“Ye Shall Know them By Their Fruits”: Immigration Controls in Practice

Last week, in reference to the Trump Administration’s “Zero Tolerance” policy at the U.S.-Mexico border, I argued that even if we assume that the “right to exclude” is morally defensible, there are limits on how states can exercise it. One limit, which even many defenders of the right to exclude concede, is that states cannot police their borders using morally impermissible means. Detaining and separating children from their parents, a key component of Zero Tolerance, is impermissible. Another commonly accepted limit, which I will discuss here, is that states cannot exclude persons solely on the basis of ascriptive attributes, such as race, ethnicity, or religion.

The context for this reflection is the Supreme Court’s ruling in Trump v. Hawaii. The Court ruled that President Trump’s Proclamation No. 9645, referred to as “the Muslim Ban” by its critics, was legal and constitutional. Here, I focus on the morality of the policy, not its legality.¹ My criticism focuses (as have other criticisms of the policy) on its discriminatory nature, insofar as it excludes nationals of Muslim-majority countries from admission, but I also want to draw out a larger lesson for arguments surrounding the right to exclude. Following Sarah Fine’s work on how the right has been and continues to be abused in practice, I argue the proponents of the right to exclude have a duty to develop institutions that identify discrimination and mitigate its effects in practice. Without the possibility of justly implementing immigration controls, the right to exclude cannot be defended on moral grounds.

A Moral Consensus and a Duty to Reckon

One of the least controversial claims in the ethics of migration is that it is impermissible to implement migration controls that discriminate on the basis of ascriptive attributes, since it is impossible, or at least unreasonable, to change them. Focusing primarily on race and ethnicity, philosopher Sarah Fine notes in her article, “Discrimination and Immigration,” that “there is near consensus” among those who defend the right to exclude that these features ought not to be grounds for exclusion.² For some scholars it is that these characteristics have no significance to citizenship, and so exclusion on these grounds is insulting; for others, exclusion is disrespectful toward citizens who are members of the excluded group. Either way, exclusion based on these characteristics is impermissible.³

The reasoning applied to race and ethnicity is transferable to religion. To take the United States as our example, religion is unlikely to connect with anything of real significance to American citizenship, and most major world religions are practiced by American citizens.⁴ What is necessary to be a good American is commitment to the ideals of freedom, equality, and democracy, each of which is compatible with a diverse range of religious beliefs. As such, policies aimed at excluding practitioners of specific religions, on the basis of their religious belief alone, is insulting to those excluded, and disrespectful to American practitioners of this faith. On both accounts, religious-based exclusion is wrong.

Although exclusionary theorists agree that discrimination is wrong in principle, discrimination often accompanies migration controls in practice. Fine notes that, “it is indisputable that, at various times and in various places, prejudice of this sort at least has been a significant part of the motivation for exclusionist immigration policies.”⁵ Even if discrimination and migration controls are not necessarily conceptually linked, Fine argues that defenders of the right to exclude must do more to grapple with how the right is unjustly implemented in practice. Specifically, these theorists must acknowledge the problematic history of discrimination in migration controls, show what makes discrimination a problem, and offer defenses of the right to exclude that do not permit discrimination.⁶ Defending the right to exclude without acknowledging how the right has been abused—and offering remedies for these abuses—may simply “perpetuate the familiar problem of…discrimination”⁷

Accountability

Building on Fine’s challenge, I argue that theorists ought further to focus on the institutional structures that identify and limit discrimination in migration controls. Trump’s travel ban provides insight into how discriminatory policy can be dressed up in practice, and Justice Stephen Breyer’s dissent offers a glimpse into an imperfect mechanism that sees through the guise. Yet, taking this mechanism as a model, I will highlight further challenges to exercising justly the right to exclude.

The third iteration of Trump’s travel ban, on which the Supreme Court ruled, indefinitely denies entry to nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.⁸ The administration’s proffered reasoning was that these countries had “deficient information-sharing practices and present[ed] national security concerns.” The Court’s majority held that national security is a “facially legitimate and bona fide reason.”⁹ They concluded, too, that the proclamation does not seem to be driven primarily by animus since it does not mention Islam.¹⁰

In his dissent, Justice Breyer argued that the key to identifying whether the proclamation was motivated by discrimination can be found in the “proclamation’s elaborate system of exemptions and waivers.”¹¹ This system allows the government to admit on a case-by-case basis nationals of these countries who can prove not to be a threat to national security. Although some Muslims would likely still be excluded, their identity qua Muslim would be incidental to their exclusion, not the principal reason. Breyer’s point is that we ought to look not only at the way the law is written, but also at how it plays out in practice: in other words, whether the proclamation as implemented amounted to a ban on individuals threatening national security or rather a de facto ban on Muslims.

Breyer cited testimony, statistics, and the President’s own words that strongly suggest the latter. Those who ought to qualify for waivers and exemptions are not receiving them. No guidance has been given to consulates for issuing waivers, and consular officers have signed affidavits that they can issue waivers “only in rare cases of imminent danger.”¹² The number of applicants who have received waivers is abysmal. Only 2 out of 6,555 waiver applicants were successful in the first two months after the Proclamation was issued. In the first four months, this number was increased to 430 (though there is no mention of how many waiver applications were received in total during this period). Assuming no new applications, the acceptance rate would be less than 7 percent.¹³ Breyer concluded on the basis of this evidence as well as Trump’s anti-Muslim statements: “I would, on balance, find the evidence of anti-religious bias…a sufficient basis to set the Proclamation aside.”¹⁴ In keeping with the anti-discriminatory arguments above, as a religious-based exclusion, Trump’s policy is morally impermissible.

Though poorly implemented in this case (or, arguably, not implemented at all) the waiver and exemption system could serve as a model for my institutional challenge, that is, to ensure “facially legitimate” migration policies are also de facto legitimate.¹⁵ The travel ban was ostensibly focused on threats to national security—and assuming there are few wolves in sheep’s clothing—the waiver and exemption system could have allowed safe applicants to bypass the restrictions on a case-by-case basis. The institution could be further modified to allow for a right to appeal or some other form of judicial oversight. Individuals should be allowed to show how the policy singles them out on the basis of their ascpritive attributes rather than on the basis of a legitimate concern. If exemption opportunities are provided, decisions open to appeal, and the results made public, it is less likely that a policy could be implemented that would be discriminatory in practice: statistics would be revealing and judicial review remedial.

One could object that the failure of the waiver and exemption system in the United States suggests that any institution will be limited in identifying and minimizing discrimination. Here, a system was in place, statistics made public, and the courts ineffective. While correct, this objection further emphasizes the seriousness of the challenge to exclusionary theorists: without the possibility of justly implementing immigration controls, the right to exclude cannot be defended on moral grounds. Theorists who defend the right to exclude sometimes defend their positions as more “realistic.” They argue that the state is here to stay, global inequalities extreme, and receiving populations resistant to more migration.¹⁶ Even if these claims are true for the short term, this “realistic” approach ought to accommodate facts about discrimination: governments are not led by angels, and so men will continue to pass unjust policies. A border policy is likely to be justifiable only when enforced on a case-by-case basis.¹⁷ Although it will be very demanding, only when each individual is considered on the basis of his or her own merits will border controls be exercised as they ought to be.