The Totalitarian Logic of Immigration Controls

There were many terrible moments in Donald Trump’s nakedly fascist 2024 campaign, but I will personally never forget taking the time, in May, to read Radley Balko’s extensive discussion of how mass deportation might work in practice. More than anything else that happened that year, really going through the details of what it would mean to try and achieve the largest population expulsion in history terrified me, set my heart racing. 

In some ways, the first four months of the second Trump administration have proven even worse than Balko anticipated. He thought a key problem would be that home countries would stop accepting deportations from the United States, so we’d end up with hundreds of thousands of people in camps here. But the Trump administration was quick to strike a deal in El Salvador to simply send anyone, from any country, to their enormous prison camp. A similar deal has been pursued with Libya, and that is unlikely to be the end of it. The administration’s position is that they should be allowed to deport whomever they deem necessary to wherever is convenient for them, without any interference from the courts whatsoever. Even more than his attempts to take unilateral control of budgets and spending, Trump’s attempts to implement mass deportation have been the most lawless actions taken so far, as well as the most brutal.

Trump’s intense focus on deporting immigrants has meant that American citizens are increasingly detained or questioned at the border. American citizens are being intimidated by unidentified federal agents knocking on their doors. American elected officials are having frivolous charges filed against them for having the “wrong” position on immigration. Never mind that legal permanent residents and others with clear legal status are being targeted for deportation as well. Increased coercion of non-citizens of all kinds, including those who are clearly here legally, has resulted in increased surveillance and coercion of citizens.

For this reason, the one book that I wish Americans had read in the four year Trump interregnum is Chandran Kukathas’ Immigration and Freedom. Published in early 2021, even with the first Trump term in hindsight at the time, Kukathas’ words now appear prophetic:

Immigration controls, more than many other instruments of governance, encourage the regulation of private and commercial life, the monitoring of social institutions—from schools and universities to professional organizations—and, at worst, the militarization of parts of society. So deeply can they intrude into the relations among people that make for civil life that they have the capacity to compromise a society’s legal institutions as well as inflict serious harm on private citizens, their families and their communities. Unchecked, they encourage the replacement of the rule of law by regulations, of politics by police. (Kukathas 2021, 6)

Americans are now learning the hard way just how right he was, just how easily enforcement mechanisms set up to regulate outsiders can quickly become the main weapons in an authoritarian consolidation.

In what follows, I will unpack Kukathas’ attempt to make immigration restrictionists “acknowledge the heavy price we must pay to keep our borders controlled.” (Kukathas 2021, 2) From there, I will discuss the political and the practical reasons that, despite this heavy price, immigration restriction as a legal paradigm is universally embraced around the world. I will conclude with preliminary thoughts on how we might mitigate the totalitarian tendencies of immigration policy, and pry that policy as open as we can get it.

The cost of control

Immigration restriction is not, fundamentally, about closing borders. Every remotely prosperous country wishes to leave itself open to tourists and business travelers, at minimum. Kukathas notes that “In 2013, 69.8 million people entered the US as visitors, while more than 30 million entered the UK. If citizens and residents are included, the numbers crossing American and British borders are even greater.” (Kukathas 2021, 4)

Nor are the immigrants who choose to stay here easily distinguished from the general population. Some, after all, may have come here as children, and have no accent, nor memory of their country of birth. Others may have limited fluency in the national language but have little to distinguish them from other members of their ethnic group who are naturalized citizens or even native born, but rarely venture out of their local community.

Determining who should be allowed to work or live here therefore requires forcing everyone to prove who they are at regular intervals, which, by the numbers, overwhelmingly means making citizens do so. “The more closely outsiders are to be controlled—whether by limiting the numbers entering the country or restricting the activities in which they engage—the more substantially will insiders have to be monitored.” (Kukathas 2021, 44)

Indeed, as the Trump administration has intensified its effort to expel unwanted peoples from within our country and keep them from coming in the first place, American citizens have faced greater scrutiny when attempting to return from abroad. Not that the “interior” is such a safe place; reports are already coming in of more and more citizens who were arrested or deported in the past four months. Citizens have long been swept up in anti-immigration nets, whether accidentally or maliciously. (Cohen 2020, 25-27) This is a fact that immigration restrictionists like to ignore.

But citizens need not face the suspicion of being non-citizens in order to come against the sharp edges of the immigration enforcement system. In the first place, the system “limits their freedom to associate, whether for economic, cultural, political, or simply personal reasons: employers cannot hire who, or as many as, they prefer; universities often cannot recruit the people they most want; and individuals and families cannot come together as they wish.” And of course, they are not simply asked politely; “fines, loss of income, business collapse, institutional closure, separation from loved ones, or imprisonment” are all on the menu if citizens fail to comply. (Kukathas 2021, 53-54)

Immigration laws are restrictions on what citizens are allowed to do. From high-profile workplace raids to audits and digital surveillance, employers, whether citizens or not, face intense scrutiny and potential disruption from immigration authorities. Nor are businesses and business owners the only people who have to worry, or indeed the ones who should be the most worried. Radley Balko looked at a 2023 interview with Trump insider Stephen Miller on how they intended to implement mass deportation.

Miller plans to bring in the National Guard, state and local police, other federal police agencies like the DEA and ATF, and if necessary, the military. Miller’s deportation force would then infiltrate cities and neighborhoods, going door to door and business to business in search of undocumented immigrants.

Among the first things the Trump administration did was to allow ICE to seek out immigrants in courthouses, schools and churches, a practice that was only expressly banned in 2011. This has led to lower attendance in schools and confrontations with judges. One wonders how the rightwing defenders of religious liberty feel when federal agents show up at their church. Or how they feel about having their homes invaded, or their neighbors kidnapped off the street.

Trump is certainly trying to take things further than they have been taken before, especially in attempting to throw habeas corpus out the door entirely. But the basic logic was always there. Immigration enforcement has long terrorized communities of citizens and permanent residents in order to find the handful of undocumented immigrants they were authorized to deport. Oversight of them has always been far more superficial than other components of the executive branch. (Cohen 2020) 

And as Kukathas makes clear, a large and at best modestly accountable enforcement apparatus engaged in the surveillance, regulation, and intimidation of citizens is a logical necessity for immigration enforcement per se. It is the price. And it is only too easy to see how this, more than any other arm of the state, provides a path which, when followed, leads to authoritarian consolidation, or even totalitarianism.

Membership

Kukathas believes that the original sin is found in the very notion of membership, the very possibility of non-membership.

Membership is an ideal that is not only overrated but also dangerous from the perspective of freedom. It is at odds with the idea of people living together freely, for it subordinates that freedom to an altogether different ideal—one that elevates conformity and control over other, freer, ways of being. In the end, if we are to live freely, we must be able to relate to one another not as members but as humans. The point of immigration control is to separate us into members and interlopers, dividing us into groups of those whose legitimate place in a territory is beyond question and others who enjoy what entitlements they have as a matter of sufferance, and at the pleasure of the established residents. (Kukathas 2021, 7)

I would make Kukathas’ point very differently, in a way that meaningfully alters the conclusion. I would say that membership is a constraint on the ideal of living together freely, not categorically at odds with it. Human beings live in groups of which they are members, not alone. Individual people are only able to live at all due to their relations with other people, who they work alongside or enter into commerce with or are protected by. The challenge for freedom has not been to eradicate membership entirely, because this is a sociological impossibility. The challenge instead has been to create a category of membership that is sufficiently loose, and sufficiently open to relationships with non-members, to make it possible to live together more freely relative to anything else that’s been tried. And, of course, not to grow complacent with that achievement, but to keep striving for an actually existing society that is even more free.

When it comes to expanding human freedom in practice, citizenship is certainly a better form of membership than tribe, clan, or fiefdom. Perhaps we will invent still better forms of membership; the supranational citizenship of the European Union, for example, is promising in some respects, though it has done little to increase the openness of member countries to immigration from non-member countries.

Every time we publish someone at Liberal Currents who says that we ought to wrap our cause in the American flag, critics point out the many terrible things that have been done in that flag’s name. But the point is that, ultimately, it is as citizens of America that we are exerting our political influence, for without the institutions of America, we have no real path to concrete, positive change. Fighting over the meaning of that flag, contesting its appropriation by people who hate everything good that has ever been accomplished in our history, is important. We need to fight for the vision of American citizenship that keeps a generous path open for more people to become citizens, if they want to. For our sake, as much as theirs.

Membership can, under the right conditions, be leveraged for greater openness. The rise of the modern nation-state and its model of citizenship has not just coincided with the birth of the total state; it has also resulted in a drastic reduction in violent crime, in unprecedented investments in public health, in social safety nets capable of setting a floor on how far citizens of some countries can fall materially. Robert Cover may have been right that even “Legal interpretation takes place in a field of pain and death.” But his point wasn't that we ought to do away with the court system, never mind that rule of law was an unworthy ideal. His point was that we must never forget that even the most peaceful, liberal, and lawful political system by necessity has very, very sharp edges. What seems like an intellectual exercise to a judge or law professor will ultimately mean that “somebody loses his freedom, his property, his children, even his life.” (Cover 1986, 1601) We should not forget this, nor treat such things as purely intellectual exercises.

The same holds for immigration policy. It is not just an intellectual exercise, not a technocratic puzzle to be solved. Kukathas’ argument is both correct on its face and an inconvenient reality for the many people who believe that it just is common sense that there must be some limit to immigration, that just enforcing immigration law is an uncomplicated, untroubling proposition.

But like all critiques of this kind, it is the beginning, not the end, of thinking seriously about what specific immigration policies and institutions we ought to have.

The popular foundations of immigration restriction

It is tempting to argue that, given the convenience of immigration policy as a pretext for expanding state power over society, it must be elites and those at the levers of power who push anti-immigration politics. That is certainly part of the story, but not all of it. As the political scientist Azar Gat put it in his study of nationalism:

One little noted reason why nationalism became so potent in modernity is that the masses—more mobile and largely concentrated in the cities, near the centers of power—were now far more able to voice and enforce their preferences, which were almost invariably nationalistic. Rulers had to be much more responsive to these wishes than they had been obligated to when the masses were impotently scattered in the countryside. (Gat 2013, 16)

The masses have more political influence in the modern world. This is true regardless of whether or not the political institutions under which they live are democratic. Indeed, an important reason why so many countries with differing histories and cultures have at least given democracy a try is that it provides the best mechanisms for offering members of the public non-violent means for exerting the de facto social power they cumulatively already have. Even non-democracies feel the need to imitate the institutions of liberal democracy as closely as possible while insulating incumbents just enough to always win. In the modern world, democratic institutions are simply practical.

This does not mean that every impulse popular among the masses is a good one. Gat is quite right that nationalism—that impulse that turns so quickly into xenophobia and victories for people like Donald Trump—is popular.

This popular bias towards immigration restriction finds its origin in the same social dynamics that cause ethnic conflict in general. Donald Horowitz—one of the foremost experts on ethnic conflict—in some ways agrees with Kukathas that the problem comes down to the human tendency to treat members of one’s group differently from non-members.

The foundations of ethnic loyalty reside in the need of individuals to belong to groups. Individuals require the cooperation that groups provide. They possess a deep sociality. That sociality, however, is not maximally inclusive. Whenever groups form, their members sense the existence of boundaries that divide them from other groups. Both the impulse to form groups and the impulse to differentiate them from others are so strong that they are easily activated. (Horowitz 2001, 45)

This is abstract, but consider that one thing people must coordinate on to be able to act collectively is a language. Native speakers of the same language can much more easily coordinate on everything else that needs to be coordinated upon in social life. Learning another language, meanwhile, is difficult, and native speakers will always hold an advantage over those who achieve less than full fluency. The political scientist Russell Hardin observed that:

Language policy is inherently conflictual because different policies differentially affect relevant parties. The current two or three generations of speakers of the minority language will be losers if their language loses its utility. The present generations of speakers of the majority language will be losers if the minority language is kept viable. (Hardin 1995, 59)

If the language spoken by a minority group loses its utility, they will have no choice but to do the hard work of learning the majority language in order to get by, or risk isolation (something that can occur for aging members of that group who are taken care of by children and grandchildren who are fluent in the majority language). If the minority language is kept viable, members of the majority group who work in government or the service sector may either need to learn the minority language themselves to a degree, or incur the costs of hiring professional translators. Being bilingual is an advantage in such an environment, which is another way of saying that those unwilling or unable to bear the cost of learning a second language will be disadvantaged.

Coordination conflicts of this kind go beyond language:

When the number of Christians in a neighbourhood declines to the point where the local churches are shuttered, this has a tangible effect on the welfare of local Christians, completely independent of whatever resentment they may feel toward the thriving new mosque or temple that is being constructed next door. Most club goods can be provided only when the number of members exceeds a certain threshold, and so if individuals want to consume them locally, they must take an interest in the consumption preference of their neighbours. (Heath 2022 227-228)

These conflicts aren’t unique to the politics of immigration. Despite the fantasy of nationalism (or its gentler, kinder sounding cousin, “national self-determination,”) every country on Earth is ethnically and culturally divided in some way, and therefore experiences these tensions to even without immigration. Meanwhile, in practice, shuttered churches in the United States are not so much a matter of Muslims moving here as of church attendance decreasing down the generations.

One thing immigration has the potential to do is disrupt the political compromises struck among existing groups. In Canada, language laws were established in order to assure French-Canadians that the status of their native language would not be in jeopardy. Immigration, however, could undermine the status of French in Quebec, “because immigrants to Quebec might choose to learn the language of the national majority (English) rather than the local majority (French).”

Thus Canada has faced the challenge of integrating immigrants, not just into the majority society, but into the society of an internal minority, in a way that is acceptable to that minority. As a result, the only way that it has been possible to have anything resembling a national immigration policy has been to offer a set of very explicit protections for Quebec, and in particular, for the French language, in order to address these demographic anxieties. These same protections, however, have been extended to the English majority as well. So, for instance, Canada is far more explicit with immigrants about the importance of language-learning than many other countries are, in part because it has an “official languages” policy that sets out very clearly the privileged status of English and French. (Heath 2022, 228)

The potential for immigration to upend existing political bargains may appear to have small stakes in the abstract. What does it matter, in the long run, if the special place of French is preserved alongside English in Canada? But the bargains exist for a reason—to preserve peace among major cultural-linguistic blocs in a country. If one of those blocs feel that the spirit of the agreement is being violated on the sly, they can collectively make a great deal of trouble, up to and including political violence.

In Canada, there was thankfully the political will to address the threat that immigrants posed to the existing arrangement without abandoning their commitment to a relatively open immigration policy. But it took a serious effort on the part of the Canadian state to ensure that immigrants learned the official languages of the country. We will revisit the active component of positive immigration policy in the next section.

Even in the Canadian example, however, the challenge was not so different from the internal politics of a given country. In an open society with freedom of movement within its borders, a small town may grow into a large one, or a city, quite quickly if economic circumstances change for some reason. Perhaps the town suddenly becomes a hub for a particular industry. Perhaps the costs of a nearby city have grown prohibitive, and more and more people decide to move to the town to commute. Whatever the reason, people practicing different religions or attending different denominations, with different tastes and attitudes, can show up in large numbers, and fundamentally change the character of a community. And that is true even if those people are all citizens rather than immigrants.

And indeed, it is not just external immigrants that people seek to exclude. “Preserving the character of the neighborhood” has a deservedly bad reputation, as the “character” in question is often assumed to mean “White.” But as true as that may be in many or even most cases, there are other things people desperately do not want to see changed. It goes beyond not wanting their church to shutter to not wanting the composition of the church to change, even with other people of the same race, ethnicity, and (by definition) denomination. If this has been your church for decades, with the same set of families making up a supermajority of the congregation during that time, some “new blood” may be welcome, but only some.

This is the other part of the story of the shuttering of American churches. An aging congregation exercises their political power to ensure that no one can build a thing in those communities, and the young move to actually economically dynamic locales. Rather than growing and changing, the population of the town shrinks, reducing the pool of potential new members. Any new person who does express interest in joining the church is treated with suspicion, out of fear that they will introduce unwanted change to the congregation. So the existing members of the congregation slowly die off, and the viability of the church dies off with them.

It is difficult to keep a society truly open. Every new generation must shoulder the responsibility to find those areas that have grown rigid and stagnant, to pry them back open again, and introduce flexibility.

But structural biases are not permanent barriers. The degree of anti-immigration sentiment in a given society is not fixed over time, and indeed pro-immigration sentiment has its place as well. After all, immigration restriction would not require the totalitarian systems of control that Kukathas described if there weren’t plenty of citizens who wished to employ, work alongside, befriend, or marry immigrants. The odds of truly open borders, especially as a policy regime that lasts even one generation, are vanishingly small. But that doesn’t mean we must be pessimistic about the possibility of much, much more open borders than we have, or for less nakedly totalitarian enforcement mechanisms.

We are long overdue a new bargain on behalf of freedom of movement in this country. Freedom of movement for those who live here already, and wish to exercise their constitutional right to move to any community anywhere in the country. And freedom of movement beyond our borders and back, for ourselves as much as for those who wish to join us from abroad.

Immigration and the state

Just as there are reasons that immigration restriction might be popular, the state has its own reasons to restrict the flow of immigrants, if not shut it off entirely. States “tend to seek centralization of authority and homogenization of cultural and linguistic identities” (Levy 2015, 58), something that mass immigration can undermine by expanding cultural and linguistic pluralism and by providing the opportunity for elites produced by these communities to gain authority at the expense of the state.

But incentives are mixed here. Both Doug Saunders in his 2019 call for a future of 100 million Canadians and Matthew Yglesias in his 2020 call for One Billion Americans recognized the fundamental advantages enjoyed by extremely large countries. At a given per capita level of wealth, more people translates into a larger tax base, greater productive capacity, a larger share of the world’s science and engineering talent, and potentially greater military power as well. A country that can successfully maintain high levels of immigration without backlash can enjoy these geopolitical benefits.

So why don’t more countries compete on being the most open to immigration, rather than, at least in their political rhetoric, doing the opposite? Other than the popular resistance to doing so, the political philosopher Joseph Heath argues that there are simply high costs to failing to integrate immigrants into the receiving society. “In the worst-case scenario, it may result in the creation of a permanent underclass of marginalized, alienated, and resentful quasi-citizens. This outcome is in no one’s interest.” (Heath 2022, 223)

For Heath, a good immigration policy is to be judged chiefly by its influence on the “system of cooperation” that countries rely upon to stay liberal, democratic, and prosperous. That system of cooperation rests on institutions, laws, and norms that have to be maintained and reproduced down generations. Heath’s central argument is that unmanaged immigration can put that system of cooperation at risk in a number of ways, some of which I frankly find dubious. But our discussion above of the structural tendency towards conflict among groups suggests that there is some truth to this general point. 

It isn’t so much that immigrants may import bad norms (as some of Heath’s scenarios suggest) as that a failure to integrate minorities into the existing system of cooperation has many negative knock-on effects. 

Heath emphasizes that immigrants need not be assimilated into the dominant culture, but they do need to be integrated into “the major social institutions of the society—first and foremost the economy, but also the education system and the political process.” (Heath 2022, 216) Heath offers a very minimalist argument for immigration restriction in principle “based purely on limitations in the integrative capacity” of a country's institutions.

Contrary to the claims of many cultural conservatives, this capacity is not zero, but neither is it unlimited, as many cosmopolitans seem to assume. (Heath 2022, 224-225)

This capacity is not fixed. If there is political will for it, we can invest in expanding the state’s capacity to integrate immigrants and thereby push this ceiling higher. Heath’s own country, Canada, has a world class model of integration, which they have spent a great deal of time and resources developing. Perhaps Saunders’s dream of 100 million Canadians isn’t so far-fetched after all. 

In America we don’t have quite the muscular integration program that the Canadians have, but as is our way, we have many piecemeal initiatives at multiple levels of government that do add up to something substantial. Moreover, we have a demonstrated capacity as a society, beyond state policy, to avoid the bad outcomes that Heath describes, whatever the fever dreams of rightwing press would have us believe. If we can find the political will to fix our completely broken immigration process, our ceiling for integrating immigrants simply is a lot higher than most other countries even without further investment in our integration programs.

The way forward

Heath’s is probably the most respectable argument for immigration restriction, and is definitely one worth engaging with. It’s possible that he’s even correct that there needs to be, in principle, some ceiling. Regardless, no country is likely to test that proposition for the many reasons discussed above.

Still, even as Heath discusses the costs of his “worst-case scenario,” he fails to consider the worst-case scenario of immigration enforcement, the one that we Americans are now experiencing. Nowhere, when discussing the costs and practical challenges of scaling integration programs, does he do the same for enforcement programs. This is the kind of imbalanced analysis that we simply cannot afford. Kukathas may as well have been responding directly to Heath when he argued that “People fearful of the harm that might come from the arrival of outsiders have overlooked the harm they might be doing, through their efforts of control, to their own institutions and to themselves.” (Kukathas 2021, 123)

America needs a new immigration bargain. Our institutions have rotted from the inside and our political elites have completely failed to act except to make it worse. First and foremost, we need to be able to give people a yes or a no quickly. Getting rejected quickly is better than getting strung along for years or even decades. Or worse, getting held indefinitely in cramped encampments with terrible conditions. We were able to operate this way in the very recent past, there is no reason we cannot do so again.

We need to stop pretending that the stakes are so high that we need to be breaking into people’s homes, invading their churches and their schools, in order to find people we may be legally able to deport. After all, “The majority of ICE detainees do not have a criminal record, and four-fifths of all ICE detainees have nothing more than a minor offense such as a traffic violation on their record.” (Cohen 2020, 13-14) So what exactly are we gaining by intensifying the totalitarianism of our immigration enforcement system? Who exactly is served by harassing communities to root out these parking ticket offenders?

The goal of the Trump administration and people like Miller is quite clearly to terrorize. They hope that by being as visibly brazen and brutal as possible, by making a spectacle, they will achieve their mass deportation numbers mostly through “self-deportation”—by getting undocumented immigrants to leave on their own, out of fear of being caught. But it is not just immigrants who have been and will be terrorized.

Americans have the power to put an end to this campaign of terror, surveillance, and control we have subjected ourselves to. We must exercise that power as soon as possible.

Bibliography

Cohen, Elizabeth F. Illegal: How America’s Lawless Immigration Regime Threatens Us All. First edition. New York: Basic Books, 2020.

Cover, Robert M. “Violence and the Word.” The Yale Law Journal 95, no. 8 (1986): 1601–29. https://doi.org/10.2307/796468.

Gat, ʿAzar, and Aleksander Yaʿaḳovson. Nations: The Long History and Deep Roots of Political Ethnicity and Nationalism. Cambridge: Cambridge University Press, 2013.

Hardin, Russell. One for All: The Logic of Group Conflict. Princeton: Princeton University Press, 2001.

Heath, Joseph. Cooperation and Social Justice. Toronto Buffalo London: University of Toronto Press, 2022.

Horowitz, Donald L. The Deadly Ethnic Riot. Reprint 2020. Berkeley, CA: University of California Press, 2020.

Kukathas, Chandran. Immigration and Freedom. 1st ed. Princeton: Princeton University Press, 2021.

Levy, Jacob T. Rationalism, Pluralism, and Freedom. Oxford: Oxford University Press, Incorporated, 2015.

Featured image is ICE executes federal criminal search warrant in North Texas