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What claims do illegal immigrants have to membership? Joseph Carens has argued that illegal migrants with long-term residence have a claim to national membership because they already are de facto members of local communities. This paper builds on the linkage between illegality, residence, and rights, but shifts the focus from the migrant to the state, and from humanitarianism to the rule of law. I argue that the rule of law, as expressed in the principle of legal certainty, provides us with an alternative justification for the regularization of resident undocumented migrants. The principle of legal certainty recognizes the right of individuals to make long-term plans for their lives by requiring that state action be reasonably predictable and non-arbitrary. Thus, as an expression of legal certainty, both civil and criminal codes have statutes of limitation that place a time limit beyond which most crimes and misdemeanours can no longer be prosecuted, and individuals can move on with their lives. Not only do these statutes recognize the individual's right to make long-term plans for their lives, but, I argue, they also demand that the state cut its losses and accept the consequences of its failure to act in a timely manner. This paper contends that, in the absence of a statute of limitation on illegal entry, the deportation of settled migrants constitutes an arbitrary act of state power. The paper develops an alternative argument for legalization grounded in the principle of legal certainty and explores a number of judicial rulings to illustrate the argument's normative logic. [ABSTRACT FROM AUTHOR]

What can account for the variety of immigration policies adopted by governments that share similar migration pressures and challenges? Using the cases of West Germany and Switzerland, this paper examines the political processes and policy choices that mark the foundational periods of the two countries' guest worker regimes from the late 1940s to the early 1970s. The paper provides an empirical challenge to the immigration literature's claims that, first, "guest worker countries" are marked by policy uniformity, and, second, guest worker recruitment will unavoidably result in immigration. Instead, this analysis shows that the recruitment systems of postwar Switzerland and West Germany differed in two critical, and little noted, respects: first, in the speed with which permanent settlement occurred, and, second, in the timing of recruitment restraints. Thus, while the Swiss system for a long time was marked by state-enforced worker rotation, West German officials took no steps to prevent settlement. And whereas the Swiss government started to reign in recruitment in the early 1960s--a time of high market demand for migrant labor--West German policy makers only sought to put an end to recruitment during the oil crisis of the early 1970s. The theoretical framework developed in this paper combines institutional and ideational approaches to the study of public policy. Policy choices on matters of immigration, I argue, can be understood as the result of the number, and type, of conflict arenas they have to pass through. The various conflict arenas--executive, legislative, electoral--distinguish themselves by the extent to which they are open to societal influence, or, conversely, by the degree to which they offer political insulation to policy makers from both populist and interest group pressure. Conflict arenas not only determine to what extent policy choices reflect the preferences of policy makers, they also offer institutional constraints and incentives that shape preferences themselves. Moreover, under certain conditions, policy choices will also reflect processes of social learning among political elites. While this argument is tested empirically against Switzerland's and West Germany's postwar guest worker systems, the theoretical framework is designed to allow for the comparative study of immigration politics more generally. [ABSTRACT FROM AUTHOR]

Advanced democracies, it is commonly argued, are unable to prevent the permanent settlement of migrant workers because of the normative, legal, and economic constraints of liberalism. This paper seeks to qualify these claims by examining the politics of recruitment and settlement in two of Europe's archetypical guestworker countries, West Germany and Switzerland. While both countries responded to comparable labor market pressures with the establishment of migrant recruitment systems, guest worker settlement in Switzerland proceeded in a much slower manner than in West Germany. The paper's findings present a threefold challenge to our existing understanding of guestworker politics. First, the design of each recruitment system had an independent impact on settlement outcomes. Second, normative and legal constraints on the enforcement of anti-settlement measures were not significant in the Swiss case, and mattered in West Germany only subject to important qualifiers. Third, in both countries, economic imperatives were important, but not deterministic, factors in accounting for mass recruitment. To account for the findings of cross-national variation in settlement, the paper argues that each guestworker system was fundamentally shaped by two factors. First, program design varied depending on whether or not political elites could draw policy lessons from past experience with temporary worker programs. Where past recruitment had resulted in unwanted settlement, as had been the case in Switzerland, political elites sought to adopt policy provisions designed to prevent the past from repeating itself. Where past policy failure was absent, as was the case in West Germany, policy makers were less concerned with preempting permanent immigration. As a second critical variable, program design reflected the degree to which policy makers were able to operate autonomously from cross-cutting interests. Whereas the West German government could pursue recruitment relatively insulated from both business and popular pressure, Swiss policy makers had to repeatedly accommodate both sets of actors. [ABSTRACT FROM AUTHOR]

Immigration policy is shaped by the legacies of the past. Historical legacies not only mould fundamental attitudes and institutions, but also leave behind national ideologies of immigration that delineate the range of legitimate and viable policy responses. Is it the case, then, that policy choices must conform to a given immigration ideology even long after its first emergence? What is the scope for meaningful policy choice within a policy legacy's substantive bounds? This paper grapples with these questions by examining the relationship between Germany's legacy of postwar guest worker recruitment and subsequent policy choices on foreign labor recruitment in the 1990s. The failure of the postwar system to prevent immigrant settlement left behind a no-immigration ideology that precluded the future pursuit of permanent economic immigration. The ability of government officials to resume guest worker recruitment in the 1990s, I argue, critically hinged on their ability to devise a recruitment system that could credibly commit to the prevention of immigrant settlement. Policy makers succeeded in doing so by devising a system that - in contrast to past policy - was premised on worker rotation, the denial of family unification, and the absence of labor market integration. These policy features reflected a process of failure-induced policy learning that sought to avoid the past from repeating itself. The paper thus shows that policy legacies do not only have constraining, but also enabling effects. By providing opportunities for policy learning, legacies can create opportunities for policy innovation even within the constraints of paradigmatic path dependence. [ABSTRACT FROM AUTHOR]

This paper examines the relationship between the state and the undocumented migrant by building on Giorgio's Agamben concepts of "bare life" and "state of exception." In particular, the paper explores the possibility of resistance by migrants in the state of exception, and the implications of noncompliance for the exercise of state sovereignty. Agamben's notion of "state of exception" describes the augmentation of government powers during times of emergency when state sovereignty is perceived to be under threat. In states of emergency, governments suspend elements of the normal legal order and strip individuals of rights, even their legal identity. Whereas Agamben treats the state's denial of a legal identity to migrants as the sine qua non of state power, this paper will examine what might be called the "reverse state of exception": instances where migrants strip themselves of their legal identity in order to evade state control. Whereas Agamben treats legal status as the basis for individual rights, this paper will consider the circumstance where the possession of a legal identity constitutes a liability to the illegal migrant. The paper argues that in instances where migrants have lost all claims against the state and are confronted with expulsion, many will resort to an extreme act of resistance against the state: the destruction of their identity documents. By rendering themselves unclassifiable, illegal migrants oftentimes succeed in tying the hands of the sovereign who is forced to operate within the constraints of the international legal order that requires the possession of identity documents for repatriation. The paper concludes with the paradoxical finding that, under certain extreme conditions, the fewer claims migrants can make against the state, the more constrained the power of the liberal state to secure the obedience of the individual. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

How, and under what conditions, do norms drive policymaking outcomes in the realm of refugee policy? We live in an era in which about two-thirds of Americans consider unrestricted immigration a "vital threat to U.S. national security." At the same time, an almost equally significant percentage believes the U.S. " has a responsibility to protect those fleeing violence and persecution." Given these competing prerogatives—which are observable across advanced democracies—it is no surprise that policymakers increasingly find themselves in a political bind: they cannot simultaneously fulfill calls to both tighten and to liberalize their country's policies towards would-be immigrants and refugees. In essence, policymakers find themselves trapped between the competing demands of liberalism and democracy, i.e., between their normative commitments to the protection of the defenseless and their political commitments to the more restrictionist members of their own polities. Drawing upon case study evidence from Western Europe, East Asia, Oceania, and North America, this paper offers a comparative analysis of the implications of the existing tension between the normative demands of liberalism and the electoral imperatives of democracy. It will tackle, from a comparative perspective, the question of when, and under what conditions, governments' policy responses to refugees will be driven by their normative commitments and when, conversely, outcomes will privilege the demands of democracy over those of liberalism. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]