights strategy, for example, fits even less well when the concern is no longer noncitizens who are present and integrated, but rather a future class of people whose identities and characteristics are unknown and who cannot be said to have the serious claims on the United States and its citizens described above.
But as with legalization, no matter the moral arguments made or the framework mobilized, political compromises will be necessary to address the problem. Each of these paradigms can be used to broker that compromise. The concepts of civil rights, mutual benefit, and rule of law have always and should continue to shape public deliberation over the nature of our immigrant future.