Image Credit: Fabian Fauth on Unsplash
Image Credit: Fabian Fauth on Unsplash

The predominant view of the role of government is to promote the general welfare of its people. Part of that role is protecting the people from perceived future or imminent threats to national security, with security being one of many factors that influence the direction of law and public policy. But what happens when the role of government security becomes heightened to a questionable or alarming extent?

How the government interprets potential security threats at any given point in time can have profound impacts on public policy and national identity with far-reaching consequences. The expansive security measures taken by President Trump, particularly around immigration law and policy, which have elicited alarm and pushback from the federal courts, raise many questions about how government decides and dictates what falls within the realm of securitization and what level of power the executive branch should have relative to the other branches of government in matters of security.

In his article published in the Georgetown Immigration Law Journal titled, “Fear & Loathing in the Present Political Context: The Incubus of Securitizing Immigration,” Marvin L. Astrada, lecturer in politics at New York University - Washington, DC., examines the securitization of immigration past and present. Astrada poses the question — “who exactly are We the People, and what values do the People subscribe to, as expressed in public policy?” He argues that “it is timely to critically examine the nexus between security, law, and public policy. This is especially pertinent given the fact that ‘the modern structure of immigration law actually has enabled the President to exert considerable control over immigration law’s core question: which types of noncitizens, and how many, should be permitted to enter and reside in the United States.’” In the below interview, Astrada discusses the details of his paper and the wider implications of government securitization of immigration.

Q&A with Marvin L. Astrada

In your article you discuss the nexus between security law and public policy (SLPP). Can you explain this relationship and what the present dynamic looks like?

MA: The interaction(s) between each component in the SLPP nexus is rather complex, in that competing norms, values, and ordering principles, such as liberty v. security, are differentially prioritized and interpreted by the three branches of the Federal government as well as the State and local governments.

Security is not monolithic; it is a state of affairs that ebbs and flows based on the criteria employed to define threat. Security can be viewed as being comprised of distinct yet overlapping sectors: i.e., the environmental, which involves the relationship between human activity and the biosphere; the economic, which encompasses trade, production, and finance; the societal, which pertains to collective identity; and the political, which involves the relationship of authority and governance. When the societal and political sectors are collapsed into a unified state of affairs, securitization measures can become quite far-reaching, such as immigration measures designed to expedite the deportation of specific groups from within the polity, and excluding specific groups from entering the country because they are viewed as un-American, a threat to American identity, and the integrity of the State.

In the present political and legal contexts, the Executive has articulated and pursued an agenda that explicitly securitizes immigration law and policy. The significance of securitizing immigration is that law and policy each cast the immigrant as an existential threat to public safety, and each reflects a war-mentality based on perpetual threat. A war-response to immigration permits securitized measures to be implemented that are antithetical to other equally important values, principles, and norms that provide the fundament for American political culture and identity, such as liberty, due process, and the rejection of discrimination by public authority based on race and ethnicity. As far as what exactly constitutes the American People, securitization enables public authority – under color of law and in the interest of public safety – to put forth what it considers to be its interpretation of (what should be) the character and content of the American populace. Securitized immigration law and policy can designate certain regions of the world, religious affiliations, and racial and ethnic traits as less than desirable or not properly American.

What are the present and future consequences of securitizing immigration?

MA: Securitizing immigration, characterizing it as an existential threat to U.S. national security, has profound implications for Executive power and American national identity in the context of a democratic political system. Securitized immigration raises the disconcerting questions of: who exactly are or should constitute the American People, what is the nature of Executive power in defining the character and content of the American People, what role does (or should) Security play in formulating immigration policy, and what values do the American People subscribe to (given the fact that public authority in the U.S. is legitimized, in theory, by the will of the People)?

Casting immigrants and the notion of immigration as an existential threat to U.S. national security creates a justification for hyper-expansive securitization measures in which competing and equally important values and historical facts, such as liberty and the U.S. as a product of immigration, drop out. Within the SLPP nexus, policy spaces are impacted, which, in turn, affect the social and political fabric of what constitutes American society. The protective motive that underlies securitization has the potential to undermine overarching democratic values that inform the political system and political culture. American identity, values, and norms can be attenuated in the name of public safety. A securitized immigration framework simplifies a complex state of affairs and has profound consequences for the polity’s identity, its values, and the foundational bases of the People’s will expressed in public policy. For instance, the existential “threat” that immigrants pose to U.S. national security, as interpreted through the lens of a war-based security response to immigration from the Global South has explicit racial and ethnic overtones that, in turn, deeply impact the character and content of public policy.

How have immigration laws been conflated with national security concerns in recent years and in the past, and what are the implications?

MA: The 9/11 terrorist attacks against the U.S. affected the reconfiguration of immigration law and policy. After 9/11, immigration became a prominent theme in the political and legal process, and in the articulation of national security policy. The subsequent War on Terror resulted in the promulgation of laws designed to facilitate combatting terrorism, expansively defined. In the context of national security, immigration has become the subject of debate highlighting the controversial nature and legitimization of selective enforcement policy drawn along the lines of race, ethnicity, religion, nationality, and citizenship. The vestiges of 9/11 reveal how immigration laws have come to explicitly reflect national security concerns.

The implications for policy and American national identity is that law functions as a primary means by which interpretations of Security are conceptualized and implemented. How law interprets and addresses competing values and principles, such as valuing human rights and preserving civil rights, directly impacts and affects the form and substance of public order, authority, and policy. Due to the potential for illimitable application, Security can present serious challenges to democratic societies that prioritize civil rights and liberties, and other assorted substantive and procedural protections that inform the character and content of society. Criminal offenses that undermine national security, for instance, are fodder for expansive securitization measures. In the process of securitizing immigration, the immigrant becomes an existential threat to U.S. national security by virtue of being an immigrant. A consequence that ensues from excessively emphasizing Security within the SLPP is that law and policy grounded in Security reflects a myopic focus on public safety that minimizes the profoundly negative effects of securitized immigration, to include prejudicial and discriminatory racial, ethnic, religious, and ideological effects that such policy has on the character and content of what constitutes an American, the American polity, what is great (or not so great) about America, and categorical demonization of an immigrant Other.

In the present SLPP nexus, the Executive is promoting Security as the goal of public policy regarding immigration. The case of Japanese-American internment during WWII is part of a very dark history when it comes to racialization and vilification of the Other. The politics of fear and loathing came into play regarding the Japanese in 1920s America – and has found expression in the modern immigration context regarding Muslims and Latinos from the Global South. The sentiment expressed by US Senator Sterling in the 1920s toward Japanese immigrants is reminiscent of the ethos that informs the Executive’s present immigration law and policy toward the Global South and Middle East: “If we are going to exclude Japanese immigrants, let us exclude them because it is a wholesome thing, the right thing, the just thing to do for the United States and for the American people.” Deportation, restriction, or privileging of certain types of immigrants based on particular region, racial, ethnic, religious affiliation or belief, and/or ideology reflect, and are in line with, a desire to control the racial, ethnic, religious, and ideological character and content of the nation’s population as expressed in Senator Sterling’s statement concerning the Japanese.

In the modern context, the militarization of local police, erecting a massive wall along the U.S. Mexico border, mass deportation of immigrants within the U.S., and the restriction of certain groups of people from immigrating to the U.S. can be interpreted as the Executive explicitly favoring Security over equally important interests, such as Justice, Liberty, and due process of law. To have law and policy beholden to Security in the SLPP is to promote a policy agenda wherein, American identity, values, and norms are reduced to one-dimensional signifiers in the service of public safety. Security and securitization measures become the fateful albatross that grounds public policy, simplifies actuality into a binary Secure/Insecure state of affairs.

How has the modern structure of immigration law enabled the president to exert greater control over the extent to which different types of immigrants are permitted to enter the country?

MA: In the case of immigration, the debate over the desirability and constitutionality of the Executive’s security agenda is reminiscent of previous historical periods and arguments premised on the politics of fear and loathing stemming from a securitized interpretation of immigration. Fear and loathing of the immigrant were hallmarks of securitized immigration in the late nineteenth and early twentieth centuries, wherein the immigrant was viewed as an existential threat to the United States. Fear and loathing have assumed pivotal roles in the articulation of immigration law and policy. Combined with the substantial Congressional delegation of power to the Executive and the judiciary’s deference to the Executive in the realm of immigration, the Executive has been able to acquire considerable power vis-à-vis immigration law and policy.

The foregoing is important to note because the question of who exactly are the People is one of power and privilege to identify what exactly constitutes the criteria of Peoplehood and the politics of identity. The subsection of the polity that possesses the ability to define—and associate itself as a protector of—the People is one correlated with racial, ethnic, legal, and economic status. Policy spaces reflect the politics that attaches to defining the American People. In the case of immigration, the notion of an American People is a product of, in part, the Executive’s substantial control over the legal regime governing which type of people (racial, ethnic, class, religious, ideological) qualify to enter and remain in the United States. The notion of the American People is thus not necessarily a representative concept in a democratic sense of the term. Utilizing the term in a securitized immigration discourse reifies the Executive’s interpretation of associating its notion of non-American People with threat, and espousing the authenticity of the People via a normative association of its interpretation with an objective referent. The People in securitized immigration discourse exemplify how the concept is devoid of any objective representativeness.

Executive power to shape and impact the character and content of immigration in a Security context was put forth, in part, by the U.S. Supreme Court in US ex rel. Knauf v. Shaughnessy, 338 U.S. 537, 542 (1950), wherein the Court found that, “exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” The courts, generally speaking, before and after Shaughnessy, have been deferential to the Executive in the realms of national security and immigration based, in part, on Congressional delegation of its immigration power over to the Executive (see Hawaii v. Trump, 859 F.3d 741, 769–70 (9th Cir. 2017)). In Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), the Court stated that, within the immigration context, the courts should not “look behind the exercise of [Executive] discretion” when exercised “on the basis of a facially legitimate and bona fide reason.”

In interpreting the constitutionality of Executive power and immigration, the court in Sarsour v. Trump, F.Supp.3d, 2017 WL 1113305, No. 117CV00120AJTIDD (E.D. Va. Mar. 24, 2017) at 10 cited Mandel, noting that the Supreme Court concluded that where the government has provided a facially legitimate and bona fide reason, “the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who [claim they are injured by the visa denial.]” The courts must thus extend substantial deference to the government’s facially legitimate and non-discriminatory stated purposes. Delegation of power to the Executive has had, generally speaking, the sanction of the courts. In upholding delegation, the courts have found that national security interests do in fact play a role in the exercise of Executive power, and that the courts will, generally speaking, not question the political and strategic calculus that undergirds a law or policy articulated under the aegis of national security — even if it negatively impacts a discrete group of people. The Court, for instance, has declared that, a “law, neutral on its face and serving ends otherwise within the power of government to pursue, is not invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” Washington v. Davis, 426 U.S. 229, 242 (1976). Under the so-called “plenary power” doctrine, immigration is deemed a political state of affairs, and thus mandates judicial deference to the political branches’ interpretation. The Court’s foundational rulings in the realm of immigration may be interpreted to provide a passive rational basis standard for securitizing immigration. Whether this is a desirable or efficacious interpretation is debatable.

How do you think the current SLPP balance needs to shift to address the securitization of immigration?

MA: A starting point for effectuating change would be for Congress to reclaim the power it has delegated to the Executive to have carte blanche in the realm of immigration because, under the current delegation, the Executive possesses what can be characterized as a high degree of policy-making power and not mere enforcement power over immigration law and policy. The security interests need to be balanced against competing interests in the conduct of representational politics grounded in the rule of law. Making immigration law and policy more representative by having it articulated through the legislative branch may be a productive start to curbing the policy-making power that the Executive has exercised since the late 19th century.

While the courts have been, generally speaking, deferential to the Executive, the judicial power has not completely disengaged from shaping the SLPP in the realm of immigration. Shifting the focus from Security to Law is a starting point for recalibrating, so to speak, the SLPP nexus. Indeed, pushback in the present from the lower federal courts against the Administration’s immigration agenda can be observed. Although the “Executive has broad discretion over the admission and exclusion of aliens … that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases properly before them, to say where those statutory and constitutional boundaries lie.” Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), af’d, 484 U.S. 1 (1987)). Furthermore, the courts have also stated that, “Whatever deference we accord to the President’s immigration and national security policy judgments does not preclude us from reviewing the policy at all. We do not abdicate the judicial role, and we affirm our obligation ‘to say what the law is.’” Hawaii v. Trump, 859 F.3d 741, 768–69 (9th Cir. 2017).

The lower federal courts and the Executive are, to some degree, at odds with one another regarding the constitutionality of the Executive’s efforts to effusively securitize immigration. The tension between the Executive and judiciary reflects fundamental disagreement as to how public authority articulates, justifies, and legitimates securitized immigration. Also, on a broader level of analysis, what constitutes an American, and the American People, are also the subject of disagreement. In securitizing immigration, the Executive’s interpretation of the SLPP is one rooted in managing the character and content of the population, which involves much more than merely exercising sovereign control over territory. Attempts to purge the U.S. population of an influx of immigrants deemed a threat to the nation’s security (as construed by the Executive) because, among other factors, they are fundamentally incompatible with core American values and norms reflects a politics saturated with fear and loathing. Fear and loathing underpins and reflects a strategy of governance linked to population control, management, and the power to define what constitutes an American identity in the “true” and fullest sense of the term.

In the case of the present Executive’s securitization agenda apropos immigration, a question of particular importance to ask is, how is threat perceived vis-à-vis the character and composition of the national population? Securitization of immigration encompasses the power to contour the character and content of the population. In representative political units, Law has played a particularly important role in not only procuring Security but also in restricting it, buttressing competing political values against the hyper-expansive nature of Security. The courts, as expositors of Law, have played a cardinal role in checking and balancing Executive and Congressional interpretations of Security.

Law is key in this process. Security is not a singular value, ethos, or goal of public policy. There are competing values that exist and which Law has recognized and employed to temper securitization. In United States v. Robel, 389 U.S. 258, 264 (1967), the Court declared that, “the concept of ‘national defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart … [O]ur country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile.”

Securitization, when interpreted liberally and articulated in a legal framework, can become justified in and of itself with no other referent. Logically, one can postulate legal securitization measures that are ubiquitous and meta-comprehensive; this is perhaps Security’s most potent and salient characteristic. Securitization can encompass a variety of fields that transcend a limited preoccupation with physical integrity/safety. The political, economic, cultural, literary, social, and media aspects of a polity, for instance, are all potential fodder for Security. The courts, however, have recognized the need to reign in the hyper-expansiveness of Security; “national security” without further substantiation is simply not enough to justify significant deprivations.

Law and Security are negatively impacted when securitizing immigration because Law is not only a set of rule-based prescriptions, but it also reflects national character and identity. It has been noted that immigration enforcement decisions constitute what can be characterized as “law’s identity as law.” Hence, the focus in the SLPP should be less on Security and more on Law as an independent variable that provides a means of not only effectuating Security, but of tempering it, restricting it, and having it serve a broader and more productive purpose than itself.