Regularisation
Regularisation of irregular migrants: justice vs the rule of law?
Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a challenge to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalization policies by reflecting on the normative meaning of the rule of law and by examining empirical evidence assessing the effects of legalization. Our central contention is that legalization policies can enhance the rule of law. We offer five rule of law arguments in support of legalization, which help to mitigate the dilemma between justice and the rule of law. We conclude by discussing some policy implications of our analysis.
We do not disagree with Song and Bloemraad’s account: rule of law and regularisation policies are not inconsistent, and in fact regularisation supports rule of law, properly understood. Our comment therefore is not a direct critique, but a call for deeper investigation into the motivations of the rule of law objections considered in Song and Bloemraad’s account. We argue that the real purpose of these objections is not necessarily to serve as an alternative to the justice-based claims of undocumented immigrants, but as a way to undermine them. On our account, these rule of law objections accomplish this undermining task through the mechanisms of dog whistling, discrediting and distorting, and ostracizing.
In their persuasive and closely reasoned article, Song and Bloemraad (2022) argue that rule of law considerations enhance, rather than detract from, the case for legalising the status of unauthorised migrants who have lived for a substantial period of time in the host country. While they focus on the US, their arguments have much wider applicability. I agree with Song and Bloemraad’s conclusions, and I find the argument compelling (though with some reservations that I will register below). In this short response, I query the rule of law rationale for legalisation. Rule of law considerations, I will argue, cut both ways: while they may (in a narrower range of cases) be used to defend legalisation, they can also be used more effectively against it. My conclusion will be that the rule of law is an unstable basis for defending the rights of unauthorised migrants to permanent residence. Justice considerations are more compelling.
In their compelling article, Sarah Song and Irene Bloemraad (2022, 34) argue that their various “rule of law arguments for legalization mitigate the dilemma between justice and the rule of law. It is not only principles of justice but also principles of the rule of law that offer support for extending a path to citizenship to unauthorized migrants.” In my response, I offer three critical remarks focusing, in turn, on how for most migrants secure residence rights (or other rights, such as the right to study or work) are more important than citizenship, on questioning the legitimacy of rule of law arguments given constantly shifting immigration laws and policies that are sometimes manifestly unjust by most definitions of justice, and on the possibility of narrowing the gap between justice and rule of law using variegated rights and statuses, prioritising what is possible politically.
Song and Bloemraad contribute greatly to the recurrent debate over whether migrant legalisation programs can be justified under the rule of law, even if they are warranted by arguments of justice, equity, and inclusion. I was struck in reviewing their arguments by the relevance today of discussions that led to adoption of a program of legalisation under the 1986 Immigration and Reform Act (IRCA) in the United States. As IRCA is discussed throughout the article, and I was personally involved in the policy debates over legalisation as the Research Director of the U.S. Select Commission on Immigration and Refugee Policy (SCIRP), my commentary on their article will, I hope, shed some new light on this 36-year-old program and the rule of law. In doing so, I also hope that it will be relevant to current and future debates over justice and the rule of law.
We are grateful to Amelia Wirts, José Mendoza, Andrea Sangiovanni, Willem Maas, and Susan Martin for their thoughtful engagement with our article. In this short rejoinder, we respond to some of their many excellent points.