José Jorge Mendoza

In debating the ethics of immigration, philosophers have focused much of their attention on determining whether a political community ought to have the discretionary right to control immigration. They have not, however, given the same amount of consideration to determining whether there are any ethical limits on how a political community enforces its immigration policy. This article, therefore, offers a different approach to immigration justice. It presents a case against legitimate states having discretionary control over immigration by showing both how ethical limits on enforcement circumscribe the options legitimate states have in determining their immigration policy and how all immigrants (including undocumented immigrants) are entitled to certain protections against a state’s enforcement apparatus.

Since at least the second half of the 19th century, the U.S. federal government has enjoyed “plenary power” over its immigration policy. Plenary power allows the federal government to regulate immigration free of judicial review and thereby, with regard to immigration cases, minimize the Constitutional protections afforded to non-citizens. The justification for granting the U.S federal government such broad powers comes from a certain understanding of sovereignty; one where limiting sovereign authority in cases like immigration could potentially undermine its legitimacy and thereby lead to something like a Hobbesian “state of nature.” One of the potential downsides of allowing the federal government to have such broad powers, however, is the potential to place non-citizens in a situation analogous to what Giorgio Agamben has called the “state of exception.” This situation appears to leave us with the following dichotomy: without something like the plenary power doctrine a political community will end up with a state of nature, but with something like the plenary power doctrine they end up with a state of exception. This essay offers a two-part response to this dilemma. First, it argues that the plenary power doctrine goes against the spirit of the U.S. Constitution, specifically the Fourteenth Amendment. Non-citizens, even undocumented immigrants, are entitled to more Constitutional protections than they currently enjoy. Second, since extending these protections is more consistent with the spirit of the Constitution, I argue that curtailing the federal government’s power over matters of immigration does not undermine its sovereignty, but promotes it. In short, with regard to immigration, it is a false but seductive dichotomy that constitutional democracies must choose between a state of nature and a state of exception.

In this article, I broadly sketch out the current philosophical debate over immigration and highlight some of its shortcomings. My contention is that the debate has been too focused on border enforcement and therefore has left untouched one of the more central issue of this debate: what to do with unauthorized immigrants who have already crossed the border and with the “push and pull” factors that have created this situation. After making this point, I turn to the work of Enrique Dussel and argue that his philosophical approach offers some insights that can help overcome these shortcomings. In particular, Dussel’s commitment to a social critique and transformation that begins with the material grievances of the most excluded and oppressed in a community. Under this type of approach, the immigration debate would begin with the grievances of the victims of immigration polices and reform (i.e. unauthorized immigrants) instead of with concerns for how to better enforce borders. Lastly, I point out that this type of approach is consistent with the current Immigrant Rights Movement in the United States.

Philosophers have assumed that as long as discriminatory admission and exclusion policies are off the table, it is possible for one to adopt a restrictionist position on the issue of immigration without having to worry that this position might entail discriminatory outcomes. The problem with this assumption emerges, however,when two important points are taken into consideration. First, immigration controls are not simply discriminatory because they are based on racist or ethnocentric attitudes and beliefs, but can themselves also be the source of social and civic ostracism. Second, by focusing so much on questions of admission and exclusion, philosophers have tended to overlook the discriminatory potential of immigration enforcement mechanisms. In this essay, I make the case that philosophers who deal with the issue of immigration cannot dispense with the potential for discrimination in a state's enforcement mechanism as easily as they have with the potential for discrimination in a state’s admission and exclusions criteria. In addition, I put forth the positive claim that the way to combat this potential for discrimination (e.g., xenophobia) must begin with a defense of, and advocacy for, immigrant rights.

In "Nations of Immigrants: Do Words Matter?" Donna Gabaccia provides an illuminating account of the origin of the United States' claim to be a "Nation of Immigrants." Gabaccia's endeavor is motivated by the question "What difference does it make if we call someone a foreigner, an immigrant, an emigrant, a migrant, a refugee, an alien, an exile or an illegal or clandestine?" . This question is very important to the immigration debate because, as Gabaccia goes on to show, "[t]o ponder this question is to explore the vastly differing ways that human population movements figure in nation-building and in the historical imagination of nations" . In this paper, I am going to delve deeper into .

At the University of Oregon, where I received my PhD, one of the requirements for advancing to doctoral candidacy was the completion of a History Paper. The History Paper challenges the student to bring together two philosophers from different philosophical traditions on a similar question and/or topic. The two philosophers that I chose for my History Paper were Latin American philosopher Enrique Dussel and the American philosopher John Dewey. As I began work on this project, I quickly realized that it was not so easy to find relevant secondary literature on what I thought to be an extremely rich and exciting topic. Yet, despite this setback, I remained convinced (and still am) that Dewey's notion of ..