Neoliberal Nationalism: Immigration and the Rise of the Populist Right 9781108696968, 9781108482592, 2020023791, 2020023792, 9781108710763

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Neoliberal Nationalism

The Brexit and Trump shocks of 2016 mark a deep caesura in the history of liberal societies. It is no longer sufficient, if it ever was, to look at Western states’ immigration and citizenship policies through the single lens of advancing liberalism. Instead, two additional forces need to be reckoned with: a new nationalism, but also the neoliberal restructuring of state and society in which it is generated. Joppke demonstrates that many of the new policies have their roots in neoliberalism rather than the new nationalism. Moreover, some of them, such as “earned citizenship”, are the product of neoliberalism and nationalism working in tandem, in terms of a neoliberal nationalism. The neoliberalismnationalism nexus is complex, its elements sometimes opposing but sometimes complementing or even constituting one another. This topical book will appeal to students and scholars of populism, nationalism, and immigration and citizenship, across comparative politics, sociology and political theory. Christian Joppke is Professor of Sociology at the University of Bern. Over the last decade, he has published Citizenship and Immigration (2010), Legal Integration of Islam (with John Torpey) (2013), The Secular State Under Siege (2015), and Is Multiculturalism Dead? (2017).

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Neoliberal Nationalism Immigration and the Rise of the Populist Right Christian Joppke University of Bern

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108482592 DOI: 10.1017/9781108696968 © Christian Joppke 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2021 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Joppke, Christian, author. Title: Neoliberal nationalism : immigration and the rise of the populist right / Christian Joppke. Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2021. | Includes bibliographical references and index. Identifiers: LCCN 2020023791 (print) | LCCN 2020023792 (ebook) | ISBN 9781108482592 (hardback) | ISBN 9781108710763 (paperback) | ISBN 9781108696968 (epub) Subjects: LCSH: Western countries–Emigration and immigration–Social aspects. | Neoliberalism–Western countries. | Nationalism–Western countries. | Populism–Western countries. | Right and left (Political science)– Western countries. Classification: LCC JV6225 .J665 2021 (print) | LCC JV6225 (ebook) | DDC 325/.1–dc23 LC record available at https://lccn.loc.gov/2020023791 LC ebook record available at https://lccn.loc.gov/2020023792 ISBN 978-1-108-48259-2 Hardback ISBN 978-1-108-71076-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

Preface 1 The Neoliberalism–Nationalism Nexus 2 Courting the Top, Fending-off the Bottom: Immigration in the Populist Storm

page vii 1 68

3 More Difficult to Get, Easier to Lose, Less in Value: The Rise of Earned Citizenship

158

4 End of Liberalism?

250

Bibliography Index

284 317

v

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Preface

The successful Brexit referendum of June 2016, followed by the US presidential election victory of Donald Trump in November of the same year, mark a deep caesura in the history of liberal societies. Precisely the two champions of globalization and of building open and inclusive societies, Britain and the United States, succumbed to a new nationalism, a most unlikely outcome by any means. The new nationalism is not limited to the Anglo-Saxon arc but pushed across Europe and the West by increasingly successful populist radical right parties. What does it portend for the policies that define and regulate membership in a society, that is, immigration and citizenship policy, the domain the new nationalists care most about? One might think that membership policy, whose stock-in-trade is to establish who “we” are, in distinction from “them” or “others,” is chronically nationalist, even before the arrival of the new nationalism. While this is true, to a degree, one could still observe that, before this caesura, immigration policies were becoming increasingly universalistic and nondiscriminatory, decoupled from considerations of national origin, ethnicity, and race; that citizenship was becoming more liberal and inclusive; and that the recognition, even celebration, of diversity was now a signature feature of liberal and ever more liberalizing societies, in defiance of repeated declarations that “multiculturalism is dead” (for these three trends, see Joppke 2005, 2010a, and 2017c, respectively). Certainly, the liberalizing trends were never linear and uncontested. Already before the new nationalists were on the map, one could observe a rivalry between “de-ethnicizing” and “re-ethnicizing” processes in the liberal state, for instance, in certain citizenship reforms in Europe that were torn between the imperatives of accommodating immigrants at home or maintaining ties with co-ethnics abroad (see Joppke 2003). But the expectation was that, somehow, the liberal trends would prevail over the illiberal ones. Not only do Brexit and Trump call in question any certainty or automatism that liberalism will always win. My previous vii

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work also does not pay enough attention to the complexity of what “liberalism” is. In addition to a rights-based liberalism, protecting the individual from the vagaries of state power, there is also a harsher, utilitarian variant of “neoliberalism,” which incidentally first took hold in the later breakthrough sites of the new nationalism: the UK (under Thatcher, in 1979) and the United States (under Reagan, in 1980). The spatial coincidence between neoliberalism and the new nationalism suggests that these two phenomena are closely connected, though not always in obvious ways, as we shall see. A sustained analysis of how the new nationalism and neoliberalism are reshaping liberal states’ membership policies, does not yet exist. This is what I try to do in this book. But before we start, a few remarks about central concepts and assumptions are in order. When I loosely entertained the idea of a new book that would become this book, in the annus miserabilis, 2016, my immediate lead concept, under the impression of its tumultuous entry into public discourse, was “populism.” “Populism and …”: citizenship, democracy, civil society, immigration, liberalism, almost anything really, were the typical conference titles on the academic circuit in 2017, 2018, 2019, and counting. We – that is, macro-sociologists, political theorists, comparativists – are all into populism now, and the book that you hold in your hands, in a way, is “my” populism book. But it is so with a difference. Most works about populism that have been put out at frantic pace since 2016 have been about its causes and expressions, less about the impacts of populism in policy fields that are central to its concerns – immigration, in particular. For mapping these impacts, it became quickly apparent that populism, alone, just wasn’t the right, because under-specified, concept. If I retained it, if only in adjectival form and in the subtitle, it is for the sake of catchiness. But strictly speaking, populism is a political style, lacking content. Most analyses of populism thus circle around the phenomenon itself, almost self-referentially. And this is not by accident, because the core of populism, in all of its manifestations, is to be a response to as well as an expression of a malfunctioning of democracy, alas, not fixing but reinforcing the problem (see Pappas 2019). For populists, it is always the homogenous “people” who are to “rule,” again, after having been mischievously subdued by cunning elites, and populists seek to recover and exercise the people’s lead position in by definition illiberal ways that are a threat to democracy itself. There is no obvious way from here, the alleged fixing of the democracy deficit, to specific policy, because populism itself has no program or content. This content is variable: left or right, socialist or nationalist. In the double shock of 2016, and in most of the Western world today, the content of populism is nationalism.

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ix

So I retooled, from populism to nationalism. But mostly a specific kind of nationalism is driving populism today, a reactive, even regressive nationalism that arises in a context of accomplished nation-building. This new nationalism is a world away from the modernizing and emancipatory nineteenth-century nationalism that Ernest Gellner (1983) and other “modernists” in the nations and nationalism literature had written about. The new nationalism wishes to restore the closure, the protection, the security that have been inevitably lost in the most massive opening that human societies have ever experienced, in the process commonly referred to as “globalization.” Indeed, the story of this nationalism cannot be told without factoring in globalization, and in particular the “neoliberalism” that is undergirding and framing it. However, while the first and most obvious relation of the new nationalism to neoliberalism is to be reactive and oppositional to the latter, this is not the only possible relationship. At second sight, which is even a historical first, there is also the possibility of nationalism to complement and support neoliberalism, and even to be constituted by neoliberalism itself. An example of the “constitutive,” perhaps most interesting variant is “earned citizenship,” discussed in Chapter 3. It is the expression of a genuine “neoliberal nationalism” that is a new entry in the nations and nationalism lexicon – and interesting enough for serving as the title of the book. As the story unfolded, it became clear that many of the restrictive trends in immigration and citizenship policy, commonly attributed to the new nationalism, are in fact neoliberally motivated, or at least they may be neoliberally phrased. Indeed, new nationalists are at their most effective when themselves adopting neoliberal language. With respect to immigration policy, for instance, it first seemed that the courting of highskilled immigrants, which has become ubiquitous throughout rich societies, is “neoliberal,” while the aversion to (presumably low-skilled) family migrants and asylum seekers is “nationalist,” or worse. In reality, the policy’s aversive part also can be, and has been, motivated and justified from a neoliberal angle, as in the interest of reducing nonproductive and economically costly migration. Because openly racist language is risky and illegitimate today, and foreseeably will remain so, it is convenient to use a neoliberal idiom that has the same effect. In citizenship policy, the recent trend toward “earned citizenship,” as will be shown in some detail, may even be seen as the expression of a neoliberal nationalism, in which any sense of tension and opposition between the two elements has disappeared. This book also revisits and updates my first engagement in the field of immigration and citizenship, published as Immigration and the NationState in the last year of the old millennium. Certain assumptions that

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were constitutive then, no longer hold today. In the Western state world, there are no longer the distinct migration regimes and sharply distinguishable migration experiences that I had earlier referred to as “settler,” “postcolonial,” and “guest worker.” Instead, the same dualism of “courting the top” and “fending- off the bottom” is observable everywhere today. This means that America, or rather Canada, are no longer models for Europe (even though Canada retains a strong attraction). The classic immigration countries are even showing a preference for temporary and at best “two-step” migration, including with respect to the highskilled. They thus adopt the European logic of an only gradual consolidation of residence status over time, in which migrants have to earn and prove their worthiness rather than being considered as citizens-in-waiting from day one. Catherine Dauvergne (2016) aptly called the new NewWorld reality the “end of settlement.” But on the European side, things have also changed, though in an opposite direction. The old assumption that the great postwar migrations were a historically singular episode, not to be repeated, has receded in favor of the notion that migration is a recurrent process, and even desirable in certain respects. Partially as a result of these front-gate changes, the reality of integration and citizenship also is profoundly different from what it was twenty years ago. “Multicultural citizenship” was my term in 1999 for a generous and rights-minded integration approach prevalent at the time, even in a Europe that still subscribed to the quixotic goal of zero-immigration. Now that migration has been accepted as a recurrent, unstoppable process, a more restrictive approach to integration has made its appearance, commonly referred to as “civic integration,” which mixes migration control with immigrant integration functions. And “earned citizenship” has become the chief idiom, from the UK to Australia, to mark a more demanding, conditionality-spiked access to post-birth citizenship, which is handed out no longer as a “right” but as a “privilege.” However, while Western states praise their citizenship as the “first prize,” it has become a skeletal version of its former self, which in its prime was described and celebrated by T. H. Marshall as “social citizenship.” While neoliberalism plays a big part in citizenship’s loss of value, this may be also the price to pay for the constitutive openness of Western societies that all the restrictions of the past two decades could not and would not undo. Chapter 1, The Neoliberalism–Nationalism Nexus, maps the context and contours of the new nationalism that dramatically burst onto the scene in 2016. It includes a detailed account of neoliberalism, which needs to be distinguished and set apart from liberalism. While some, like Michael Mann (2013:ch.6), subscribe to a narrow view of neoliberalism as economic policy that is specific to the “Anglos” and may have long passed its

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peak, I take it to be a pan-Western governing and society-making rationale of deeply transformative reach. Neoliberalism thus understood provides the context of the new nationalism, which arises both in opposition to it but, in a statist variant, may also be complementary to neoliberalism or even constituted by it. The constitutive nexus with its “neoliberal nationalism” proper points to a novel phenomenon on the nations and nationalism map that has so far not received the attention that it deserves. Chapter 2, Courting the Top, Fending-off the Bottom: Immigration in the Populist Storm, lays out the dual thrust of immigration policy in the neoliberal age, which is to “court” high-skilled immigrants and to “fend off” all sorts of presumably (but not legally) low-skilled migrants, including family migrants. But the heart of the chapter examines the role of immigration in the populist storm. While immigration has been central to both Brexit and Trump, it has been central in different ways. Brexit, though driven by hostility to large-scale intra-EU migration, does not challenge the structure of (neo)liberal immigration policy – it will even make British policy more universalistic because cleansed of favoritism for other Europeans. By contrast, Trump`s immigration policy breaks with the “antipopulist norm” that Gary Freeman, in a classic paper (Freeman 1995), held constitutive of a liberal immigration policy. Germany during and after the 2015 Syrian Refugee Crisis is an interesting negative case of stubbornly holding liberal course, though inadvertently fueling populism at home and abroad. Chapter 3, More Difficult to Get, Easier to Lose, Less in Value: The Rise of Earned Citizenship, gathers a variety of recently restrictive trends in the acquisition and loss of citizenship under the umbrella of “earned citizenship,” which is not a “right,” as in the liberal past, but “privilege.” “More difficult to get” and “easier to lose” are complementary sides of the same neoliberal-cum-nationalist logic of making citizenship more exclusive and conditional on the immigrant`s individual behavior and desert. Being neoliberal and nationalist in tandem, earned citizenship is the clearest expression of a neoliberal nationalism. Earned citizenship’s third element, to be “less in value,” seems to contradict the fact that a rich society`s “citizenship premium” has never been bigger than in today`s globalizing world (Milanovic 2016:ch.3). However, the same citizenship that renationalizing states have claimed to strengthen by making it more selective has become internally devalued through its infiltration by immigration law and a neoliberal welfare-to-workfare devolution. Chapter 4, End of Liberalism?, situates changing immigration and citizenship policies within a larger crisis of liberalism. I defend Francis

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Fukuyama`s (1989) much-ridiculed claim that the “liberal idea” (yet not practice) is without competitor today. However, internal deficiencies of “liberal meritocratic capitalism” (Milanovic 2019), most importantly the elite-generating and -insulating principle of meritocracy itself, will continue to feed a populist challenge that, paradoxically, is fought more on the cultural than the economic terrain – and that liberals are well-advised not to enter too quickly. I close with the question what a “liberal” immigration and citizenship policy, unimpeded by the “nexus,” might look like, and the answer is: not much different from the policies that are in place today. The immigration and citizenship restrictions under the neoliberalism– nationalism nexus do not cut deep enough to undo the openness that Western societies are constitutively committed to. If persistent openness goes along with a devaluation of citizenship, this may be the inevitable price to pay. As David Goodhart (2004) pointed out some time ago, there is an inherent “conflict between solidarity and diversity.” Having opted for “diversity,” Western societies’ internal solidarities cannot but suffer and are even set to diminish further.

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1

The Neoliberalism–Nationalism Nexus

Nationalism has been usefully described as “thin ideology” (Freeden 1998), akin to feminism or ecology, incapable of providing comprehensive solutions to the full panoply of sociopolitical problems and thus dependent on thicker “host vessels” such as liberalism, conservatism, or fascism. Michael Freeden (1998:751–4) identifies as the “core structure” of nationalism the “prioritization” of a particular group (the “nation”), its “positive valorization,” to give “politico-institutional expression” to it (in the form of a state), a corresponding identity that prizes a particular “space and time,” and membership of this group being a matter of “sentiment and emotion.” This indeterminate core structure, to be filled up by “adjacent” or “proximate” concepts (such as liberty, democracy, ethnicity, etc.), allows for many combinations and “multiple nationalisms.” The most common way of capturing the extreme ends of possible nationalisms is with the “ethnic” vs. “civic” binary, which goes back to the Czech–American historian Hans Kohn (1944) and has been influentially imported into contemporary sociology by Rogers Brubaker (1992). It suggests that some nationalisms and corresponding forms of nationhood are primordial and closed while others are more political and open. John Plamenatz (1973) captured the opposite normative connotations of both poles of nationalism in his influential contrast of “illiberal” East European and “liberal” West European nationalism. The ethnic–civic distinction has been rightly criticized for its Manichean juxtaposition of two types of nationalism, one “good” and one “bad” (Yack 1996; Brubaker 1998). Its critics point out that real-world nationhood and nationalism always contains elements of both, an element of genealogical closure and stasis and an element of civic inclusiveness and progression. But the ethnic–civic binary continues to be useful for understanding contemporary expressions of nationalism. An analysis of the “new nationalism” of Trump and others immediately evokes the contrast between a “civic nationalism,” which is “conciliatory and forwardlooking” and “appeals to universal values, such as freedom and equality,” 1

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The Neoliberalism–Nationalism Nexus

and “ethnic nationalism,” which is “zero-sum, aggressive and nostalgic and which draws on race or history to set the nation apart”;1 and, as one would guess, it locates the current “league of nationalists” firmly on the ethnic side.2 The twenty-first century new nationalism to be explored in this chapter is a world apart from the optimistic nineteenth-century nation-building nationalism depicted by the modernist mainstream of nationalism theory. For Ernest Gellner (1983:48), nationalism, while it may misleadingly clothe itself in ancient folk tale, myth, and atavism, is “the consequence of a new form of social organization, based on deeply internalized education-dependent high cultures,” providing the possibility for context-free communication and social mobility that are required for the functioning of a post-agrarian “industrial society.” The positive function of nationalism and nationhood in an already modernized, contemporary society has not become anachronistic, though perhaps more in the moral terms of making “social justice” and “democratic politics” possible than in the cognitive terms of furnishing rationality and serial connectivity, as stressed by Gellner.3 Paul Collier’s (2013:25) critical analysis of contemporary migration rightly points out that it is the “fruits of successful nationhood” that attract migrants in the first place, though their massive arrival, in turn, may put at risk the “mutual regard” and “benign fellow-feeling” (2013:61) that successful nationhood both requires and provides. While boundary-drawing is constitutive of all things national, their positive variant, which is highlighted in modernistic and liberal nationalism theories, is primarily integrating and boundary-transcending, turning strangers into associates. By contrast, the negative variant of nationalism arises against the backdrop of achieved nation-building, and it reinforces the selective if not discriminatory function of boundaries to close “us” off from “them.” As a rare empirical analysis of “neo-nationalism” put it aptly, the latter “is a subset of nationalism that can be considered a boundary-maintenance project rather than a nation-building project” (Eger and Valdez 2015:127). It arises in the context of an unprecedented external opening of nation-states for the movement of goods, capital, ideas, and to a degree also people, which since the late 1980s has been known as “globalization,” and which is ideologically framed and institutionally supported by a distinct variant of liberalism, “neoliberalism.” To

1 2 3

“The new nationalism,” The Economist, November 19, 2016, p.9. “League of nationalists,” The Economist, November 19, 2016, pp.51–4. See Miller (1995) and similar works on “liberal nationalism,” like Tamir (1993).

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The Neoliberalism–Nationalism Nexus

3

explore the “neoliberalism–nationalism nexus” is the subject of this chapter. Nationalism in a neoliberal context comes in various forms. It attacks the cosmopolitan elites and immigrants who are seen as driving or profiting from globalization, and in Europe it is carried by increasingly successful radical-right parties and movements. However, in part reflecting the electoral successes of the populist groundswell, new nationalism can also be dressed in suit and tie and take the form of state policy. For instance, diminished by the primacy of markets in a neoliberal age, states symbolically “perform” sovereignty, defending “national identity” and “values” at the immigration and citizenship front (see Ocak 2016). One observer characterized this statist variant of contemporary nationalism as diversity-hostile “nation-freezing” (Suvarierol 2012). At the extreme, neo-nationalist states build physical walls to protect themselves, not as in the past from other states, but from certain “non-state transnational actors” – which is Wendy Brown’s (2010) euphemism for irregular migrants, smugglers, and drug dealers who are also unleashed by neoliberal globalization. The statist variant of the new nationalism sits on top of a structural nationalism that is built into membership policy as such. It is a truism but always to be kept in mind that under international law, states are sovereign to decide about territorial access and membership, that is, about immigration and citizenship. This is also a logical requirement because the constitution of the demos cannot itself be constrained by liberaldemocratic rules that can only emanate once the demos has been constituted. The determination of membership, one could argue with Stefano Bartolini (2018:106), is the genuine site of “the political,” which is “factual imposition” denuded of all “legal” decorum”: “The integrity of the membership or territorial group and the physical security of its members are constantly at stake. The field of constitutive predicaments of community life is the area in which ‘politics’ is most clearly foreign and irreducible to law.” The defense of place is the original political experience. This is nicely captured in German poet Hans Magnus Enzensberger’s (1994) allegory of a railway compartment “defended” by its original occupants: “Two passengers in a railway compartment … Their consciousness is that of natives claiming the whole space for themselves. This view cannot rationally be justified. It appears all the more rooted” (1994:105). Enter two more passengers: “Their arrival is not welcomed” (1994), and the initially unrelated first passengers form an implicit alliance against the intruders. Enter yet two more, and the newcomers face an alliance of four original occupants – “curious, the rapidity with which one’s own

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The Neoliberalism–Nationalism Nexus

origin is concealed and denied” (1994:106). Enzensberger concludes that “sectional self-interest and xenophobia are anthropological constants which predate every rationalization” (1994). Unlike contemporary liberals, late nineteenth-century liberals still had a sense of the political anthropology evinced by the German twentiethcentury poet. Consider this statement by political theorist Henry Sidgwick (1891:235): “A State must obviously have the right to admit aliens on its own terms, imposing any conditions on entrance or any tolls on transit, and subjecting them to any legal restrictions or disabilities that it may deem expedient … (A)s it may legitimately exclude them altogether, it must clearly have a right to treat them in any way whatever, after due warning given and due time allowed for withdrawal.” This brutish-sounding statement by a liberal-progressive thinker at his time shows how much immigration policy and citizenship policy have become “liberalized” and domesticated by law in the meantime, constraining state discretion even in this innermost circle of sovereignty, no doubt under the impact of post-WW II human-rights law and discourse. Even a supporter of liberal nationalism, like David Miller (2008:376), who prioritizes the need for a “shared national identity” over the claims of multiculturalism, concedes that state sovereignty is no longer a “trump card” and that immigrants “have to be admitted as equal citizens.” Sidgwickians would be considered racists today. British Premier Gordon Brown, for instance, when calling for “British jobs for British workers,” was accused by his own Labour peers of “racism, pure and simple.” But, as David Goodhart noted, Brown “didn’t actually say British jobs for white British workers.” Goodhart rightly concludes that the “language of liberal universalism” rules out what “until about twenty-five years ago … would have seemed so banal as to be hardly worth uttering.”4 In its most benign reading, new nationalism, whether in its protest or its statist form, may be seen as an attempt to retrieve the structural nationalism that is built into sovereign membership policy ab ovo, and to free the latter from the legal-liberal decorum to which we have become accustomed over the past half-century. Sidgwick would be little surprised by a recent law in Denmark, whose immigration policies have long been dictated by the populist radical-right Danish People’s Party, that requires asylum-seekers to hand over their valuables, including jewelry and gold, to pay for their processing and stay in Denmark.5 This would simply flow from Denmark’s “right to treat (aliens) in any way whatever, after due 4 5

The event and Goodhart’s commentary on it is reported by Haidt (2016). Dan Bilefsky, “Danish law requires asylum seekers to hand over valuables,” New York Times, January 26, 2016.

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What Is Neoliberalism?

5

warning given and due time allowed for withdrawal” (Sidgwick 1891:235). Sidgwick’s added proviso is the precise rationale of the nasty policy, which is deterrence. Who and what is the new nationalism, and why has it emerged now? Its rise has to be seen in the context of a neoliberal restructuring of Western economies and societies, which has been ongoing since the mid-1970s, but has shifted to high gear only with the onset of globalization, post1989. The new nationalism, I shall argue, is on the one hand reactive and oppositional to neoliberalism; but, particularly in its statist incarnation, it has also complemented and even incorporated elements of neoliberalism, most importantly its rhetoric of “responsibilizing” the individual. The latter undergirds a new type of harsh and punitive post-welfare social policy that has widely overlooked nation-building implications. Not everything in the new nationalism is ethnic or racial, of which its populist variant is often especially suspected. In reality, this crude variant of nationalism is easily dismissed, and even populists and the severest critics of political correctness shy away from it. Instead, the new nationalism’s exclusivist narrative may also draw from other, neoliberal sources. The neoliberalism–nationalism nexus needs to be seen as a dialectic, in which each component is impacting on the other while both are jointly evolving.

What Is Neoliberalism? Neoliberal Theory It is not easy, but essential, to distinguish neoliberalism from liberalism. What they share is the centrality of the individual in the constitution of social and political order – public functions have to be justified by protecting the integrity of the individual and her freedoms. Friedrich Hayek (1982:2), neoliberalism’s chief thinker, put it this way: “In a free society the general good consists principally in the facilitation of the pursuit of unknown individual purposes.” No liberal, from Benjamin Constant to Isaiah Berlin, would disagree, and the underlying intuition has recently been reformulated as the idea of state “neutrality” on “conception(s) of the good life” (Dworkin 1985:191). Where liberals and neoliberals part ways is with respect to a second feature of liberalism, which Michael Walzer (1984:315) has called the “art of separation”: “Liberalism is a world of walls, and each one creates a new liberty.”6 6

See also Crouch (2011:3), who defined “liberalism” proper, a term “as slippery as a political term can be,” as “seeking various separations” (2011:4), for the sake of limiting power and increasing freedoms.

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The Neoliberalism–Nationalism Nexus

The classic example is the “wall” separating the state from religion, whereby the state could become fully secular and religion truly religious. But the logic of separation can be extended to other spheres. This liberalism is not just a political ideology, to be distinguished from socialism or conservatism (e.g., Alexander 2015), but the reflexive theory of a functionally differentiated society, in which each sphere is subject only to its own domain-specific rules and prerogatives – those of power and the public good in the polity, of money and individual gain in the economy, of influence and deliberation in the civic sphere, of love and socialization in the family, etc., without any of these spheres being dominated in their operations by a master sphere.7 Neoliberalism, by contrast, does not respect the art of separation: the market trumps all other spheres, in particular the political sphere, which is denied its autonomy. This position is polemically but rightly characterized by a term originally attributed to investment billionaire George Soros: “market fundamentalism.”8 In Hayek’s classic formulation (1982:15), neoliberalism is grounded in a deep anti-rationalism, the assumption of a limited ability of human reason to apprehend social complexity. This leads him to prioritize “spontaneous order” (kosmos), which is “rule-governed” and best achieved through market exchanges, over “organization” (taxis) and planning, which is “end-governed” and the natural medium of the state.9 Hayek’s preference for “spontaneous order” is echoed in Michel Foucault’s (2007:48) definition of the “game of liberalism” as “letting things follow their course.” For Hayek (1982:64), “society,” understood as spontaneous order, is kept together merely by a purpose-free “rule of law” (essentially private and criminal law), and society as such “is incapable of acting for a specific purpose.” Hayek’s most ardent political disciple, British Prime Minister Margaret Thatcher, popularized this view in her famous diction that there is “no such thing as society, only individual men and women (and their families).” Being purpose-free, the rule of law sets the framework for people to pursue their own purposes, and intervening in this process for an overarching purpose, such as redistribution and social justice, creates the grave danger of totalitarianism. Moreover, inequality that results from market behavior is the unintended outcome of a multiplicity of individual exchanges, and qua being unintended, this outcome cannot be considered unjust, so that there is no collective responsibility to rectify it. In Hayek’s neoliberal reasoning, justice or its opposite, injustice, is

7 9

8 For a systems-theoretical account, see Luhmann (1986). Block and Somers (2014). This resembles Oakeshott’s (1975) distinction between “nomocratic” and “teleocratic order,” and his apodictic preference for nomocracy.

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What Is Neoliberalism?

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exclusively an attribute of the individual and her intentional action. Accordingly, poverty and deprivation, insofar as they are the unintended outcome of aggregate market behavior, cannot be subject to justice considerations – they are “evils” but not “injustices.”10 Hayek (1960:71) espouses an austere view of “liberty,” according to which the reverse side of the “opportunity … of choice” is to “bear the consequences” of one’s actions: “Liberty and responsibility are inseparable.” If one combines the “fact that people are very different” with their equal treatment under law in a Rechtsstaat, “the result must be inequality in their actual position” (1960:87), for which only the people themselves are to be held responsible. To make them equal would require them to be treated differently, which “cannot be accepted in a free society” (1960), as it conflicts with the Rechtsstaat idea of equality before the law. “Equality before the law” is one thing, and “material equality” is quite another – both cannot be had “at the same time,” and a choice has to be made (1960). As Hayek put it in his best-known work (1944:87–8), which like all of his works is a monochrome defense of “liberalism” against “socialism” (or “collectivism” and “planning,” which included at the time Fascism and National Socialism), “a substantive ideal of distributive justice must lead to the destruction of the Rule of Law. To produce the same result for different people is to treat them differently.” “Social justice,” as Hayek (1982:144) put it in the ultimate statement of his views, is a “mirage,” an atavism, or hangover from a previous “teleological” society in which overriding goals could be pursued, “revolt of the tribal spirit against the abstract requirements of the coherence of the Great Society with no such visible common purpose.” Worse still, in reality social justice is the “dislike of people who are better off than oneself, or simply envy” (1982:99). By contrast, “(i)n a society of free men whose members are allowed to use their own knowledge for their own purposes the term ‘social justice’ is wholly devoid of meaning or content” (1982:96). In a “nomocratic” society with no overarching ends, in which the law merely facilitates the realization of private ends, common moral values like “social justice,” which wrongly and mischievously suggest that “society” could act, make no sense and should be abandoned. The premise that “each capable adult is primarily responsible for his own and his dependents’ welfare” (Hayek 1982:99) and the rejection of any corrective government intervention in the market order (catallaxy) as

10

H. B. Acton, quoted in Plant (2010:88).

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merely “the protection of entrenched interests” (1982:96),11 clearly marks neoliberalism as distinct from liberalism. Because, as one of liberalism’s foremost theorists clarified (Holmes 1995:241), from the early nineteenth century on, liberals have always been for a “just order” and not just for “any kind of order.” In liberalism’s canonic latetwentieth-century formulation, by John Rawls (1971), perhaps even more than before, liberalism is constitutively concerned about social justice. In Rawls’ terms, this is the point of his second, “difference” principle of justice, which tolerates inequality only to the degree that it is of advantage to the worst-off. Rawlsian liberalism is a social-democratic liberalism that is favorable to redistribution and helping out the needy.12 And, as Stephen Holmes has demonstrated (1995:258), there is “continuity” in this respect between “classical” and contemporary “welfare-state liberalism,” both revolving around the central (if differently interpreted) value of “security.” The Neoliberal State The relationship between neoliberalism and the state is “inherently unstable” (Harvey 2005:81) because neoliberalism simultaneously refutes and requires the state. Ideologically, the state is refuted. Colin Crouch (2004:41) put it nicely, that in neoliberal reasoning the state is “a kind of institutional idiot”: in its ham-handed collectivism, the state is notoriously underinformed and easily outsmarted and thus better kept out of the economy and the social process at large, while it is simultaneously beholden to politicians’ “parasitic spinning and electioneering” (2004:43). Hayek and Austrian (and later Chicago School) economists provided the clues for the first plank of this aversion, while “public choice” theory, developed by James Buchanan and Gordon Tullock at the University of Virginia, provided the clues for the second. For too long political analysis had naively assumed that “policymakers were benevolent and acted in the public interest,” as two chroniclers of neoliberalism paraphrase public choice theory’s negative point of departure (Cahill and Konings 2017:43). Now it was time for “politics without romance,” as Buchanan put it (quoted by Streeck 2013:55, n.30). In Buchanan and 11

12

Not all neoliberals, however, eschew a stronger ordering hand of the state. An example is the German Ordo-Liberals, a branch of whom the postwar German “social market economy” refers back to (see Friedrich 1955). When Hayek wrote The Road to Serfdom, it was Keynes, with whom Hayek was friendly and in a candid exchange, who typified liberalism’s interventionist streak, not quite adequately described by Stedman Jones as “liberalism’s twentieth-century metamorphosis” (2012:62).

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What Is Neoliberalism?

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Tullock’s “economics of politics,” politicians and bureaucrats are finally depicted as the self-interested and utility-maximizing creatures that they really are, just like any other member of the human species, maximizing votes or piling up state funds just for the sake of it. Unfortunately, in political life there is no market and price mechanism around to restrain and discipline the natural propensity for “rent-seeking,” so that there is an inevitable tendency for government and public bureaucracy to become bloated. The economic theory of politics anticipates in academic garb the populist attack on a corrupt and self-aggrandizing “political class.” In fact, when it was first presented, Tullock’s cynical depiction of a selfseeking American government bureaucracy was pithily rejected by a leading scholar as an ill-informed and grotesque caricature.13 That today not the charge but its sharp rejection raises eyebrows shows how much times have changed. While a negative or even cynical view of public bureaucrats and politicians has become the standard view, populists and public-choice theorists differ starkly in their proposed remedies. Populists seek to replace “corrupt elite” power through the volonté générale of the “pure people” (Mudde 2004:543), thus returning to original “democracy” as “rule of the people.” By contrast, the public choicers prescribe the exactly opposite remedy of expelling democracy from a slimmed-down state, either by devolving state functions to the private sector or by shifting public power within the state to regulatory agencies unaccountable to executive-cum-democratic controls, like independent central banks. Much as it hates the state, neoliberalism also cannot do without the state. Karl Polanyi (1944:68) famously insisted that already the nineteenth-century rise of the “self-regulating market” had required the helping hand of the state: “Regulation and markets, in effect, grew up together.” And so it is today, in the neoliberal rescue of the market from the stranglehold of the interventionist state, because even deregulation is still regulation. Quinn Slobodan (2018:3), in his history of the Geneva School of “Ordoglobalism,” has put it well: “The neoliberal project focused on designing institutions – not to liberate markets but to encase them, to inoculate capitalism against the threat of democracy, to create a framework to contain often-irrational human behavior.” This creates a paradox for neoliberals, nicely pointed out by Andrew Gamble (2006:28): “(T)heir revolution in government requires that a group of individuals be found who are not governed by self-interest, but are

13

See Herbert Kaufman’s review of Tullock’s The Politics of Bureaucracy (Kaufman 1966).

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motivated purely by the public goal of upholding the … market order” – a dilemma that is dissolved by the “wholesale dismantling of the state”. Less tongue-in-cheek, Gamble (2006; also 1988) still insists that a “strong state” is a necessary complement to a “free economy.” The formula “Free Economy—Strong State,” in fact, goes back to the 1930s’ inventor of the very word “neoliberalism,” the German economist and political scientist Alexander Rüstow, whom Carl Joachim Friedrich (1955:512) even called “the ablest exponent” of the new “creed.” Perhaps not by accident, neoliberal Chicago Economics was first implemented under the Chilean dictator Pinochet after his violent coup d’état in 1973, shock-like replacing the protectionist import-substitution model that was typical for developing countries at the time by one of export-led growth exposed to the world market, at great cost to Chilean workers, whose organizations were brutally suppressed. Meanwhile, in Europe, British Prime Minister Thatcher adorned her neoliberal revamping of economy and state with a throaty war against Argentine over a few sparsely inhabited rocks in the South Atlantic, the Falkland Islands: “Britain is not prepared to be pushed around,” she declared after a quick victory to a roaring Conservative Party audience.14 In the United States, the advent of neoliberalism under Ronald Reagan also saw the rise of the “neocons,” who combined an endorsement of unfettered capitalism with moral conservatism and military hawkishness. David Harvey (2005:85) concludes that “the neoliberal state needs nationalism of a certain sort to survive,” without, however, specifying of what “sort” this nationalism exactly is. That neoliberalism is not merely an “economic regime” but a “political project of state-crafting” has been provocatively emphasized by Loic Wacquant (2012:66), who became known for his dark account of the expanding “penal state” in the United States. In Wacquant’s evocative definition, neoliberalism is “an articulation of state, market and citizenship that harnesses the first to impose the stamp of the second onto the third” (2012). Next to economic deregulation, which promotes the market by removing justice and equality constraints, the neoliberal “political project” has three other components: a shift from welfare to workfare, in a new type of punitive social policy that ties the receipt of slimmed unemployment and other social benefits to the obligation to work; the “cultural trope of individual responsibility”; and an extended penal apparatus of police, prisons, and courts (see Wacquant 2010:213–4). The French–American sociologist’s name for the resultant 14

Margaret Thatcher, Speech to Conservative Rally at Cheltenham, July 3, 1982 (www .margaretthatcher.org/document/104989).

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What Is Neoliberalism?

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“novel kind of state” is “Centaur state,” after the half-horse, half-man figure in Greek mythology. This is a state that is “small” and “liberal at the top” but “big” and “paternalistic at the bottom.” Wacquant’s (2012:76) important message is that the neoliberal state is different things to different people, “reserve(ing) liberalism and its benefits for those at the top while it enforces punitive paternalism upon those at the bottom.” Michael Mann (2013:152) has objected that the Centaur State’s punitive bottom half is “a distinctively American rather than a neoliberal concern,” growing out of America’s distinct “racial conservatism.” This may be correct with respect to America’s racially loaded incarceration craze, which has found critical attention by less grand-scheming authors than Wacquant (for instance, Western and Wildeman 2009). However, it is not correct with respect to less drastic forms of punitive and disciplining social policies, like workfare, which can be found in other Western states too (see below, and Chapter 3). The one constant in neoliberalism’s simultaneous rejection and embracement of the state is a persistent and visceral opposition to democracy. For the 1930s’ founders of neoliberalism, democracy had been the Trojan Horse for the early twentieth century mass politics of fascism and socialism to destroy the free market regime. Note that Friedrich Hayek was an active supporter of the Pinochet regime, visiting Chile twice during this period, and he professed, in an interview given to a Chilean newspaper in April 1981, to “prefer a liberal dictatorship to a democratic government without liberalism” (quoted in Piketty 2020:709, fn. 106).Historian Adam Tooze is to the point that “neoliberalism is … an anti-democratic politics, which resolves the tension between capitalism and democracy either by limiting the range of democratic discretion or by interfering directly in the democratic process.”15 Equally to the point is David Harvey (2005:66), for whom neoliberalism is “suspicious of democracy … Neoliberals … tend to favour governance by experts and elites.” Indeed, “governance” is a central plank in neoliberalism’s political vocabulary (see Bevir 2011). Government is concentrated and vertical, with elected officials exercising power downward but held accountable by their electorate. Governance, by contrast, is diffuse and horizontal, involving a motley network of functional “stakeholders” and “epistemic communities” who are accountable to no one but themselves. Moreover, if government is territorially delimited by state borders, governance has a much loser connection to territory, being “multi-level” and

15

Quoted in Anderson (2019:90).

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open at the top to supranational enmeshments. As Wolfgang Streeck (2016a:23) observes, not without sarcasm, “global governance” is neoliberalism’s favored political form, “organized by sectors rather than classes, run by a voluntaristic ‘civil society’ rather than coercive states, and based on international organizations and ‘epistemic communities’ substituting modern cooperative problem-solving by experts for oldfashioned class conflict.” The most common name for the neoliberal state is “competition state,” which stresses the transition from “outcome-oriented interventionism” to “arms-length regulation” (Cerny 2008:23–4). Its demarche is that governments should “steer but not row.”16 The competition state withdraws from the Keynesian program of running industries or providing services for the sake of “greater equality” (2008:23), and instead it merely sets and supervises the rules and procedures for market actors to follow. Philipp Genschel and Laura Seelkopf dryly sum it up as “more welfare for capital, more competition for the rest” (2015:237). They further note that the neoliberal state is “not a national state,” in two senses. First, the state “opens up to international trade and capital flows” (2015:239). This openness, indeed, is no longer optional, at the latest since the creation of the World Trade Organization (WTO) in 1995. The latter launched what Dani Rodrik (2011:76, 189f ) has attacked as overextended, democracy-destroying “hyperglobalization,” in which global rules trump national rules, even in sensitive areas like labor, environment, product safety, or public health. But, second, the neoliberal state also “champions non-discrimination” (Genschel and Seelkopf 2015:239): “(It is) indifferent to race, religion, income, or gender, and it welcomes social, cultural, and ethnic diversity as a productive resource.” On this account, the neoliberal state is the opposite of nationalist, and beholden to the view that “(i)nterest, not identity, keeps national society together” (2015). Using the bifurcated state picture of Loic Wacquant (2010), this may be the view from the liberal top, but perhaps not from the paternalized and punished bottom. But it is an important reminder that whatever passes as nationalism in the neoliberal state must first pass (or crush) the liberal nondiscrimination threshold. The social model underlying the neoliberal competition state has been nicely summed up by Richard Münch (2012:13): “The world is less conceived as a house that has to be kept in order by the responsible housekeeper (the State), but rather as a transnational marketplace on 16

The “steer but not row” formula, popular in “Third Way” leftist circles, was first used in a 1993 Clinton administration report, entitled “reinventing government” (see Evers 2000:15).

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What Is Neoliberalism?

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which empowered individuals engage in mutually advantageous exchanges.” Neoliberal Rationality Neoliberalism is not only a development within liberal theory, and not only the blueprint for a new kind of state; it is also a cultural rationality of deeply transformative reach. Two American sociologists have called the commitment to “market fundamentalism” an “ideational hegemony” (Centeno and Cohen 2012:317), radiating out from the economics profession and policy circles, where it had first become an unquestioned group-think,17 to culture at large, which is now under the sway of a “cult of individualism” (2012:331). In a brilliant analysis, political philosopher Wendy Brown has attributed nothing less than a “stealth revolution” to neoliberalism, which has spread “a peculiar form of reason that configures all aspects of existence in economic terms” (2015:17). She illustrates this with US President Obama’s 2013 State of the Union Speech, which presented a liberal justice and environmental protection agenda “in terms of its contribution to economic growth or American competitiveness” (2015:25), while ignoring that in a neoliberal context financialized “capital accumulation” and “economic growth” have long gone separate ways (2015:26). The important matter is that “the conduct of government and the conduct of firms are now fundamentally identical: both are in the business of justice and sustainability, but never as ends in themselves” (2015:27). This entails a bizarre inversion of roles, firms selling their produce under the label of “social responsibility” to ecojustice sensitive consumers, while governments, like the one under Obama, package noble causes as “fuel for economic growth” (2015:26). Neoliberalism’s economization of everything has also reached the sphere of law. A case in point is one of the most momentous US Supreme Court decisions in recent times, Citizens United v. Federal Election Commission (2010).18 It struck down the 2002 McCain-Feingold Act that had limited corporate funding of political campaigns, thus throwing open the “floodgates” that had previously shielded the American political process from corporate power, and widely considered to have had a most corrosive impact on American democracy (Mounk 2018:ch.2). The 17

18

While distinguishing between “ideological” and “pragmatic” transitions to neoliberalism, depending on a country’s “local institutional conditions,” FourcadeGourinchas and Babb (2002:569) still insist that “(a)s an ideological force, the neoliberal creed was self-reinforcing, in the sense that there ‘were no alternatives’ simply because everybody believed this, and acted upon this belief.” Citizens United v. FEC, 558 U.S. 310 (2010).

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court’s curious argument was that corporations, as “fictional persons,” enjoy the First Amendment right of free speech, much like individuals do.19 Justice Kennedy uses the metaphor of the marketplace to make his point: “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.”20 Speech is thus rendered analogous to capital in the marketplace, and citizens are assimilated to corporations and vice versa. At the same time, not only are citizens “deprived of information” if government “muffles the voices … of the economy,”21 depriving them, so to speak, of the benefit of diversity; in addition, such restriction “deprives the disadvantaged person or class of the right to use speech to strive to establish worth.”22 In other words, denying speech rights to corporations is discrimination, and civil rights language is used to jump to their rescue. More precisely still, as Wendy Brown (2015:166) observes in her trenchant analysis of the Citizens United case: “Two different strands from two different eras of minority discourse are mobilized on behalf of deregulating corporate electoral speech: the classic progressive equal-rights argument and the more recent all-are-enriched-by-diversity argument.” Justice Kennedy’s majority opinion also contains a revealing passage on corruption, which conflates public and private interest, another staple of neoliberal reasoning: “It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.”23 To equate “votes” and “contributions” obviously flattens the power differential between citizens and corporations. But more importantly, the political process is modeled on exchanges in the marketplace, as voters and corporations are simply “buying” the results they desire. According to Brown (2015:169f ), “(p)ublic service thus gains a new meaning as representatives literally stand to deliver the outcomes their supporters purchase with votes and dollars.” No distinction between “responsiveness” and “corruption” is possible if no distinction between private and public is drawn.

19

20 23

The “political speech” that came to be protected in Citizens United was the movie Hillary, to be distributed for free to prospective voters by Citizens United, a conservative corporate-financed lobbying group. As the court admitted, the movie was “pejorative” about Senator Hillary Clinton, who was running for the Democratic nomination in the 2008 Presidential election. See Citizens United v. FEC, at 320. 21 22 Citizens United v. FEC, at 314. Ibid., at 354. Ibid., at 340. Ibid., at 359.

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What Is Neoliberalism?

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But neoliberal rationality goes further still. It not only erodes the public–private distinction, but also invades the private sphere itself. One instance of this is the transformation of subjectivity into “human capital.” In his famous 1978–9 lectures at the Collège de France, the late Michel Foucault depicted as the distinguishing mark of American “neoliberalism” the theory of human capital. The latter is associated with the work of Chicago economist Gary Becker, which “give(s) a strictly economic interpretation of a whole domain previously thought to be noneconomic” (Foucault 2008:219). In Foucault’s reading, this changes the focus of liberal economic theory from market-limited “exchange” to universalized “competition” in all spheres of human life. The result is Homo oeconomicus, who is not only an entrepreneur but “an entrepreneur of himself” (2008:226), leaving out no sphere of his life.24 Everything now becomes “investment.” Foucault mentions the obvious domain of education, already treaded by Becker. Its economization actually shifted to high gear only after Foucault’s untimely death, with disastrous consequences for the pursuit of knowledge and the culture of learning.25 But there are other examples, including migration: “Migration is an investment; the migrant is an investor. He is an entrepreneur of himself who incurs expenses by investing to obtain some kind of improvement” (2008:230). The West German Ordo-Liberals, according to Foucault, had espoused the narrower idea of governing society in the name of the economy. Only the American “neo-liberals,” with their theory of human capital, go the important step further, refashioning the entire social sphere, also outside the political, in terms of economic behavior (Lemke 2001:197). Wendy Brown (2015:38) crisply notes that “when everything is capital, labor disappears as a category.” Neoliberal rationality erases the possibility of opposition. Foucault also delivered a widely used (and abused) concept to capture the changing ways in which the state and political power operate in neoliberalism: “governmentality.” His definition of it is vague, as “the way in which one conducts the conduct of men” (Foucault 2008:186); his followers have preferred the simpler “conduct of conduct.”26 Like the kindred term “governance,” governmentality stresses the engagement of civil society in the business of rule, but with the distinct accent on the objects of power becoming complicit in their being ruled. 24 25 26

For a comprehensive account of the “entrepreneurial self” as a new societal “model” (Leitbild), see Bröckling (2007). See Richard Münch’s furious attack on “academic capitalism” (2014); see also Brown’s lament over the suppression of “liberal arts” for mundane “job training” (2015:ch.6). For example, Bevir (2011:460). The term “conduct of conduct” does not seem to originate from Foucault himself.

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Governmentality is ruling “at a distance” (Miller and Rose 1990), the “conduct of souls” having to pass and be authenticated by the ruled individuals themselves, who appear to be conducting only themselves (Foucault 2007:193). While Foucault traces its roots back to the sixteenth century,27 and in the form of “pastoral power” sees it even running through the entire Christian tradition (2007:126), its apogee is the universalization of entrepreneurship and the human capital movement under neoliberalism, which exhorts everyone, from the cradle upward, to “invest” in one’s future. A related and even more recent way in which governmentality works is through the “quantification of the social,” as elaborated by Steffen Mau (2017). The ubiquity of rankings, ratings, scorings, and screenings, in which today’s median consumer happily participates, leads not just to the “universalization of competition” (2017:259), but also to the “ubiquity of surveillance.” Mau mentions China’s dystopian plan to establish a Social Credit System, in which each person would receive a numeric “score,” compiled from everything that is known about her, allegedly to further a “mentality of honesty” (2017:9) and thus to increase trust and lubricate exchange in everyday life. In its Western variant, the “surveillance, control and evaluation society is a participatory society (Mitmachgesellschaft), in which everyone can or even shall evaluate everyone else at any moment” (2017:242). Perhaps the most widely proliferating instantiation of neoliberal rationality is the rhetoric of “personal responsibility.” It is well described by Yascha Mounk (2017:1) as “breezing common sense and a barely concealed threat.” Ronald Reagan was one of the first to invoke it: “We must reject the idea that every (time) a law’s broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions,” upon which he launched a battery of harsh “anti-crime” measures that began to fill up American prisons. After Reagan, “personal responsibility” served as the logo for Bill Clinton’s attack on the welfare state and shift to workfare, the legislative centerpiece being the appositely titled Personal Responsibility and Work Opportunity Reconciliation Act (1996). Naturally, Barack Obama did not stand back with his favorite dictum to “work hard and play by the rules,” which actually was first used by Clinton in 1992.28 The political left and right agree on what Mounk calls the “responsibility framework” (2017:19), according to which responsibility for a bad outcome lessens one’s claim to public assistance, and public assistance

27

See Bevir (2011:462).

28

All quotes in this section are from Mounk (2017:2–3).

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Dismantling Social Democracy

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hinges on one’s lack of responsibility for a bad outcome. So deep is its reach that even the liberalism of Rawls or Dworkin may be criticized as “luck egalitarianism,” according to which only “brute luck,” as against “option luck,” generates a legitimate claim to be socially compensated (Anderson 1999:291, quoting Dworkin). As Elizabeth Anderson observes, responsibility-screening luck egalitarianism creates obvious injustices, such as discriminating against workers in dangerous occupations or condoning the poverty of dependent caretakers and their children, to the degree that these roles are freely chosen (1999:295–302). Taken to the extreme, the responsibility framework drives out other values and criteria for shaping social policy, most importantly “democratic equality” (1999). The responsibility framework has two further problematic effects. First, systemic or structural factors are blended out as possible causes of undesired outcomes, exculpating “society” in a way that would have pleased Hayek. And, secondly, the residual beneficiaries of responsibility-tracking welfare services figure as “victims” rather than “actors,” trapping them in the dependency that was exactly meant to be eradicated by the new discourse of “responsibilization” (Mounk 2017:21). The result is “paternalism” and the “cramped vision of the Poor Laws, where unfortunates breathe words of supplication and submit to the humiliating moral judgments of the state” (Anderson 1999:308). Of course, responsibility, understood as being accountable for one’s actions, is a core tenet of liberalism. Already Kant had stressed that people could not be judged negatively for things that are outside of their will. The novelty is a punitive and society-exculpating understanding of responsibility, as in “zero tolerance” criminology or “activating” welfare that claims to make (or keep) people autonomous, but which in reality coerces them, directly (as in workfare) or indirectly (as in schemes such as the Earned Income Tax Credit in the United States, also boosted under President Clinton, which is welfare that is conditional on being in paid employment). Dismantling Social Democracy “Neoliberalism” shares with its oppositional other, “populism,” that it is a term generally not used by its proponents.29 The “neoliberals” themselves see their project more as the recovery of genuine liberalism. Initially, they were as marginal as could be. When, in April 1947, Hayek 29

The term “neoliberalism” has a “strong left-leaning political inflection,” as Evans and Sewell say in an authoritative review article (2013:36).

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assembled a few like-minded “intellectual pilgrims” in secrecy and style on Mont Pèlerin, a Swiss resort overlooking Lake Geneva, to rally against the “decline of belief in private property and the competitive market,”30 the neoliberals were considered a “reactionary cult” (Peck 2010:xi) or “semi-religious project” (Mudge 2008:714). Fifty years later, the Marxist historian Perry Anderson would call their views, perhaps a bit exaggeratedly, “the most successful ideology in world history.”31

Restoration of Capitalist Class Power What neoliberalism helped accomplish in the meantime is providing the ideological foundation for the “restoration of (capitalist) class power” (Harvey 2005:16). This ended an interim of three decades, ca. 1945–73, in which capitalism and democracy had been locked into a “shotgun marriage” (Streeck 2016a:2). Various names have been given to this relatively short but fortunate moment in modern history, such as “embedded liberalism” (Ruggie 1982) or “Trente Glorieuses” (Fourastié 1979). They flag a combination of social rights, strong economic growth, and dramatic improvement of general living conditions that had never before or after been achieved in the history of Western society, of any society for that matter. Call it the moment of Social Democracy. As the French economist Thomas Piketty revealed in a celebrated work (2014), it came at the tail-end of an exceptional sixty-year period, starting with the outbreak of World War I (1914), in which income inequality and the stock of wealth had significantly declined across Western societies, reversing a 300-year trend in the history of capitalism for wealth to become ever more concentrated. Piketty explains this historical outlier with the destruction brought by two world wars and the Great Depression, but also with exceptionally high taxes, first to pay for the wars, and later to finance the war-effort-rewarding welfare state – it is difficult to believe today that, into the 1960s, the top marginal income tax rates in the UK and the United States, the two later champions of neoliberalism, were in the 90 percent range (Eichengreen 2018:97). These factors combined pushed down the return to wealth and capital income, while 30

31

From the “Statement of Aims” of the Mont Pèlerin Society (in Mirowski and Plehwe 2009:25), which included at its first meeting – next to Hayek – two more future Nobel Prize winners in economics, Milton Friedman and George Stigler. The group’s founding statement is all drama: “The central values of civilization are in danger. Over large stretches of the earth’s surface the essential conditions of human dignity and freedom have already disappeared … The position of the individual and the voluntary group are progressively undermined” (quoted in Harvey 2005:20). Quoted in Venugopal (2015:165).

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strong productivity gains and population increase over this period pushed up economic growth, which in Piketty’s scenario is a natural force of equality. Post-1970, however, shortly after the enthroning of neoliberal policy, the default mode of wealth-rewarding “patrimonial capitalism” (Piketty 2014), in which the rate of return to wealth is higher than the rate of economic growth and inequality steadily widens, was back in place. The result was a wealth gap similar to early twentieth-century level, when the top 10 percent of European households controlled almost 90 percent of total wealth. In 2004, the wealth of the top hundred US households, compared to that of the bottom 90 percent, was of the ratio of 100.000 to 1, “which corresponds roughly to the difference in material power between a senator and a slave at the height of the Roman Empire” (Streeck 2016a:29). The problem of the Social Democratic order, which consisted of Keynesian demand management with the goal of full employment, developed welfare states, and neo-corporatist industrial relations with strong labor unions, was the “inflationary tendencies of its politically determined ratchet” (Crouch 2011:14). The late 1960s and early 1970s were times of maximum union strength and endemic strikes and protest throughout OECD countries, accommodated by wage increases that squeezed profits and further fueled inflation. Workers, in turn, protected themselves from inflation by further bidding up wages, while governments, for political reasons, hesitated to cut spending, which would lower demand and thus depress wages. Inflation “served to mask open distributional conflict, allowing competing groups to dissipate social tensions in a game of leapfrog in which winners and losers continually traded places” (Krippner 2011:140). But Social Democracy was also productive: it stimulated economic growth by securing an adequate level of aggregate demand, while the increase of the living standard of ordinary people provided legitimacy to the capitalist economy. For capital, however, the marriage with democracy, which rested on nationally closed economies, was never a happy one. Eventually, capital found a way out of its “serving as an infrastructure of democracy” (Streeck 2016a:22). This way out was the internationalization of markets (especially finance) and production, which has become known as “globalization.” Neoliberal Waymarks The critical moment in the dismantling of Social Democracy and in the ascendance of neoliberalism was the oil crisis of 1973. “After 1973,

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everything ran in reverse,” observes economic historian Barry Eichengreen (2018:103). Postwar growth came to an abrupt end, and a protracted period of combined low growth and inflation set in.32 Known as “stagflation,” this was a situation unintelligible to the Keynesian method of demand management, for which there was either “stagnation,” a period of sluggish growth to be countered by artificially raising demand through the state’s deficit spending, or “inflation,” when governments reduce spending to lower excessive demand; what Keynesianism had ruled out was both occurring at the same time. This was the moment of the “supply-side” and “monetarist” alternatives, which had long sat in the drawers of neoliberal economists. They limit the engagement of the state in the economy to improving the supply-side conditions of the market and to the regulation of money. While “supply-side” and “monetarist” doctrines are separate, and have even appeared as rivals (Gamble 1988:ch.2), they conjoin in favoring price stability over full employment as ultimate policy objective, because of the strong and presumably market-distorting hand of the state that the full employment objective would require. In quick succession, the two masterminds who had laid the intellectual groundwork, Friedrich Hayek and Milton Friedman, were awarded the Nobel Prize in economics, in 1974 and 1976, respectively. In 1979, the OECD advocated New Public Management, which applied private-sector management techniques to the state, prioritizing “efficiency” over “equity” (Hood 1991). In 1979 and 1980, Margaret Thatcher and Ronald Reagan won national elections in Britain and the United States on neoliberal free-market tickets, and both broke up union power with considerable brutality in their first years of office. However, as Colin Crouch (2011:viii) has pointed out, “actually existing” neoliberalism does not so much resurrect free markets, as its “ideologically pure” version would have it; instead, it is “devoted to the dominance of public life by the giant corporation.” The latter operates globally and reverses the order, states no longer encaging markets but markets encaging states. Chicago Law and Economics laid the academic ground for this, prizing competition not as “process” (which consists of a large number of firms) but as “outcome” (in which big firms eat up small firms). The dominance of the giant firm is justified in prioritizing objective “consumer welfare” over subjective “consumer choice,” which is

32

Eichengreen (2018:105) attributes the plummeting of economic growth less to the increase of oil prices than to the fact that the “scope for productivity-enhancing technological progress had diminished.”

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obviously paternalistic and not liberal at all.33 Moreover, the US corporate model, with constant take-overs and mergers and the “casualization of the workforce” (Crouch 2004:36) and in which the “sole goal of a corporation is to maximize value for shareholders” (Crouch 2011:103), gradually replaced the European “stakeholder” model of the firm that had included a broader swath of interests, including that of employees, customers, and local communities. The giant shareholder firm is not fixed to a core activity and it becomes reduced to a “logo” (Crouch 2004:37). After the deregulation of finance and with the massive increase of interest rates that was the result of anti-inflationary policies in the late 1970s, industrial giants in the United States, like Ford, General Motors, or General Electric, branched out to the sector of finance, in effect becoming banks themselves, in a process described as “financialization.”34 The power of the giant firm, shopping across sectors and countries, contributes to the loss of distinction between public and private, typical of neoliberalism, and the rise of “a new dominant, combined political and economic, class” (2004:52). The apex of neoliberalism is reached in the so-called Washington Consensus of the early 1990s. This was originally a compilation of “structural adjustment” requirements by the World Bank, the IMF, and the US Department of the Treasury for handing out loans to developing countries (especially Latin America), which underwent a massive debt crisis following the monetarist explosion of interest rates in the late 1970s (the so-called Volcker shock) (see Cahill and Konings 2017:ch.2). But the term “Washington Consensus” stands more generally for the global spread of neoliberalism. It underlines the dominant role of the United States in creating an international regime that favors the privatization of public firms, the separation of regulatory authority from the (democratically accountable) executive branch, economic deregulation, the opening of markets to foreign competition by removing tariff and non-tariff barriers, and monetarist anti-inflationary policies (Mudge 2008:718f ). While the exact origins, workings, and strength of the Washington Consensus are a matter of debate, the “international diffusion” of “economic liberalism” is fact (Simmons, Dobbin, and Garrett 2006).

33 34

Crouch (2011:ch.3). On the peculiar reinvention of monopoly by Chicago Law and Economics, see also Van Horn (2009). Two excellent academic works on “financialization” are Davis (2009) and Krippner (2011); a gripping account for a general-interest audience is by financial journalist Nicholas Shaxson (2018).

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State People vs. Market People The neo-Marxist theory of “legitimation crisis” (Habermas 1973; Offe 1984) had argued that “late capitalism” could be politically steered to the benefit of all, but that a sociocultural “motivation crisis” would undermine its legitimacy from below. In reality, the reverse happened. On one side, there was a “revolt of capital against the mixed economy of the postwar era” (Streeck 2013:26); on the other side, the “masses” happily complied as consumers and competitive individualists. Not “late capitalism” but “late democracy” was to be the future. Streeck described the process as successive transition from “tax state” to “debt state” and “consolidation state,” by means of which an increasingly resourcestarved state “bought (capitalism) time with the help of the magic of modern money” (2013:225). Streeck’s narrative of the evolving neoliberal state (2013:118–32) shows the latter torn between two different constituencies, the old national “state people” (Staatsvolk) and a new transnational “market people” (Marktvolk). The classic “tax state” had been monochrome, consisting of a single state people who are loyal to the state in exchange for receiving comprehensive welfare (Daseinsfürsorge). In the “debt state,” credit and public debt replace taxes to finance the state. In conservative reading, public indebtedness is attributed to a “crisis of democracy” (Crozier et al. 1975), with undisciplined mass publics asking for ever more out of the “common pool.” In reality, public debt is the result of a dramatically shrunk tax base to accommodate the “demand inflation” of the rich (Streeck 2013:ch.II). In the United States, between the Golden Age and 2005, the highest tax bracket for the rich was cut by more than half, while in 2005 the rate in the lowest bracket was higher than at the eve of WWII (Evans and Sewell 2013:51). This has been the result of “organized combat” by the rich (Hacker and Pierson 2010). Starting with the famous 1971 Lewis Powell memo to the US Chamber of Commerce, which warned that the “American economic system is under broad attack,” a broad countermobilization by organized business led to vastly increased levels of inequality in the United States – favorable tax change in response to business lobbying alone explains one-third of total income gains for the top 0.1 percent in the past half-century (2010:184). In the debt state, the rich use their growing income, not least derived from their diminished tax burden, to buy government bonds, thus simultaneously financing and profiting from the mounting public debt. As Streeck (2017:44) argues, “(r)ather than having parts of their income confiscated, in a debt state the rich can invest them in government bonds, collect interest on them …, and pass them on to their children,

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thereby perpetuating economic and social inequality.” This is the coming into being of the Marktvolk of creditors and investors as second constituency of the state, next to the Staatsvolk. Unlike the nationally caged Staatsvolk, however, the Marktvolk is transnationally mobile. It is only contractually but not existentially tied to the state, and is always ready to change place if the conditions are not right. Asked whom he favored among the United States presidential candidates in 2008, the former chief of the Federal Reserve, Alan Greenspan, cynically responded that “the world is governed by market forces.”35 Streeck (2013:135) likens contemporary states to “football teams” that “do their homework” (also one of the favorite terms of German Chancellor Angela Merkel) within an international governance regime, in which private rating agencies decide about the creditworthiness and hence the welfare of entire societies. Another way to put the matter is that sovereign nation states are transformed into “vendor states” that compete against one another for attracting mobile capital, and that “states and corporations are becoming increasingly parallel in their strategies and structures” (Davis 2009:159). The final step from “debt state” to “consolidation state” is made when the transnational Marktvolk of mobile shareholders, anxious not to lose their investment if over-indebted states default on their payments, imposes balanced budgets and austerity on the latter (Streeck 2013:ch. III). This is the High Noon of the neoliberal attack on “costly” social rights and “overregulated” labor markets. However, an alternative was found to absorb the shock of austerity: a further deregulation of financial markets in the 1990s, which made cheap credit available to private households. Accordingly, private debt replaces public debt, which has become the signature of the consolidation state. Colin Crouch (2011:114) has called the phenomenon “privatized Keynesianism”: “Instead of governments taking on debt to stimulate the economy, individuals and families did so, including some rather poor ones.” As a result, everyone “became complicit in the financial model” (2011:110). Note that at the turn of the millennium, over half of American households were invested in the stock market, whereas fifty years earlier this had been the case for less than one in ten (Davis 2009:3). The element of middle-class complicity in the neoliberal turn, which can be generalized beyond the United States, is not sufficiently considered in Streeck’s (2013) otherwise compelling story of the ascension of “market people” over “state people”: the two categories overlap to a degree, which secures legitimacy to a state that is increasingly beholden

35

Quoted by Streeck (2013:126).

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to the footloose market people. It is not to forget that neither a military coup nor a capitalist conspiracy but democratic majority votes, and repeated such votes at that, brought neoliberalism into existence and sustained it. In an analysis of Europe, Steffen Mau (2015:96) thus described the same process as “self-disempowerment” of the middle classes, which have become complicit in neoliberalism via rising affluence, home ownership, and privatized and individualized life styles.

There Is No Alternative: Post-Democracy The politics of the consolidation state has been influentially described by Colin Crouch (2004:4) as “Post-Democracy.” In it, “elected governments and elites … overwhelmingly represent business interests,” unchallenged by a passive and disempowered citizenry. In “late democracy,” as Wolfgang Streeck prefers to say, politics degenerates to a “combination of legal state (Rechtsstaat) and public entertainment” (2013:28). Another way of putting the matter is that the “de-democratization of capitalism” proceeds by way of the “de-economization of democracy” (2013), because the parameters of the neoliberal economy are removed from the ambit of public choice. “There is no alternative” (shortened as TINA), which was a slogan often used by Margaret Thatcher to defend the superiority of the market economy, but as “alternativlos” (without alternatives) has also been a central plank in Angela Merkel’s political vocabulary, symbolizes the atrophying of politics under a neoliberal regime. The tail-end of the closing of political space is the neoliberal conversion of reconstructed “Third Way” leftist parties. Asked in 2002 what she considered her greatest achievement, Margaret Thatcher allegedly replied: “Tony Blair and New Labour. We forced our opponents to change their minds.”36 Accordingly, the demise of Social Democracy is also the demise of Social Democrats in the narrower, party-political sense. Rise of Cartel Parties. The coming of Post-Democracy is undergirded by a major transformation of the political party system, which Richard Katz and Peter Mair (1995) have usefully described as the rise of the “cartel party.” Because this is also a major factor in the creation of contemporary populism, it needs closer attention. In the classic massparty model, championed by socialists after the introduction of the general suffrage, socioeconomic groups or classes had been the units of political life, and the function of parties had been to mobilize them. 36

See https://economicsociology.org/2018/03/19/thatcherisms-greatest-achievement/

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However, already by the 1960s, this was an anachronism. At that time, “catch-all-parties” (Kirchheimer 1957), which originated in the reconstructed conservative cadre party of pre–mass-suffrage times, moved from the pursuit of class to that of national interests, not “mobilizing” but “converting” individuals from all groups and classes. Cartel parties grow out of a long-standing trend of parties to shift their location from civil society to the state, partially seduced by the “taste of office” (Katz and Mair 1995:12), but also due to the exogenous trend of an “individualized” social structure that has deprived parties of fixed constituencies, as first described by Ulrich Beck (1983). At the end of the process, “colluding parties become agents of the state” (Katz and Mair 1995:5). In a restatement of the “cartel party thesis,” Katz and Mair (2009) mention further contextual factors: the decline of the left–right ideological divide after 1989, the rise of technocratic EU governance, and the fact that inflation and unemployment are now outside the control of national governments. In a nutshell, the “depoliticization” brought about by neoliberalism is the backdrop to the rise of cartel parties. Tellingly, Tony Blair, whose New Labour is emblematic of the trend, would later say about himself that he “never really (was) in politics”; as if that wasn’t clear enough, he added that “I don’t feel myself a politician even now.”37 In the ultimate statement of the cartel party thesis, Peter Mair (2013) fleshes out the nature and implications of the “double retreat”: of citizens from parties and of party leaders from civil society into the state, which is both cause and effect of the rise of cartel parties. Citizens’ withdrawal is visible in the decline of average voting turnout across Europe, dipping below the 80 percent level in the 1990s, the lowest in fifty years; and in rising rates of electoral volatility and a dramatic decline of party membership, now down to below 6 percent of the European electorate. As a result, “conventional politics has become part of an external world which people view from outside” (2013:43). Bernard Manin (1997:218–35) has described this condition as “audience democracy,” which is a paradoxical combination of technocracy and populism. On the technocratic side, in a more complex environment, where politicians need to react flexibly and unhampered by rigid programs and mandates, and where political choices are no longer “transposition of a preexisting cleavage” (1997:223), there is both the functional need and the structural possibility for more initiative on the part of politicians – hence the electorate becomes an “audience which responds to the terms that have been presented on the political stage” (1997). On the populist side (a term not used by Manin), voters orient

37

Quoted by Luce (2017:91).

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themselves closer to the personality of the politician, while the latter comes to face her voters directly, unmediated by an apparatus or a platform, simultaneously “reading” and manipulating voters with the help of “spin doctors” and mediatized images. The cartel party thesis somehow dodges this endogenous possibility of populism, as deriving from a personalized style of politics under audience democracy; instead, it externalizes populism, which is very much on the radar for Katz and Mair (1995), as all-out opposition to cartelization.38 The cartel-party focus is on the “withdrawal of the elites,” which is the technocratic side of audience democracy, understood as “a new form of democracy, … in which the citizens stay at home while the parties go on governing” (Mair 2013:98). Closing the Circle: Social Democracy Goes Neoliberal. Cartelization, which according to Katz and Mair (2009:759) “contributed to the rise of populist anti-party-system parties,” is completed by the “Third Way” restructuring of leftist parties in the 1990s. This does away with the left–right distinction that has undergirded Western politics since the industrial and democratic nineteenth-century revolutions.39 Accordingly, it was under the Democratic Presidency of Bill Clinton that the World Trade Organization (WTO) was created in 1995. It opened the gate for”hyperglobalization” (Rodrik 2011:76), subverting domestic standards of food safety, environmental protection, or taxing and spending for the sake of global market integration as an “end in itself.” No one more lyrically embraced globalization than Third Way progressives, interestingly in the United States and Europe alike. In a 1993 speech on free trade, Bill Clinton said: “Change is upon us. We can do nothing about that … (A) new global economy of constant innovation and instant communication is cutting through our world like a new river, providing both power and disruption to the people and nations who live along its course.”40 Meanwhile, in the UK, though a decade later, Tony Blair used a temporal metaphor to hail globalization, likening the idea of “stop(ping) and debat(ing) globalization” to “debat(ing) whether autumn should follow summer”. Furthermore, as Blair explained, “the character of this changing world is indifferent to tradition. Unforgiving of frailty. No respecter of past reputation. It has no custom and practice. It is replete with opportunities, but they only go to those swift to adapt, slow to complain, open, willing and able to change.”41 38 39 41

Linking cartel parties to the defense of a “neoliberal growth regime,” Hopkin and Blyth (2019) have most clearly articulated this position. 40 For the two revolutions, see Nisbet (1966:ch.2). Frank (2017:84f ). Goodhart (2017:7)

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For the US Democratic Party from the Clintons to Obama, Thomas Frank (2017) has drawn the uncomplimentary picture of a haughty meritocracy, in which only the individual is to blame for her failures, while busily courting minorities and their identity politics. In the process, the Democrats lost their popular roots and reputation as the “party of the people.” Bill Clinton famously praised his first cabinet as “look(ing) more like America than any previous” (i.e., including women and minorities). What he forgot to mention is that they were all elite-school graduates, like himself. And, less glamorously, he did deliver on his campaign promise to “end welfare as we know it,” in a far more radical way than his Republican predecessor Ronald Reagan had tried before.42 At the same time, Clinton was also “tough on crime” far more severely than Reagan had been, mandating life sentencing after three “strikes” of wrongdoing, “truth in sentencing” (i.e., not allowing parole), and sustaining a histrionic hundred-to-one difference in the length of time that (usually poor) crack possessors had to serve in prison if compared with (usually welldoing) cocaine possessors. Not only the drug comparison suggests that, under Clinton, the poor got “discipline” while the professionals and the rich got “endless indulgence” (2017:115). Frank rounds up the uncomforting picture of a Democratic Party in the dual grip of neoliberalism and identity politics with 2016 Democratic frontrunner Hillary Clinton’s curious attempt to alleviate third-world poverty, especially of women, through Wall-Street bankers’ “microlending,” as if there was a “mystic bond between high-achieving American professionals and the planet’s most victimized people” (2017:227). Meanwhile, in Europe, the famous Schröder-Blair Paper of June 1999 tried to extol as “Europe’s new hope” the Socialist “politics of the Third Way,” or of the New Center (Neue Mitte) as German Chancellor Gerhard Schröder preferred to say. In retrospect, this document constitutes the left’s kowtow to neoliberalism, which is probably not unrelated to these parties’ later decline. The paper opens with the optimistic, in hindsight surreal-sounding statement that “in almost all countries of the European Union Social Democrats are governing.” What follows is an astounding commitment to “economic dynamization and the freeing of 42

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act abolished federal cash assistance to poor single mothers, stipulated that people could receive no more than five years of government benefits over their lifetime, and tied the receipt of certain benefits to forced work. Commenting on Clinton’s 1992 campaign pledge twenty years after the passing of the law, a review article concluded that “it is all too apparent that he succeeded” (Alana Semuels, “The end of welfare as we know it,” The Atlantic, April 1, 2016) (www.theatlantic.com/business/archive/2016/04/the-end-of-welfare-aswe-know-it/476322/).

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creativity and innovation,” assuming that this new goal could simply be added on to the classic leftist agenda of “social justice,” without any risk of incoherence or conflict. In fact, whenever a concrete leftist position of old is mentioned, it is in a distorted and negative form, as something to take distance from – “equality of results,” the state as “replacement of the economy,” a “disproportionate expansion of administration and bureaucracy,” “rights without duties,” “deficit spending,” and the “steering of the economy to create growth and employment,” which happens to be the only non-distorted description of a classic Social Democratic goal: all this is to be shed in favor of “own effort and responsibility,” “a new entrepreneurial spirit at all levels of society,” “flexibility,” and a new “supply-side agenda for the Left” that does not tolerate “excessive state indebtedness.”43 In the “new politics,” the state “shall not row but steer, control less and challenge more. Problem solutions must be networked.”44 Insisting that the “first priority must be investment in human and social capital,”45 and that non-economic goals like environmental protection are, of course, good for “open(ing) new markets and creat(ing) employment,” the Schröder-Blair paper reads like a caricature of “neoliberal rationality,” as acidly dissected by Wendy Brown (2015). It embraces the economization of everything, despite the hopeful and utterly misleading statement that the “two past decades of neoliberal laisser-faire are over.”46 Much like in the United States, where a Democratic President had ended “welfare as we know it,” in Germany it was a Social Democratic chancellor who fundamentally reformed the labor market, between 2003 and 2005, thus allowing the “glittery express train” of neoliberalism to enter town and mess with one of the Continent’s oldest and most protective welfare systems (see Ther 2016:286–97). Centerpiece of the “Agenda 2010,” worked out by a commission under Volkswagen manager Peter Hartz, is a radical reduction of unemployment benefits, which became known as “Hartz IV.” After twelve months of traditionally statusbased unemployment benefits, the social-aid principle of “neediness” kicks in, irrespective of one’s prior employment status (and prior payments of unemployment insurance, which are higher for high earners). As a result, unemployment compensation is reduced to flat-rate social aid (Sozialhilfe), geared to secure the bare minimum that is the same for all – but only after most personal savings, including that of one’s partner 43

44

Schröder-Blair Paper, “Der Weg nach vorne für Europas Sozialdemokraten,” June 8, 1999, London (retrieved from www.glasnost.de/pol/schroederblair.html, last accessed June 7, 2020). 45 46 Ibid., 3. Ibid., 6. Ibid., 4.

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or spouse, have been used up.47 Since Hartz IV, long-term unemployment equals the fall into poverty, for the previous manager no less than for the factory worker. In addition, recipients of Hartz IV benefits (technically called Arbeitslosengeld II [Unemployment Money II]) can be obliged to work, even far below their qualification or experience level. The driving idea is that of the “activating social state,” which requires the active participation of welfare recipients in their speedy reintegration into the world of work, following the motto of “Fördern und Fordern” (Supporting and Demanding). Charged with the “duty of self-responsibility,” individuals are presumed to become more “flexible” and “active” if threatened by poverty. Importantly, the receipt of benefits under the Hartz IV scheme is couched as a contract between state and welfare recipient, whereby the legal form of market transaction replaces what previously was a right on part of the needy individual (Nachtwey 2016:97). As Philipp Ther (2016) has shown, the German Social Democrats’ neoliberal labor-market reform coincided with the Eastern enlargement of the EU. Up to the detailed calculation of reduced benefit levels, this reform was synchronized with the effects of the neoliberal reforms occurring at the same time in Eastern Europe.48 Hartz IV, indeed, was good for business, as it helped create a low-wage sector in Europe’s richest economy, the state guaranteeing to “level-up” (aufstocken) the wages of routinely underpaid workers to the standard social aid level. What optimists have credited for transforming Germany from “sick man of Europe”49 into today’s full employment and growth wonder,50 from a more skeptical angle is held responsible for ushering in a new “society of social decline, precarity, and polarization” (Nachtwey 2016:8). Oliver Nachtwey attributes to the Agenda 2010 the “creation of a new underclass in Germany” (2016:162), which consists of the recipients of Hartz IV social aid and a “growing army of low-wage employees.” As Kathleen Thelen (2014:ch.4) pointed out, however, “core” workers remained protected from the fate of unemployment through temporary “short-

47 48

49 50

From an apologetic perspective, see Dietz and Walwei (2008). In 2005, the total Hartz-IV benefit level was at ca. 650 euros per person. This corresponded exactly to the average income in Poland and the Czech Republic at the time, thus obliterating the need for labor migration (as Hartz-IV receivers could be obliged to work) (Ther 2016:295). “The sick man of the Euro,” The Economist, June 3, 1999 (www.economist.com/special/ 1999/06/03/the-sick-man-of-the-euro). This claim is more in the realm of public folklore and not confirmed by evidence. See Dustmann et al. (2014:184).

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time-work” (Kurzarbeit). Accordingly, the whole picture of Hartz IV was “stabilizing the core while flexibilizing the periphery” (2014:141). Gerhard Schröder, also known as the “Basta-chancellor” (“basta” being his way of saying TINA), had to pay for his neoliberal reforms with his job, first as SPD chairman, later as Chancellor. To paraphrase Bill Clinton, welfare as the Germans know it has ended. The once leftist Social Democrats who helped bring it about, far from being the source of “new hope” in Europe, have been on a steady path of electoral decline ever since.

Globalization: Winners and Losers The neoliberal order is intimately tied to the internationalization of the economy that, since the late 1980s, has become known as “globalization.” A proper understanding of it, in particular of who are its winners and losers, is indispensable for finally moving toward a discussion of resurgent nationalism in the neoliberal era. Economist Richard Baldwin (2016) has succinctly defined globalization as the development- and wealth-enhancing “unbundling” of production and consumption, the two elementary functions of human economy, with the help of new technologies. In this respect, what we are witnessing today is not the first but the second globalization. The first globalization, starting in the early 1800s, was enabled by the dramatic lowering of the cost of transporting goods that followed from the invention of steam power, thus removing a first major constraint on the unbundling of production and consumption. However, because it was still expensive to move two other crucial factors of production, ideas and people, the fruits of this globalization remained limited to the North Atlantic heartland of industrialization, where the main technological inventions had been made. Baldwin dubs it the period of the “Great Divergence,” when Europe and America overtook Asia, in particular China and India, as the world’s most productive and developed region.51 By contrast, the second globalization, set off by the late-twentieth-century information and communication technology (ICT) revolution, dramatically reduced the cost of moving ideas. As ideas and knowledge are a “non-rival good,” whose use by one individual or group does not reduce 51

Baldwin (2016:6). In 1750, China and India (including what today is Pakistan) had accounted for 73 percent of the world’s manufacturing output; by 1913, the peak of the first “steamship” globalization, their share was down to under 7.5 percent. By ca. 1970, two-thirds of world economic activity occurred in G7 countries (of which only Japan was non-Western) (ibid. 57).

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its availability to others, this second globalization has made previously unskilled workers in the global South more productive, ushering in a new era of a “Great Convergence” that has lifted some 650 million people out of poverty since the 1990s, primarily in China and India, the new production sites of globally operating companies. Baldwin uses a soccer analogy to illustrate the Great Convergence, with its reduced development gap between the global North and South: instead of exchanging players, the coach was exchanged, now training the weaker team. The result is that the league (the world economy) becomes more competitive, the weaker team (China/India) is helped, and the coach “wins nicely” (which is a euphemism for the phenomenal wealth increase of the world’s richest 1 percent since the late 1980s).52 Key to the current ICT globalization is the “internationalization of production processes” (Baldwin 2016:140) and what Baldwin calls the “global value chain revolution” (2016:6). As a result, “intrafactory flows became international flows” (2016:144). Moreover, whereas previously nations and their economies competed against one another, say, Japan v. Germany, now the competition is between “international production networks,” say Honda v. BMW.53 In a nutshell, the eased transfer of ideas and knowledge allows big firms to offshore manufacturing tasks, which have become expensive in the age of Social Democracy, to lowwage countries, whereby the North’s deindustrialization equals the South’s industrialization. However, the offshoring of production and accompanying North-to-South flow of firm-specific know-how is not indiscriminate: the movement is from Germany to Central Eastern Europe, from the United States to Mexico, from Japan to East and South-East Asia. Accordingly, while contemporary globalization has positively affected many more people in more parts of the world than the mainly Euro-Atlantic nineteenth-century globalization,54 the Great Convergence is still regional, not truly global: “Factory Asia, Factory

52

53 54

Ibid., 6. Still in its infancy is a third globalization, which would result “if the cost of moving people falls in the future” (ibid. 283, emphasis supplied). The “virtual presence revolution” (ibid. 289), brought about by telerobotics and 3-D telepresence technology, foreshadows a migration-free future, interestingly at both ends of the skill hierarchy, in which a surgeon in New York can operate a patient in Johannesburg, while a maid sitting in Manila can clean hotel rooms in Oslo (ibid. ch.10). See also Baldwin’s exploration of the coming “globotics upheaval” (2019), which is centered around artificial intelligence and machine learning that makes even high-skilled labor redundant. This point was first made by Reich (1992), which is one of the earliest and still highly useful primer(s) on globalization. Nineteenth-century globalization positively affected one-fifth of the world population, mainly in Europe and North America; by contrast, contemporary globalization has improved the lives of one-half of humanity (Baldwin 2016:219).

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Europe, and Factory North America—not Factory World” (2016:133). Still, the global-wealth transfer that resulted from making non-Western labor more productive is significant: one-fifth of world manufacturing value has shifted from North to South since the late 1980s (2016:14), and the G7 share of world GDP is now back to pre-WWI levels (2016:ch.3). In particular, China has recovered its pre-Industrial-Revolution status as the world’s premier economy, accounting for one-fourth of global trade in 2013 (Luce 2017:21), and by 2050 it is expected to be larger than all Western economies combined (2017:28). For our purposes, the most important effect of the new globalization is to have “ruptured the compact” between G7 workers and G7 firms (Baldwin 2016:12). If it is no longer “nations” but “firms” that vie for comparative advantage, what is good for firms and their shareholders is no longer good for society at large: “The New Globalization means that German workers are no longer the only beneficiaries of German technological advances. German firms can now exploit German technology by combining it with, say, Polish labor” (2016:12–13).This adds to the problem that the new globalization affects not only sectors, like the old globalization did, but “production stages and occupations” across sectors; it has a “finer degree of resolution,” as Baldwin says, whereby its effects become more “unpredictable” and “individual”: “No matter what job you have and no matter what sector you work in, you cannot really be sure that your job won’t be the next to suffer or benefit from globalization” (2016:11). Furthermore, the new globalization is “more sudden and more uncontrollable,” because of the nature of the flow (ideas instead physical goods, which cannot be touched and caged), and because of the “exponential” speed of ICT innovations (2016:11–12). The winners and losers of the new globalization, and thus the sociodemographic basis of the new nationalism that is mainly a response to it, are (or is) neatly captured in the famous “elephant curve” by former World Bank economist Branko Milanovic (2016: ch.1). Showing relative per capita income gains between 1988 and 2008 at all points of the global income distribution, the graph visualizes in one line what is most remarkable about the new globalization: that it simultaneously narrowed the wealth gap between the global South and the global North, while enormously widening the internal wealth gap within the North – Milanovic (2012:13) calls it the “profoundest global reshuffle of people’s economic positions since the Industrial Revolution.”

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Real income increase, 1988-2008 (in percentage)

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90 80 70 60 50 40 30 20 10 0 -10

Percentile of global income distribution

Figure 1 Elephant Curve of Branko Milanovic (2012:13)

The curve rises steeply in the lower to middle regions of the global income distribution (between the 5th and 65th percentile), which signifies significant income increases; in the curve’s upper region, especially between the 75th and 90th percentiles, it steeply declines toward the zero percent mark (or even slightly under), which means very little to no income increases (or even losses) between 1988 and 2008, the period of the new globalization; and in the uppermost region of the global income distribution, from the 95th (and especially the 99th percentile, the richest 1 percent of the world population) on, the curve rises again steeply – the triumphantly raised “trunk” of the elephant, which reaches some of the highest regions of relative income gains between 1988 and 2008. Three central messages can be derived from this astonishing graph. First, the poorest 5 percent of the world population, still an enormous number of people, mostly in places untouched by “global value chains” à la Baldwin, are as poor as before. Second, there are two winners of globalization. One is the people in the 50th to 60th percentile of the global income distribution, who have seen their real income rise by up to 80 percent: 200 million Chinese, 90 million Indians, and 30 million each from Indonesia, Brazil, and Egypt (Milanovic 2012:12). These new middle classes of emergent countries have been rescued from starvation

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and poverty in the past three decades – hence the “Great Convergence” (Baldwin 2016). Consider that in 2015 merely 10 percent of the world’s population lived on less than USD 1.90 per day, whereas still in 1990 over one third, 36 percent, had to – with extreme poverty being concentrated in places not touched by globalization, notably sub-Saharan Africa.55 The second winner is the richest 1 percent of the world population. This is some 70 million people, half of them Americans (their richest 12 percent) (Milanovic 2016:22), but also the richest 3–6 percent of Britons, Japanese, Germans, and French (Milanovic 2012:14). The gains of the richest are even more impressive if measured in absolute numbers: the top 5 percent of the global income distribution, who mostly reside in Western countries, could claim near half (44 percent) of absolute income gains over the observed period. The 12–13 percent absolute income gains of the “emergent global middle class” in China or India look rather modest in comparison (Milanovic 2016:24). The richest of the rich societies, “ultra-high-net-worth individuals” (UHNI) in bankers’ jargon, are the real winners of globalization. Third, and for our purposes most importantly, the relative and often absolute losers of globalization are situated between the 75th and 90th percentile of the global income distribution. Globally speaking, these are all rich people, profiting from the “citizenship premium” that is derived from the mere fact of one’s birth or residence in a rich country – just to be born in the United States, for instance, multiplies a person’s income 93 times (Milanovic (2016:133). Within developed OECD countries, however, the people in this bracket are mostly lower middle class and under. Their income has stagnated or even shrunk over the past three decades. They are the proverbial losers of globalization, who fill the ranks of populist and nationalist movements and parties across Western countries: “Cue xenophobia. Cue Donald Trump. Cue nationalism. Cue Brexit … The elephant knows.”56

55 56

“Rich economics,” The Economist, October 19, 2019, p.72. From the Harvard University Press Blog on Milanovic’s Global Inequality (“The Elephant Chart in the EU Room,” June 30, 2016, http://harvardpress.typepad.com/ hup_publicity/2016/06/branko-milanovic-elephant-chart-brexit.html) (last accessed June 7, 2020). There are several versions of the elephant curve, using slightly different time frames (see Milanovic 2016:31). The curve has been criticized for including different people of different classes and even countries in the crucial 75th to 85th income decile at the two points of measurement (1988 and 2008). For instance, in 1988, better-off Latin Americans and modest Westerners dominated the 75th to 80th percentiles, while by 2008 rich Chinese did: “The flat incomes shown by the elephant chart do not, then, reflect the stagnant fortunes of Trumpians and Brexiteers. They instead reflect a comparison between the original Latin American and Western occupants of this income bracket and the Chinese who jumped into it 20 years later”

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New Nationalism (I): Populist Karl Polanyi’s The Great Transformation (1944) is taken by many as the point of reference for understanding not only today’s return to “market fundamentalism” (Block and Somers 2014) but also the conflicts and convulsions unleashed by it. Polanyi had argued that the rise of nineteenth-century “self-regulating markets,” whereby “human society” became “an accessory of the economic system” (Polanyi 1944:75), was in the form of a “double movement.” This means that in response to the “principle of economic liberalism,” a “principle of social protection” (1944:132) asserted itself: “(A) deep-seated movement sprang into being to resist the pernicious effects of a market-controlled economy. Society protected itself against the perils inherent in a self-regulating market system” (1944:76). For Polanyi, this “counter-movement” could be either regressive, in the form of fascism, or progressive, in the form of socialism. In all cases, it was a “spontaneous reaction” (1944:149) for the protection of society. As he famously remarked, “Laissez-faire was planned; planning was not” (1944:141). Because neoliberalism has asserted itself in terms of an unprecedented “opening, delimitation, and deregulation of the social” (Reckwitz 2017:375), it is no wonder that the counter-movement to it must assemble under the banner of closure, hence of nationalism. This is not so different from the first late nineteenth-century globalization, when “the growth of nationalism … happened … just at the time when a growth of international relations, trade, and communications developed as never before,” as Hans Kohn observed (1939:1010). Today, open vs. closed has become the “new political divide,”57 overlaying or even pushing aside the left vs. right antagonism that had structured sociopolitical conflict from the late nineteenth to the late twentieth century. Already one decade before The Economist helped popularize the new cleavage, Tony Blair had smugly called it the “modern choice,”58 allowing no doubt on what side of the binary he stood. Labelling itself is a political act, and thus performative and self-serving to a degree. Academics, for one, who like to think of themselves “as open to their core,” do so from the safe position of “tenure,” the right to a job for life, which is a form of

57 58

(“Shooting an elephant,” The Economist, September 17, 2016) (www.economist.com/ finance-and-economics/2016/09/17/shooting-an-elephant). However, the “elephant shape remains” and it “also remains true that the lower middle classes in rich countries have fared less well (than China’s middle classes and the world’s rich)” (ibid.). “The new political divide,” The Economist, July 30, 2016, p.7. Quoted in Goodhart (2017:3).

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closure that few people enjoy today.59 The same double standard applies to yet another member of the globalist tribe, bankers, who preach the virtues of open markets yet happily “turn to national governments when (the market) crashes”60 – socialism for the bankers and the rich and capitalism for the rest, so to say. Conversely, by their own light, most who voted for Brexit in 2016 did so “against a closed elite in favour of open and accountable government.”61 Its performative (ab)uses in mind, the open vs. closed binary is still a helpful tool to understand current political frontlines, not least because it is used by political actors themselves. Marine Le Pen, for instance, the populist leader of the French Front National (since June 2018, Rassemblement National), depicted the French presidential election contest in 2017 in exactly these terms: as a competition between the “globalist choice” (le choix mondialiste) and the “patriotic choice” (le choix patriote), which in her view was nothing less than a “choice of civilization” (un choix de civilization).62 US President Donald Trump sees the world in identical terms, but this time with the smugness of success: “America is ruled by the Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.”63 In an ambitious interpretation of “late modernity” as a chase for cultural “singularity” (Besonderheit), German sociologist Andreas Reckwitz (2017:ch.VI) sees the political field divided between the camp of “apertistic-differentialist liberalism,”64 on one side, and a variety of “cultural essentialisms,” on the other, of which “right-wing populism” is the one most directly opposed to the new liberalism, actualizing the open vs. closed cleavage. Reckwitz has some difficulties placing multiculturalism and its identity politics within this scheme, and in different places he locates it on either side of the divide. At heart, however, multiculturalism seems to correspond to the difference-appraising prong of liberalism. (Liberal) multiculturalists thus sit in one camp with the free marketers, the “apertistic” neoliberals. Both together, the “apertists” and the “differentialists,” are “steering the social in the direction of innovation, competitiveness, personal rights and diversity,”65 in the process burying 59 61 62 63 64 65

60 See “The politics of illusion,” The Economist, March 24, 2018, p.33. Ibid. Ibid. Quoted from the National Front’s 2017 election manifesto, Marine 2017: 144 Engagements Présidentiels. “Full Text: Trump’s 2018 UN speech transcript,” Politico, September 25, 2018 (www .politico.com/story/2018/09/25/trump-un-speech-2018-full-text-transcript-840043). In a reformulation, Reckwitz (2019:ch.5) prefers the simpler “apertistic liberalism.” See my discussion in Chapter 4. Reckwitz (2017:376). Boltanski and Chiapello (2007) have made a similar argument about the “new spirit of capitalism,” which has absorbed the counterculture’s “aesthetic

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the “corporatist social democratic paradigm” of old. This amounts to a conflict constellation in which a politics of the “singular individual,” bred by today’s creative economy and digital technology and supported by equally neoliberal and diversity-minded states, confronts a politics of the “singular community,” which often takes on populist colors. Reckwitz calls the new divide “singular individual of hyper-culture vs. singular community of cultural essentialism” (2017:419). This diagnosis may exaggerate the import of “singularity” and of culture and cultural appropriation for driving contemporary capitalism and politics. But the identification of the (neo)liberalism vs. populism frontline hits a nerve. Populists see it the same way. Alexander Gauland, leader of populism’s German variant, the Alternative for Germany (AfD), when reflecting on the origins of his movement, promptly identified the rise of a joint “globalized class” in economy, polity, and culture as his opponent. This “new urban elite” is culturally “diverse” (bunt) yet socially “homogenous” (unter sich) – which incidentally is optimistic about academic salaries. Moving effortlessly between Berlin, London, or Singapore (if perhaps in different quarters thereof, in recognition of the mentioned pay gap), the globalized class has seceded from the constraints and institutions of their home countries: “The rain that falls in their home countries does not make them wet.”66 As if to hide something from a learned audience (Gauland’s auto-diagnosis was published in Germany’s leading high-quality newspaper), the AfD leader mentions “immigrants” in no more than an oblique half-sentence, as destructive of the Heimat (home) that sedentary “ordinary people” crave for. In reality, however, not so much the fight against the “new class” but “irregular mass migration” is his party’s One Big Issue, which it shares with most other nationalist–populist parties. A critic described the parliamentary AfD’s “recipe of success” as “simple”: “Connect all topics to the refugee issue,” to which alone it owes its double-digit voting successes post-2015.67 In its first year in federal parliament, after September 2017, the AfD filed no less than 291 parliamentary requests (parlamentarische Anfragen) on “refugees and asylum,” thus elevating migration into the “presumed cardinal problem of the Federal Republic (of Germany).”68

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critique” of capitalism, valuing authenticity and self-management, while opposing hierarchy. Alexander Gauland, “Warum muss es Populismus sein?” Frankfurter Allgemeine Zeitung October 6, 2018. Krastev (2016:90) noted similarly that, unlike the land- or estateholding elites of the past, today’s “meritocratic” elites will “opt to leave instead of sharing the cost of staying.” Christoph Butterwege, “Populismus, sozial und national,” Zeit Online October 24, 2018. Ibid. The mentioned figure includes parliamentary requests at the sub-federal state (Land) level.

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Populism The Euro-Atlantic world, and beyond, is in the thrall of an extended “populist moment” (Brubaker 2017a), and since the double shock of 2016, inflicted by the successful Brexit referendum in the UK and the Trump election in the US, almost each election time has brought yet another shock. Because “populism” is generally identified as the driving force behind the current “retreat of Western liberalism” (Luce 2017), it is imperative to look at it closer, the concept as much as the reality designated by it. In the most-cited definition by Cas Mudde (2004:543), populism is “an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ vs. ‘the corrupt elite,’ and which argues that politics should be an expression of the volonté générale (general will) of the people.” This definition appositely relates populism to the dark side of democracy, explored with unrivaled acuity by Carl Schmitt (1923), which is radically opposed to liberalism. Populism unveils “liberal democracy” as the tension-riddled synthesis that it is, mobilizing the people (demos) who notionally should rule against the multiple limits imposed on its rule, even in the diluted variant of majority rule, under the name of liberalism.69 Populism advocates “illiberal democracy,” and it “rejects all limitations on the expression of the general will, most notably the constitutional protection of minorities and the independence … of key state institutions” (Mudde 2004:561). In an imposing recent work, Takis Pappas’ (2019:35) “minimal definition” of populism as “democratic illiberalism” is strikingly similar: “Populism is always democratic, but never liberal.” According to Pappas, populism is thus categorically distinguished from “political liberalism,” on one side, but also from “nondemocratic autocracy,” on the other. Scholars have debated whether populism is expression of or enemy of democracy. But from a Mudde–Pappasian perspective, it is obvious that it must be both. Populism harks back to the “ideology” of democracy (Meny and Surel 2002), it is one of “two faces of democracy,” which for Margaret Canovan (1999) is less Schmittian homogeneity than an Oakeshottian “politics of faith.”70 In one account, “populist” is even the 69 70

Mounk’s (2018) analysis of contemporary populism is appositely structured along the tension between “liberal” and “democracy.” The most extreme variant of a positive take on populism is Ernesto Laclau (2005), for whom populism assembles all demands in a society that “remain unsatisfied,” and, in positing a radical alternative, is “the political” itself. In this spirit, Chantal Mouffe (2018a) is ready to see a “democratic nucleus” in Europe’s right-wing populist movements, while naturally favoring a “left populism” that “radicaliz(es) democratic institutions.”

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adjective for one theory of democracy, which goes back to Rousseau, and according to which “democratic governments embody the will of the people” (Riker 1982:9). However, social choice theorists, notably William Riker, have proved it wrong by demonstrating that “the people,” qua aggregated voters, must “speak in meaningless tongues” (1982:239). One does not have to be committed to social-choice wizardry to see that populism, despite its democratic pedigree and pretensions, in reality is a “danger to democracy” (Müller 2016), to the degree that democracy can only be “liberal democracy” that requires pluralism and institutional mediation.71 A compelling case that democracy requires liberalism, now understood as individual rights and limitations on majority power, has been made by Stephen Holmes: “Citizens will not throng voluntarily to the public square if their homes can be ravaged at will by the police” (1995:31). But is it persuasive, as Mudde (2004:543) does, to call populism an “ideology,” even if only a “thin-centered ideology,” following Michael Freeden (1998), that is in need of additional inputs to acquire shape and direction? This would raise the oddity that one “thin ideology,” populism, requires another “thin ideology,” nationalism, to acquire the dignity of a political platform and program that can assemble people across a whole range of issues – though it is incontrovertible that nationalist populism (or vice versa) is an adequate (and often used) formula to denote the typical opposition to neoliberalism in Western states. When forced by events to reflect on it, Freeden himself (2017:10) considers populism “at best a phantom ideology,” a “unique but ideationally insubstantial fingerprint.” Blowing into the same horn, Benjamin Moffitt and Simon Torney (2014:383) noted that “hardly anyone self-identifies” as a populist, and that there is no such thing as a “Populist International.” This suggests that populism cannot be an ideology, however thin or thick, but that it is better conceived of as “political style” (Moffitt and Torney 2014:383) or as “discursive and stylistic repertoire” (Brubaker 2017a:363). This, incidentally, also suggests that, if combined with nationalism, populism is more appositely referred to in adjectival form than as noun, as “populist nationalism” and not as “nationalist populism,” because the weight of political content must be on the nationalist side. Conceived of as style, populism is a “matter of degree,” as Brubaker put it (2017a), rather than kind. As a style, populism can be appropriated by many a political actor, even within the mainstream. In this reading,

71

Similarly, Abts and Rummens (2007), or Galston (2018).

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politicians “can slip in and out” of populist style (Moffitt and Torney 2014:393). So did, for instance, in early March 2017, French presidential contender François Fillon, a leading member of the conservative mainstream, when he rallied the street in a “grand rassemblement populaire” against his “political assassination” by judges and the media over a private corruption affair.72 Also note that, before it became associated with the opposition to neoliberalism, “populist strategy” had been attributed to one of neoliberalism’s earliest protagonists: British Prime Minister Margaret Thatcher. This is because of her “direct communication (with) the mass of the population, bypassing … parties and parliament, using a simple and often aggressive political semantic while invoking popular values and moral common sense” (Offe 1996:326). A leading voice of contemporary left-wing populism even avows to “learn from Thatcherism” the art of building a successful “hegemonial political project” (Mouffe 2018b:ch.2). Conceiving of populism as style rather than ideology also allows relating it to the personalist, mediatized, and spectacle form that politics takes in “audience democracy” (Manin 1997). Within Mudde’s (2004:543) “pure people” vs. “corrupt elite” binary, populism is essentially a procedural critique of party democracy, attacking what academics have described as “cartelization” of party government (Mair 2013). It is important to see that “technocracy” plays an interestingly ambivalent role in this scenario. On one side, technocracy is the target of populism’s procedural critique. “People in this country have had enough of experts,” yelled Michael Gove, a leading advocate of Brexit within the Conservative Party, upon the unanimous warnings by economists that leaving the EU would cause considerable economic harm to the UK.73 But technocracy itself is not unlike populism in advocating an “unmediated politics” (Caramani 2017:54), in which no parties are required to mediate between the common interest of society and elites – only that “reason” takes the role for technocrats that the “common will” plays for populists.74 Conversely, in the technocratic critique, political leaders appear as irrational and “spin-doctored” by public opinion, as chronically populist one might say, whereby the political scene is depicted in exact opposite terms as in the cartel-party hypothesis. In reality, however, populism and technocracy are jointly dismantling the liberal core assumption of party government, which is 72 73

74

www.nouvelobs.com/presidentielle-2017/20170305.OBS6123/au-trocadero-francoisfillon-est-le-seul-qui-puisse-redresser-la-france.html Barry Eichengreen, “The revenge of the experts,” Project Syndicate, August 10, 2017 (www.project-syndicate.org/commentary/economists-right-about-brexit-impact-bybarry-eichengreen-2017-08?barrier=accesspaylog). See also Bickerton and Accetti (2017).

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that “society” can never speak for itself directly, neither through “will” nor through “reason.” In party government, as Daniele Caramani (2017:63) put it aptly, “(t)here is no unitary vision of a volonté générale nor is there a unitary vision of a society’s interest. There are societal cleavages that must be articulated and aggregated.” This is the liberal model that gets squeezed by populism and technocracy alike, revealing the two as illiberal brothers-in-arms rather than as the opponents that they pretend to be. If populism were only that, one way of criticizing party government, it would be of interest to the students of democracy, but not much outside this field – and the notion of nationalist populism would make little sense. However, there is, in addition to the vertical axis of “people” vs. “elites,” a horizontal axis to populism, which posits the “people” against conspicuous “others,” most often immigrants.75 Only if this horizontal axis is factored in, carving out a “space of difference” in addition to a “space of inequality” (Brubaker 2019:12–14), the fact can be accounted for that populism may adopt opposite political colors, right or left. When populism first appeared on the historical map, and in a rare instance of self-designation at that, in the 1890s People’s Party in the American southwest, it was a leftist or “progressive” movement against railroad monopolies, which had raised the transport costs of farm produce. Leftwing populism is “dyadic,” observes John Judis (2016:15), positing people against elites. By contrast, rightwing populism, like the one that predominates in much of Europe today, is “triadic”: “It looks upward, but also down upon an out group” (2016). In response to globalization, one can observe both expressions of populism, rightwing and leftwing. In a rare attempt at explaining this variation, the economist Dani Rodrik (2018:2) refers it to the “forms in which globalization shocks make themselves felt in society.” If globalization is experienced primarily in the form of immigration, as in northwestern Europe, it leads to political mobilization around a cultural cleavage in the form of rightwing populism. This is also driven by the fear of immigrants’ overuse, and subsequent depletion, of the region’s well-developed welfare states, a syndrome commonly referred to as “welfare chauvinism.” By contrast, if globalization is primarily experienced in the form of trade, finance, or foreign investment, and where welfare states are less developed, as in Latin America and, to a degree, in southern Europe, it spurs political mobilization along economic class lines (see also Manow 2018). The United States, according to Rodrik

75

This was first noticed by Taguieff (1995), and further developed by Brubaker (2017a).

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(2018:2), is a “mixed case,” with both – cultural and economic – cleavages simultaneously in place, as expressed in the rightist Donald Trump and leftist Bernie Sanders presidential candidacies in 2016. However, while a commendable attempt to explain the puzzle of right- vs. left-wing populism, this political-economy explanation of populism has obvious limitations. Trump is anti-immigrant and protectionist in tandem. So are northwestern Europe’s populist radical right parties, which are about to establish themselves as the new working-class parties, adopting the welfarist agendas that neoliberalized Third Way Social Democratic parties have largely abandoned – though in distinct colors that are not yet fully developed and consequently still underexplored.76 Furthermore, in eastern Europe, which has seen very little immigration, except in the fearmongering rhetoric of elected leaders, rightwing populists are even in power, as in Hungary and Poland – notably on welfarist platforms that have cushioned or even reversed the brutal neoliberal “shock therapies” that these countries had to undergo after the fall of communism (see Ther 2016). There is agreement among scholars that immigration and concerns about the cultural change brought by it are central to populist nationalism, which in Europe is carried by a new family of fast-growing radical right parties. As one of the first sustained analyses of this phenomenon highlighted, “culture has trumped economics as the singular feature of the radical right” (Art 2011:11). David Goodhart (2017:2) agrees when looking at the “coming of age” of populism in Brexit and Trump as the result of “unhappy white working class voters [plagued] more by cultural loss, related to immigration and ethnic change, than by economic calculation.” A further case in point is one of the latest additions to the European club of radical right parties, the Alternative for Germany (AfD), which acquired electoral momentum only after the Syrian Refugee Crisis of 2015. In the process, the AfD repeated, in fast motion, the typical transformation of Western European radical right parties from neoliberal to nationalist,77 in this case from professorial anti-Euro 76

77

A highly intriguing paper by Busemeyer et al. (2019) shows that supporters of populist radical right parties (PRRP) in six Western European democracies favor a peculiarly “particularistic-authoritarian” model of the welfare state, with medium social transfers (but only to “deserving” categories like the elderly and the disabled, not to the unemployed) and punitive workfare policies; PRRP supporters also oppose humancapital focused “social investment” policies (that imply progressive gender values and endorse non-patriarchal family forms). Naturally, the views of supporters say nothing about the actual contents of PRRP programs. On the strange mutation of Western European radical right parties from 1970s’ neoliberal anti-tax and anti-state into post-1990s’ nationalist anti-immigrant and welfare chauvinist parties, see the interesting reflections by Koschorke (2017). Eger

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platform into rabidly völkisch anti-immigrant party that demonizes Islam as the “big threat” and as “not belonging to Germany” (AfD 2017:34).78 Analyzing the supporters’ profile of 268 parties in 31 European countries, Ronald Inglehart and Pippa Norris (2016:3) influentially concluded that “the classic economic Left-Right cleavage in party competition is overlaid today by a new cultural cleavage, dividing Populists from Cosmopolitan Liberalism.” In their view, concerns about “economic insecurity” are less important than “psychological factors” to favor populist parties: “Older birth cohorts and less-educated groups support populist parties and leaders that defend traditional cultural values and emphasize nationalistic and xenophobic appeals, rejecting outsiders, and upholding old-fashioned gender roles” (2016: 30). Setting the accent slightly differently, Catherine de Vries and Isabell Hoffmann (2016:25) argue that it is not so much “traditional values” but “globalization fears” that best explain support for right-wing populist parties in the EU-28, with “economic anxiety” taking a middle place between the two. However, this finding is partly an artifice of measurement, because “globalization fears” are “most strongly” associated with the “fear (of ) migration” (2016), which (in terms of “anti-immigrant attitudes”) is part of the “cultural values” variable in the Inglehart and Norris survey (2016:27). Accordingly, economics take the backseat to cultural concerns, both in the programs of rightwing populist parties and in their voters’ preferences. Furthermore, it is not the very poor or the unemployed who support such parties – now as before the destitute abstain from the political process. This does not fit with the common view that it is primarily the rich-country “losers of globalization” who fill the populist ranks, which one might also take to be the main message of Milanovic’s “elephant curve” (2012; 2016). Instead, a perceptive review of the “new populism” in Europe found that it “represents not the losers of today but the prospective losers of tomorrow” (Krastev 2017:81). In the United States similarly, the typical Trump supporter is not poor or unemployed but in “fear of the future,” often living in places of decline with neighbors or friends who have seen their jobs disappear due to automation or offshoring (see Mounk 2018:ch.5). The typical member of the Tea Party movement, which helped to shift the Republican Party far to the right during the Obama presidency, has been described as “older” and

78

and Valdez (2015) trace this change by way of a systematic analysis of election platforms of twenty radical right parties in eleven Western European states, for the period of 1970 to 2010. See the most recent overviews by Arzheimer (2019) and Arzheimer and Berning (2019).

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“white” yet “relatively well educated” and “economically comfortable”; and as someone who escaped the “direct blows delivered by the Great Recession” in 2008 yet is nevertheless steeped in “pessimism” (Skocpol and Williamson 2012:20 and 30). The support structure of the Alternative for Germany (AfD) confirms this picture. One study found that the typical AfD supporter holds a middle-level school degree, is a white-collar employee (Angestellter) or self-employed, and disposes of a middle or even higher income. Characteristically, however, she or he displays a heightened subjective feeling of “deprivation” – 27 percent of them are “felt losers of modernization,” which is 50 percent more than in the group of non-AfD supporters (Lengfeld 2017:222). The paradox that AfD supporters are typically in a middle-income category yet still “feel” unjustly treated is confirmed by another survey, which pointedly called the AfD the party of “average earners who feel to be losing” (ausgeliefert fühlende Durchschnittsverdiener, which funnily yields the acronym “AfD”) (Bergmann, Diermeier and Niehues 2017). Finally, note that 73 percent of AfD voters in the 2017 German federal election described their economic situation as “good” and only 23 percent as “bad” – but that 42 percent of them nevertheless felt “disadvantaged” (FAZ-Wahlanalyse 2017). The paradox remains. Those who have seen their fortunes stagnate or even decline over the period of neoliberal globalization, and for whom “progress” is no longer part of their or their children’s life experience, are prone to turn their anger against immigrants and Islam. And they are rather mute about economic elites, in particular the richest 1 percent, who have seen their wealth inflate like perhaps never before in modern history, and who are in no small part responsible for the lower- and middle-class calamities. Radical Right Parties The premier political expression of populist nationalism is a new brand of “radical right parties,” called in a recent overview the “single most successful new post-war political family” in Europe (Wolinetz and Zaslove 2018:12). These parties’ average share of the vote in Western Europe was 17.7 percent in 2017 (Eiermann, Mounk, and Gultchin 2017:13), which is more than double as much as in the 1990s and almost three times as much as in the 1980s (Mudde 2007:2). That is, the ascendance of radical right parties corresponds precisely to the rise of neoliberalism and globalization. The “prototype” (Kitschelt and McGann 1995:ch.3) of radical right parties, the French National Front, scored one-third of the vote in the 2017 French presidential election,

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second only to the winner, Emmanuel Macron’s En Marche. While a spectacular result for Marine Le Pen, it seemed that the popular wave had been halted, for a moment. Six months later, the rightwing Freiheitliche Partei Österreichs (Freedom Party of Austria) (FPÖ) became part of a coalition government in Austria,79 for the second time already since the mid-1990s. The conservative majority party leader, Sebastian Kurz (ÖVP), notably owes his popularity to an ultra-restrictive migration and asylum policy that he took directly from the pages of the FPÖ.80 Between spring 2018 and summer 2019, Italy was even ruled by an all-populist government, the only such case so far in Western Europe. Germany, long held to be immune to the populist surge, has succumbed to it: winning 12.6 percent of the Federal vote in September 2017, the Alternative for Germany (AfD) is now the main (and certainly most vitriolic) opposition party in the Bundestag, subsequently even becoming the secondstrongest party in the southern Land of Bavaria and in much of eastern Germany. While in Western Europe the radical right’s fortunes are fluctuating and unstable, we are unlikely to have seen the peak of it yet. What makes the new parties “right”? When the right–left binary was invented in the French revolution, the word “right” stood for the supporters of the monarch who sat right of the National Assembly’s president, whereas the supporters of the revolution sat left of him. Accordingly, “an extremely banal spatial metaphor” (Bobbio 1996:33) is at the origins of the right–left distinction. Ever since, in France and beyond, “right” has stood for conservation and order, whereas “left” has stood for change and movement. But movement in what direction? As Norberto Bobbio pointed out (1996:60), at the heart of the right–left distinction is opposite attitudes to the “ideal of equality,” born in the modern democratic revolutions. Ever since, “the left is egalitarian and the right is inegalitarian” (1996:62). Since the rise of capitalism, “right” became associated with the defense of private property. This is plausible to the degree that property generates inequality, and “left” promptly became the cause of economic redistribution. Still, the association of the right with the defense of capitalism marked a radical rupture, because originally “right” had been the cause of the old “political class,” the aristocracy, against the new economic class, the bourgeoisie. The precapitalistic meaning of “right” is echoed when the history-conscious

79 80

This coalition government collapsed in May 2019 over a corruption affair of FPÖ leader Heinz-Christian Strache. An Austrian newspaper cartoon showed the FPÖ leader naked in a police station: “They took everything” (“A Dangerous Waltz,” The Economist, February 3, 2018, p.18).

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intellectual leader of the contemporary New Right ridicules the bourgeoisie as the “plebs that turned rich” (De Benoist 2017:127). The association of “right” with economic liberalism persisted throughout the history of capitalism. It also appears in one of the earliest analyses of “new radical right” parties in post-1970s Western Europe, by Herbert Kitschelt and Anthony McGann (1995). They described these parties’ “winning formula” as “right-authoritarian”: “[E]conomic free market appeals … are combined with authoritarian and ethnocentric and even racist messages” (1995:viii). Already a decade later, this description was found wanting. In the meantime, as Cas Mudde (2007:ch.5) pointed out, “populist radical right parties” mostly shed the “neoliberal” positions they might have once held in favor of “welfare chauvinism,” thus in effect becoming the new working-class parties. A six-country comparison (including the United States and five West European countries) confirms the radical right parties’ turn from neoliberal to welfare chauvinist positions on social policy: “There is hardly any European populist radical right party that still embraces neo-liberalism” (Fenger 2018:202). This thematic reorientation is clearly related to the “increasing working-class composition of these parties” (Afonso and Rennwald 2018:185). “Populism is the new socialism,” suggests a recent overview that directly relates the rise of “European populism” to the “crisis of the left” (Goodhart 2017:72). This, however, dodges the element of “chauvinism,” that is, of hierarchy and exclusion, mainly brought against immigrants, that makes these parties “right.” But what makes the new right parties “radical right”? First, most scholars call these parties “radical” and not “extreme” right to distinguish them from anti-democratic and racist parties or movements that advocate something akin to Fascism and National Socialism,81 or that operate by violent or terrorist means.82 Second, these parties differ from the logic of mainstream parties, which – according to the economic theory of democracy (Downs 1957) – seek to maximize votes by appealing to the “median voter” in the middle of the political spectrum. Instead, “radical” parties carve out niche positions either right or left of the “zone of acquiescence,” which are not occupied by mainstream parties (Norris 2005:ch.1). According to Pippa Norris (2005:23), the position “right” of the middle zone of acquiescence today addresses “globalization in all its manifestations,” particularly the “most visible” aspect of it, “immigration,” which she sees as driving a demand for “cultural protection.” The niche-seeking nature of radical right parties

81

See Mudde (2007:31); Minkenberg (2011:40).

82

Norris (2005:45).

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is extremely important to point out, because it shows them militating against the majoritarian logic of centrist parties – there is “a ceiling to their support that prevents them from gaining supermajorities” (Akkerman 2018:18). Despite their recent turn from neoliberal to pro-welfare, it is still incontrovertible that for radical right parties, economic issues are always secondary to their main concern, which is culture and identity. Radical right parties espouse a particular kind of nationalism that Cas Mudde has called “nativism” (2007:19): “an ideology, which holds that states should be inhabited exclusively by members of the native group (the nation) and that nonnative elements (persons and ideas) are fundamentally threatening to the homogenous nation-state.” To the degree that there is a theory underlying this radical right nationalism, it is “ethnopluralism.” A term coined by the French New Right intellectual, Alain de Benoist, ethnopluralism stipulates the “equivalency of homogenous peoples in their indigenous territories.”83 Importantly, De Benoist (2017:56, 86) rejects “racism” because of its suppression of human variety and the putting of one race above all others. However, the New Right’s ethnopluralism shares with classic racism its anti-egalitarianism, the unconditional subsuming of the individual and of her capacities and character to the presumed features of the origin group; and it shares with racism the assumption that, for the sake of purity, a mixing of ethnic groups or peoples is to be avoided at all cost. Yet ethnopluralism differs from racism in shifting the basis of ethnicity from biology to culture and in eschewing the notion of a hierarchy of groups in favor of their equality – the New Right endorses the “variety” of the world’s cultures and of the groups that incarnate them (2017:30). This sounds contradictory, considering that the axiomatic rejection of egalitarianism in favor of inequality and hierarchy self-defines the New Right, and any Right at that. How should the rejection of egalitarianism not be applied to the relations between groups, considering that foreign policy is held to be, with Carl Schmitt, the true site of “politics”?84 Ethnopluralism’s key assumption is the denial of shared humanity in favor of prior particular group membership. This yields a right-wing version of radical multiculturalism whose protective point of reference is not minority groups but the majority group (see Spektorowski 2003). Ethnopluralism, in fact, explicitly borrows from multiculturalism the “right to difference,” but it moves its reference from minorities to the majority and thus turns the right to 83 84

See Weiss (2017:ch.1). “(F)oreign policy (is) the only politics that really counts” (De Benoist 2017:58).

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difference into the rejection of intrastate diversity. The answer to “Black Power” is “White Power.” De Benoist (2017:103) calls it “mutual decolonization”: “What is good for the Bororos or the Guaqaquis should … also be good for us … Let us affirm the right of peoples to be just themselves; the right of all peoples to fully develop themselves, against any kind of universalism and against all racisms.” While of course not as articulate as from the page of a French intellectual, ethnopluralism is a pervasive element of radical right discourse. Take, for instance, the Danish People’s Party, perhaps Western Europe’s most influential radical right party. It defends the “right of the peoples of Western Europe … to their own homelands” (Rydgren 2004:481), and “Denmark belongs to the Danes” is the plain slogan in its party manifesto.85 Similarly, Austria’s FPÖ (2017) avows to “protect the homeland (Heimat), the indigenous population, and the Austrian dominant culture (Leitkultur),” within a Europe of “self-governing peoples and fatherlands,” and “any kind of in-migration (Zuwanderung)” is naturally “rejected.” Unmistakably ethnopluralist is also US President Donald Trump’s foreign policy of “principled realism,” reiterated in 2018 at the United Nations Organization (UNO): “Each of us here is the emissary of a distinct culture, a rich history, and a people bound together by ties of memory, tradition, and the values that make our homelands like nowhere else on Earth … I honor the right of every nation in this room to pursue its own customs, beliefs, and traditions. The United States will not tell you how to live or work or worship. We only ask that you honor our sovereignty in return.”86 Note the complete abdication of America’s classic self-definition as “city upon a hill,” which was John Winthrop’s founding formula of the Massachusetts Bay Community. Even ethnopluralism’s signature objection to immigration is not missing in Trump’s statement, marking also a rupture with America’s “nation of immigrants” identity that had guided its immigration and citizenship policies over the past sixty years: “Ultimately, the only long-term solution to the migration crisis is to help people build more hopeful futures in their home countries. Make their countries great again.”87 While claiming to make America “great again,” which really means that “America stands for nothing uplifting and inspiring” any longer (Krastev and Holmes 2019:144), Trump is actually founding a completely different nation, call it Trumpistan. 85 86

Dansk Folkeparti, The Party Program of the Danish People’s Party, October 2002 (https:// danskfolkeparti.dk/politik/in-another-languages-politics/1757-2/). 87 “Full Text: Trump’s 2018 UN speech transcript.” Ibid.

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As intellectual doctrine, ethnopluralism is in a peculiar double opposition to Islam and to Western liberalism.88 Interestingly, however, at least in De Benoist’s original formulation, liberalism figures as the “absolute enemy,” whereas Islam is only a tactical or “factual enemy,” as New Right chronicler Volker Weiss (2017:ch.8) puts it in the language of the New Right’s revered political theorist, Carl Schmitt. This is because, bigger than the threat by “another identity,” which is Islam, is the threat by the universalistic undoing of all identity, which is attributed to liberalism. Remember the New Right’s bottom line, which is to cherish the “variety of the world and thus the relative inequalities that necessarily follow from them,” while condemning the “increasing standardization of the world through an egalitarian ideology preached since 2000 years.”89 Therefore De Benoist’s bleak description of the European cityscape: “Our cities look more like Los Angeles or New York, less like Istanbul or Tunis. The biggest threat to our identity is not another identity, but political universalism in all of its forms, which threatens national cultures and different ways of life, and which is about to turn the world into one homogenous space.”90 Note that “Pegida,” a Dresden-based antiIslamic street movement, whose acronym stands for Patriotische Europäer gegen die Islamisierung des Abendlands (Patriotic Europeans against the Islamization of the Occident), initially wanted to call itself “Pegada,” the middle “a” standing for “Americanization” in lieu of “Islamization.” In radical right political practice, however, the opposition to immigration, which in Europe has been predominantly Muslim immigration, has clearly trumped the intellectual New Right’s anti-liberal leanings.91 In fact, the centrality of immigrant Islam in radical right party discourse explains why, in addition to nationalism, “civilizational” themes have recently become important for these parties (see Brubaker 2017b; also Joppke 2017e). One such theme is Christianity, however, not

88

89

90 91

Previously, the double opposition was to liberalism and to communism (see De Benoist 2017:ch.8). But already then, liberalism was the “main enemy” (ibid. 198) because communism, with its Marxist intellectual core, was merely the “bad conscience of capitalism” (Jules Monnerot, quoted ibid. 201). As this statement by De Benoist reveals, the “main enemy” is not even “liberalism” but “Christianity,” whose egalitarian “slave morality” the New Rightists have attacked with the help of German nineteenth-century philosopher Friedrich Nietzsche (De Benoist 2017:ch.5). Before they turned to the defense of the “Christian Occident” against the threat of Islam, some radical right parties and their leaders accordingly had a penchant for Paganism and anti-clericalism (see Marzouki et al. 2016). Quoted in Weiss (2017:ch.8). Representative for many, Elisabeth Ivarsflaten (2008) found that it is opposition to immigration, more than the mobilization of economic grievances or anti-elite and antiEU sentiments, what unites successful radical right parties in Western Europe.

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as religion but as culture.92 This entails some curious reversals, because some of these parties had previously dwelled in Paganism, such as the Italian Lega Nord or the French Front National; others had been anticlerical, such as the Austrian FPÖ. These old allegiances echo the original anti-Christianism of the New Right, which is now repressed or discarded in favor of a new enthusiasm for Christianism. As Olivier Roy (2016:186) describes the blatant instrumentalism of these reversals, “most of these parties are Christian largely to the extent that they reject Islam.” Accordingly, the same Lega Nord, which in one bizarre instance had employed a Catholic priest to “re-consecrate” land that had first been made unusable as site for a planned mosque through the spreading of pig urine, would also be in constant conflict with the Catholic church hierarchy because of the latter’s support of irregular migrants and refugees (McDonnell 2016). Stranger still, because in direct contradiction to the deep-seated antiliberalism of New Right thinking, some radical right parties have recently adopted liberal themes. This follows the same instrumental rationale of finding sticks to beat Islam and immigrants.93 The commitment to liberal values increases to the same degree that Muslims are suspected of rejecting them, especially with respect to free speech and gender norms. This pattern can be found above all in some small countries with strong liberal traditions, most notably the Netherlands, whose radical right parties and leaders are as virulently anti-Islam as they are pro-gay and pro-LGBT, so that the very label “right” loses traction. We had already questioned the “rightist” prong of Kitschelt and McGann’s “winning formula” of “right-authoritarian,” because it is wrongly associated with “neoliberal economic policies” (1995:274) that are no longer favored by most of these parties. But even the “authoritarian” prong, which the authors ground in a new “postindustrial” cleavage around lifestyle issues, is increasingly questionable. It is true that a rejection of the “ideas of ’68,” particularly of the individualist, emancipatory, and diverse lifestyles endorsed by them, is a strong element in radical right mobilization. The 2017 party program of the Alternative for Germany, for instance, supports a traditional “picture of the family as father, mother, and children,” and it rants against a “sexual pedagogy of diversity” (AfD 2017:40f ). At the same time, however, one of the AfD’s current leaders, Alice Weidel, is openly homosexual. So is Florian Philippot, until 2017 vice-president and chief brain of the French Front National. Many Western European radical right parties have recently 92 93

See Marzouki, McDonnell, and Roy (2016); also Joppke (2017e). See Akkerman (2005); Vossen (2011); Halikiopoulou, Mock, and Vasilopoulou (2013).

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become “more gay-friendly,”94 even hosting separate gay and LGBT sections, always for the same reason: “The fewer Muslims in Finland, the better,” as an LGBT activist in the nationalist Finns Party expressed the connection between his lifestyle activism and nationalism. The embracing of a “left-libertarian” agenda by certain radical right parties, which Kitschelt and McGann (1995) had located on the opposite “Green” or “post-materialist” end of the new postindustrial cleavage, proves that nationalism, and one that is ethnic and xenophobic underneath the thin liberal crust, is the core dogma of the new parties that trumps all other considerations. This is even more true for the Eastern European variant of radical right parties. They have also been more successful than their Western or Northern European cousins. Obtaining the sizeable regional average vote of 31.6 percent in 2017, which is more than three times as much as in 2000 (Eiermann, Mounk, and Gultchin 2017:7), radical right parties have seized power in the majority of the Eastern member states of the EU, including Hungary, Poland, and the Czech Republic. So strong has been the right-wing populist surge in the East that the “primary competitors to populist governments are themselves populist” (2017:8). In Hungary, for instance, the once virally anti-Semitic opposition party Jobbik has recently moderated itself, for the sake of product differentiation on an electoral market domineered by the far-right ruling Fidesz party. Its leader, Prime Minister Viktor Orbán, has even officially repudiated the “liberal” in “liberal democracy”: “The Hungarian nation is not just an assembly of individuals but a community that needs to be organized, strengthened, even be built in the first. In this sense the new state that we are building in Hungary is not a liberal state but an illiberal state.”95 While this corresponds to the nationalist agenda of all radical right parties, the Eastern European variant is “sui generis” (Minkenberg 2018:1), in at least two respects: first, because of a “more fluid” environment of non-consolidated party systems, which have only recently emerged after the fall of communism, post-1989; and, secondly, because Eastern radical right parties are “ideologically more extreme” than their Western counterparts. Michael Minkenberg (2018:7) calls their dominant mindset “exclusivist ultranationalism,” which is “more openly antidemocratic, anti-liberal, racist, and historically revisionist” than the tamer nationalism of the Western European radical right. Rather than being primarily directed against immigrants, who are just too thin on the ground, Eastern “ultranationalism” homes in on indigenous minorities, 94 95

“Pride and prejudice,” The Economist, July 7, 2018, p.24. Quoted in Bos and Pállinger (2018:7).

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especially Jews and Gypsies; moreover, it tends to be “irredentist,” that is, questioning political borders that do not align with ethnic boundaries. The political science of radical right parties has largely discarded macro-structural “demand-side” explanations of the new parties. This is because the fortunes of these parties vary widely across states, despite a similar structural context of neoliberal transformation. Instead, political scientists have favored smaller-scale and more fine-grained “supply-side” explanations, which focus either on party strategy or on electoral rules that constrain and condition party strategy and its possibilities of success.96 While ultimately favoring an “integrated approach,” Pippa Norris (2005) has pointed out the importance of electoral rules. Radical right parties prosper in “proportional” electoral systems, in which low thresholds for representation favor a “centrifugal” electoral competition, with parties being “dispersed throughout the ideological spectrum and issue space” (2005:27). By contrast, in winner-takes-all, single-memberdistrict “majoritarian systems” a “centripetal” logic prevails, electoral competition being “clustered closely around the center point of the ideological spectrum” (2005:28). This is why small radical right parties, with their niche-occupying cultural-protectionist agendas, are more likely to be found in continental Europe, with its proportional voting systems. By contrast, they are rare to absent in Anglo-Saxon countries, whose majority systems favor broader “catchall” agendas and are inimical to party formation outside the mainstream “zone of acquiescence” (2005:262).

American Exceptionalism Accordingly, while there is a rambunctious subculture of all sorts of racist, nationalist, and fundamentalist movements in the United States, there is no American radical right party. The closest equivalents are the Tea Party movement and, of course, the Trump phenomenon, both of which happened within the ambit of the Republican Party, steering the latter sharply to the right. The point of entry into the American story, which differs profoundly from the European story (or stories), is a sharp polarization between the two main political parties, Republicans and Democrats, which Cass Sunstein has called “partyism.”97 He cites the fact that, in 1960, only 5 percent of Americans would feel “disturbed” if 96 97

For “party strategy,” see Kitschelt and McGann (1995), also Art (2011); for “electoral rules,” see Norris (2005). Cass Sunstein, “‘Partyism’ now trumps racism,” Bloomberg Opinion, September 22, 2014 (www.bloomberg.com/view/articles/2014-09-22/partyism-now-trumps-racism).

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their child married a member of the other political party; by contrast, in 2010, 33 percent of Democratic voters and a whopping 49 percent of Republicans would be “disturbed” by such union. If partyism today “trumps racism,” as Sunstein argues in light of this finding, it is obviously more caused by Republicans than by Democrats. “Extreme partisan polarization,” argue two American political scientists (Levitsky and Ziblatt 2018:9), destroys two norms on which the democratic process rests: “mutual tolerance” and “forbearance,” the latter being the powerholders’ willingness to exercise restraint. The Tea Party, arising in opposition to the presidency of Barack Obama (“not a real American,” in the Tea Party’s view) (2018:161), both reflects and furthers the collapse of “mutual tolerance,” while the Trump presidency is doing its part to unravel the “forbearance” norm. Bizarrely, the Tea Party is a militant pro-market and anti-government movement mainly by those who have seen their fortunes stagnate or decline in the era of neoliberalism, that is, white lower- and middleclass Americans, concentrated in the low-trunk region of Milanovic’s “elephant curve,” the real or potential losers of globalization. Arlie Hochschild (2016) calls this “the great paradox.”98 Barry Eichengreen (2018:181) calls it the “contradictory nature of American populism,” which he refers to the fact that the “(p)eople displaced by globalization and technological change … are also informed by an ideology that tells them government is the problem, not the solution.” Eichengreen quotes one confused voter who bizarrely warned his Congressman to “keep your government hands off my Medicare” (2018), obviously unaware that Medicare is a government program. It is a short step from this mentality to support for Donald Trump – he gives voice to those who are frustrated by their economic condition and at the same time reject government measures to alleviate it, in effect agreeing to further helping the rich. The Tea Party movement stepped into life as spontaneous opposition to Obama’s foreclosure relief plan, which was to help out those who were threatened with the loss of their homes in the 2008 financial crisis. This was “subsidiz(ing) the losers’ mortgages,” CNBC reporter Rick Santelli yelled on television on February 19, 2009, inviting all “capitalists” to a “Chicago Tea Party in July.” So the movement was born. It quickly 98

See also Katherine Cramer, whose ethnography of “rural folks” in Wisconsin finds strong anti-urban and anti-government sentiments, paired with resentment against ethnic and racial minorities who mostly reside in cities. But she hardly finds any animosity to “banks or financiers,” even after the 2008 financial crisis: “Several groups did mention blame of corporations and wealthy chief executive officers. But I heard such mentions only three times in over eighty-eight visits to thirty-nine different groups” (2016:ch.7).

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broadened into a movement to “take our country back,” also from a black president and the minorities presumably subsidized by the federal government. While at its peak no less than 30 percent of Americans held a “generally favorable impression” of the movement (Skocpol and Williamson 2012:20), Tea Partyers showed “an almost total lack of empathy or sympathy for fellow Americans beyond the group” (2012:200) and they were given to “demonizing stereotypes,” “hateful rejection,” and a complete “refusal to contemplate compromise” (2012:201). In a riveting ethnography of Tea Partyers in Louisiana, America’s second poorest state where support for the movement was still high, Arlie Hochschild (2016:ch.9) has condensed their cause into a fictitious “deep story.” This is a story of white lower- and middle-class Americans patiently “waiting in line” for their share of the “American Dream.” However, “the line is unmoving. In fact, is it moving backward?” (2016:136). Enter the “Line Cutters”: “Blacks, women, immigrants, refugees, brown pelicans – all have cut ahead of you in line. But it’s people like you who have made this country great” (2016:139). Now watch on the side, there’s someone waving them through: “Who?… His name is President Barack Hussein Obama … In fact, the president and his wife are line cutters themselves” (2016:139–40). With ordinary white Americans’ protracted “double squeeze” by deindustrialization and “other groups” moving ahead of them (2016:143), the conditions had been laid for Trump’s rise, “like kindling before a match is lit” (2016:221). And not so much “economic” as “emotional self-interest” (2016:228) has kindled their flame. Observing the wild commotion at a Trump campaign rally, Hochschild describes his supporters “as if magically lifted, … no longer strangers in their own land” (2016:225). Trump was “the identity politics candidate of the white man” (2016:230). Impacts With the exception of Eastern Europe, and discounting the special case of the United States, radical right parties are almost everywhere minority parties. This naturally limits their impact. One review found them “dogs that bark loud, but hardly ever bite” (Mudde 2013:14), particularly as they mainly address “sociocultural” issues that remain peripheral to mainstream parties’ continued preoccupation with socioeconomics. Writing earlier in the millennium, Tim Bale (2003, also 2008) pointed out that mainstream center-right parties had taken restrictive positions on immigration long before radical right parties were on the map. In his view, there had never been a “conspiracy of silence” between center-right

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and center-left parties on immigration, as claimed by some.99 Only consider Britain’s panicky closing of New Commonwealth immigration in the 1960s, Thatcher’s fear of being “swamped” in the late 1970s, and a “firm” British immigration and asylum-policy geared toward zeroimmigration well into the late 1990s; or consider the 1980s’ hard-lining against family migration by German Interior Minister Friedrich Zimmermann (of the Bavarian CSU); and, not to forget, the 1990s’ explicit “zero-immigration” policy of French Interior Minister Charles Pasqua (UMP). These are merely some examples from Europe’s Big Three. Note that when radical right mobilizing was not remotely as strong as it is today, Rogers Brubaker (1995:908) already depicted European immigration policy as “chronically populist.” However, it is difficult to deny “contagion by the right” (Norris 2005), as the cordon sanitaire that once separated radical right parties from center-right parties is lifted in more and more countries. A review in 2018 found that “populists are no longer shunned by the democratic mainstream as a matter of course; they are increasingly called into coalitions, co-opted and copied.”100 The number of European governments with populist participation increased from 7 in 2000 to 14 by February 2018.101 In principle, it is possible for radical right parties to be “moderated” as they move closer to power. In practice, however, as a study of party manifestos of 68 parties in 17 European countries between 1980 and 2014 found, mainstream parties, notably of the right and left alike, have increasingly “accommodated” radical right demands, particularly on their signature docket of “liberal-authoritarian” issues (which includes immigration, minorities, and law and order) (Wagner and Meyer 2017). This has been both in terms of the “positions” taken by parties and with respect to the “salience” given to them. Astoundingly, “the mean position of the mainstream left today is about as authoritarian as the mean radical right position in the 1980s” (2017:92). The study concludes that “the old radical right programmatic orientations have become the ‘new normal’” (2017:99), while radical right parties have moved even further to the right. Consider this vignette from the Netherlands, whose domestic policy agenda has been under the sway of populism since the meteoric rise of Pim Fortuyn in the late 1990s. In 1997, Hans Janmaat, leader of the

99 100 101

Messina (1989), Freeman (1995), even Messina (2007:86). “A dangerous waltz,” The Economist, February 3, 2018, p.17. Ibid., 18. Shortly thereafter the number increased to 15, with Italy’s all-populist coalition government that was formed in spring 2018 (but collapsed in the summer of the following year).

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Center Democrats, was indicted and convicted in court for the incitement of “racial hatred” for saying that “Holland is not a country of immigrants,” and that “we will abolish the multicultural society as soon as we get the chance and power.”102 Twenty years later, in 2017, on the eve of an election that favored firebrand populist Geert Wilders to take the majority of votes, Prime Minister Mark Rutte, of the center-right VVD (People’s Party for Freedom and Democracy), published an Open Letter that, by the standard of 1997, would condemn him to spend the rest of his life behind bars. Attacking the “antisocial” behavior of the country’s (unnamed) Muslim minority, such as littering and spitting in the street, and their “abuse” of “our freedom,” including harassing gays, intimidating women in short skirts, and calling ordinary Dutch people racists, Rutte flatly told them to “act normal or leave” (Doe noormal of ga weg).103 Wilders lost against Rutte in 2017. However, “[p]opulists do not need to win elections to enact their policies. They can do so through the very mainstream parties whose votes they threaten to take; infecting them and living off their blood.”104 After winning in 2017, Rutte declared that the “wrong kind of populism” was defeated,105 which is to admit that he had behaved like a populist himself. Incidentally, the Dutch case shows that a busily maintained cordon sanitaire against a radical right challenger, in this case Geert Wilders’ PVV (Party for Freedom), can go along with the adoption of the radical right’s anti-immigration agenda by centerright mainstream parties, like Rutte’s VVD. While Wilders may have lost in 2017, he still won in having set the agenda: “You do not need power to have a lot of influence,” he said.106 Denmark is a second case where the policy impact of radical right parties has been profound, without ever having become a part of government. But since 2001, when a new liberal-conservative government ended almost eight decades of continuous social democratic rule, this new government was critically dependent on indirect support by the Danish People’s Party (DPP). Under its influence, Danish immigration and integration policy became the most restrictive in Western Europe, topping even the Dutch. The DPP was founded in 1995 as a breakaway of the populist Progress Party, which had pursued a neoliberal anti-tax and anti-bureaucracy agenda. The new party exhibited the “new master frame” of radical right parties, being anti-immigrant and ethnopluralist,

102 103 104 106

Quoted in Judis (2016:102). “Lees hier de brief van Mark,” VVD, January 22, 2017 (www.vvd.nl/nieuws/lees-hierde-brief-van-mark/). 105 “A dangerous waltz,” 19. Rutte, quoted by Akkerman (2018:15). Wilders, in ibid. 12.

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on the one hand, and anti-political-elite, on the other (see Rydgren 2004). It appealed primarily to working-class voters: in 2001, when the DPP had its breakthrough with 12 percent of the national vote, 56 percent of this vote was by workers, while the working-class share of the Social Democratic vote was only 43 percent (2004:490). One may thus, quite literally, call the DPP the new Danish working-class party. At the same time, there was no need for the DPP to dissociate itself from an old “extreme right” agenda of biological racism, anti-Semitism, or rejecting democracy, because in a country with a strong resistance movement against the Nazi occupation during WWII, such (un)reasoning had never had a place (2004:478). Unlike France, where the Front National has been kept separate by mainstream parties through a cordon sanitaire, such a separation never existed in Denmark. By the late 1990s, the DPP was taken “as normal as anyone else” (2004:496). In 1999, the later Prime Minister Anders Fogh Rasmussen advocated “system change” in immigration policy, delicately in the DPP journal Dansk Folkeblad (2004:496). Between 2001 and 2009, when his liberal-conservative cabinet was dependent on the DPP vote in parliament, Rasmussen lived up to his promise, passing some of the strictest family reunification rules and toughest civic integration and citizenship requirements in Western Europe. In the wake of the DPP-inspired “system change,” an immigration minister infamously celebrated her fiftieth immigration restriction since arriving in office with a “birthday cake” that sported the proud number “50” and a Danish flag on it. She gleefully distributed the picture on Facebook – “It’s not unseen to celebrate political victories,” she shrugged in disbelief that anyone could see a problem here.107

New Nationalism (II): Statist The line between populist and statist new nationalism is necessarily blurred in a democratic state, because populist parties or leaders always have the possibility to directly or indirectly shape the government agenda. The Netherlands 2017 and Denmark post-2001 stand for the indirect variant, while Hungary under Orbán, Austria under the 2017 ÖVP-FPÖ government, Italy under the 2018 all-populist Cinque Stelle107

Dan Bilefsky, “In Denmark, passage of rules on immigration called for cake,” New York Times, March 15, 2017. Among the fifty restrictions celebrated by Danish immigration minister Inger Støjberg (of the liberal-conservative Venstre party) were the controversial “jewelry law” (confiscating property from asylum-seekers to pay for the processing of their claims) and a drastic reduction of social benefits for asylum-seekers in the wake of the 2015 Syrian refugee crisis.

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Lega Nord government, and, of course, the United States under Trump, are all examples of the direct variant. However, there are also endogenous statist sources of new nationalism that cannot be reduced to populists crossing the line from protest to power. To the degree that these statist forms of nationalism arise in the same context of neoliberalism and globalization, it is apposite to designate them under the same label, “new nationalism,” even though they may have little resemblance with its protest forms, as discussed in the previous section. Here one must distinguish between two different statist logics, a compensatory and a constitutive logic. In the former, nationalist rhetoric compensates for the state’s loss of sovereignty in the neoliberal order; in the latter, nationalism is a constitutive element of the neoliberal order itself, without which the latter could not function, and it may even take on elements of neoliberalism itself. Let me comment on both forms of statist new nationalism in turn. The Compensatory Logic The compensatory form of statist new nationalism is symbolic politics, in the sense that not problem-solving but performance is the point. An example is former French President Nicolas Sarkozy’s attempts to connect “national identity” to a restructured immigration policy, which included the creation of a new ministry that bore “national identity” in its name, the reorientation from “suffered” to “chosen” immigration, as well as the launching of a “great national identity debate.” One study described these measures as “performative enactments of sovereignty at a time when the French state had to persist as a non-sovereign actor in the face of the neoliberal rationale’s triumph” (Ocak 2016:88). The compensatory function of national identity talk is very clear in French immigration minister Eric Besson’s circular that launched the “great national identity debate” in 2009 (among whose curious “first propositions” was to “reaffirm the pride of being French” by “giving all children of France the occasion to sing the Marseillaise at least one time per year”): “In the very moment that the European Union has reached a new state of its integration, and where the international economic and financial crisis demonstrates how much globalization has made the future of nations interdependent, this debate has the purpose to bring together the entire citizenry for a fundamental reflection on what it means to ‘be French’ at the beginning of the twenty-first century.”108 Surely, the immediate 108

French Immigration Ministry, Organisation du grand débat sur l’identité nationale, November 2, 2009 (www.immigration.interieur.gouv.fr/Media/Immigration/Files/

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trigger, mentioned in the same circular, was the “resurgence of certain groupisms (communautarismes), of which the Burka affair is an example”109; and in the same moment the legislative cause for a Burka prohibition was started,110 which responded to a marginal problem but promised to be highly popular and steer voters away from the radicalright National Front. This shows that, in reality, populist and statist motives are difficult to disentangle. The compensatory variant of statist new nationalism is best captured in Wendy Brown’s (2010) analysis of the trend toward wall- and fencebuilding around the developed world, from Israel’s “security fence” against West-Bank Arabs to America’s “border fence” against Mexicans (which notably preceded Donald Trump’s promise to build a “great” and “beautiful” wall)111. She takes this trend as “theatricalized and spectacularized performance of sovereignty” (2010:26), because it is happening in the very moment that state sovereignty is undercut by “transnational flows” of all kinds (capital, people, religious ideas, etc.), by the neoliberal rationality of “Markets,” and by the proliferation of international organizations and postnational law and rights (2010:22). In reality, therefore, “key characteristics of sovereignty are migrating from the nation-state to the unrelieved domination of capital and God-sanctioned political violence” (2010:23). Far from resurrecting sovereignty, the new walls are “icons of its erosion” (2010:24). While this may be in the phantasmal register of Freudian wish-fulfilling (2010:ch.4), it is ultimately rational because, as Carl Schmitt observed, land appropriation is at the basis of political sovereignty: “it is through the walling off of space from a common that sovereignty is born” (2010:47). In sum, states’ symbolic parading at the immigration and citizenship front, which resurrects the ultimate function of states to be territorial people containers, is a statist form of new nationalism, one that compensates for their loss of power in a neoliberal age.

The Constitutive Logic There is a second variant of statist new nationalism that is not compensatory for but constitutive of or even constituted by neoliberalism. One of the earliest analyses of “Thatcherism,” by Andrew Gamble (1988:28), noticed that the “free economy” needed the protection by a “strong

109 111

Circulaire-IMIK0900089C-du-2-novembre-2009-relative-a-l-organisation-du-granddebat-sur-l-identite-nationale). 110 Ibid. See Joppke and Torpey (2013:ch.2). Ron Nixon and Linda Qiu, “Trump’s evolving words on the wall,” New York Times, January 18, 2018.

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state”: “To preserve a free society and a free economy the authority of the state ha[d] to be restored.” In analogy to the famous Böckenförde Dilemma,112 one could argue that the neoliberal order requires certain preconditions that are extraneous to it. The Thatcherite New Right, in fact, was a combination of “liberal” free-market and “conservative” restore-order advocacy, the common denominator of both being the “respect for property.”113 As Anthony Giddens (1999:12) put it nonchalantly, “neoliberals” (a term he uses interchangeably with “new right”) “link unfettered market forces to a defense of traditional institutions, particularly the family and the nation.” In the United States, neoliberalism grew up in tandem with a “new social conservatism,” which harnessed private family responsibilities in the Anglo-Saxon poor-law tradition as substitute for axed federal welfare programs (see Cooper 2017:ch.3). American neoliberals, like Gary Becker and Robert Posner, favored conservative family policies and rejected feminism and sexual rights discourse, not so much because of a principled aversion to libertinism, as because of the costs that this would impose on society (2017:116f ). In the UK, Thatcherism implied the “severest strictures for multiculturalism” (Giddens 1999:12), as is documented in the Tories’ attack on “council radicalism” in the 1980s.114 However, to the degree that multiculturalism has mellowed down to “diversity,” which even business would embrace as new and profitable management strategy,115 this frontline has softened. A comprehensive diagnosis of “late modernity” assembles neoliberals and liberal multiculturalists under the same hat of “apertistic-differentialist liberalism” (Reckwitz 2017:ch.VI). Andrew Gamble’s “strong state” formula (1988), also Giddens’ suspicion that “traditional nationalism” undergirds neoliberalism (1999:12), may adequately reflect the earliest incarnation of the neoliberal regime, but they fail to see that its mature form is perfectly at ease with the new speak of diversity and antidiscrimination. Mature neoliberalism resembles more Wacquant’s picture of a “centaur state” (2010), exclusive only at the bottom but inclusive and cosmopolitan at the top. In a related reading, the nationalist impulse is directed against certain categories of 112

113

114

“The liberal and secularized state rests on certain preconditions that it cannot itself produce and guarantee” (Böckenförde 1976:60). The “preconditions” that Böckenförde had in mind were religious ones, especially the precepts of the Christian gospel. Gamble (1988:ch.2). The restore-order prong of the New Right is directed against the post-68 New Left, which is accused of democratizing and thus putting into question everything, established privilege and inequality in particular. 115 See Joppke (1999:ch.7). See Joppke (2017c:56–60).

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unwanted migrants (family, asylum-seeking, irregular), who are increasingly subjected to “penal nationalism” (Barker 2018), the bringing to bear of criminal law on unwanted migration that had previously been processed in the milder form of administrative law.116 However, under the same umbrella of statist new nationalism, there is also the possibility of neoliberalism, instead being aided by a nationalism that is exogenous to it, having nationalist implications itself, yielding a genuine “neoliberal nationalism.” I refer here to the collective dimension of the neoliberal disciplining that goes under the name of “responsibilization.” This collective dimension is entirely left out in the otherwise excellent study of the “culture of responsibility” by Yascha Mounk (2017). It is easily overlooked because the whole point of the “personal responsibility crusade” (Hacker 2019:ch.2) is to move from “social insurance,” in which risks are pooled according to the principle of “shared fate,” to “personal responsibility,” in which risks are loaded on the individual, while the state as redistributor and protector is moved out of the picture. In an analysis of the devolving US welfare state, Jacob Hacker called this development the “great risk shift” (2019). To the degree that to be responsible for yourself, and to become “an entrepreneur of oneself,” to paraphrase Foucault, is couched as an obligation, as it is in post-welfare workfare policies, the point of it is not to burden the collectivity. Short of another possibility, this collectivity must be the nation. Though it is one that is peculiarly non-ethnic because cleansed of its unproductive parts and thus in principle open to all productive comers. To be or feel obliged to this nation is a form of nationalism, neoliberal nationalism. The classic welfare state had been based on the principle of social insurance, whereby general risks (of accident, illness, old age, or unemployment) were socialized, “mak(ing) each person a part of the whole” (Ewald 1989:390), without attributing any responsibility to the individual for a bad outcome. Social insurance differs in this from private insurance, where premium levels are tied to individual risk profiles. In social insurance, the large number of the mandatorily enrolled cancel out

116

Barker (2018:89) defines “penal nationalism” as “a form of state power that relies on the coercive tools and moral weight of criminal justice to respond to unwanted mobility in the service of national interests.” In the case of Sweden, whose dramatic border closing in response to the 2015 Syrian Refugee Crisis is the subject of Barker’s analysis, the “national interest” identified as the motive force of penal nationalism is the protection of the welfare state, which is a goal shared across all political parties. For an analysis of how criminal law itself has been toughened up in recent decades, to “condemn more and understand less,” as a British Prime Minister summed it up, see Garland’s The Culture of Control (2001) (the quote is from p.184).

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differences in individual risk level (see Garland 2014:341). In a neoliberal context, the logic of private insurance comes to permeate social insurance, tying benefits to individual behavior, as in the introduction of risk premiums for smokers or of obligatory preventive care in the health system. Because social insurance is still obligatory, there is now an “obligation of the insured to minimize the damage to the collective” (Schmidt-Semisch 2000:174). The logic changes from collective “risk and compensation” to individual “guilt and atonement” (Lessenich 2008:31). The “activating” social state seeks to make the individual autonomous in a notionally “contractual” arrangement that exchanges minimized benefits against certain obligations on part of the recipient, such as to perform low-paid work and change his or her lifestyle. Lawrence Mead (1997:4) called it “new paternalism,” in which “the social and individual interest” are forcibly made to “coincide,” “much as parents supervise their families” (1997:5). Two observers thus aptly noticed that “activating” policy goes along with “the state re-positioning itself as representative of collective … interests” (Dahme and Wohlfahrt 2003:30). German Chancellor Gerhard Schröder, who supervised the rebuilding of the German welfare state along “activating” lines, put it bluntly: “There is no right to be lazy in our society.”117 The target of this vindictive statement are the long-term “employable unemployed” (erwerbsfähige Arbeitslose), the contemporary version of the “able-bodied poor” who were locked into workhouses in early nineteenth-century England. Their starkly reduced benefits are under the condition of having to work for the “common good” (Gemeinwohl) in return, by way of volunteering or accepting under-status, low-wage employment. Conversely, as the German Federal Labor Office (Bundesagentur für Arbeit) stipulated, labor market policy has to “make sure that no one receives benefits who dodges his self-responsibility at the cost of society.”118 Whether positively or negatively invoked, the vantage point of “punitive paternalism” is the “common good,” which is to be served by “selfresponsibility” – the demarche is “more self-responsibility that furthers the common good,” to quote again German Chancellor Schröder.119 In a brilliant account of the “reconfiguring of the social” under “flexible capitalism,” Stefan Lessenich (2008:95) summarizes: “Society constitutes itself … as collective subject in the process of demanding common-good-compatible action of the individual, and it conversely

117

Quoted in Lessenich (2008:85).

118

Quoted in ibid. 96.

119

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Ibid. 93.

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knows how to protect itself against those individuals who impose risks on society.” The corresponding “audacity of Republican pathos,” as Claus Offe (2001:459) called it, is notably on the left side of the political spectrum, in its reconstructed “Third Way” or “Neue Mitte” (New Center) variant. That this Republicanism is on the left should not surprise, because in the liberal tradition the common good is never directly aimed at but result of “self-interest rightly understood,” to cite Tocqueville, or of the “invisible hand” of the market, as for Adam Smith. In the “activating” or welfareto-workfare policies, by contrast, the common good is obligation and thus expected to be directly pursued by the individual. Interestingly, the collectivity to be furthered by these policies is rarely named – the two favored terms are “common good” and “society,” which are nationally and ethnically anonymous. However, it is hard to avoid the conclusion that the “nation” must be meant by them. This is because “alternatives are not easy to find,” as a perplexed Claus Offe argues (2001:482). He describes the implicit nationalism of the activating state as “somewhat ghostlike,” considering the post-national condition in Europe and in a globalizing world at large. It is certainly no ethnic nationalism, but one that extolls the civic values of work and autonomy. However, as the main intention is disciplining and exclusivist, “spreading resentment and discrimination” (2001:472), it may still be considered an instance of nationalism, a neoliberal nationalism that arises out of neoliberal reasoning itself.

Conclusion The neoliberalism–nationalism nexus evidently is more intricate than it first appears. The most obvious variant, of course, is new nationalism as reactive to neoliberalism, as an oppositional politics of closure against the most pervasive opening that human societies probably have ever experienced. It is puzzling that this opposition to neoliberalism figures, in political terms, as “radical right,” if one considers that neoliberalism had originally entered the scene as “New Right” itself, in the early 1980s. And it is doubly puzzling that today’s radical right parties, which may be considered the new working-class parties of advanced neoliberalism, have neoliberal roots, in terms of the petty bourgeois anti-tax and anti-state parties of the 1970s, which had to be transformed into the antiimmigrant and welfare chauvinist parties of today to warrant the “radical right” or “neo-nationalist” label.120 Shining through their absence as 120

For “neo-nationalism” of this sense, see Eger and Valdez (2015).

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oppositional force to neoliberalism is the left, which in form of the Third Way even helped complete the neoliberal devolution of the welfare state. That the radical right’s adoption of the vacant opposition role in polities “without alternatives” went along with homing in on immigrants and not the economic elites at the source of their grievance, is puzzling and obvious at once. It is puzzling because this targeting confuses effect and cause. But it is also obvious because immigrants incarnate and symbolize the opening and the loss of security that follow from neoliberalism. However, next to the reactive there is also a compensatory and a constitutive neoliberalism–nationalism nexus, in both of which nationalism is not opposition to but fulfilling positive functions for the neoliberal order. The compensatory logic consists of an economically diminished state that pumps itself up at the people front, thereby returning to the original function of states to contain people and provide for their security and perhaps even meaning. The constitutive logic unfolds over two stages, at first as the New Right nationalism and conservatism that helped implement the earliest neoliberal programs, as under Thatcher in the UK and under Reagan in the United States. However, there is little in the logic of neoliberalism that requires “traditional nationalism,” as Giddens (1999:12) characterized neoliberalism’s early companion. Certainly, the main link is neoliberalism’s contempt for democracy and endorsement of hierarchy that goes along with an unfettered pursuit of freedom. This is also the one justification to call neoliberalism “right” in political terms. On the other hand, note that Hayek (1982:111) called “nationalism” one of the “two greatest threats to a free civilization” (the other naturally being “socialism”), and his “liberal society” implied “conceding to the stranger and even the foreigner the same protection of rules of just conduct which apply to the relations to the known members of one’s own small group” (1982:88). Neoliberalism’s cosmopolitan edge makes it fully compatible with a thin multiculturalism of antidiscrimination and diversity. In fact, some of the same international organizations that have spread neoliberalism, like the World Bank, the OECD, and the European Union, have also come around in favor of multiculturalism, and not even the diluted kind (see Kymlicka 2007). For instance, the World Bank makes loans to third-world states conditional on their compliance with indigenous rights; and the EU has included the respect for minority rights in its Copenhagen Criteria that need to be fulfilled for joining the club. Naturally, the true multiculturalist, like Will Kymlicka, has no good thing to say about “neoliberal multiculturalism,” which celebrates the “cosmopolitan market actor who can compete effectively across state boundaries” (Kymlicka 2013:111), while slighting justice concerns of minorities within national societies.

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More genuinely “new” and directly growing out of neoliberalism is the crypto-nationalist shell of punitive responsibilization, the discursive core of neoliberal social policy, if one wants to call it “social.” The individual is held to take care of herself primarily not for her own sake but not to burden “society.” To call the exaltation of the collectivity of the thrifty and the hardworking, who are to be protected from welfare abusers and the “faulen Säcke” (lazy bums), to quote previous German Chancellor Schröder, a form of nationalism is admittedly stretching the meaning of the term. This is because the primary relation addressed here is the internal relation between individual and collectivity, not the external relation between (state-level) collectivities, which is the usual point of entry for nationalism. We are nevertheless dealing with a form of statist collectivism that is exclusion-minded and discriminatory, interestingly not added on to but generated by neoliberalism itself. Short of another name, what should you call this collective but “nation,” and the defense of it “nationalism” or, perhaps more precisely, “neoliberal nationalism”? One must also consider that welfare dependence and neediness tend to be concentrated in immigrant and ethnic minority populations, so that the flame of nationalism, though now of a more conventional kind, is easily kindled. The populist and statist forms of new nationalism reinforce one another, already because in a democratic regime the boundary between both must be fluid. While more space was devoted in this chapter to the populist variant than to the statist variant, the import of the former should not be exaggerated. In most of Western Europe, support for radical right parties seems to have reached a plateau, at approximately one fourth of the electorate, which gives it visibility in proportional voting systems, yes, but surely no game-changing “supermajorities” (Akkerman 2018:18). In an excellent analysis of the Dutch case, Tjitske Akkerman pointed out that radical right parties have an insidious capacity to “(set) the agenda” (2018:1) and move center-right parties “further right” (2018:16) on their favored topic, which is immigration and Islam. This is dangerous enough. But it is unhelpful to mainstream parties to give in to it, if it is true, as Akkerman claims for the Netherlands (2018:19), that “overall public opinion of immigration has been stable and views of multiculturalism have even become more positive” over the past few years. And radical right parties have a propensity to self-destruct, particularly when they move from opposition to office, because “they promise radical changes that are near impossible to realize” given certain constitutional and coalitional constraints (2018:2).121 121

On radical right parties’ “failure in government,” see already Heinisch (2003). Heinisch argues that these parties’ “movement character based on permanent mobilization and

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If one juxtaposes the neoliberalism and new nationalism parts of this chapter, a paradox jumps to the eye. A thoroughly internationalized state, which on the economic front is reduced to being a service station for globally mobile capital and the interests aligned with it, is also pushed, by forces both endogenous and exogenous to it, to reinforce nationalist closure with respect to people who are still caged by it. For one liberal philosopher (Goodin 1992), it is inconsistent that, while money and other goods move freely, the movement of people is increasingly restricted. To which another liberal philosopher (Barry 1992:282) dryly responded that “people” are not “money,” and that in a world without restricted people movement the whole world would look like “Sri Lanka.” There is truth to both propositions. As the world becomes increasingly one, through technology and a multinational economy, and as a global elite hops around freely, it is scandalous that the vast majority of humankind, in particular the poor in poor countries, are barred from movement, and ever more effectively so.122 On the other hand, if it were otherwise, radical right parties would be majority parties, and the liberal state the state of yesterday. A Gallup poll found that 10 percent of the world population would move to another country if they could, which is more than three times above the current global migrant stock of 230 million people.123 This does not sound much in percentage terms. But in absolute numbers it is: over 700 million people worldwide are ready to move, which is more than the population of Western Europe, the United States, Australia, and Canada combined, the likely dream destination for most of them. Much of the alleged “restrictiveness” of immigration policy in rich OECD countries seems as much necessary not to risk chaos there, as it may be the effect of our heightened liberal sensitivities, which are no longer those of sturdy “liberal” nineteenth-century men like Henry Sidgwick. The Nexus and Membership Policy The state is still nation-state, and perhaps ever more. But it is so increasingly by way of staging and performative desire, in a context of being starved and hollowed out economically and of society becoming more diverse as a result of international migration. A new nationalism imposes

122 123

de-institutionalization” (ibid. 124) creates “unsurmountable difficulties” once they move from opposition to government. Current developments in Austria and Italy seem to confirm this point. On increasingly “selective” border regimes, open for some, closed for most, see Mau et al. (2012). Milanovic (2016:150).

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itself in this context through a variety of avenues – the oppositional, the compensatory, but also to fulfill constitutive needs of or even being constituted by neoliberalism itself. Its primary field is membership policy, which is an umbrella term for the policies that regulate immigration and citizenship. Previously, I had looked at membership policy through the lens of advancing liberalism only – immigration policy that no longer selects by origin and has become increasingly nondiscriminatory; and citizenship policy that has lowered the barriers of access for all comers who meet certain residence requirements, and that has projected increasingly universalistic, inclusive, and diversity-friendly identities. This picture is too monochrome. There is not only one but at least three principles and forces that impinge on membership policy: next to liberalism, there are also neoliberalism and a new nationalism. They are not always easy to disentangle. In retrospect, was the move in immigration policy from “selecting by origin” to “selecting by merit”124 a liberal or a neoliberal move? Probably a liberal logic was dominant at first, but in today’s selective opening toward high-skilled immigration a neoliberal logic has taken over. And if low-skilled immigration is scaled down with a vengeance, a nationalist motive force seems also to be at play, to protect natives at the low social end. In fact, not only is it difficult to dissect liberal from neoliberal vectors shaping membership policy; also, the neoliberalism–nationalism distinction can be a tricky one. Only look at civic integration requirements that put the burden of adjustment on the immigrant. If some have called them “assimilationist,” with their stress on enforcing immigrants’ adoption of host-society norms and values, they hint at a nationalist logic. At the same time, in its (perhaps primary) focus on labor market integration and making people “autonomous” and “self-sufficient,” civic integration carries the signature of neoliberal social policy. This is evidenced by the fact that the German Fördern und Fordern logo, invented in the context of neoliberally restructured social policy, has also been made the official logo of German immigrant integration policy. But isn’t civic integration also liberal, in trying to make immigrants cognizant of liberal-democratic principles and precepts as they settle down or even acquire citizenship? The same policy may obviously inhere elements of all three, and with different emphases and inflections in different contexts and places. One still knows each when one sees it. It is in this spirit, that the following two chapters will examine immigration and citizenship policy and politics, as in the crossfire of liberal, neoliberal, and nationalist principles and forces.

124

I borrow this felicitous phrase from Shachar (2016).

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Courting the Top, Fending-off the Bottom Immigration in the Populist Storm

“The fear of immigration is poisoning Western politics,” and “advocates of liberal immigration … are losing the debate.” So warned The Economist in the wake of Trump, Brexit, and “strident nationalists” at the helm in an increasing number of European states, east and west, each of them owing their success to fearmongering about immigration.1 The diagnosis of the underlying immigration problem rings true: “[S]ince rich countries admit virtually no economic migrants from poor countries unless they have exceptional skills or family ties, many of them try their luck by posing as refugees.” Moreover, this occurs in a context where, as economists agree, the “biggest benefits of moving accrue to the migrants themselves.”2 This constellation logically leaves only two alternatives: admit more less-skilled or even unskilled migrants for whom there is at best a limited need in most postindustrial economies and who are resented by virtually all Western publics (especially their working-class and lower-middle-class portions)3; or enforce existing asylum rules against migrants who “try their luck by posing as refugees,” to repeat The Economist’s entirely plausible diagnosis that is different in tone but not in content from the “fake” or “bogus” refugees of radical right discourse. Note that almost half of new asylum-seekers in Germany in

This chapter has benefited from suggestions and corrections by Holger Kolb (Expert Council of German Foundations on Integration and Migration, Berlin) and Daniel Thym (University of Konstanz). 1 “A way forward on immigration,” The Economist, August 25, 2018, p.10. 2 Ibid. See also Harvard economist Richard B. Freeman (2006:165): “[M]ost of the gains from immigration accrue to the immigrants rather than to the residents of destination countries.” 3 For this aversion there is only a limited economic case. As Freeman (ibid:157) summarizes the reigning consensus among economists, there is at best a “modest or negligible relation between immigration and native wages or employment in local labor markets,” not least because immigrants and natives work in “different…occupations and industries” and both are endowed with different “human capital” (ibid.). Accordingly, as most radical right parties have intuitively grasped, the main case against immigration is cultural, not economic.

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2018 were under eighteen years of age, up from under one-third in this age-bracket in 2014 and 2015; and in the peak year 2015, when Germany opened its doors for all comers, almost three-quarters of Syrian asylumseekers were male (SVR 2019:32–3). It is unlikely that “well-founded fear of persecution,” which is the official definition of refugee under the Geneva Refugee Convention, should be only with those who are young and adventurous enough to embark on the long and perilous journey that asylum-seeking in a Western land sadly necessitates. In reality, this is “mixed migration,” for which the established distinction, also under international law, between “refugee” and “economic migrant” has become obsolete: to knock on a rich state’s door, after having passed through a number of notionally “safe” yet unattractive third states and (always dangerous) international waters, is obviously driven less by the existential need to save than the legitimate wish to improve one’s life. What is the liberal way of dealing with this situation? The (neo)liberal bottom line is that “migration can make the world richer,”4 which applies not least to Western countries with their aging populations and shrinking workforces. However, The Economist’s proposals to get there do not look so liberal at all. “Regaining control” is the first recommendation, which means “to secure borders and enforce laws,” for instance, by clamping down on “illegal immigrants” and “deporting those denied asylum.”5 No radical rightist would disagree. Of course, opinions divide on the demand for “open routes for well-regulated economic migration,” the selling of which to skeptical mass publics, so is the liberals’ reckoning, requires “toughness” at the border.6 With respect to high-skilled immigration, now busily solicited by more and more OECD states, Donald Trump and Europe’s radical right happen to be in agreement: “Switching away from this current system of lower-skilled immigration, and instead adopting a merit-based system, will have so many benefits,” has been a Trump tweet (quoted in Koslowski 2018:117);7 and to admit “qualified migration according to need” is a surprisingly nondemagogic entry in the otherwise rabidly anti-immigrant and anti-Muslim 2017 election program of the Alternative for Germany.8 4

5 7

8

“Crossing continents,” The Economist, August 25, 2018, p.14. According to one estimate, if mobility were unhindered, global GDP would double, the gains amounting to USD 90 trillion a year (“A world of walls,” The Economist, November 16, 2019, p.3). 6 “A way forward on immigration.” Ibid. See also an interview with Trump in The Economist: “I want to go to a merit-based system. Actually two countries that have very strong systems are Australia and Canada. And I like those systems very much, they’re very strong, they’re very good, I like them very much” (“Transcript: Interview with Donald Trump,” May 11, 2017, www.economist.com/ united-states/2017/05/11/transcript-interview-with-donald-trump). AfD (2017:29). How this should be possible in a context of proclaimed “zeroimmigration” (p.31), the AfD program does not say.

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The crux is obviously low-skilled immigration. Unwanted by most states, except in tightly controlled doses, the overwhelming supply of it tends to be redirected to the asylum and family-unification channels, which has made the latter the targets of increasing restrictiveness for some decades now. Considering that the world’s supply of low-skilled migrants vastly exceeds the demand for it, and further considering that the sociology of migration has solidly corroborated the fact that migration begets more migration,9 it is unsurprising that no Western state has as yet pulled off the feat of a sustainable low-skilled immigration policy that would remove pressure from the overcharged asylum and familymigration channels and thus allow states to become more generous and “liberal” in managing the latter. For low-skilled immigrants in high-income states, as Martin Ruhs (2013) has argued provocatively, a “numbers vs. rights” logic applies. This means that accepting lots of them inevitably requires granting them lesser rights, including enforcing their return. States without a human-rights tradition, like the Gulf States, South Korea, or Singapore, do so without much ado, systematically preventing low-skilled immigrants from being joined by their families and from acquiring permanent residence, not to mention citizenship. Western states, which are internally beholden to human rights and equality norms, have many more scruples in this respect. In fact, The Economist’s second not-so-liberal proposal to move “forward” on immigration seems to embrace the controversial “numbers vs. rights” argument, demanding that “migrants” should have only limited access to welfare benefits, and also to make sure that they get into work quickly; and, considering that it is mainly migrants who profit from migration, why not make them pay a higher income tax or even charge them a fee for entry, as economists like Gary Becker have long suggested?10 However, the indiscriminate talk of “migrants” in this context obscures that such grading of rights is viable only for their low-skilled portion. With respect to high-skilled migrants, an opposite logic of “competitive immigration regimes” applies (Shachar 2006), which has even moved some states to offer tax privileges to high-skilled immigrants that citizens and other residents do not enjoy. In Denmark, for instance, whose immigration and citizenship policies have been under the thrall of the populist Danish People’s Party for most of the new millennium, 9

10

Massey et al. (1993:451) speak of “cumulative causation”: “[E]ach act of migration alters the social context within which subsequent migration decisions are made, typically in ways that make additional movement more likely.” “A way forward on immigration”; “Crossing continents,” p.16.

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high-earning immigrants pay lower taxes than citizens, at least in their first three years, which does not seem to bother the populists.11 The important matter is that the proposal of lesser rights for low-skilled migrants to make them socially acceptable, at first sight, does not seem to be so different from the “welfare chauvinism” that radical right parties have come to subscribe to in recent years, which seeks to restrict social benefits “to the ethnically defined community who has contributed to it” (Careja et al. 2016:436). This is not to deny that nuance and degree matter. There are important differences between radical rightist and liberal(-realist) ways of dealing with immigration. Just consult the average radical right party manifesto. The Alternative for Germany, for instance, advocates an “immediate closing of the borders” to stop “unregulated mass immigration into our country and into its welfare system by predominantly unskilled asylum-seekers” (AfD 2017:29). Furthermore, their alarmist calling for the “self-preservation” (Selbsterhaltung) of the German “people” (Volk) in light of a looming “mass exodus” (Völkerwanderung) from Africa has a not-so-subtle racial inflection (2017:28), as has its demonic picture of Islam as “a big threat,” as “not belonging to Germany,” and as in irreconcilable “conflict with the liberal-democratic order” (2017:33–5). In the same genre, the Austrian FPÖ opposes “any kind of in-migration (Zuwanderung)” (conceding, however, to “grant asylum”), considers Islam “not a part of Austria,” and favors the “sectoral closure of the Austrian labor market for EU-foreigners and thirdstate nationals to protect domestic employees,” which is in obvious contradiction with EU law (FPÖ 2017). So is the French National Front’s call for inscribing the “national priority” into the French constitution (FN 2017). The list of radical demands that conflict with current constitutional and statutory realities could be prolonged – including “welfare chauvinism” strictly defined, which draws a sharp line between citizens (presumed to be de souche and co-ethnic), on the one side, and permanent residents (and all other migrants), on the other side, that none of the mentioned “numbers vs. rights” proposals would condone. Any reflection on immigration policy, past and present, must first acknowledge its structural restrictiveness, which is affected by radical right nationalism in degree but not in kind. In his magisterial history of 11

The Danish 1992 Researchers’ Tax Scheme applies to all foreign researchers and to foreign professionals in other sectors who earn above EUR 100,000 annually, reducing their tax duties over a period of three years to a 30 percent flat rate. By 2014, similar preferential tax schemes for high-skilled immigrants existed in Sweden, Finland, Belgium, Netherlands, Portugal, Spain, and Switzerland. See Kleven et al. (2014:333–9).

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the American immigration experience, Aristide Zolberg (2006:13) noted that on a “hypothetical continuum ranging from ‘open’ to ‘closed’,” the immigration policies across capitalist democracies are “clustered very narrowly around the ‘closed’ pole,” even in a classic immigration country like the United States: “[T]he contemporary regime retains a ‘near-zero baseline’ with regard to the supply of entries in relation to the demand for them” (2006:13f ). On the one hand, the restrictive immigration regime is a function of the “Westphalian” international state system; more importantly still, it helps maintain the “privileged position of the ‘core’ states amidst highly unequal conditions,” with borders serving “to prevent labor from commanding the same price everywhere” (2006:14). Zolberg might have added that the wealth-preserving function of borders has recently come under massive attack, albeit less by immigrants than by capital that moves to places where labor is cheap and pliable. In one account, capital mobility even explains why especially low-skilled immigration is “more restricted” today than it was in the late nineteenth century: “[T]he easier it is for a firm to move its factory to another country, the less likely it is to support open immigration at home” (Peters 2017:3). Again on target, however, is Zolberg’s (2006:453) observation of a “striking asymmetry” of the (not so) liberal migration order: while the “right to leave” is universally affirmed, particularly after the fall of communism, there is no corresponding “right to enter.” There is even an “unambiguous consensus on the opposite … that every state has the right to restrict the entry of foreigners” (2006:453). Brian Barry (1992) defended this asymmetry on the assumption that states are “associations,” and that the nature of an association is to choose its members freely. However, this assumption is disproved by the fact that one is usually born into a state, not choosing it, and that one is existentially dependent on the state, which is not the case for ordinary associations. But then, concludes Zolberg (2006:455), the acknowledged “right to leave” imposes on “liberal democracies as a whole an obligation to keep their doors open to a substantial extent,” and not in terms of “mercantilist” policies that deprive developing countries of their best but of admitting “less skilled workers” (2006:457). This openness is also “in keeping with our dawning awareness of the interdependence of all the segments of the human species” (2006:454).12 Never has the liberals’ problem with national sovereignty as founding principle of the international order been 12

See already Bhagwati (1984:681), who finds that “this asymmetry (between free emigration and controlled immigration) does not make sense if one adopts the singleplanetary approach to rights.”

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more crisply and credibly articulated, also because Zolberg is in full awareness that there is no realistic alternative.13 How little the world is ready to compromise, even symbolically, on unfettered state sovereignty on immigration is demonstrated by the curious spectacle surrounding the rather tame 2018 UN Global Compact for Migration. Its preamble clearly states that it is “non-legally binding” and “uphold(ing) the sovereignty of States”; it does little more than “acknowledge” some “shared responsibilities” in the regulation of international migration, and it was drawn up partly at the behest of “panicked European leaders” seeking better migration management after the 2015 Syrian Refugee Crisis.14 Nevertheless, it came under heavy attack, naturally with the busy hand of Europe’s populists, their rather fantastic charge being that some of its “soft law” recommendations to deal humanely with migrants could one day harden into legally binding commitments, perhaps even forcing states to acknowledge a “human right” to migration, and thus opening the floodgates for uncontrolled mass immigration.15 In reality, the UN Migration Compact does not change the basic fact, observed by a leading political economist some thirty-five years ago, that international migration is the “most compelling exception to liberalism in the operation of the world economy” (Bhagwati 1984:680), and that there is “virtually no international Code of Conduct” in this domain: “[R]estrictions are entirely a matter of national sovereignty, with practically no international constraints other than [countries’] own conscience” (1984:697). However, the single most influential political science statement on immigration policy in liberal democracies, by Gary Freeman (1995), has argued that, due to an interest-group dynamic, this policy is in reality “broadly expansionist and inclusive,” contrary to a mostly restrictive political elite rhetoric. Interestingly, Freeman does not mention at all the “low- vs. high-skilled” migrant distinction, which in the meantime has become the central axis of immigration policy, in effect fragmenting the latter into “policies” in the plural, each taking a rather different direction. A comparison of broadly conceived “migration policies” in 13

14 15

See Zolberg’s skeptical view of what he calls the “Melville principle,” which is the great American nineteenth-century novelist’s advocacy of free migration, proposed as remedy to the Irish Great Hunger that killed two million Irish and drove as many to emigrate to North America: “For the whole world is the patrimony of the whole world; there is no telling who does not own a stone in the Great Wall of China” (Melville, quoted in Zolberg 2006:455). Zolberg finds that this is no solution in “a world that consists of a 1000 Irelands, and in which there is in effect an infinite number of ships” (2006:456). “Unbelievable,” The Economist, December 8, 2017, p.27. See Helene Bubrowski, “Global und unverbindlich,” Frankfurter Allgemeine Zeitung, November 7, 2018, p.8.

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forty-five (mostly OECD) countries since 1945 still confirms Freeman’s analysis of general policy “liberalization,” which merely “decelerated” but was not reversed in the post-1990s period of increased politicization and nationalist mobilization (De Haas et al. 2016:334).16 Yet the real message of Hein de Haas et al. (2016:353) is that immigration policies are becoming ever more complex and selective: “[M]igration regimes have not become more restrictive, but rather increasingly complex through a differentiation of policy instruments and a growing emphasis on criteria such as skills as a tool for migrant selection.” Particularly noteworthy is the stated decline of ethnic and nationality-based selection criteria, unless the discriminatory direction is positive (as in the EU or Mercosur free-movement regimes);17 and, parallel to this, there has been a rise of class-based selection criteria, such as skills, education, and wealth. Ayelet Shachar (2016) summarized the process in the formula that immigration policy has moved from “selecting by origin” to “selecting by merit.” This yields a world of “stratified” and “selective” mobility, marked by a “tension between restrictive closure (for the many) and selective opening (for the few)” (2016:179). Pioneered by the Canadian points system, the spirit of meritbased migration regimes is “technocratic, econometric, and managerial,” while “explicit discrimination on prohibited grounds such as race, ethnicity, and national origin is strictly prohibited” (2016:183 and 188). Skillselective migration policy obviously combines a neoliberal utility with a liberal rights logic, and it is to be seen how much (or little) a nationalist exclusion logic has been able to affect it. Interestingly, a rather critical diagnosis of “global convergence” toward a “new mean-spirited politics of immigration,” by Catherine Dauvergne (2016:2), does entirely without factoring in resurgent nationalism. This is all the more astonishing as the three factors identified by her as bringing about this convergence: the asylum crisis, the fear of Islamic fundamentalism, and the end of multiculturalism, have everywhere been central to contemporary nationalist and populist engagements. In her story, neoliberalism does all the dirty work. According to it, there is a “competitive migration convergence” from North America 16

17

In De Haas et al. (2016), “migration policies” comprise (entry and exit) control, selection, and integration policies. Helbling and Kalkum’s (2018) study of all OECD states’ immigration policies between 1980 and 2010 confirms the “liberalization” trend, while emphasizing that this trend has been counterpointed by the establishment of “more restrictive control mechanisms … to help monitor whether migration policies are adhered to” (such as carrier sanctions and other measures) (ibid. 1780). This confirms my earlier claim that “selecting by origin” has declined in the liberal state (Joppke 2005a).

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to Europe, centering on the dualism of attracting high-skilled immigrants and keeping out (de facto low-skilled) asylum-seekers and family migrants. Much like Shachar, Dauvergne observes that this occurs in a “non-discriminating” posture, ignoring “cultural, ethnic, and even racial values” in favor of a “neutral selection” on the basis of merit-rewarding schemes (2016:174). Still, the perplexing result of merit-based migration is that “people cannot migrate in search of a better life; they migrate because they have a better life” (2016:175). This turns on its head the “traditional logic of immigration,” not only in the North American settler regimes. Most interesting about Dauvergne’s dark analysis is what she calls the “loss of settlement.” Even a classic “settler society” like Canada has moved away from a preference for permanent to one for temporary migrants, much as has always been the case in Europe. In 2006, Canada for the first time admitted more temporary migrants than permanent immigrants, increasingly asking its newcomers – now preferentially acquired through the student route – to gradually “earn” their right to permanent residence, while this status may be lost at any time through “bad” behavior on their part (Dauvergne 2016:127).18 She calls the new phenomenon “trial migration,” driven by an economic logic that “states no longer need people but rather ‘widgets’.” Without framing it this way, Dauvergne’s “new politics of immigration” bears the undeniable mark of “neoliberalism,” a shrunken form of liberalism that abhors discrimination yet reduces the individual to her economic uses. While perhaps no novelty in Europe, with its “guest-worker” legacy, this does seem to be new in a “normative immigration country” that had previously looked at immigration policy more holistically as “selecting parents of future citizens” (Macklin 2017:286). As I shall argue in this chapter, the structure of immigration policy in the neoliberal age is to “court the top,” in terms of soliciting high-skilled immigration, and to “fend off the bottom,” which is to restrict low-skilled migration, the latter closely overlapping with the restriction of family and asylum migration. As I shall further claim, this dual structure is affected by new nationalism only at the surface, not in essence. The logic of both policies is fundamentally different, so that it no longer makes sense, if it ever did, to conceive of “immigration policy” in the singular. As two authors have put it, a “disaggregated view of migration policy” is needed: “(B)orders can simultaneously open … and close,” and “different

18

By 2013, the ratio of temporary to permanent migration in Canada further increased to 2:1 (Cook-Martin 2019:1395).

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processes and actors” are involved in both processes (Somerville and Goodman 2010:967).19 In my own formulation, the logic of high-skilled immigration policy is one of “soliciting” flows where previously no flow existed, and which can never be big enough, also because of competition with other states. Accordingly, high-skilled immigration is almost never politicized,20 not even in countries with strong radical right parties and nationalist mobilization. By contrast, the logic of low-skilled migration policy is one of “stemming” flows that notoriously exceed the demand for this type of migration, rendering it susceptible to chronic politicization by radical rightists.21 Another way of putting the matter is that “in regard to the unskilled, supply of immigrants exceeds demand in rich countries, and this fuels illegal immigration and flooding of false asylum entries into them” (Bhagwati 2004:213). By contrast, “in regard to the skilled, demand exceeds supply in the rich countries,” creating grievance mainly in the “poor countries (that) generally worry about having too many leave” (2004). In a nutshell, low-skilled immigration policy is by nature restrictive, already without any radical right input, while it is notoriously suspected of being not restrictive enough, fueling the wheels of nationalist mobilization; by contrast, high-skilled immigration policy is the opposite of restrictive because the numbers are always below expectation, and accordingly it tends to be off the radar of politicization. The bifurcation of immigration policy into soliciting high-skilled and stemming low-skilled migration is ubiquitous today, from Singapore to Germany and Canada. It is a novelty of the era of globalization. Previously, migration regimes could be distinguished as following a guest-worker, a postcolonial, or a settler society logic, and sometimes a combination thereof (see Joppke 1999). Common to the guestworker and postcolonial regimes, dominant in Western Europe in the post-WW II period, was the notion that the migrations processed by them were historically finite, and eventually to be reduced to zero. 19

20

21

Somerville and Goodman (2010) show along the British case that asylum policy, under the Labour government of Tony Blair (1997–2007), corresponds to the hypothesis that autonomous elites shape migration policy (developed by Statham and Geddes 2006), while economic migration policy confirms the client politics hypothesis of Freeman (1995), according to which concentrated interest groups (like business and employer associations) shape migration policy. An exception is “millionaire migrants” (Ley 2010), often arriving through immigrant investor programs, who may be resented for driving up local house prices and related problems. This sort of politicization can be observed in some major Canadian and Australian cities, like Vancouver or Sydney. For the “stemming” vs. “soliciting” distinction and its implications for immigration policy, see Joppke (2002; 2011).

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Germany, which had recruited guest-workers from the late 1950s to the early 1970s, was the self-declared “kein Einwanderungsland” (“not an immigration country”), but also Britain and France, more beholden to a postcolonial logic, pursued zero-immigration policies well into the 1990s. The global “race for talent” (Shachar 2006), starting in the midto late-1990s, has rendered this anachronistic. Political elites throughout rich societies, including Singapore or South Korea, now agree that immigration is not a one-shot event but a recurrent process, required for economic or even demographic reasons, and its political processing – inclusive of the high-skilled and restrictive of the (de facto or de jure) low-skilled – looks similar everywhere. At the same time, the initial model held high for evolving European immigration policies was the North American or Australian model of permanent immigration with generous host-society reception and routine transition to citizenship – Anna Boucher and Justin Gest (2018) call it the “liberal model.”22 In the meantime, the kafala system of the Gulf States has shown an entirely different way for rich states to deal with labor migration, keeping it strictly temporary with a minimum of rights. This trend has acquired momentum. By 2008, there were already 50 percent more temporary than permanent migrant workers entering an OECD country (in absolute numbers, 2.3 million temporary vs. 1.5 million permanent new migrant workers) (2018:9). As even Canada and Australia have fully embraced the trend toward temporary migration, and thus have turned from a holistic “nation-building” to a more narrowly “economic” view of migration, the “end of settler societies” may be nigh, the New and the Old Worlds converging under a neoliberal arc (Dauvergne 2016:141). In their comparison of “migration regimes” in thirty major immigrantreceiving countries around the world,23 Boucher and Gest (2018) indeed found these regimes converging on a new “market model,” which is labor-focused and restrictive on family migration; favors temporary over permanent migrants; exhibits low naturalization rates and a lesser focus on rights; and combines maximum flexibility for governments with instability for migrants. While the neoliberal pedigree of this model is obvious, according to Boucher and Gest (2018:6), it may also be seen as assuaging mass publics’ “nativist and xenophobic” leanings. 22 23

Boucher and Gest (2018:ch.1) attribute the “liberal model” to Freeman (1995) and to earlier work of mine. The notion of “migration regime,” as defined by Boucher and Gest (2018), combines the selection and integration functions, and it is measured by the type of “visa mix” (work vs. family vs. humanitarian), the ratio of temporary entries, and naturalization rates.

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“Nationalists” are fond of temporary migration, David Cook-Martin observes (2019:1390), because it “will not affect the composition of the people.” At the same time, the fact that migrants are “affirmatively selected” under this model allows hiding its categorical exclusions. The market model thus “permits governments to have it both ways – effectively sanitizing globalization from its purported ills while enjoying the economic benefits that it brings” (Boucher and Gest 2018:6). Courting the Top: High-Skilled Immigration Selecting by merit and skill originated in the Canadian points system of 1967, followed by Australia twelve years later, in both cases replacing racially selective immigration policies. Interestingly, the original version of both points systems included subjective and personality-related features, dubbed “personal suitability” in the Canadian system, and the latter initially even rewarded family ties with Canadian citizens for increasing immigrants’ “adaptability.”24 These noneconomic criteria were subsequently removed or relaxed in favor of “core employability factors,” as the word was in Australia for skill, age, and linguistic ability (Walsh 2011:865). With their increasing emphasis on quantifiable human-capital indicators, the points systems were “elevated as tools of neoliberal government,” as James Walsh put it (2011). In Europe, the turn to high-skilled immigration took off not before the late 1990s, coinciding with the rise of globalization, and in most cases responding to acute labor shortages in the IT sector. The two pioneers are Germany and Britain, two previous champions of zero-immigration, and in both the turn happened under “Third Way” Social Democratic and Labour governments, respectively (see Boswell and Hampshire 2017). In Britain, under Prime Minister Tony Blair, the new buzzword was “managed migration.” Never before had migration in Britain been framed as tool of economic development. In a programmatic speech in September 2000, Home Office Minister Barbara Roche euphorically depicted the UK as “in competition for the brightest and best talents— the entrepreneurs, the scientists, the high technology specialists who make the global economy tick” (quoted in Cerna 2016a:159). By 2002, Britain had its Highly Skilled Migrants Program, Europe’s first points system, which followed the Canadian Model in its human-capital orientation (i.e., not requiring a work contract), and it provided permanent residence after four (later five) years. 24

See “Canada’s immigration policy: No country for old men,” The Economist, January 10, 2015, p.42–3.

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Germany, the Pioneer However, Europe’s first country to adopt a high-skilled immigration policy was the previous “no immigration” country, Germany. Because of its radical turnaround, but also because Germany followed that path more persistently than any other country in Europe, it merits closer attention. Germany’s first foray into the unknown terrain, the “Green Card” scheme announced with great fanfare at an industry fair in 2000 by Chancellor Gerhard Schröder, turned out an equally great failure. Targeting IT specialists from the fabled Bangalore, India’s version of Silicon Valley, this misleadingly labeled “Green Card” was limited to five years, it was issued only when no German or EU citizen could be found for the job, and it did not allow family to join the visa holder. By June 2003, the original expiration date of the scheme, only 14,566 of the 20,000 allotted Green Card visas had been filled, while there was an estimated labor shortage of 75,000 in the IT sector (Cerna 2016a:114). What the Germans had not understood is the competitive nature of bidding for high-skilled migrants, who always have other, more attractive places to go. In contrast to the UK, where the turn to high-skilled immigration was due to a forward-looking government, in Germany it was the result of strong industry pressure, which started in the mid-1990s. Interestingly, the Federation of German Employers (Bundesvereinigung der Deutschen Arbeitgeberverbände, BDA) accompanied its campaign for “international mobile high flyers,” which should ensure the continued “competitiveness of Germany as a place to do business,” with the negative recommendation that “more stringent procedures and increased deportations should render asylum less attractive” (quoted in Menz 2011:540). This was to make their demand acceptable to a skeptical electorate, and to “avoid any signal that could be understood in countries of origin that immigration for non-labour market related reasons will be expanded” (2011). From the start, the opening for high-skilled immigration implied efforts to restrict other migration channels, thus foreshadowing the typically dual migration regime of the neoliberal age. Curiously, the German industry push for high-skilled immigration brought it in collision course with the traditionally industry-friendly Christian Democratic Party (CDU), but which happened to protect native high-skilled workers and continued opposing immigration in general. Still in spring 2000, the CDU campaigned with the racially loaded slogan Kinder statt Inder (Children instead of Indians) in the North Rhine–Westphalian state elections, albeit without success. On the opposite side, the pro-migration lobby’s gold standard was a Canadian-style

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points system, which came to be proposed in 2001 by the Expert Commission Zuwanderung gestalten, Integration fördern (Managing Migration, Furthering Integration). But it failed after an acrimonious struggle, even involving the Constitutional Court at one point, in the CDU-controlled Bundesrat (the second chamber of parliament). The SPD–Green government’s long-awaited Zuwanderungsgesetz (In-Migration Act) of 2005, for which the agreement of the migrationskeptical CDU opposition was required, was a predictable half-way house. This was already written into the hesitant title of the law, because Zuwanderung (in-migration) is less than Einwanderung (immigration). Its Article 18, in principle, opened the door for “qualified” labor migrants. However, the door was still half-closed because, in addition to the requirement of a work contract, applicants had to pass a labor-market test and no domestic worker had to be available for the job. Under Article 19, the labor-market test was waived for narrowly defined “highly qualified” migrants, who were also given more generous family rights. In a rather revolutionary move, these elite migrants were even granted a permanent residence permit on arrival. This departed from the European approach of granting only temporary residence at first, with permanent residence having to be earned over time. Instead, the immediate Niederlassungserlaubnis (settlement permit) under Article 19 embraced the settler state logic of permanent immigration ab ovo. However, Article 19 narrowly targeted academics and scientists, and for other “specialists” the income threshold was put exceedingly high, at EUR 85,000 per year (reduced to EUR 62,000 in 2008). Accordingly, the high-skilled intakes continued to be low. In 2006, for instance, there were 165,000 reported vacancies, among them 48,000 unfilled engineering positions, at considerable cost to the economy (Menz 2011:542). And between 2006 and 2010, the average annual number of permits for ICT specialists, graduates, and “highly qualified” workers (under the demanding Article 19) was not higher than 2,995, 2,505, and 155, respectively (Green 2013:339). After smaller liberalizing moves in 2007–8, the breakthrough came in 2012. This was under a CDU–FDP coalition government, with the small liberal party pushing the somewhat reluctant conservative Volkspartei, while the SPD in opposition was torn between a pro-migration leadership and the skeptical Arbeitnehmerflügel (employee section).25 The breakthrough was in terms of a law that implemented the EU Blue Card

25

Information provided by Holger Kolb.

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Directive26 in the most generous way: no labor-market test was required; permanent residence was made available after only thirty-three months, even twenty-one months in the case of “sufficient” German language competence (the EU Directive allowed as many as sixty months); while a work contract continued to be required, the offered salary could be as low as EUR 36,200 per year in “shortage professions,” like IT, engineering, or medicine; and there was the immediate right for accompanying family members to work. Henceforth, over 90 percent of all EU Blue Cards have been issued in Germany (Lehner and Kolb 2018a:1184). Most importantly, the 2012 law also inserted a new clause into the Aufenthaltsgesetz (residence law, the first part of the 2005 Zuwanderungsgesetz) that was entirely unrelated to the Blue Card: the famous Article 18c. It allows any foreigner with a university degree to enter Germany to look for a job for the period of six months, albeit at own cost and without the right to work in this period. This breached the otherwise strictly maintained work-contract requirement in the evolving German (and European) regime for high-skilled immigration, while adopting a Canadian-style human-capital logic, as under the classic points system no work contract is required. However, very few entered under the astonishing Article 18c, which in principle invites the entire degree-holding portion of humankind to look around for a job in Germany: 475 in 2013, and 1,116 in 2014 (Finotelli and Kolb 2015:6). One must assume that the word has not (yet) passed. German migration experts now agree that German labor migration policy, which with the Fachkräfteeinwanderungsgesetz (Skilled Workers Immigration Law) of June 2019 has opened up even for qualified workers without a university degree,27 suffers more from a lack of “adequate marketing” than from legal-regulatory deficits (SVR 2015:17f ). The OECD, at least, has noticed the German opening. Already by 2013, it declared that Germany was “among the OECD countries with the fewest restrictions on labour migration for highly skilled occupations” (Kolb 2014:68f ). However, the free-movement right under EU law constitutes 26

27

The EU Blue Card Directive, passed in 2009, sets a framework for the regulation of high-skilled migration, without, however, claiming to replace national rules and prerogatives. The 2019 Fachkräfteeinwanderungsgesetz, among other measures, expands the “open door” Article 18c to qualified migrants without a university degree. Note the changed nomenclature: for the first time, the word Einwanderungsgesetz (immigration law) is used. This is all the more noteworthy as the law was prepared under the conservative CSU Interior Minister Horst Seehofer, who has otherwise competed with the populist radical right for being tough on refugees and Islam. Two legal experts argue that, while celebrated in political circles as a “paradigm change,” the new law only “makes it official” what Germany has long had: an “immigration law” (Lehner and Kolb 2018b).

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a “functional equivalent” to a high-skilled immigration policy, naturally limiting its scope (2014:67).28 Progressive voices in the German immigration debate continue to call for a Canadian-style points system, last the SPD in 2017 (see Lehner and Kolb 2017). However, legal experts consider this “anachronistic” and “difficult to integrate” into a German immigration law that already is open for high- and now also medium-skilled immigration. Furthermore, advancing EU law has minimized the range of maneuver for member states on labor migration.29 Canadian Model? Curiously, while the Canadian points system is still the model to aspire to for many, Canada has in the meantime moved in the opposite direction, prioritizing temporary migration over permanent immigration, and adding employment criteria to its human-capital focused points system. A comparison of Canada and Germany’s high-skilled migration policies thus found “more similarities than differences” between the two, registering in both countries the emergence of “hybrid systems” that mix human capital with employment- and occupation-based criteria (Kolb 2014:57).30 Temporary migration and the requirement to hold a work contract, which tend to coincide, greatly increase the role of employers in the selection of migrants, while reducing the role of the state. They thus “advance the neoliberal agenda” (Walsh 2014).31 As the Canadian Immigration Minister, Jason Kenney, expressed this shift colloquially, “employers are going to do a much better job at selection than a passive bureaucracy” (quoted by Lenard 2018:226). Interestingly, in Canada the 28

29

30

31

In 2011, for instance, when an expansive high-skilled immigration policy was well on its way, there were only 37,000 new third-state labor migrants in Germany (14 percent of the third-state migration total in that year). This is miniscule compared to the 500,000 EU migrants entering Germany during the same year. While their motive need not be declared, one must assume that a “significant share” of them entered to take up work (Kolb 2014:67). Lehner and Kolb (2018a); also SVR (2018:29–36). Catching up with the near-complete Europeanization of family and asylum migration, the domain of labor migration meanwhile sports four EU Directives that regulate high-skilled migration (Blue Card, 2009), (low-skilled) seasonal migration (2014), intra-company transfers (2014), and researchers and students (2016). In addition, the so-called “Single Permit Directive” of 2011 “equalizes” the work and residence conditions of nonpermanent third-state workers with that of European Union workers in many respects. Occupation-based selection prioritizes shortage professions, while employment-based selection requires a work contract. Both are to be distinguished from human-capital based selection, which prioritizes skills, language capacity, and age. Comparing this trend in Australia, Canada, and Sweden, see also Wright, Groutsis, and van den Broek (2017).

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neoliberal agenda was pushed by a conservative government, under Stephen Harper (2006–15), that at the same time pursued a nationalist agenda of rejecting multiculturalism and refashioning Canada “from settler society to warrior nation” (Macklin 2017).32 However, the Canadian turn also responded to inherent dysfunctions of its evolving points system. One must know that pure human capital selection, which prioritizes university education while labor-market needs are discarded, was achieved not before 2002, in that year’s Immigration and Refugee Protection Act.33 This quickly proved problematic, in terms of escalating processing times and exorbitant visa backlogs: waiting times reached sixty-eight months, with a backlog of 800,000 visa applications by 2006 (O’Shea 2009:15).34 At the same time, protective closure by Canadian professions led to gross skill–job mismatches,35 yielding the proverbial picture of South Asian engineers and doctors (whose foreign degrees are not recognized) driving taxis in Montreal or Toronto. In addition, the wages of high-skilled immigrants, especially those with “visible minority” background, fell much below those of Canadians (see Buzdugan and Halli 2009). The rigidity of the points system – officially called Federal Skilled Workers Program, (FSWP) – led to various attempts to bypass it, particularly through increasing the role of provinces in immigrant selection (the Provincial Nominee Program) and using the already existing channels for temporary migration to allow employers to find the workers that they needed. Of particular importance was the creation, in 2007, of the Canadian Experience Class (CEC) visa. It allows high-skilled foreign workers, who have been in Canada for two years under the Temporary Foreign Worker Program (which dates back to 1973), to advance to permanent residence; it also targets foreign students after graduating from a Canadian university. Crucially, applying the so-called within levels principle, for every immigrant accepted under the CEC program

32

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Macklin (2017) describes Harper’s attempts to model the “good citizen” on the “good soldier,” through commemorating wars in ceremonies and monuments, and foregrounding the role of the Canadian Armed Forces in public life (including in citizenship ceremonies). In Australia, a similar combination of neoliberal immigration policy with nationalism had been pioneered a decade earlier by the conservative government of John Howard (1996–2007). O’Shea (2009:22) denoted the stronger emphasis on labor-market needs a return to the “roots” of the points system, whose initial version of 1967 had prioritized “occupationsin-demand” and previous work experience. By 2016, waiting times were even up to eight years (“What’s the point?” The Economist, July 9, 2016, p.49). In 2004–5, only six of ten immigrants under the FSWP, surveyed four years after entry, used their skills and experience “adequately” at work (Desiderio and Hooper 2016:6).

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there is one place less available in the regular points system (FSWP), thus further increasing the backlog there (O’Shea 2009:20). In 2012, 280,000 applications received before 2008 were simply scrapped and the fees paid back, while a six-month pause on new applications was imposed (Boyd 2014:50). Importantly, with the CEC a European-style “two-step” migration was introduced, in which permanent residence is acquired not from the start but only over time, and which by now has become standard in the classic immigration countries also.36 It shifts the burden and the cost of integration entirely on migrants, because temporary migrants are not eligible for settlement services. And it allows a maximum of flexibility and a close linkage of labor migration with economic need and available jobs. The process was completed in the 2015 Express Entry or Expression of Interest (EoI) system, which was copied from New Zealand (2003) and Australia (2009). Properly highlighting the key role of employers in Canada’s new immigration system, the responsible minister, Jason Kenney, likened it to a “dating service to connect employers with prospective immigrants.” Differently formulated, immigrants are no longer selected according to their “talent for citizenship” but according to having a job at hand, while immigration policy moved “from a policy based on civic values to one governed by commercial logic.”37 The EoI system formally reinstates the lexical priority of the human capital element in Canadian immigration policy, because access to the pool of eligible immigrants occurs through passing a minimum of points for education, language, and age. However, taking the points hurdle means no more than being “shortlisted” for immigration, because one gets drawn out of the pool mainly by an employment offer – or perhaps never, because after

36

37

In the United States, the equivalent to CEC is the H1-B visa for temporary high-skilled workers, which was introduced in the 1990 Legal Immigration Act. While issued for a period of three years (renewable once), the H1-B is a “dual intent” visa that allows its holders to simultaneously apply for a permanent residence permit, the famous Green Card (see Koslowski 2014:31) (for the increasing lack of international competitiveness of the H1-B, which is lowly capped compared to the high demand for it, entails work and other restrictions on spouses, and due to a cap on green cards also is difficult to convert into permanent residence, see Wadhwa 2018:ch.4). In Australia, until 2018 the equivalent was the 457 (Business) Visa introduced in 1996; it was valid for four years, allowing its holders to bring their family, though denying them access to settlement services, social security, or health-care benefits; 457 visa holders could separately apply for permanent status (see Wright, Groutsis, and Broek 2017). In 2018, the program was replaced by two separate (short and medium term) visa categories, limiting the permanent residence option to the medium-term visa in order to ensure that “Australian workers … have priority for Australian jobs” (Birrell 2017:2). “Canada’s immigration policy: No country for old men,” The Economist, January 10, 2015, p.41.

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two unsuccessful years an “expression of interest” to immigrate is simply removed from the pool (Finotelli and Kolb 2015:5).38 Perhaps the central feature of recent Canadian immigration policy has been the rise of “probationary immigration” (Ellermann and Gorokhovskaia 2019). Its elements are an increasing propensity to recruit temporary migrants, the transition from one- to two-step migration, but also the withdrawal of permanent residence status from refugees who are no longer in need of protection. Antje Ellermann and Yana Gorokhovskaia (2019) dub the new phenomenon the “impermanence of permanence,” which is strangely reminiscent of Europe’s guest-worker past. Importantly, the transition from temporary to permanent residence for labor migrants is almost exclusively reserved for the high-skilled. In 2014, for instance, just 1,400 low-skilled workers could graduate from temporary to permanent status, which is 2 percent of all economic immigrants; by contrast, over 56,000 high-skilled workers acquired that privilege in the same year (2019:5).

The Student Route A further convergence across OECD states is toward recruiting highskilled immigrants through the foreign-student route. Since the 1970s, the global number of foreign students has increased by a factor of four, particularly in the United States, Germany, France, and Australia (Czaika 2018:14). While initially, especially in Anglo-Saxon countries, the primary interest in foreign students was due to the significantly higher fees that they could be charged compared with domestic students, the interest gradually shifted toward considering foreign students as prospective immigrants. International students, as an account of the Australian experience put it, where their number grew fivefold from the early 1990s to 2012, are “designer migrants” and “ideal neoliberal subjects” (Walsh 2014:591): they are self-funded and even pay an extra-high fee for being there; by being allowed to work on the side, they simultaneously fulfill certain needs for low-wage and low-skilled workers; they integrate or even assimilate along the way at their own initiative and cost; and after graduation they are of prime workforce age, no burden for the social 38

The Express Entry system did not immediately work as intended. In its first year, fastfood supervisors and cooks were top employer choices, way ahead of the envisaged IT specialists. Subsequently, the job-offer points that allow applicants to be drawn out of the pool were drastically reduced, from 600 to 200 or even 50, while additional points were given to graduates of Canadian universities (Koslowski 2018:121). However, Arranged Employment remains important through the Provincial Nominee Program, where a job at hand continues to count 600 points.

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state, and equipped with domestic degrees that do not meet any regulatory barriers. That amounts to a win–win–win–win, at the least. In 1999, Australia pioneered the immigrant turn in foreign-student recruitment, not just removing a three-year return obligation after graduation but also including bonus points for Australian degree holders in its skilled migration program. By 2002, 50 percent in this program had entered as international students (Koslowski 2018:122). In 2005, the United States followed suit, adding to its 65,000 H1-B visa limit per year a 20,000 contingent for advanced-degree holders from a US university. Since 2012, Canada, next to its foreign student preference in the CEC, formally allocates 500 permanent resident visas per year to Ph.D. earners at a Canadian university – which is about 10 percent of all Ph.D.s awarded in Canada each year. No wonder that the number of foreign students increased significantly, by over 80 percent in Australia and the United States between 2005 and 2015, and by 60 percent in Canada over the same period (2018:122–4). A similar removal of previous obstacles for foreign students to pick up work and permanent residence after graduation, with a corresponding exponential increase of student numbers, can be registered in Europe. In 2011, 21 percent of all new residence permits in EU member states were given for “educational reasons,” half of which issued by the UK alone. This is not that much under the largest third-state migrant entry category, which is family reunification with 30 percent of the total (EC 2012:10). Between 2000 and 2010, the number of international students grew by 114 percent, over twice as much as in North America (55 percent). In the same period, Europe was even by far the preferred destination for international students worldwide (41 percent of the total), followed by North America (21 percent) (2012:11). The Quiet Radical Right By 2018, two-thirds of OECD states had high-skilled immigration policies, and one report even augurs that the “majority of migrants moving to highly developed OECD economies will soon be tertiary educated” (Czaika 2018:5). Most countries espouse the “hybrid systems” exemplified by Germany and Canada, which mix supply-side (human capital) and demand-side (labor-market) elements. Importantly, “high-skilled migration policies have not seen a major backlash by becoming more restrictive” (Czaika and Parsons 2018:36), weathering even the 2008 financial crisis without any impairment. Indeed, high-skilled immigration policy has generally remained outside the radar of populist–nationalist mobilization. The Alternative for

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Germany (AfD), for instance, in its 2016 program, even recommended the “Canadian Model” to be emulated in Germany, somewhat illinformed on the level of convergence that had already been achieved between the high-skilled policies of both countries: “Immigrants who are qualified for the labor market and who show a high intention to integrate are welcome” (AfD 2016:62). Denmark, where the populist Danish People’s Party helped to drastically restrict family migration in the early millennium (see next section), also underwent a “significant liberalization” of its high-skilled immigration policy in the same period, by 2012 ranking among the most open OECD countries (Cerna 2016b:1616). As a result, there are now “two parallel migration universes in Denmark, one that is open for the skilled expats … and another one that is closing off towards non-solicited migrants and refugees” (Duru and Trenz 2017:630). Denmark thus exhibits the typically dual structure of immigration policy and surrounding migration reality in the neoliberal era. While family migrants and refugees are under the stick of one of the harshest and most punitive integration policies in Europe (as barely concealed selection and control policy), the self-described “expats” proudly and openly reject learning Danish and assimilating culturally because this would undercut their “diversity” capital, which is exactly what global companies value in them. Deniz Duru and Hans-Jörg Trenz’s intriguing ethnography found that most expats “primarily socialize with other expats and not with their co-nationals or Danes,” and that they look at Danes rather amused as “nice, calm and helpful but also as odd, distant, closed,” while ridiculing “Danishness” as “a kind of tribal attribute” (2017:624). One such expat expresses the typical mindset of high-skilled migrants that states are competing for: “We are not immigrants, we are expats. This is the thing they [the Danes] should distinguish because an expat can go somewhere else and contribute to another society easily” (2017:627). Fending-off the Bottom: Family Immigration As the antonym to “high-” is “low-,” it would be logical to continue with an account of low-skilled immigration. However, low-skilled migration consists of two quite different streams that need to be kept separate: a portion that is legally processed as labor migration, and for which there are official programs in most states; and another portion where the qualification of migration as “low-skilled” is not legal but factual, as in the case of (much of ) family, asylum, and irregular migration. With respect to the latter, it is at best a reasonable assumption that the

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migration processed through these channels (or not processed at all, as in the irregular variant) is predominantly low-skilled. Furthermore, the non-labor portion of low-skilled migration is distinct in being “unwanted” in an analytical sense: it happens not because of an interest on the part of the state, as is the case in labor migration, but in recognition of a right on the part of the migrant or of a resident or citizen, as in asylum and family migration, respectively; or it simply happens due to a control failure of the state, as in irregular migration. With respect to labor migration, Martin Ruhs (2013) argued conclusively that “high-income countries” are more open to high-skilled immigrants, if only because they pay more taxes and are not likely to use up social services. Conversely, “[m]ajor migrant-receiving states have no overwhelming interests in more low-skilled labour migration” (Kuptsch and Martin 2011:52). If the latter are accepted in larger numbers, this is at the price of lesser rights for migrants. Philip Martin (2006) has described the opposite treatment of high- vs. low-skilled labor migrants as “red carpet” vs. “red card,” or “Welcome the Skilled, Rotate the Unskilled.” The catchy formula suggests that temporariness (“rotate”), while increasingly a feature of high-skilled migration as well, is structurally woven into the processing of low-skilled migration. The latter is almost by definition “temporary and seasonal” (Hampshire 2013:61), as already the classic notion of “guest-worker” suggested. If the temporariness of “guest-worker” schemes tends to be more strictly observed today than in the past,39 at least at the level of policy intention,40 this reflects the factoring in of political opposition to migration, which has become epidemic in the meantime. In James Hampshire’s formulation (2013:62), temporariness helps “avoiding both the political risks of permanent immigration and the social costs of integrating long-term immigrants.” Second-class or “red card” treatment of low-skilled migrants goes without much ado in countries without a human-rights tradition and without strong domestic equality norms, such as the Gulf States or Singapore. These countries admit low-skilled migrants in huge numbers but systematically prevent them from settling down and even keep them 39

40

While classic guest-worker policies were rather uneven in implementing temporariness, say, more successful in Switzerland, less so in Germany (see Ellermann 2013), overall their experience was that temporariness was difficult to achieve. Workers were called, but human beings arrived, as Swiss writer Max Frisch summed it up. Dauvergne and Marsden (2014:528) observed that even today, where the insistence on temporariness is more strictly enforced, “neither the workers nor their jobs are actually temporary. The ideological function of ‘temporary’ as a descriptor masks this persistence.”

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apart as a lower caste that must not mingle or bond with natives.41 Such a stance is more difficult, if not impossible, in Western states beholden to human rights and equality norms. Philip Martin (2006) formulates the dilemma well: “The fundamental issue is that migration is motivated by differences, but migrant conventions call for equality. If migrants were truly ‘equal’ in receiving countries, fewer would be demanded, as exemplified by mechanization in agriculture when wages rise.” If “equal participation”42 is the liberal-progressive lodestar of immigrant integration in Western states, this is organized hypocrisy. Because without inequality there would not be migration in the first place – at least to the degree that the latter is low-skilled labor migration. The fact of lesser rights is circularly involved as cause and regulatory frame of this migration. The likelihood of being low-skilled or even unproductive and socialbenefit clamoring is one reason why family migration, which I shall focus on in this section,43 has been on the restrictive radar of Western governments, particularly in Europe, ever since the closing-down of guestworker migration in the early 1970s. In Europe, the linkage between “family” and “low-skilled” is a simple network effect, “reflecting past large-scale recruitment of low-skilled migrants” (Bonjour and Kraler 2015:1417), who later ask to be joined by a spouse or children. This linkage is much less apparent in the classic immigration countries. In the United States, legal quota immigration, post-1965, has been mainly through admitting broadly defined family members. A family-focused selection system was created in the intention to minimize ethno-racial change after the shelving of the old racially selective immigration policy had become necessary in the civil-rights era.44 However, the familyfocused quota system came under attack precisely with the onset of globalization in the late 1980s, the charge being that it did not provide 41

42 43

44

In Singapore, low-skilled migrants are not allowed to marry citizens, and pregnant females are subject to deportation (see Ruhs 2013:119–20). For east Asia, including Malaysia and Singapore, see Lenard (2014). In Germany, for instance, the official definition of “integration” is “gleiche Teilhabe” (equal participation). See SVR (2018:70). In this section, I could also have discussed asylum migration or explicit low-skilled worker programs. Asylum and family migration policies are more interesting than lowskilled worker programs, because they involve individual rights that need to be circumvented for any restrictive effort. Asylum and family migration are also numerically more important than the low-skilled worker programs, which are small in most countries. Because asylum migration will be covered later, in the section on the German response to the 2015 Syrian Refugee Crisis, I decided in favor of family migration. It has constituted the bulk of immigrant flows in most European countries over the past half century. This conservative expectation naturally went badly wrong. See Joppke (1999:25–8).

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the skilled immigrants that America’s economy needed. This attack was deflected by ethnic lobbying, and in the 1990 Legal Immigration Act a positive-sum solution prevailed of simply adding on new skill-based visa to the already existing extensive family quotas (Joppke 1999:38–44). In Canada and Australia, with their skill-focused points systems, the share of the family intake has been much smaller than in the United States, between one-third and one-quarter (Kofman 2004:244).45 But, initially at least, they were also more generous than European countries, particularly toward non-nuclear family members, which reflects their legacies as settler nations. Consider the following presentation of the 1976 Canadian Immigration Act, which included a generous provision for parents and grandparents: “When Canada accepts immigrants, we consider ourselves duty-based also to accept those close relatives who would normally be dependent on them in a society such as our own” (quoted in Ellermann 2019a:7). This has changed.

Canada Turns Restrictive When Canada, under the Conservative Harper government (2006–15), moved toward a more neoliberal immigration policy, in the sense of favoring temporary migration over permanent immigration, this went along with a “systematic discounting of family-based migration” (Root, Gates-Gasse, Shields, and Bauder 2014:68), even with respect to nuclear family.46 The age limit for “dependent children” was lowered from “under 22” to “under 19,” and exceptions for “over 18s” who were full-time students were removed.47 During their first two years, the permanent residency for sponsored spouses was made conditional. In addition, new applications by parents and grandparents within the family reunification program were first suspended for two years, increasing 45

46

47

In the United States, family immigration constitutes about two-thirds of legal quota immigration, even after the addition of new skill-based quota in 1990. These figures do not, however, include “accompanying family of workers,” who are counted separately in the mentioned countries. Adding them would lift the family share of legal immigration to 70 percent in the United States and to over 50 percent in Canada and Australia (these are 2006 figures, quoted in Joppke 2011:235). Already a decade earlier, under the Liberal government of Jean Chrétien, there had been a “neoliberal” reorientation of Canadian immigration policy, pushing the human capital element in the points system while reducing family migrants as “non-contributors” (see Abu-Laban and Gabriel 2002:ch.3). Harper went further, as described in the following. Apparently, there were cases of adults in their twenties and thirties eligible for family reunification in the “dependent children” category, if they were enrolled in postsecondary education. See Meagan Fitzpatrick, “Don’t bring parents here for welfare, Kenney says,” CBC News, May 10, 2013 (www.cbc.ca/news/politics/don-t-bringparents-here-for-welfare-kenney-says-1.1351002).

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waiting times to eight years, and then capped at the very small number of 5,000 per year, further increasing the backlog. Moreover, the sponsors’ required income level was raised by 30 percent, and they had to cover income support costs for the first twenty (instead ten) years of residency. At the same time, a multiple-entry “Super Visa” over a maximum period of ten years was introduced for parents and grandparents, which requires the purchase of a one-year health insurance even for much shorter visits (see Chen and Thorpe 2015).48 These restrictive family migration measures were to forfeit an “abuse of Canada’s generosity,” as Immigration Minister Jason Kenney explains (Forcier and Dufour 2016:5). He further said: “If you think your parents may need to go on welfare in Canada, please don’t sponsor them. We’re not looking for more people on welfare, we’re not looking to add people as a social burden to Canada.”49 The minister did not hide the neoliberal underpinnings of his attack on extended family migration: “There have to be practical limits to our generosity. We have to calibrate … limits based on our country’s economic needs, our fiscal capacity. There is no doubt that people who are coming who are senior citizens, they have much, much lower labour-market participation and much higher levels of utilization of the public health system” (Root et al. 2014:67). As one critic lamented, under “Harper’s pit bull,” which is Jason Kenney, the Canadian immigration ministry, Citizenship and Immigration Canada (CIC), turned from “instrument of nation building” into “gigantic manpower agency” (McDonald 2014). Europe: From “Suffered” to “Chosen” Immigration, and Its Liberal Limits In Europe, restricting family migration was at first an attempt to close down “secondary immigration” after (predominantly male) “primary” guest-worker and postcolonial immigration had been put to a halt by the early 1970s (see Joppke 1998:281–2). Accordingly, reducing family migration was in the service of achieving zero immigration, the dominant policy imperative at the time. This turned out mostly ineffective, because of domestic constitutions and international conventions that protect family rights. Family migration continued being Europe’s major source 48

49

Under Trudeau, many of the Harper-era restrictions on family migration were removed (such as the lower age limit, spousal conditionality, and the low cap on parent and grandparent visas); however, the Super Visa and higher income hurdles have been retained. Kenney quoted in Fitzpatrick, “Don’t bring parents.”

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of persistent legal immigration despite the reigning zero immigration objective, constituting between 40 and 60 percent of all legal immigration (Groenendijk 2006:215). An entirely new chapter and rationale of reducing family immigration in Europe opened up under French Interior Minister Nicolas Sarkozy in 2005, who set out to move from “suffered” to “chosen” immigration. Importantly, this meant abandoning the zero-immigration objective. According to Sarkozy, the latter had become anachronistic in the light of “new economic and demographic needs”: “Globalization requires a growing circulation of brains,” and “a country that closes itself off is a country that becomes sclerotic.”50 Yet this opening was to occur within a zero-sum frame of replacing unwanted family immigration with wanted high-skilled immigration. In Sarkozy’s terms, a “better equilibrium” between “work” and “as of right” immigration had to be achieved.51 This was a euphemism, because his instruction, after gaining the Presidency in 2007, to move the labor-to-family migration ratio from 10:90 to 50:50, was mission impossible, not least due to legal–constitutional constraints (see Fassin 2009).52 Sarkozy had a point, however: France had one of the lowest levels of labor migration in Europe, with just 7 percent of all legal intakes in 2005 and even less, 5.8 percent, in 2006 (Kofman, Rogoz, and Lévey 2010:6 and 17). At the same time, the French rate of family migration was one of the highest in Europe, with almost 60 percent of legal inflows in 2006 (Joppke 2011:236). Most of this intake hailed from North Africa and Turkey, in numbers that even exceeded intra-EU flows,53 and the bulk of it was low-skilled and it entailed a high level of unemployment and welfare dependency.

50 51 52

53

“Déclaration de M. Nicolas Sarkozy,” French National Assembly, June 9, 2005 (http:// discours.vie-publique.fr/notices/053001871.html). Ibid. However, it must also be said that big French employers showed little interest in recruiting high-skilled workers from abroad, relying instead on established alumni networks of the French elite schools. After the introduction of a carte de séjour compétences et talents under Sarkozy in mid-2006, no more than 300 high-skilled immigrants entered under it by 2012 (see Cerna 2016a:ch.6). The low figure was also due to a “co-development” proviso written into the policy, which was to counteract the phenomenon of “brain-drain” in poor sending countries. The “competences and talents card” was replaced in 2016 by the “talent passport” (passeport talent). In 2006, France was the only country in Western Europe whose top three migrantsending countries continued to be postcolonial or guest-worker-legacy (Algeria, Morocco, and Turkey, in this order). Because primary immigration from these countries had long come to an end, the bulk of these flows had to be family-related. Elsewhere in Europe, other EU states were by now top-sending migrant countries; while free movement was an EU citizen right since 1992, it continued to be overwhelmingly work related. See Joppke (2011:222).

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Incidentally, Sarkozy announced his new immigration policy shortly after French voters had rejected the EU constitution draft in late May 2005, and he took this vote as rejection of the “globalization” for which, he believed, “Europe” stood: “The truth, my friends, is that this vote is the expression of a deep crisis of mistrust: mistrust of the capacity of Europe to get the best out of globalization, while assuring protection against unemployment, dislocation, suffered immigration, terrorism; mistrust of France’s capacity to maintain its place in the European competition.”54 Obviously, popular fears of neoliberalism had to be reconciled with a neoliberal immigration policy that envisaged the “circulation of brains, in a win-win for receiving and sending countries.”55 Therefore it was important, and not a small rhetorical feat on the part of Sarkozy, to present a neoliberal immigration policy as an “expression of France’s sovereignty,” a “choice.” And it was important to back it up with firm action against a family reunification that, while corresponding to “our values” and a “right” protected by the constitution, was still deemed “out of balance” and marred by “numerous frauds,” in particular “marriages of convenience” and “forced marriages.”56 One observer plausibly concludes that Sarkozy’s “from suffered to chosen” logo, as well as the larger national identity campaign that accompanied his immigration policy, was a “performance of sovereignty,” meant to “compensate for the losses that the French citizens experience as a result of the reign of neoliberal policies” (Ocak 2016:82). However, the move toward restricting family migration should not be seen as attempt to preempt the radical right – Sarkozy would do that only later in his Presidency, and with gusto. Instead, this restriction occurred in a rather progressive context of optimizing “Republican integration” through bringing about “equality of chances” for immigrant minorities, which included ambitious plans for “positive discrimination” (which never saw the light of day).57 Eventually, in laws passed in 2006 and 2007, the French government adopted the typical array of restrictive measures against family immigration that other Western European countries would (or already had) adopt(ed) at that time, including raising the minimum legal residence period of sponsors and requiring financial independence and sufficient housing on their part, while introducing an “integration from abroad” test for the migrant spouse. From 2006 to 2007, with some of these measures in place, the number of French residence permits for family reunion indeed decreased by almost 11 percent (Fassin 2009). However, the intended 50:50 work-to-family

54

“Déclaration de M. Nicolas Sarkozy.”

55

Ibid.

56

Ibid.

57

Ibid.

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ratio could not even remotely be achieved; in 2010, 86,000 new family migrants stood against only 24,000 new labor migrants (Cerna 2016a:216). The zero-sum extremity and philosophical explicitness of moving from “suffered” to “chosen” immigration was specific to France. However, throughout Western Europe, there was a simultaneous opening up for high-skilled immigration and a “restrictive turn” in family immigration, which dates “largely from the mid-2000s” (Strik, de Hart, and Nissen 2013:59). Germany, for instance, exactly as it ventured toward highskilled immigration, was also among the countries to push hardest for a restrictive EU-level regulation of family immigration, notably under a Left-Green government that was entirely unbothered by any radical right pressure. The EU Family Reunification Directive, passed in 2003, bears the imprint of the countries most interested in a restrictive outcome, which were Germany, the Netherlands, and France (Block and Bonjour 2013). Among other measures, the EU Directive allows setting the minimum age for spousal migration rather high, at twenty-one years, and it controversially allows subjecting the movement of children above twelve years to the “integration conditions” set by member states – which was very much wanted by Germany, to set in European stone a restriction that already existed at national level. Conversely, the EU Directive allowed the French government to subvert strong domestic constitutional constraints and political opposition to stricter family reunification rules (2013:215). While the EU Family Directive was at first opposed by pro-migrant forces (including the European Parliament) for its restriction-”enabling” possibilities, it turned out surprisingly restriction-”constraining” (Block and Bonjour 2013). It even heralded a sea-change from an “intergovernmental” to a “communitarized” EU migration law that brought “more liberal policy outputs and outcomes” (Bonjour, Servent, and Thielemann 2018:412). A leading sociologist of EU migration law and initial critic of the Family Directive conceded that its effects were “underestimated” and the “general principles of EU law weren’t recognized” by the immigration (but not European Community) law experts who had negotiated it (Groenendijk 2006:220). Among these “general principles” of EU law are “proportionality” and “effective remedy,” which came to be interpreted by the European Court of Justice (ECJ) in a most rightsprotecting way. Indeed, the ECJ took the directive to provide a right to family reunification in member states, to the degree that this right had not yet existed. This went far beyond the “right to family life” under Article 8 of the European Convention of Human Rights, which had never been held to include a right to immigrate (2006:218–19). Accordingly, in

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its benchmark decision Chakroun (2010), the ECJ struck down a Dutch law that required 120 percent of the minimum wage as a condition for family “formation.” Not only was the amount considered disproportionate, but the distinction between family “formation” and family “reunification,” unique to Dutch law and unknown in EU law, was declared invalid. Already two years earlier, in Metock (2008), the ECJ had established that EU citizens had an unconditional right to bring in third-state spouses, irrespective of their prior residence status. This decision was based on the 2004 Free Movement Directive, which concerned the rights of EU citizens, not on the Family Reunification Directive that concerned the rights of third-country nationals (i.e., “immigrants”). For this one must know that the member state fight against family immigration had in the meantime broadened into restricting the rights of citizens, many of whom were ex-immigrants or the descendants of immigrants who, for cultural reasons, engaged in homeland-oriented marriage practices. Metock meant “family reunification rules hijacked (by the ECJ),” fumed the Danish Prime Minister, Anders Fogh Rasmussen. It created the paradox that EU citizens had more family rights under EU law than under most national laws, allowing the subversion of the latter through the European route, often in fraudulent ways.58 The Specter of “Parallel Societies” It is almost forgotten today that, before it came into the crossfire of the conflicting imperatives of rights protection and migration control, the principle of family reunification had been conceived of as in the interest of better migrant integration. Back in 1961, for instance, the European Commission had stated: “However serious the problems of family migration, resulting from the demographical or housing situation may be, they are certainly less serious than the disadvantages resulting from the separation of the family members” (Groenendijk 2006:215). In this spirit, the preamble of the 2003 EU Family Reunification Directive still states that family reunification “helps to create sociocultural stability facilitating the integration of third country nationals in the Member State.”59 However, next to being attacked as a welfare burden or as merely strategic, family immigration came to be reproached in Europe for 58 59

Metock impaired the member state fight against “white marriages,” which are concocted for immigration purposes. See Joppke (2011:236–8). Council Directive 2003/86/EC of September 22, 2003, on the right to family reunification, at L 251/12.

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feeding the very opposite of integration, which is the creation of “parallel societies” disconnected from host-society values and structures. Family immigration, which in policy terms is at the cross-section of migration control and integration, thus spurred the rise of a punitive and controlminded integration policy, unknown in classic immigration countries like Canada or Australia. A case in point is pre-departure integration requirements, so-called Integration from Abroad, which was pioneered by the Netherlands in 2006 and later adopted by Germany, France, Denmark, Britain, and Austria. Integration from Abroad is yet another example of a restrictive family immigration policy that “cannot be explained by party politics” (Bonjour 2014:210), because it was introduced under right- and left-wing governments alike – the only notable opposition being by French Socialists when Sarkozy adopted this policy in 2007. Instead, Integration from Abroad spread by way of “horizontal Europeanization,” a transfer across member states of what is perceived as “best practice,” irrespective of party colors (2014:216). Denmark, incidentally, despite being under the influence of the populist Danish People’s Party, introduced one of the most liberally acceptable versions of Integration from Abroad: no exemption is granted to citizens from rich OECD countries (in contrast to what the Netherlands and Germany do); the respective test has to be conducted in Denmark and not at an embassy abroad, so that an initial visa has to be granted in all cases; the evaluation is by an individual examiner rather than an error-prone voice computer; preparatory material is available for free; and the test result can be legally challenged (Groenendijk 2011:17–18). As long as one accepts the notion of “integration” and its underlying concerns,60 the problems raised by family migration are real. The focus of restrictive attention is on transnational marriages, often arranged by parents, which are frequent among second- and third-generation Muslim immigrants from North Africa and Turkey. Accordingly, the critical issue is not so much family reunification as family formation, which had motivated the Dutch restriction that came to be voided by EU law.61 Studies of Turkish and Moroccan origin youth in Belgium and the Netherlands, and of Pakistani origin youth in the UK, have shown that young males (or their parents) often prefer a “chaste wife” from their home countries as 60 61

For a powerful argument to discard the concept of integration, see Favell (2019). See also Chapter 3. For a discussion of the normatively and empirically more compelling claims for family reunification (narrowly understood), see Honohan (2009). For data that confirm the low education levels of intra-ethnic family formation involving home-country spouses, see SVR (2011:107).

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“bearer of uncorrupted tradition” (Bonjour and Kraler 2015:1414). Transnational marriages thus typically exhibit a higher level of religiosity. In Denmark, in the first decade of the new millennium, a staggering 80 percent of Turkish and Pakistani second-generation immigrants have married a spouse from their homeland, a good deal more than two decades earlier (Kraler 2010:25). Also in Denmark, a study of transnational arranged marriages found that spouses saw them as “a way of upholding boundaries toward the surrounding society and its dominant discourse” (Schmidt 2011:269). In the UK, “over half” of British Pakistanis are married to a “partner from overseas” (Charsley et al. 2017:473). Again in Denmark, a study revealed that half of Turkish transnational couples married since the 1990s lived with the parents of one partner, and that women felt “locked up by their parents-in-law” and subjected to “traditional Turkish norms of female domesticity” (Bonjour and Kraler 2015:1419) – upon which the Danish state responded with a law, in 2002, that required the sponsor to have independent housing. The legitimate worry is that the children born and growing up in transnational marriages, like their imported mothers, become locked into self-reproducing “parallel societies” without much contact and exchange with host societies. Academics have denounced the attempts by European governments to control these practices as “gaining control over culture” (Ruffer 2011:939), contrary to their claim of protecting dependent women and children. But it is not clear how one can be had without the other. A judicious balancing of the existing evidence concludes that “marriage migration may affect the integration of children negatively, and the integration of sponsors neutrally or positively” (Bonjour and Kraler 2015:1423). If this assessment falls out surprisingly positive for marriage “sponsors,” this is because there is also the reverse phenomenon of (a smaller number of ) females who choose male marriage partners abroad for “modern” reasons, to escape the control by conservative in-laws or to make a more educated and higher-status catch than is available locally (2015:1414; see also Charsley et al. 2017:476). The Case of Denmark: “Liberal and Harsh” The European country with the strictest family immigration rules is Denmark. A center-right government even celebrated these rules, in 2002, as “the strictest in the world” (Rytter 2010:301f ). This fact tends to be attributed to the influence of Western Europe’s most successful radical right party, the Danish People’s Party, which has controlled Danish immigration policy, with little interruption, since 2001. However, the ground for the restrictive policy had already been laid by the

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Social Democrats, who had formed the Danish government between 1924 and 2001 in one continuous line. In 1999, the Social Democrats, very much in “Third-Way” mode, had passed an Integration Law that combined a neoliberal message of furthering immigrants’ “economic self-reliance” with a nationalist message of making them understand “the fundamental values and norms of the Danish society” (Mouritsen and Olsen 2013:694–5). This was within a punitive and obligatory frame, typical of civic integration, that shifted the burden of integration entirely on the migrant. One year later, in 2000, the Social Democrats also started the move toward restricting family immigration. It included requiring “suitable” residence and the introduction of the controversial “attachment” rule, unknown in the rest of Europe. In its first – moderate – version, it asked for the couple’s connection to Denmark to be “at least as strong” as to any other country (Bech, Borevi, and Mouritsen 2017:6). And it was Social Democratic mayors who first rang the alarm bell about the rising number of arranged transnational marriages and “ghettoization.” One of them, in a suburb of Copenhagen, described the situation as follows: “The country has to start all over every time an immigrant fetches a spouse from the home country. All over again with integration and all over again with children, who enter Danish kindergartens and schools without knowing the most minimal elements of the language” (2017). Of course, it was the arrival, in 2001, of the first non-Social Democratic government since 1924, led by the liberal-conservative Venstre party, and supported by the Danish People’s Party, which significantly tightened the screw. The twenty-four-year minimum age rule on both parts of the couple was introduced (which would be in breach of EU law, had Denmark not opted out of the Home and Justice Affairs pillar); the level of the couple’s required “attachment” to Denmark was increased from “at least as strong” to “greater” (later even “much greater”), and its scope was extended to citizens; and the sponsor was obliged to make a bank deposit of DKK 50,000 (later doubled). These are only some of the harsh new measures, which also extended to children and not only spouses. They make for “the toughest family-migration rule package in force among Western democracies today” (Bech, Borevi, and Mouritsen 2017:6). As a result, the number of foreign spouses admitted to Denmark plunged, from 6,499 in 2001 to just 2,619 in 2008 (Rytter 2010:302). It is helpful to follow the career of the harshest element of the Danish policy, the attachment rule, in more detail, also because it brought Denmark in collision course with the European Convention of Human Rights (ECHR). A crucial move in this respect was to expand its application from foreigners to citizens, which happened in 2002. The

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government justified this in predictable terms: “With resident aliens and Danish nationals of foreign extraction it is a widespread marriage pattern to marry a person from their country of origin, among other reasons due to parental pressure … The Government find that the attachment requirement, as it is worded today, does not take sufficient account of the existence of this marriage pattern … There are thus also Danish nationals who are not well integrated into Danish society and where integration of a spouse newly arrived in Denmark may therefore entail major problems.”62 However, this measure turned out over-exclusive, as it also hit the native Danish expatriate who wanted to bring back his American wife. To ease his plight, the government passed the twentyeight-year rule in 2004: it exempted from the attachment requirement sponsors with “at least 28 years of Danish nationality,” on the assumption that they held “strong and lasting ties to Denmark.”63 Under a Social Democratic government, in 2012, the age threshold was reduced to twenty-six years. This was a typical move because Denmark’s political parties disagreed about the nuance, perhaps, but never the general direction of the country’s restrictive family immigration policy. In Biao v. Denmark (2016), the European Court of Human Rights (ECtHR) indicted the “indirect discrimination” against non-ethnic Danes with respect to their “right to family life” guaranteed by ECHR Article 8: “That rule favours Danish nationals of Danish ethnic origin, and places at a disadvantage … persons who acquired Danish nationality later in life and who were of ethnic origin other than Danish.”64 Furthermore, the court lamented that the government’s justification of extending the attachment rule to citizens, which was quoted above, “reflect(s) negatively on the lifestyle of Danish nationals of non-Danish ethnic extraction.” This decision delegitimized with one stroke the government’s integration concerns. With support by the oppositional Social Democrats, the Danish government responded to Biao by axing the twenty-six-year exemption rather than reconsidering the harsh attachment rule, so that it would hit again upon Danish expats and their American wives.65 62 63 65

European Court of Human Rights (ECtHR), Biao v. Denmark, May 24, 2016; at p.10. 64 Ibid., 11. Ibid., 46. For a real example, see Rudolf Hermann, “Dänemark verprellt mit der harten Immigrationspolitik auch eigene Bürger,” Neue Zürcher Zeitung May 4, 2017. To meet this problem, in June 2018 the attachment rule was replaced by a complex set of new “integration requirements,” which are even harsher in several respects, such as with respect to language and financial deposit. The purpose, as Immigration Minister Inger Støberg said, is to arrive at “fewer family reunifications in Denmark. We want more people in Denmark that can contribute” (Michael Barrett, “New demands placed on foreign spouses in family reunification plan,” The Local, February 8, 2018) (www.thelocal.dk/20180208/new-

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Denmark’s unmovable all-party consensus for an ultra-restrictive family immigration and integration policy, which has reached new heights in a controversial “ghetto law” passed in 2018,66 suggests looking for deeper causes than the indisputable influence of the radical right. A plausible account was provided by the government itself when making its case before the ECtHR in Biao. It referred to the “Danish model of society … based on a universal welfare state with generous welfare schemes,” which are financed through “general taxes and duties” that are “among the highest in the world.”67 The Danes’ willingness to pay for it, argued the government before the court, rests on a “strong spirit of solidarity and community” that would be undercut “if a larger number of people were not financially and/or socially well-integrated into society.”68 Not mentioned in this statement is the Danish “flexicurity” regime, introduced in the 1990s, which added maximal labor-market flexibility to an unreconstructed system of comprehensive welfare, thus giving the latter a distinctly neoliberal coating.69 This regime creates an extra need for everyone to contribute through work and taxes. As Kathleen Thelen (2014:200) noted in her discussion of flexicurity, “a strong defense of social solidarity … seems to have come bundled with strict boundaries to the outside.” To be able to “contribute” is the main demand that Denmark exacts on its immigrants, be they high-skilled or family. An information booklet for newcomers issued by the Ministry of Integration in 2002 stipulates: “Denmark being a welfare state means that every person must … contribute to the community – by, among other things, educating himself, working, paying taxes and supporting himself and his family” (Mouritsen et al.

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demands-placed-on-foreign-spouses-in-new-family-reunification-rules). On the importance of the ability to “contribute,” see below. Passed in July 2018, the so-called Ghetto Law creates a separate legal regime for twentyfive low-income and heavily Muslim districts across Denmark, with higher punishment for the same delict, compulsory day care for young children from age one, criminalizing ethnic parents who send their children on “re-education” trips to their home countries, lower social benefits for migrants, and a prohibition to move there in the first when receiving government benefits (see Regeringen 2018). The law was supported by the Social Democrats in opposition, who even found it “too soft” in some respects (Naomi O’Leary, “Danish left veering right on immigration,” Politico, June 9, 2018). The label “ghetto,” which in Europe connotes the containment of Jews, obscures that the purpose of the Danish law is not the containment but the dispersal of immigrants (“In the ghettos,” The Economist, November 30, 2019, p.54). On the importance of “welfare state universalism” for explaining Denmark’s harsh migrant integration policies, see Kevins and van Kersbergen (2019). ECtHR, Biao v. Denmark, at p.30–1. Invented in the Netherlands and then adopted by Denmark, “flexicurity” aims at establishing a “positive-sum game” between “security” of employment (not jobs) and maximal “flexibility” of hiring and firing (Muffels and Wilthagen 2013, at 113 and 112, respectively).

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2019:8). In this respect, the most recent immigration program of the Social Democrats, entitled “Just and Realistic,” does not differ an inch from the policy of the 2000s liberal-conservative government and its external junior partner, the Danish People’s Party. According to this program, immigrants are to become “a part of Denmark,” yes, but this means “that they should work, accept Danish vales, democracy, and gender equality” (Nedergaard 2018:4). In particular, the Social Democrats stipulate that family reunification comes with the “obligation that spouses work and contribute to Danish society,” and that “immigrants have to contribute before receiving welfare benefits” (2018:2 and 3). Reference is also made to the fact, credibly established by the Ministry of Finance, that “third world” immigrants receive some 4.5 billion Euros more in welfare services than they pay back in taxes per year, which is equivalent to the “total cost of running the primary school system in Denmark” (2018:4). The Danish emphasis on immigrants’ ability to “contribute” mixes neoliberal self-sufficiency with Republican “active citizenship” (medborgarskap) rhetoric. Accordingly, the Declaration on Integration and Active Citizenship in Danish Society, introduced in 2010, asks immigrants, among other things, to be “self-supporting,” to learn Danish and respect Danish values (especially gender equality), and, of course, to “contribute” to society through work, education, and paying taxes.70 The Declaration, which needs to be signed by all applicants for permanent residence, is the ceremonial part of a new points system that makes permanent residence dependent on labor-market participation, language-test scores, and extra points for “active citizenship,” such as voluntary work in schools or associations. An American observer called the Danish migrant policy “liberal and harsh” (Eakin 2016:1). I would translate this as “neoliberal.” It neatly summarizes the attempt by “one of the most open and egalitarian countries in the world” to make itself “less attractive to foreigners” (2016:3). In the Populist Storm “Courting the top” and “fending-off the bottom” is the dual structure of immigration policy in the neoliberal age. This policy is indeed better 70

The Declaration, which is two single-spaced pages long and negatively foregrounds some practices that are commonly associated with extreme forms of Islam (“violence” against spouses or children; “circumcision of girls,” “use of force to contract marriage,” “threats and scorn … against groups on the grounds of religion or sexual orientation,” “acts of terrorism”), can be found on www.nyidanmark.dk/NR/rdonlyres/7A32FAD0E279-467C-91E3-3074249ED586/0/integrationserklaering_engelsk.pdf

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conceived of as policies in the plural, following fundamentally different logics, one of “soliciting” or incentivizing wanted migration, of which there can never be enough, against one of “stemming” and disincentivizing unwanted migration, of which there is always too much. One might argue in this context that neoliberalism and nationalism are simultaneously present in and shaping different aspects or types of immigration policy, neoliberal toward high-skilled migrants and nationalist toward low-skilled (family or asylum) migrants. This interpretation is plausible to the degree that radical right mobilization focuses on the latter, who tend to be associated with “immigrants” as such. The problem is that the story of restrictive family-migration policy, as told in the previous section, articulates a deeper restrictive impulse that is inherent in the immigration control function as such and widely shared across party lines. The Danish People’s Party (DPP) may have lent extremity to the Danish policy, in particular to its controversial “attachment” rule, but it did not invent this rule and the restrictive bent of the entire policy. This policy preceded the DPP and is considered by an allparty consensus as necessary for protecting a comprehensive welfare state. One also must not forget that, back in the 1980s, in their obsessive quest for zero-immigration, center-right governments in Britain or Germany fought against family qua “secondary” immigration with a vengeance that rivals that of today, and this without radical right parties in their neck (see Joppke 1999:75–85 and 114–28). Naturally, if radical right parties rail against undifferentiated “immigrants” today, it is really low-skilled family and asylum migrants or illegal migrants whom they have in mind. But to repeat the essential point, the impetus to restrict these migrations predates these parties; and even if the latter are around, they do not ipso facto shape policy. Moreover, if “immigrants” are resented for not “contributing” and being a cost factor to society, as in the Danish case against family migration, one might as well qualify the underlying reasoning as “neoliberal” (as also argued by Ellermann 2019a). Accordingly, while a conception of neoliberalism and nationalism as simultaneously impinging on different aspects or types of contemporary immigration policy is prima facie plausible, it immediately needs to be qualified, as it seems to exaggerate the nationalism factor. Less controvertible, however, is a second way of ordering both, as in a temporal relationship, with nationalism being reactive to neoliberalism. This, I shall argue, is the story of Brexit, which marks populist nationalism’s breakthrough in the West. While thriving on a long-held animus against Europe, Brexit is fundamentally a backlash against the first ever open and expansive immigration policy in modern Britain, which had been

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ventured by New Labour under Tony Blair. In this respect also, Third Way socialists proved to be the foot soldiers of neoliberalism. Crucially, New Labour’s immigration policy had been expansive across the skill ladder, including low-skilled immigration. For this stands the fateful non-moratorium on eastern migration, especially from Poland, after the 2004 EU Enlargement. As “mass EU immigration” figured centrally in the phenomenal rise of the UK Independence Party (UKIP),71 no single event has been more decisive for setting Brexit into motion. However, as much as Brexit may be looked at as a nationalist reaction to a (neo)liberal immigration policy gone astray, in terms of accepting high numbers that were far above the limit of what was commonly held acceptable, it does not change the quality of immigration policy. PostBrexit, the UK will embrace the typical combination of courting highskilled while restricting low-skilled immigration, only without any special deal for Europeans (see MAC 2018, 2020). In the sly rhetoric of some Brexit advocates, like Michael Gove, a post-Brexit immigration policy will even be less “racist” than pre-Brexit, because it will be more open for non-Europeans: “(O)utside the European Union we can have a truly colour-blind migration policy that, if the British people want to, treats people from the Bahamas in the same way as we treat people from Bulgaria.”72 By contrast, the rise of Trump, to move to the second populist shock of 2016, goes along with a threat to the quality of a liberal immigration policy. This is because the “anti-populist norm” (Freeman 1995) has been breached that stipulates the taboo for elites to address the ethnoracial composition of migrant intakes. Already candidate Trump had made disparaging remarks about Mexican immigrants as “bad hombres” and “criminals, drug-dealers, rapists.” However, once in office, the most far-reaching and legally consequential case of breaching the anti-populist norm has been his “Muslim Ban” (later rebranded “Travel Ban”), which prohibits the entry of citizens from several Muslim-majority countries into the United States. A mellowed version of it has been held constitutional by the US Supreme Court in June 2018. Two constitutional principles come to a head here: the traditional “plenary power” of the presidency over foreign affairs and immigration, and the antidiscrimination norm that, since the civil-rights era, has put limits on the federal government’s immigration powers. The Muslim ban is a test case of how deeply the new nationalism can cut into ethnically and racially 71 72

UKIP leader Nigel Farage, quoted in Ford and Goodwin (2014:91). “Michael Gove: Brexit’s not made UK less welcoming to immigrants,” BBC News, 19 April 2018 (www.bbc.com/news/uk-politics-43821484)

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nondiscriminatory immigration policies, which have become the norm since the 1960s. Future historians will register that the two populist–nationalist earthquakes in the two liberal heartlands of the West, Brexit in the UK and the ascendance of Trump in the United States, are also inherently antiimmigration backlashes. It is thus obvious that their entanglements with and implications for immigration policy need to be addressed. Less obvious is to consider also a negative case that had occurred slightly earlier: Germany’s acceptance of one million Syrian and other asylum-seekers in 2015. However, also because this decision may have swung the balance in favor of Brexit, has provoked a populist radical right opposition in Germany itself, and perhaps even fired-up populists all over Europe, it is apposite to include it here. The Problem of Numbers: Brexit In a famous commentary on British immigration policy, Gary Freeman (1994) called Britain “the deviant case.” While all other Western democracies were plagued by a “gap” between expansionist immigration policy outcomes and restriction-minded mass publics, the case of Britain proved, on the opposite, that “it is possible to limit unwanted immigration” (1994:297).73 Freeman plausibly referred this fact to “the work of a responsible political elite” that, in a context of strong and responsive parliamentary institutions, took public concerns about “non-European immigration” seriously from the start (1994:300). Two decades later, two sociologists found “migration and the European Union’s foundational commitment to the free movement of persons” as “central to the causes and consequences of Brexit” (Favell and Barbulescu 2018:118). This constitutes a double puzzle: not only does Britain no longer seem to be a “deviant case”; in addition, the public anti-immigration animus has moved from non-European to European migrants. The first thing to notice is that Britain had never really arrived in Europe. Churchill’s “(w)ith Europe, but not of it” remains the most positive thing one could say about their relationship (quoted in Evans and Menon 2017:1). All major studies on the “Europeanization” of national identities noticed the British exception. Neil Fligstein (2008: ch.6) cites a plethora of examples, from the reluctance of ordinary Britons to learn a second language, the explicit resistance of British governments to rewrite the history curriculum in less nationalist and 73

See also Layton-Henry’s (1994) characterization of Britain as “would-be zero immigration country” and Joppke (1999:ch.4).

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more European colors, the low enthusiasm of British students for the enormously popular Erasmus exchange program, to the fact, of course, that Britain “has among the fewest people who think of themselves as European” (2008:186). Similarly, Thomas Risse (2010:81), who otherwise found evidence that a “collective European identity” is possible by way of “marble cake”-layered and “inclusive” national identities, attested to the British “an almost uncontested national identity that has remained remarkably stable in its resistance to Europeanization over the past 50 years.” Even Europhile Britons would refer to their occasional trip to the European continent as “going overseas.”74 Given the low level of British identification with Europe, UKIP leader Nigel Farage’s polemical neologism of “mass EU immigration” is not as far-fetched as it might appear at first. However, it was still regressive because, legally speaking, the free movement of European Union citizens is not “immigration” but exercise of a citizenship right, in fact, the EU citizenship right. Reflecting on UKIP’s breakthrough in the 2013 local elections, where it captured 22 percent of the vote, not far behind the winning Labour Party (29 percent) and the runner-up Conservative Party (25 percent), Farage attributed this success to the adding of “immigration” to the protest party’s original “hard Euroscepticism”: “It took me bloody years to get immigration and Europe together but I knew … that it was now the same thing” (in Ford and Goodwin 2014:90). New Labour Prepares the Ground. Britain’s transformation from “zero immigration country” to one that underwent what Farage called “mass EU immigration” was the unintended consequence of deliberate policy choice under New Labour. This outcome is interesting in at least two respects. First, it shows that European migration could turn out as controversial as non-European migration. The magnitude of migration may matter just as much as its ethnic or racial composition. When the Blair government decided, also for reasons of good neighborliness, not to impose a temporary moratorium on migrants from the new Eastern member states in 2004, in contrast to most other Western European member states, this was at one level merely the result of wrong numerical forecasting – the official prediction had been that between 5,000 and 13,000 Eastern European migrants would arrive per year; in reality, 500,000 came in the first 2.5 years alone (Wright 2012:743).75 However, what also proved wrong was the more latent ethno-racial rationale of this 74 75

I overheard this line a few years ago from an Oxford professor of politics. The misguided estimate, by a group of noted labor economists, was on the assumption that other member states would open their labor markets too, which turned out to be wrong (see Evans and Menon 2017:15).

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choice: the expectation that other Europeans would cause less opposition than non-Europeans when low-skilled vacancies had to be filled for which not enough Britons were available76 – even though one cannot know, of course, the public reaction if not Poles but the same numbers of Pakistanis or Bangladeshis had arrived in short time. Importantly, and strangely unaddressed in public discourse, until 2015 extra-EU flows, including from the traditional postcolonial source countries, persistently exceeded the historically unprecedented intra-EU flows post-2004.This led Eric Kaufmann (2018:182) to the assumption that an “anti-racist norm … deflect(ed) criticism away from Asians and Africans towards white immigrants from the EU.” However, the overwhelming importance of numbers in the “Second Great Arrival” (Goodhart 2013:ch.5)77 cannot be overlooked. If the postcolonial wave had brought 2 million new people to Britain, the new-millennium wave added the double amount of 4 million, and this in 15 instead of 50 years. This “quite literally changed the face of Britain”78. When there was no sign of Brexit yet, David Goodhart (2013:210) had a foreboding that “(i)n 30 years’ time New Labour’s immigration policy will almost certainly be seen as its primary legacy.” Next to underestimating the power of numbers, there has been a second flaw in the design of New Labour’s expansive immigration policy. This is the assumption that immigration, if only properly “managed” as legal labor migration, would take pressure off an overcharged asylum system and put to rest a vitriolic tabloid-led campaign against “bogus” asylum-seekers that was gearing up in the late 1990s; and that its being “managed” would bring about public acquiescence to high-level immigration that was considered good for the economy. Randall Hansen (2014:208) sarcastically referred to this thinking as “a theory that was being passed around seminar rooms at the time,” namely that “expanding unskilled immigration would take pressure off the asylum queues.” More than a seminar-room theory, this is a central plank in the liberal’s “way forward on immigration”79. The German government heeded it in its so-called West Balkan Regulation of 2016, which is a regionally specific labor migration quota as compensation for the fast-tracking of asylum requests from newly minted “safe countries.”80 Again in 76

77 78 80

This ethno-racial rationale was not far from the surface when the new points-based system’s Tier 3, which was designated for “low skilled migration,” was kept unused because of “workers available from the newly enlarged EU” (Home Office 2006:29). The “First Great Arrival,” of course, was the postcolonial immigration, 1948–92. 79 Finch and Goodhart quoted in Consterdine (2015:1434). See Note 1. See SVR (2017:77); Süss and Schneider (2017:22–6).

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Germany, the quest for an explicit “immigration law” (Einwanderungsgesetz) that would allow for ample labor migration is also in the intention to “massively unburden” an overcharged asylum system.81 The problem with this liberal compensation or communicating vessels theory is at least twofold. First, the “massive disparities in wealth” between sending and receiving countries make it unlikely that any “opening of unskilled migration channels” could ever be sufficient to meet demand (Hansen 2014:208–9).82 And, second, as a summary account of “immigration” in “Blair’s Britain” put it, “the public did not, as the government had anticipated, readily tell the difference between an asylum-seeker, a migrant worker or an internal student in their neighbourhood” (Spencer 2007:349). Upon entering office in 1997, Blair’s New Labour countered a historical peak of asylum requests with establishing one of Europe’s most restrictive refugee policies, which included carrier sanctions, the limitation of appeal rights, forced detention and dispersal, and replacing cash benefits with vouchers. This was on the assumption that economic migrants should be deterred from using the asylum route. However, while the number of new asylum claimants fell, from 103,000 in the peak year 2002 to 23,500 in 2006, the “tabloids continued to headline antiasylum-seeker stories on a regular basis” (Spencer 2007:348f ). Because asylum reform required primary legislation, in terms of laws passed in 1999, 2002, and 2004, there was a “consistently high profile” to the topic that fueled “contentious and divisive political debate” (2007:348). And even if the government excelled in “tough rhetoric,” this only had the effect of “wind(ing) up” public concerns instead of “reassur(ing) them,” as one activist observer commented (in 2007:349). Parallel to being hyper-restrictive on asylum, New Labour opened up in a big way to economic migration. This was not only to take pressure off the asylum system, according to the mentioned “seminar-room theory,” but it was an entirely new approach to immigration, from the “control” to the “management” of migration in the country’s economic interest. In a programmatic early millennium speech to the Labour-friendly Institute for Public Policy Research (IPPR), immigration minister Barbara Roche 81 82

See, for instance, the 2016 SPD parliamentary proposal for an “immigration law” (SPD Parliamentary Group 2016:7). See also the critical observations by Thym (2017a:298–300). After the introduction of the West Balkan Regulation in 2016, the number of asylum seekers from these countries indeed shrank significantly, while the number of labor migrants went up sharply. However, there is no evidence that the same people switched from the asylum to the work channel (see Süss and Schneider, 2017; Bither and Ziebarth 2018), so that the asylum restriction might have been effective in its own right.

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stated: “In the past we have thought purely about immigration control … Now we need to think about immigration management … [T]he evidence shows that economically driven migration can bring substantial overall benefits for both growth and the economy” (quoted in Balch 2009:617). Part of a larger “Cool Britannia” campaign that married a multicultural diversity agenda with economic neoliberalism, the attempt was to “rub the Right’s nose in diversity and render their arguments out of date.”83 Labour leader Ed Miliband later confessed that this was an error: “We were dazzled by globalization and too sanguine about its price.”84 Crucially, New Labour’s immigration policy included not only the standard foray into high-skilled and student migration, but also the expansion of low-skilled migration. The size of the agricultural workers’ scheme was increased by 2.5 times; the Working Holiday Makers’ scheme, originally a cultural exchange program for Old Commonwealth youth, was turned into a labor-market program; a new scheme for the food and hospitality sector was introduced; and, most fatefully, there was unhindered access to Britain for the citizens of the A8 countries joining the EU in 2004. For Home Office Minister David Blunkett, the openness toward low-skilled migration was to “undercut the people smugglers” and to prevent the “lengthening (of ) the asylum queues” (Spencer 2007:350–1). Under Blunkett’s reign, immigration and integration became fused into one “integrated approach” that included increasing labor migration, restricting asylum, and advancing citizenship as tool of integration.85 Survey researchers have attributed a “pragmatic outlook” to British voters, who favor student and high-skilled migrants, but are unfavorable toward low-skilled and asylum migrants (Ford, Jennings, and Somerville 2015:1393). Accordingly, in 2009, when “immigration” already featured regularly as one of the top three concerns facing the country, a survey found that 58 percent of the public “opposed” or “strongly opposed” reducing the number of high-skilled, while the exact same percentage of voters “strongly” or “somewhat supported” reducing the number of unskilled migrant workers (2015:1398). The problem is that with respect to EU A8 migrants, who were not necessarily low-skilled but “prepared to do ‘entry-level jobs’” (Favell and Barbulescu 2018:123), the hands of the government were tied, once the fateful decision for not imposing on them a temporary free-movement restriction had been made. Public fears in this respect were not entirely unfounded. In the lowly regulated and 83 84 85

A former advisor and speechwriter of Tony Blair, quoted in Kaufmann (2018:150). Quoted in “UK immigration,” Financial Times, June 25, 2012, p.8. See for this the impressive 2002 White Paper, Secure Borders, Safe Haven (Home Office 2002).

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flexible British labor market, the impact of new-millennium migration on salary levels, while overall negligible, was still felt in the lowest wage segment. One study found that for every 1 percent of more migrants among the employed, the wages in this segment decreased by 0.6 percent.86 Accordingly, the Leave vote in the 2016 Brexit referendum was “systematically higher” in the industrial Midlands, where wages are low and unemployment is high (Manow 2018:129). Continuously rising net migration (which is the difference between immigration and emigration), with an all-time peak of 336,000 exactly in the year preceding June 2016, the moment of the Brexit referendum, was an entirely new phenomenon in the UK. Even in the heyday of postcolonial immigration in the 1960s, net migration had been small or even negative because of high levels of British out-migration. Steeply increased net migration since the late 1990s, when New Labour came to power, went along with “immigration” to become one of the top concerns facing the country in the eyes of the British public. Whereas in 1997 only 3 percent listed immigration and race as among the top three concerns, in 2002, at the height of a (relatively) large asylum inflow, the figure was up to 39 percent; and in 2006, two years into the eastern European inflow, 40 percent of the public deemed immigration as the most important issue facing Britain at the time (Spencer 2007:341 and 348). By late 2015, when net migration reached its record level, a whopping 63 percent of the British ranked immigration as the most pressing issue of the day, way ahead of healthcare (39 percent) and the economy (33 percent) (Clarke et al. 2017:11).87 Late New Labour tried to stem the tide with a new emphasis on “controlling our borders”88, and a new points-based system, modeled on Australia, was said to “ensure that only people Britain needs can come 86

87

88

This figure is from a 2013 study by Dustmann, Frattini and Preston, quoted in Manow (2018:128). Similarly, a widely circulating Bank of England report found that a 10 percent increase in the proportion of immigrants is associated with a nearly 2 percent reduction in the pay of semi- and unskilled workers in certain service industries, such as care homes, shops, and bars (see Clarke, Goodwin, and Whiteley 2017:12). One must consider, however, that when asked about the three most important issues facing them “personally,” in 2013 only 17 percent of Britons included “immigration”; by contrast, when the question was about the “three most important issues facing the country,” “immigration” was included by 57 percent in that year. This discrepancy may be explained by Britons’ “reverse political correctness”: “They espouse fiercely anti-immigrant views on the doorstep, and swear that the issue will sway their vote. But in the privacy of the polling booth other issues crowd it out” (“The politics of immigration: Don’t mess,” The Economist, May 11, 2013, p.32). This is the title of a programmatic White Paper (Home Office 2005) announcing the points-based system, in which low-skilled immigration was set at zero because of “new labour available from the European Union” (p.53). This was precisely the “immigration” that could not be controlled, at least in the long term.

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to work and study.”89 When Bulgaria and Romania joined the EU in 2007, the mistake of 2004 was not repeated and free movement from these countries remained restricted during their first seven years of membership. And Blair’s intra-party successor, Gordon Brown, speaking to the Trade Union Congress (TUC) in 2007, promised the creation of 500,000 “British jobs for British workers” (in Smith 2008:425). By that time, immigration had long become a “wedge issue” (Hansen 2014:200) busily exploited by the Conservative Party in opposition, though initially with little success. In sync with the right-wing tabloid hysteria, the 2001 and 2005 Tory election campaigns were “populist” on immigration and asylum, depicting Labour as “hopelessly out of touch” with the people (Bale, Hampshire, and Partos 2011:398). The 2001 Manifesto, Time for Common Sense, attacked the Labour government’s “soft touch for bogus asylum-seekers,” which was more the tabloid view than actual policy (2011:398). The 2005 Manifesto attacked Labour for having “lost effective control of our borders,” thus borrowing Labour’s own rhetoric though turning it into the negative. In a premonition of the main argument for Brexit, the Tories veered to “take powers from Brussels to ensure national control,” though at the time this was still geared toward asylum policy; and there were the rather radical calls for quotas on refugees that could be only had by withdrawing from the 1951 Geneva Refugee Convention, and for processing asylum-seekers offshore, Australian-style. Upping the ante, the Tories came up with an openly populist election poster: “It’s not racist to impose limits on immigration. Are you thinking what we’re thinking?” (2011). In keeping with this, Tory leader William Hague depicted Labour as “liberal elite” intent on turning the UK into “a foreign land” (in Bale 2014a:32). All this was to no effect. Labour easily won both elections, and Tony Blair could sneer, in 2005, that “The Tory Party have gone from being a One Nation Party to being a one-issue-party” (in Hansen 2014:210). “Tens of Thousands a Year”: The Conservatives’ Impossible Pledge. The page turned when David Cameron took over the Conservative leadership in late 2005, intent on remedying the Tories’ “nasty party” image with a more moderate if, in essence, still populist line on immigration. On the moderate side, he committed himself to a “multiracial Britain” that he deemed “a success,” with immigration set to “continue,” if in a “controlled” manner (in Bale, Hampshire, and Partos 2011:404). Anticipating the winds of Brexit, Cameron deemed the immigration problem

89

Immigration Minister Liam Byrne, quoted in Smith (2008:425).

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more one of “levels” than of “different colours,” in particular, one of crowded “services”: “It’s the pressure on schools, pressure on hospitals, pressure on housing” (2011:401). Perfectly in line with this diagnosis, the 2010 Manifesto promised to “take steps to take net migration back to the levels of the1990s—tens of thousands a year, not hundreds of thousands.” This was to be achieved within just one parliamentary period, that is, by 2015 (2011:399). But that was not moderate at all. After Blair’s liberal wager that largescale but “managed” migration would be publicly acceptable, Cameron’s volte-face was the second fateful political choice that would prepare the road toward Brexit. While the Tories’ exploitation of public concerns about large-scale migration “clearly contributed” to Labour’s “heavy defeat” in the 2010 election (Bale 2014b:296), the “tens of thousands” pledge was impossible to meet. With a net migration figure of ca. 250,000 at the time, not only the high EU component but also constitutional commitments to non-EU asylum and family migration stood in the way. Because non-EU low-skilled migration had already been closed down under the late Labour government, Cameron, or rather his Home Minister, Theresa May, in order to fulfill the Tories’ impossible pledge, had to go against high-skilled and student migration, even though these migrations were not publicly opposed or controversial at all. Tier 1 of the early millennium points-based system, which was for “highly-skilled migrants” without a job offer, was narrowed down to a trickle of “entrepreneurs” and “exceptional talents,” not to exceed 1,000 per year. Because of bureaucratic obstinacy, merely thirty-seven Tier 1 visas were distributed in 2011.90 At the same time, a cap of 20,700 per year was imposed on Tier 2, which was for “skilled workers” with a job offer. Upon business pressure, particularly from banking and finance, foreign workers earning above 150,000 Pounds per year were exempted from the Tier 2 cap, as were intra-company transfers (Hampshire and Bale 2015:156). However, Home Minister May stubbornly refused to remove students from the net migration figures. She also starkly reduced their timeframe to look for a job after graduation, a much more generous handling of which had been part of New Labour’s successful quest to capture a fourth of the global English-speaking student market (Spencer 2007:354). To the distress of British universities, which lost a major source of income, foreign students counted in the “tens of thousands”

90

“The Tories’ barmiest policy,” The Economist, October 20, 2012, p.14.

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fight, and the government booked it as success that within a year student visas were down by 21 percent.91 Because of the Tories’ “disastrous” immigration policy, Britain “is not only losing the war for global talent, it is scarcely competing,” warned The Economist.92 Unsurprisingly, family migration was also restricted, with a Danishstyle twenty-one year threshold (later struck down by the Supreme Court), English language requirements, and one of the toughest financial sponsor requirements of all European countries – the minimum sponsor wage was set at 18,600 Pounds per year, which was 50 percent above the minimum wage and so high that almost half of British citizens would be disqualified from bringing in a foreign spouse.93 Finally, the Home Office under May gave out the infamous order to create a “hostile environment” for illegal migrants, enlisting teachers, doctors, employers, and landlords in sniffing them up, and wrongly issuing expulsion notices to postcolonial-generation migrants who had never been officially furnished with legal residence papers.94 Despite this whirlwind of restrictive, even draconian, measures, the “tens of thousands” pledge could not remotely be achieved. After a temporary lull, from 2013 on the net migration figures even reached new heights, crossing the 300,000 mark in 2014. This was due to two factors impossible to control for the government: first, a new wave of European Debt Crisis migration from southern member states, particularly Spain; and, second, the end of the seven-year moratorium on Romanian and Bulgarian free movement after these two countries had joined the EU in 2007. With their “tens of thousands” pledge, the Conservatives had inadvertently produced their own wedge issue, whetting the appetite for a drastic reduction of immigration that was picked up by the ferociously anti-EU and anti-immigration tabloids and, of course, by the populist UK Independence Party. Overall, Britain’s immigration policy under the Conservative Cameron government must be considered a paradigmatic case of an immigration policy dictated by hostile public opinion, which in the UK was even more strongly opposed to immigration than in “any other large European country.”95 91 92 93

94 95

“A harder road,” The Economist, October 20, 2012, p.31. “The Tories’ barmiest policy.” These measures made the UK family reunification rules the fifth harshest of thirty-one European and North American countries (“Family migration: Sons and lovers,” The Economist, June 16, 2012, p.34). Jessica Elgot, “Theresa May’s ‘hostile environment’ at the heart of Windrush scandal,” The Guardian, April 17, 2018. “The Tories’ barmiest policy.” For instance, in 2012, 62 percent of Britons thought that immigrants make it harder for them to find jobs, which is 17 percent higher than the European average (45 percent).

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Toward the Referendum, and After. The third political choice laying the tracks for Brexit was David Cameron’s 2015 election pledge, in fact given out already in 2013, to hold a referendum over Britain’s EU membership. This was a Faustian bargain to silence the Eurosceptics in his party, who were growing in strength and noise because of the confluence of the old Euro-animosity, centering on control and money, and the new and increasingly salient EU migration issue; they should “stop banging on about Europe.”96 Cameron hoped to silence them with pre-referendum concessions from the EU, most notably about migration. However, “Dave’s deal” flopped (Evans and Menon 2017:47–51). Instead of a stop on childcare allowance for families abroad, he only got a cost-of-living-adjustment possibility; and, more crucially, instead of a categorical four-year exclusion of EU-foreigners from welfare, he only got a temporary “alert and safeguard” mechanism in cases of inflows of “exceptional magnitude,” and the “emergency brake” could only be triggered by the European Commission (Dennison and Geddes 2018:1146). The possibility to control intra-European flows, the central issue of the Leave Campaign, was not even put on the agenda. “It stinks,” wrote the Sun tabloid, “The great delusion” was the headline in the Daily Mirror, and 54 percent of the surveyed British public felt the concessions would “make no real difference” (Clarke, Goodwin, and Whiteley 2017:26). Accordingly, Cameron’s pro-EU campaign fell silent on the migration and the closely related sovereignty issues. Instead, it evolved as “Project Fear,” according to which “leaving Europe would threaten our economic and our national security” (Cameron in Clarke, Goodwin, and Whiteley 2017:30). However, this dodged the central concerns of the small majority of 51.9 percent of British voters who eventually voted for “Leave” in June 2016. When asked later, 68 percent of them said they did so out of a concern about migration. This was second only to the 74 percent whose first motive was sovereignty (Wöhst 2018:25), dubbed “Take Back Control” in the UKIP-led “Leave.eu” branch of the Leave Campaign.97 So strong was the anti-immigration impulse of Leave voters that 35 percent

96

97

David Cameron, quoted in Dennison and Geddes (2018:1143). For a calibration of the three central anti-EU issues: democratic control, money, and – increasingly, as the Referendum approached – immigration, see Evans and Menon (2017:chapters 1 and 3). The official leave campaign was “Vote Leave,” which focused more on sovereignty and free trade deals with emergent countries. One of its most prominent figures, Boris Johnson, described himself as “passionately pro-immigration and pro-immigrant” (quoted in Kaufmann 2018:194).

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of them claimed to be prepared to accept a 5 percent reduction of their income if only EU migration was reduced to zero (Kaufmann 2018:201). Perhaps the strongest and ultimately decisive image in this most dramatic episode of modern British history is the ignominious “BreakingPoint” poster of the Leave.eu campaign, published shortly before the referendum date. It shows hordes of dark-skinned asylum-seekers in Slovenia heading toward the Austrian border, in the Syrian refugee summer of 2015: “We must break free of the EU and take back control of our borders,” can be read at the bottom. This was plain demagoguery and false information because the UK government had opted out of all inconvenient provisions under EU immigration law, was not part of the Schengen Area, and in principle could send any asylum-seeker back to their first EU country under the Dublin Convention of which the UK was a member. Brexit, in reality, would even reduce the possibility of the UK government controlling the entry and stay of third-country nationals, because – at a minimum – “Dublin” will not be “for free any longer” (Thym 2017b:2). The rest is history. The typical Leave voter had no academic degree (78 percent), was dependent on social housing (70 percent), had an income below 1200 Pounds monthly (66 percent), and was over 65 years old (61 percent) (Wöhst 2018:25). These were clearly not the winners of Britain’s neoliberalism that had started with Thatcher and driven to new heights under Blair. Cameron’s successor, Tory Prime Minister Theresa May, and after her Boris Johnson, vowed to deliver the Brexit that Leave voters wanted. On this note, Boris Johnson, now by a vast margin, was confirmed as Prime Minister in the historical December 2019 election. Only two months in office, he indeed fulfilled his main election promise, to “get Brexit done,” which happened on January 31, 2020, at midnight. Johnson’s luckless predecessor, Theresa May, weirdly globalist and populist in tandem, had packaged Brexit as a quest for a truly “Global Britain” but also as the “people down the road” getting back at “the international elites” – a combination that Johnson continued, only more successfully. Here is May’s famous line at the 2016 Conservative Party Congress in Birmingham, which could have been written by David Goodhart: “But if you believe you’re a citizen of the world, you are a citizen of nowhere—you don’t understand what citizenship means.”98 Returning to the root causes of the British populist storm, it is unquestionable that the experience of massive and sudden migration, particularly in economically depressed areas that had not known it before, 98

For the full text of her speech, see www.telegraph.co.uk/news/2016/10/05/theresa-maysconference-speech-in-full/.

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strongly correlates with a preference for Brexit. In Boston, a small town of 35,000 in the East Midlands, with vegetable and potato fields that are worked by farm hands from Poland, 75.6 percent of locals voted for Brexit in June 2016. This was the highest score in the UK. Boston had seen its migrant population grow sixteen-fold between 2005 and 2015, from 1,000 to 16,000 (Goodwin and Milazzo 2017:454–5; Wöhst 2018:31). These may be small numbers, but their exponential increase is remarkable. After the vote, journalists from all over the world fell into this hapless place to explore the secrets of Brexit. They found a place distressed by low wages and high living costs, strained public services and scarce housing, with much talk about recently increased crime rates. And they found a place with extreme ethnic segregation, the Poles shopping in their own supermarkets and hanging out in their own pubs. A few days after the referendum, a Polish–Italian running a local taxi company and who had lived in Boston for sixteen years, found this note on his car’s windshield: “Did you pack your bags yet?”.99 There is another interesting element in the demography of the Brexit referendum, which is the Asian vote. Some districts with South Asian populations exceeding 25 percent delivered solid Leave votes, including Bradford, Slough, or Luton. While this outcome might be explained by the usual socioeconomic variables, some places in West London, where the level of education and prosperity would lead one to expect Remain votes, but which have a “noticeable South Asian presence,” voted Leave too (Ehsan 2017). This dynamic is as yet unexplored. However, why should prosperous ethnics with Indian, Pakistani, or Bengali backgrounds feel and vote pro-European? They had been taught to adopt “British values,” and some of their intellectuals have praised British multiculturalism in distinctly nationalist terms (Modood 2007; Parekh 2000). As their circuit spanned Britain and South Asia, but not the European continent, what should the provincial project of taking from European borders “their rigidity and … intransigent hostility,” as the European Saint Robert Schuman had avowed (in Geddes 2014:290), mean to them? Some Leave campaigners shrewdly courted the Asian minorities by denouncing a “racist” immigration system that allowed white EU migrants to enter the UK freely, while those from the Indian subcontinent were subjected to visa and work restrictions (see Ehsan 2017). Striking exactly this chord, the UK’s “future skill-based immigration system,” presented in December 2018, promises to be “a system where it 99

Kimiko de Freytas-Tamura, “After ‘Brexit’ vote, immigrants feel a town turn against them,” New York Times, July 9, 2016.

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is workers’ skills that matter, not which country they come from.”100 In the assumption that only after leaving the European Union a truly nondiscriminatory immigration policy is possible, the primal nonparticipation of Britain in the European project comes full circle. The future British immigration policy will naturally court high-skilled immigrants, while discarding “an explicit work migration route for low-skilled workers,” as the Migration Advisory Council (MAC) recommended in September 2018 (MAC 2018:5). It will thus be, as Prime Minister May hopefully expressed it, an immigration system that “attract(s) the best and brightest to (the) United Kingdom” but that will also be “fair to working people here at home” (Home Office 2018:3).101 Her successor Boris Johnson’s 2019 election manifesto promised an “Australian-style points based immigration system,”102 which curiously ignored that such a system, on paper at least, has been in place since 2008. However, it has in the meantime devolved from a system of “tradeable points” into one where successful applicants had to “meet all criteria,” most importantly, skills and a job with a minimum salary at hand, which made the points still formally attached to these criteria, well, pointless (MAC 2020:1). In January 2020, the MAC recommended retaining this system, with or without points, which it deemed merely a question of “cosmetics” (2020:6). In a nutshell, no fundamental reorientation of British immigration policy is in the making, except that due to the end of free movement for Europeans, this policy will have to be more expansive than in the past to meet the UK’s economic needs.103

100 101

102 103

From the foreword by Prime Minister Theresa May (Home Office 2018:3). In a skirmish following the publication of the White Paper (Home Office 2018), which does not say anything about the size of future immigration, the Prime Minister affirmed that the Conservative pledge to reduce net migration to the “tens of thousands” was still valid. Because in the year preceding July 2018 the stream of EU migrants was down to 74,000 while that of non-EU migrants had increased to 273,000, this would have to imply drastic cuts of non-EU migration (see Jochen Buchsteiner “Regierung streitet über Einwanderung,” Frankfurter Allgemeine Zeitung, December 19, 2018). As “Global Britain’s” future trade deals with India, for instance, are likely to be at the price of easing visa restrictions for work and study, it will be an extra difficulty to pursue the lownumbers immigration policy that Brexiters wanted (see Gideon Rachman, “Brexiters’ delusions on trade die hard,” Financial Times, January 14, 2019). Under Prime Minister Boris Johnson, the “tens of thousands” pledge has been quietly ditched. Heather Stewart et al., “Conservative Party Manifesto: What it says and what it means,” The Guardian, November 25, 2019. Accordingly, the MAC’s recommendation is to expand the “general” Tier 2 of the immigration system, which is for skilled workers with a job offer, to “medium-skill jobs” and to abolish the current cap on it as well as the resident labor market test (MAC 2020:1,66). The “points-based immigration system” presented by the Johnson government shortly after the MAC report essentially accepted these recommendations (GOV.UK 2020, at par.5).

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Incidentally, the 2018 report of the Migration Advisory Committee brought to light the plain lies and falsities upon which a migration-fixated Brexit campaign had been based. According to its analysis, European Economic Area (EEA) migration has had “small overall impacts,” with respect to both employment and unemployment outcomes and the particularly embattled public service component. In fact, with respect to public services, “EEA migrants contribute much more to the health service and the provision of social care in financial resources and through work than they consume in services…There is no evidence that migration has reduced the quality of healthcare” (MAC 2018:3). And with respect to wages and employment, the fall in the value of the Pound after the Leave vote “is most certainly a larger impact than the effect on wages and employment opportunities of residents from all the EEA since 2004.”104

Breaching the Anti-Populist Norm: Trump The best barometer of a liberal immigration policy is what Gary Freeman (1995:894) has called the “anti-populist norm.” It prescribes “constrained” discourse over immigration, precluding “argument over the ethnic composition of migrant streams.” The Brexit campaign, which was more about the quantity than the quality of recent immigration to Britain, largely observed the anti-populist norm. By contrast, the rise of Trump has implied its complete demolition. The “exploit(ation) (of ) racial, ethnic, or immigration-related fears in order to win votes,” which according to Freeman is verboten (1995:886), figured centrally in Trump’s 2016 election campaign,105 with Mexicans as “bad hombres” and an “Islam (that) hates us” and had to be countered by “a total and complete shutdown of Muslims entering the United States.” Does this herald the return to a racially discriminatory immigration policy that Western states had abandoned over the past half century or so? Of course, the Trump challenge is not only to a liberal immigration policy but to the fundaments of liberal democracy itself. A recent account of How Democracies Die shows striking similarities with the “electoral road to breakdown” taken in Venezuela, Georgia, Hungary, Nicaragua, Peru, Poland, Philippines, Turkey, and Ukraine – strange company for 104 105

From the Chair’s Foreword, MAC (2018). Immigration fears were also exploited in Trump’s 2018 mid-term election campaign. A campaign video that showed an “illegal immigrant” Mexican cop-killer smilingly promising to “kill more” American police officers, followed by hordes of “criminal” Central Americans marching toward the southern US border, was judged even by Trump’s house channel, Fox News, as too “racist” to be aired. See https://edition.cnn .com/2018/11/05/media/nbc-trump-immigration-ad/index.html.

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the once leader of the Free World (Levitsky and Ziblatt 2018:5). Steven Levitsky and Daniel Ziblatt (2018:ch.1) have shown that Trump, in speech and action, is a showcase of fulfilling all four criteria that mark “authoritarian” rule, according to a classic scheme by Juan Linz: (a) (b) (c) (d)

to reject the democratic rules of the game; to deny the legitimacy of political opponents; to encourage violence; and to curtail the civil liberties of opponents.

With respect to (a): Hadn’t Trump, before being elected, denounced the electoral rules as “rigged,” leaving in doubt whether he would acknowledge the election result; (b): Hadn’t he threatened to “lock up” his rival for the presidency, Hillary Clinton; (c): Hadn’t he called upon his supporters to “beat up” hecklers at his rallies, generously offering to pick up the legal bill; and (d): Hadn’t he ranted against “fake news,” excluded inopportune journalists and news outlets from press conferences, and – more seriously – pushed for strict voter identification laws that in effect disenfranchise minority voters, unlikely to vote for him and for the Republican Party? This is not to mention notorious “lying” and “serial norm break(ing),” which all have become “normalized” under Trump (Levitsky and Ziblatt 2018:195). No wonder that Trump’s rise to power has been likened to “the end of the world as we may know it” (Torpey 2017), even been called “the greatest threat to American democracy since the Japanese attack on Pearl Harbor” (Gorski 2017:12). Trump’s Inaugural Address was like no other in American history – “some weird shit,” as his Republican predecessor, George W. Bush, was overheard after the ceremony. Before a politely clapping Washington elite, including all living (and walking) previous presidents and the full Supreme Court bench, he pronounced that this was “not merely transferring power from one administration to another” but “from Washington, D.C. and giving it back to you, the people.”106 The “people,” as we know, by a margin of almost 3 million, had favored the Democratic candidate, Hillary Clinton. Instead, it was the “rural bias” of the

106

See “Donald Trump’s full inauguration speech, annotated,” Washington Post, January 20, 2017.

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Electoral College, dating from a time that 90 percent of Americans lived on farmland and in small towns, which lifted the Manhattan building mogul and reality TV star into power (Monat and Brown 2017:234). More concretely, Trump’s victory came down to a difference of 77,744 votes spread across three states: Michigan, Pennsylvania, and Wisconsin, all decaying “Rust Belt” states of the upper Midwest, which had traditionally voted Democrat but now ran over to Trump (2017:228). Within this prior industrial heartland of the United States, the counties in which Trump performed best were the ones “with more economic distress, worse health, higher drug, alcohol and suicide mortality rates, lower educational attainment, and higher marital separation/divorce rates” (2017:229). Consider, for instance, Lucerne County in Pennsylvania, which provided 60 percent of Trump’s victory margin in this state (2017:229f ). Lucerne is a traditional Democrat stronghold, won easily by Obama in 2008 and in 2012, with a median household income that has been stagnant since 1980 and thus in the low trunk region of Milanovic’s Elephant Curve. Manufacturing jobs are down from 42,000 in 1980 to 19,000 in 2017. Over a quarter of its primary-age residents (between twenty-five and fifty-four) are unemployed or not in the labor force. The drug overdose rate has tripled over the past fifteen years, while the suicide rate has more than doubled. In terms of health, the county ranked sixty-second of sixty-seven counties in Pennsylvania in 2017. In an obvious homage to the “Rust Belt Revolt” (McQuarrie 2017) that had carried him to victory, Trump’s Inaugural Address drew an apocalyptic picture of “American carnage”: “mothers and children trapped in poverty in our inner cities; rusted out factories scattered like tombstones across the landscape of our cities … the crime and the gangs and the drugs … This American carnage stops right here and stops right now.” From now on, “the forgotten men and women of our country will be forgotten no longer … it’s going to be only America first, America first.” Faithful to inaugural protocol, “God” is mentioned two or three times in this astounding speech. In reality, however, the messiah is Trump himself: “I will never ever let you down.”107

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All quotes are from “Donald Trump’s full inauguration speech.” See Gorski (2016), who interprets “Trumpism” as “a secular form of religious nationalism.” In a later version, which foregrounds its white racializing element, Trumpism becomes “a reactionary and secularized version of white Christian nationalism” (Gorski 2017). This is meant to explain why the overwhelming majority of white Evangelicals voted for “a man who has six children by three wives, hadn’t darkened a church door for decades, brags about his financial and sexual conquests, and claimed he’s never done anything he needed to be forgiven for” (Gorski 2016).

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In a review of Trump’s first year in office, Paul Pierson (2017:S106) dryly pointed out that the messiah has quickly let his people down: “In actual government, the interests and concerns of plutocrats have typically prevailed.” For Pierson, Trumpism is a “curious hybrid of populism and plutocracy,” whereby populism “remains robust” in “rhetoric” only (2017:S105 and S106). In his policy record on the “big” issues of taxing, spending, and regulation, Trump has been “extremely friendly to large corporations, wealthy families, and well-positioned rent-seekers,” while his budgetary policies, but also his tooth-and-nail fight against Obamacare, “will … be devastating to the same rural and moderate-income communities that helped him into office” (2017:S107). There is no sign yet of the “new roads and highways and bridges and airports and tunnels and railways” that he had promised to “build … all across our wonderful nation.”108 However, Pierson noticed one “striking exception” where Trump has delivered what he promised: “immigration” (2017:S114). To understand Trump’s immigration record, the only domestic policy field in which he has remained faithful to his populist grandstanding, it is crucial to understand two recent trends in American immigration policy that he tapped into and helped to aggravate, but that are not of his invention: first, the increasing focus, over the last three decades, on border security and the interior enforcement of immigration law; and, second, the extreme polarization between the Republican and Democratic parties, which exceeds the domain of immigration policy but has found a most prominent imprint in it. Laying the Tracks (I): The Enforcement Turn. In comparative perspective, a distinct feature of the American immigration experience is the presence of a huge illegal immigrant population, currently estimated at 11 million, which is almost as many as there are legal permanent immigrants in the United States, who are at 12 million (Martin 2017:167f ). While as cheap and devoted maids and nannies they enable much of American middle-class and dual-career life, illegal immigrants in the aggregate are not popular – over half of Americans deem them “mostly a drain” on society, and as many as 80 percent favor more border enforcement personnel to keep them out in the first (Abrajano and Hajnal 2015:63). From a policy point of view, the usual way of slicing the immigration function is to distinguish between “legal admissions” and “immigrant integration” policies. By contrast, in the United States, reflecting its exceptional illegal immigration problem, there are also “border security” and “interior immigration enforcement” policies,

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Quoted from “Donald Trump’s full inauguration speech.”

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which in fact have come to overshadow the rest.109 In one account, “(t)he dominant frame for the immigration debate since the 1970s has been around criminality and security threats associated with unauthorized immigrants” (Rosenblum 2011:14). Even the debate about immigrant integration is largely one about providing, or denying, a “path to citizenship” to illegal immigrants.110 In Tom Wong’s (2017) terms, the turn to “border security,” which has reached a climax under Trump’s grand plan to build a “big beautiful wall” along the entire land border with Mexico, started already under the Clinton Administration, with its “Operation Gatekeeper” in 1994. It doubled the number of border agents and foresaw the construction of a few miles of steel fence in the San Diego area. This was in pursuit of a strategy of “prevention-through-deterrence” that was new at the time and is still in place today. Border enforcement reached new impetus under the Republican Bush Jr. Administration, in terms of the Secure Fence Act of 2006, which called for an additional 850 miles of doublelayered fencing along the Mexican border. As Trump is fond of pointing out, United States senators Hillary Clinton and Barack Obama had voted for this law. In fact, beginning with Bill Clinton, Democratic office holders have always surfed on the crest of the growing enforcement wave, not to leave this sensitive and symbolically loaded issue to the Republicans. A milestone toward “interior immigration enforcement,” to use again Wong’s (2017) terms, was the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), again passed under the Clinton Administration. This was the apex of an “anti-immigration hurricane”111 that had started with the Californian Proposition 187 (“Save Our State”) campaign two years earlier, which sought to deny public services (including education) to the state’s sizable illegal immigrant population. IIRIRA stiffened the penalties for illegal entry and for assisting it, and it greatly increased the detention and deportation possibilities for the federal state – until the Supreme Court prohibited it in 2001, even indefinite detention was now possible. On the basis of the new law, the number of deportations shot up from under 2 million between 1982 and 1996 to 5 million between 1996 and 2016. In 2008, 71 percent of all deportations were noncriminal, that is, for small misdemeanors, including violations of

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This four-fold distinction is structuring Wong’s (2017:ch.2) authoritative overview of “immigration policy in the United States.” A “path to citizenship” for undocumented immigrants has been a plank of the 2008 Obama presidential campaign. See Chapter 3. New York Times of July 10, 2001, quoted by Zolberg (2006:423).

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immigration law (Wong 2017:94). In that year, the last of the Bush Jr. Administration, the “Secure Communities” program started, under which state and local police were enlisted in the enforcement of federal immigration law. This was a novelty under an American federalism that strictly separates local and federal authority, with “immigration” being a purely federal responsibility, even at the local level, and it was heavily criticized for its propensity for “racial profiling” and the spreading of “distrust” between immigrant communities and the police (Chacón 2017:249). The title of “Deporter in Chief,” however, belongs to President Obama, who deported 4 million people during his eight years in office (2009–16), while detaining 400,000 annually, which is more than by any president in US history (Chacón 2017:247). However, there was also nuance. Under Obama, the focus shifted toward Priority Enforcement. This is the detention and deportation of recent arrivals, who have not yet struck roots in local society, and particularly of criminal law offenders. In this context, Obama’s executive DACA order (Deferred Action for Childhood Arrivals), starting in 2012, provided temporary residence and work permits for those who had entered illegally as children with their parents, and who in the meantime had built up regular educational and work lives. Moreover, Obama opposed the bottom-up creation of parallel, state-level immigration enforcement schemes in some conservative states, starting with the notorious SB1070 law in Arizona, which would have turned into a “crime” not only illegal entry but also illegal residence in the state (under federal immigration law, illegal residence is merely a civil law, not a penal law offense).112 Parallel to the bipartisan move toward enforcement, there have also been periodic attempts at “comprehensive immigration reform,” twice under Bush (in 2006 and 2007) and once under Obama (in 2013), which would have linked increased enforcement efforts to a reform of legal immigration and, above all, a legalization of illegal immigrants. All these attempts failed, essentially due to visceral Republican opposition to legalization, which to them “rewards law breakers and punishes law enforcement, further undermining the constitutional rule of law.”113 This Republican opposition is all the more astounding because all proposed legalizations had never meant to provide a blanket “amnesty.”

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The most extreme features of Arizona’s SB1070, whose harsh philosophy is “attrition through enforcement,” were blocked by the Supreme Court, but not the possibility of local police stopping or arresting people when there is a “reasonable suspicion” that they are illegal immigrants. See Motomura (2014:ch.2). These are the words of Tea Party activists, quoted by Tirman (2015:137).

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This was to avoid any association with the liberal approach in the 1986 Immigration Reform and Control Act (IRCA), in the course of which some 3 million illegal immigrants had advanced to legal residence and citizenship. Instead, all later legalization proposals were themselves couched in the austere colors of enforcement. For instance, the 2006 Comprehensive Immigration Bill, which passed the Senate but died over Republican opposition in the House, rather cautiously spoke of “earned citizenship” for certain illegal immigrants (as did its 2007 and 2013 successors) (see Chapter 3). It included penalties, fees, and the paying back of taxes, having to prove a continuous work record and passing an English and other background tests, and it was available only to who had stayed in the United States for more than five years. For those who had been in the United States between two and five years, there was a return (“touchback”) requirement before they could receive a threeyear temporary status with a work permit; and those under two years in the United States had to return for good. Importantly, “earned citizenship” hinged not only on one’s past behavior, as had been the case under IRCA, but also on one’s prospective behavior, when in the limbo status of “probationary immigrant,” which would last six years under the 2006 bill and even ten years under its 2013 successor. What a critic denounced as “predominantly neoliberal and punitive in orientation” (Ahmad 2017:258), was still too generous for conservative Republicans to take – “this piece of shit,” was how the leader of the Republicans in the House, John Boehner, dismissed the 2007 follow-up to the 2006 bill.114 Overall, US immigration policies in the past three decades have been marked by a strong “tilt towards enforcement” (Waldinger 2018:1421). This trend resonates with a larger development toward “penal populism,” which is fueled by a “rightward shift in the American electorate” (Garland 2013:480; see also Garland 2001). More concretely, as Marc Rosenblum (2011:10–11) explains the enforcement drive, illegal immigration is “visible and quantifiable,” and thus a “valence issue” that is easy to exploit politically; second, in contrast to legalization and legal immigration reform, both of which require new legislation, enforcement is largely an administrative effort that may rely on the possibilities already provided by existing legislation, in particular IIRIRA, whose ferocious restrictive qualities became obvious only over time;115 and, third, 114 115

“Immigration Reform: This time, it’s different,” The Economist, November 24, 2012, p.49. In Joppke (1998), I had entirely overlooked IIRIRA’s creation of enhanced detention and deportation powers, while focusing on the failure of much further-going ambitions at the time to restrict legal immigration also. Zolberg’s (2006:ch.11) much more detailed account did not overlook this aspect of IIRIRA. However, he still sees the

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through IIRIRA’s creation of an “immigration-industrial complex” (Wong 2017:86), there was also a financial stake and vested business interest in enhanced enforcement, considering that detention has been mostly contracted out to private companies. Laying the Tracks (II): Party Polarization. Next to the groundswell toward enforcement, the second immigration policy trend that Trump tapped into and in turn aggravated, but that was not of his making, is the increasing polarization between the Democratic and Republican parties. This trend extends far beyond immigration policy. Echoing their inverse origins, when southern Democrats supported slavery while northern Republicans stood for its abolition, both parties used to be internally heterogeneous, with many a “conservative” among the Democrats and many a “liberal” among the Republicans. This is by now a thing of the past. Among many others, Paul Pierson (2017:S109) noticed a “heightened partisan polarization in American politics,” which is especially “intense” on the conservative side. Starting with the arrival of House speaker Newt Gingrich in the early 1990s, there has been a sharp “anti-system shift in Republican rhetoric” and emergence of a “rightwing political ecosystem” (2017:S108), in which party identification is less a question of ideology and program than of “emotional or tribal motivations” (2017:S109). In fact, a cross-national comparison of party manifestos found that the Republican Party is closer to the French National Front than to conservative fellow parties in Britain or Canada.116 One factor driving this polarization is demographic change. With nonwhites moving up from just 10 percent of the American population in 1950 to almost 40 percent in 2014, and likely to become a majority by mid-century, Republicans are increasingly a party of whites, while Democrats are the party of minorities. In one account (Lind 2016), Republicans today are “predominantly a Midwestern, white, workingclass party, with its geographic epicenter in the South and interior West,” while Democrats are “a coalition of relatively upscale whites with racial and ethnic minorities, concentrated in an archipelago of densely populated blue cities.” In the course of this socio-ethnic reconstitution, both parties sharply divide over race and religion, among other issues (see Levitsky and Ziblatt 2018:ch.7). John Campbell (2018:108) noticed that “both Democrats and Republicans moved in a conservative direction on many issues, but the Republicans moved farther to the right than the

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latter through the liberal lens of “why the gates were not shut,” not unlike my earlier account. Reported in “How the elephant got its Trump,” The Economist, April 21, 2018.

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Democrats.” Immigration is a prime example, where the move to enforcement was bipartisan, while the call for legalization became Democrat-only. In this context, Tom Wong (2017:212) found that, between 2005 and 2014, Republicans in the House were 3.7 times more likely to vote yes on “restrictive” immigration bills, while Democrats were 3.9 times more likely to vote yes on “permissive” legislation. Increasingly unlikely are “strange bedfellow” coalitions on immigration, where conservative free market advocates would side with liberal rights defenders;117 this has been replaced by “hyper-partisanship” (2017:15). To the degree that “Republican” equates with restrictiveness, “whites who are fearful of immigration tend to respond to that anxiety with a measurable shift to the political right” (Abrajano 2014; see also Abrajano and Hajnal 2015). A comparison of the 2016 Republican and Democratic Party platforms on immigration policy showed the two parties inhabiting “parallel universes”: whereas the Republican convention sported crime victims of illegal immigrants and the ultra-right-wing, court-convicted Arizona-border sheriff Joe Arpaio, the Democratic convention showcased several illegal immigrants who had become prominent activists and educational success stories (Chishti and Pierce 2016). Sea Change: Immigration to Rally Nativism. While Trump thus treaded ground that had been well laid out for him, he lifted Republican extremism on immigration to a new level. Never before has immigration been framed at the presidential level as “major threat to U.S. security and employment,” this was a “sea change” (Pierce, Bolter, and Selee 2018:2). In effect, Trump crossed out the optimistic and missionary “nation of immigrants” vision that had undergirded American identity and policy over the past sixty years, and with new enthusiasm under his Republican predecessor, Ronald Reagan. America was now a “nation” like all others, settled and self-regarding: “We will follow two simple rules: buy American and hire American. We will seek friendship and goodwill with the nations of the world, but we do so with the understanding that it is the right of all nations to put their own interests first. We do not seek to impose our way of life on anyone.”118 In 2017, apprehensions at the southern border were at their lowest since 1971. And for several years already, the number of illegal immigrants from Mexico has been continuously declining, partially due to ever more effective enforcement but also due to economic development in Mexico. It is thus paradoxical, though rational from an electoral 117 118

“Strange bedfellow” coalitions are a central theme in Zolberg’s history of American immigration policy (2006). Quoted from “Donald Trump’s full inauguration speech.”

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perspective, that Trump has further fueled the enforcement wheel.119 Unlike his predecessors Bush and Obama, Trump shows no interest in comprehensive immigration reform. Instead, he prefers to keep immigration as a divisive but effective campaign issue. As The Economist put it concisely, for Trump “immigration is scarcely a policy problem at all. It is a means to rally nativist sentiment to win power.”120 As anywhere else, immigration is the eye of the populist hurricane, only that here it is raging from the top. During his first two weeks in office, forever in campaign posture, Trump signed a large number of executive orders that, apart from the notorious “travel ban” (more on which below), tightened the enforcement screw significantly (see Chacón 2017:260–7). A first change is the ordering of so-called “expedited removals” without further hearing or court review for anyone who has been illegally in the United States for up to two years. This legal possibility existed since the 1996 reform of the Immigration and Nationality Act (INA), but for constitutional due process reasons no administration had so far applied it so broadly, including to long-term stayers outside the ports of entry. Second, detention is now foreseen for practically anyone who is in a removal procedure. Given limited immigrant judge and court capacity, detention time is likely to increase significantly, and stressed individuals, even those with valid relief claims, are likely to give in to so-called stipulated removal orders that waive the possibility of legal review, so that they effectively self-deport. Third, Trump resumed the late Bush-era “Secure Communities” program with its low threshold for deportation. This was to live up to his campaign promise to deport 2 million illegal immigrants in his first year in office, which is many more than the presumed 800,000 illegal immigrants with a criminal record. Conservative localities and states eager to round-up and reduce the illegal immigrant population are now given a free-go, while so-called sanctuary cities and states have been threatened with the cutting of federal funds. Most of these restrictive micro-changes remained off the radar of public attention. An exception is Trump’s “zero-tolerance” policy at the southern border, which yielded extraordinarily inhumane consequences. “Zero Tolerance,” officially announced in late April 2018, meant that anyone crossing the southern border illegally, outside official ports of entry, would be jailed and subjected to criminal prosecution before facing deportation. Previously, only repeat-entries, which are a “felony,” had been processed under penal law; now also first entries 119 120

“Immigration policy: When good men do nothing,” The Economist, June 30, 2018, p.41. “The artifice of immigration,” The Economist, November 10, 2018, p.46.

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were. By now, it was mostly families with children from gang-plagued Central America who tried the dangerous passage (Chishti and Bolter 2018). Because of a “Democrats’ law,” as Trump called it, which in reality was the 1997 Flores v. Reno court settlement according to which children should not be detained except for the shortest of periods, the Trump administration started separating children from their jailed parents, some 2,000 between May and June 2018 (the official termination of the policy), a hundred of these children under the age of four. The children were distributed to various facilities in a most uncoordinated and chaotic manner, some being sent to foster homes thousands of miles away, with their destination unknown to their parents.121 This produced a public outcry. A former CIA director tweeted a picture of the Nazi death camp Birkenau, along with the line “other governments have separated mothers and children.” In fact, previous administrations, faced with the Flores dilemma, had simply released parents along with their children. Only for Trump, this was the “catch and release” that he had precisely promised to stop, another “loophole” that had to be closed. No “Democrats’ law,” no court settlement forced him to do the family separations. They simply were the result of his choice to sternly prosecute illegal entry as a “crime,” which was possible under the 1996 reform of the INA but had not been done previously out of a sense of proportion. In defense of the policy, Trump’s Attorney General, Jeff Sessions, an evangelical, cited a Bible passage, according to which one had to “obey the laws of the government because God had ordained them for the purpose of order.”122 But the moral force was with the critics. For four members of the Advisory Council of the Department of Homeland Security (DHS), this was “child kidnapping, plain and simple,” and they resigned in protest, one month after the official termination of the policy, but several hundreds of children still waiting to be reunited with their parents.123 Eric Posner (2017:9) noticed the “significant irony” that a populist leader, whose “personalist” style of authority is in tension with legalism and the rule of law, has mobilized the rule of law against lawbreaking, which illegal immigration by definition is, thus “uniting his populist 121 122 123

Jonathan Blitzer, “How the Trump administration got comfortable separating immigrant kids from their parents,” The New Yorker, May 30, 2018. Colleen Long, “Sessions cites Bible to defend separating immigrant families,” AP News, June 15, 2018 (www.apnews.com/0bcc5d5d077247769da065864d215d1b). Elizabeth Holtzman’s resignation letter is reprinted in “Mitarbeiter des USHeimatschutzministeriums treten zurück,” Spiegel Online, July 19, 2018 (www.spiegel.de/ politik/ausland/us-heimatschutzministerium-mitarbeiter-treten-wegen-einwanderungspolitikzurueck-a-1219308.html).

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appeals to a legalist sensibility that is common in the United States but wholly foreign to populism.” Indeed, “this element of Trump’s immigration policy seems to be successful,” as Posner concludes, if one brackets the officially aborted family separations.124 Of course, if Posner speaks of “success” in immigration policy, it all depends on how you define it. Due to the indiscriminate populist drive to root out all undocumented immigration in the United States, less resources are available where this immigration really hurts: in 2017, the number of deported real criminals was at its lowest level since 2008.125 Trump’s restrictive impulse has not remained limited to illegal immigration, but it has affected legal immigration too. He “dramatically slowed down” family- and employment-based migration, while decreasing refugee admissions to the lowest level since the creation of the 1980 Refugee Act (Chishti, Pierce, and Bolter 2018:1). The “Buy American and Hire American” executive order of April 2017 has even put spikes on the fabled H1-B visa, America’s main mechanism for recruiting high-skilled immigrants. Multiple (third- or fourth-time) renewals are now increasingly denied and spouses are planned to be excluded from the possibility to work. This undid a reform of the Obama administration and poses a great threat to America’s competitiveness in the global race for talent (2018:4). “Extreme vetting” means that all Green Card (permanent residence) applicants must pass through a personal interview, and some of them need to provide no less than fifteen years of detailed travel history, residential addresses, and employment information. Moreover, in August 2019, at the behest of Stephen Miller, a known white supremacist and, after the early departure of Steve Bannon, the chief right-wing populist in the circle of Trump’s close advisors and “architect” of his immigration policy, an “aggressive wealth test” has been introduced for Green Card applicants who already reside in the United States on some other visa. It excludes, and potentially renders subject to deportation past and present recipients of broadly defined welfare benefits (including Medicaid, food stamps, and housing

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Unofficially, these separations continued. By mid-March 2019, nine months after the official halt of the practice, 245 more children were reported to have been removed from their families and placed in institutional care, sometimes “thousands of miles” from their parents, with “no clear documentation to help track the children’s whereabouts” (Miriam Jordan and Caitlin Dickerson, “Families still split at border,” New York Times [international edition], March 15, 2019, p.4). In late August 2019, the Trump administration announced plans to abolish the twenty-day limit of incarcerating children (“Headless chickens,” The Economist, August 24, 2019, p.31). “Headless chickens” at p.32.

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subsidies).126 While current Green Card holders are not affected, the new regulation is likely to have a significant “chilling effect” on all legal immigrants’ use of public benefits and services, including health care.127 The Director of the federal immigration service (Citizenship and Immigration Services, CIC) proffers a slick neoliberal (but clumsily worded) rationale of the policy: “The benefit to taxpayers is a long-term benefit of seeking to ensure that our immigration system is bringing people to join us as American citizens, as legal permanent residents first, who can stand on their own two feet, who will not be reliant on the welfare system, especially in the age of the modern welfare state which is so expansive and expensive.”128 With respect to legal immigration also, the changes brought by Trump demonstrate the “broad discretion” of the President and his administration in implementing immigration law, and “how small modifications can effect wide-reaching policy change” (Chishti, Pierce, and Bolter 2018:7). Indeed, not a single legislative change was necessary to create the antechamber of hell that American immigration policy currently means for those who are subjected to it. The Muslim Ban. Of altogether different order, however, was Trump’s very first immigration policy intervention, the “Muslim Ban,” later sanitized as “Travel Ban.” This has been the most significant challenge to a liberal immigration policy to date, in any place. On his campaign trail, Trump had infamously promised a “total and complete shutdown of Muslims entering the United States.” Upon signing Executive Order No. 13769 (henceforth EO-1), one of his very first acts after assuming office in late January 2017, Trump read its title aloud, “Protecting the Nation from Foreign Terrorist Entry into the United States,” then he looked up and said “We all know what that means.”129 What “that means” is the swift fulfillment of one of his most controversial and inflammatory election promises. This was also one of the most chaotic episodes in a presidency that has not been short of them. EO-1, with immediate effect, barred from entry into the United States all citizens of seven Muslim-majority countries, even if they were visa holders or legal 126 127

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Michael Shear and Eileen Sullivan, “Trump policy favors wealthier immigrants for Green Cards,” New York Times, August 12, 2019. Jeanne Batalova, Michael Fix, and Mark Greenberg, “Millions will feel chilling effects of U.S. public-charge rule that is also likely to reshape legal immigration,” Migration Policy Institute, Washington, DC, August 28, 2019 (www.migrationpolicy.org/print/ 16563). CIC acting director Kenneth Chuccinelli II, quoted in “Trump policy favors wealthier immigrants for Green Cards.” Quoted in US Supreme Court, Trump v. Hawaii, 585 U.S.__(2018), Justice Sotomayor dissenting, at p.7.

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permanent residents returning from a visit abroad. Because Trump and his advisors had not consulted with government lawyers beforehand and not applied the usual intra-executive legal process, the result was “chaos in American airports.”130 Over 700 travelers were detained or put back on the next return flight, and about 60,000 visas were “provisionally revoked.” The courts that immediately stalled the order took the absence of ordinary legal process itself as “evidence of a discriminatory motive” (Eggleston and Elbogen 2018:835). When the DHS, which like all other government agencies had not been consulted, arrived to the legal conclusion that legal permanent residents had to be excluded from the order, this was immediately overruled by Trump’s “inner circle.” Stephen Miller and Steven Bannon decreed that Green Card holders could be admitted only on a “case by case basis.”131 In this remarkable moment, the rule of law was quite literally replaced by the rule of populists, and of radical right activists and nativists at that. To meet the most elementary due process objections, a second version of the travel ban (EO-2), issued in March 2017, applied only to those who lacked a valid visa at the order’s effective date and it did not include legal permanent residents; in addition, Iraq was removed from the list of excluded countries because of its “close cooperative relationship” with the US. Like its predecessor, EO-2 was immediately blocked in court, on statutory and constitutional grounds. However, in June 2017 the Supreme Court, which accepted to review the case, temporarily lifted the lower court injunctions, except for those who held a “credible claim of a bona fide relationship” with a person or entity in the United States. Accordingly, the government had a relatively free-go as long as America’s highest court had not made up its mind about the issue. In September 2017, a “Proclamation” (EO-3) replaced EO-2, which had been meant to be valid for ninety days only. Sudan was dropped from the list of excluded countries, while Chad, North Korea, and Venezuela were added to the original core of Iran, Libya, Somalia, Syria, and Yemen. Including two non-Muslim countries was an obvious ploy to rebut the charge of “anti-Muslim animus” that lower courts had brought to justify their injunctions. Similarly, a tailored approach of excluding only certain but not all entry possibilities for the citizens of the prohibited countries 130

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“Chaos at airports as America introduces travel ban,” The Economist, January 30, 2017 (www.economist.com/gulliver/2017/01/30/chaos-at-airports-as-america-introduces-atravel-ban). For Trump, of course, there was no problem: “It’s working out very nicely. You see it at the airports. You see it all over” (quoted in Evan Perez et al., “Inside the confusion of the Trump executive order and travel ban,” CNN, January 30, 2017) (https://edition.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html). Perez et al., “Inside the confusion.”

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apparently strengthened the government claim that not religious animus but “national security” was the driving concern. In December 2017, the Supreme Court upheld also this third and latest version of the Travel Ban pending its final decision, but this time in full. Before the courts, the government made three arguments in defense of the Travel Ban, which are in the order of a logical progression (see Cole 2018). First, and most fundamentally, courts were not competent to review in the first, as it was in the sovereign power of the political branches of government to decide about issues related to immigration and foreign affairs. Since it had been first formulated in the late nineteenth-century Chinese Exclusion Case, this was known as the “plenary power” doctrine. As Justice Fields had argued in the 1889 Chinese Exclusion Case, the “highest duty of every nation” resided in efforts to “preserve its independence, and give security against foreign aggression and encroachment,” and courts were not allowed to impair the federal government in this task (quoted in Margulies 2018:27). This was no American prank. Already Emer de Vattel, the Swiss eighteenthcentury inventor of international law, had considered the control of immigration as a “logical corollary” to “rights of domain and sovereignty” (quoted in 2018:27). In the meantime, however, human rights and nondiscrimination have advanced as co-constitutive principles of political order. To a degree, even the US Supreme Court acknowledged them as constraining the “plenary” immigration power of the federal government.132 As the Travel Ban made its way through the courts, this was to become a test case whether the retreat of plenary power would continue or be halted. Second, the government argued that even if courts did review what it deemed unreviewable the external statements of the President, from which the plaintiffs had plausibly deduced that religious animus undergirded the Travel Ban, did not count. Only the text of the Proclamation (EO-3) should count, which “says nothing about religion.”133 And, third, even if courts did consider these external statements, the detailed visa-vetting review by the DHS under EO-2, which merely identified countries that did not sufficiently cooperate in providing security-relevant information about their nationals or that themselves were suspected to be “a state sponsor of terrorism,” had sufficiently

132

133

In Zadydas v. Davis (533 US 678 [2001]), the Supreme Court held that the indefinite detention of an alien, who in this case was subject to deportation for his criminal record but whom no other country would take, was in violation of his “substantive due process” rights. Trump v. Hawaii, syllabus at p.5.

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neutralized or “laundered” any impermissible intent on part of the President.134 Stunningly, in its final decision, Trump v. Hawaii (2018), the Supreme Court followed the government argumentation almost in full. It thus did its share to “normalize[] the Trump presidency,” as Peter Spiro (2019a:113) argues it to the point. In coming to its conclusion, the court had to rebut two claims made by plaintiffs and which had previously been accepted by lower courts: that the President had acted outside of his statutory authority as granted by the INA; and that his action was in violation of the constitutional Establishment Clause that prohibits religious discrimination. With respect to the statutory question, §1182(f ) of INA grants the President authority, “for such period as he shall deem necessary,” to “suspend the entry of all aliens or any class of aliens” if he deems their entry “detrimental to the interests of the United States.” The question is whether this authority is only “interstitial” and limited to crisis situations, as argued by the plaintiffs and held by lower courts, or whether it is “permanent” and general, as implied in the Travel Ban and as eventually upheld by the Supreme Court. Certainly, “(b)y its plain language,” this clause “grants the President broad discretion to suspend the entry of aliens into the United States,” as the Supreme Court majority defended its more sweeping interpretation of the scope of the clause. However, never before had a government pushed this line; all previous invocations of §1182(f ) had been of the “interstitial” kind. One example is when President Reagan temporarily banned the entry of “all Cuban nationals” in retaliation for the Mariel Boat Lift, in which Castro had flooded the United States with Cuba’s near-total prison population. A second “interstitial” example is when President Carter barred Iranians from entering the United States during the Iranian Hostage Crisis. Thirteen years after 9/11, fifteen of whose nineteen attackers incidentally had hailed from a Saudi Arabia that President Trump at no point considered to include in his “Travel Ban,” there plainly was no similar crisis situation to justify not merely the temporary exclusion of a tiny island population, like the Cubans, but of some 150 million people worldwide, and possibly in permanence. A second statutory issue to resolve was whether the Travel Ban entailed a violation of the nondiscrimination clause under INA, §1152 (a)(1)(A), which stipulates that “no person shall … be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Apparently, the

134

“Laundered” is the polemical term used by Cole (2018:4).

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Travel Ban categorically excluded on the basis of nationality, so that it constituted discrimination under the clause. At least, so argued the plaintiffs and lower courts. To counter this objection, the Supreme Court majority made a distinction between “admissibility determinations” and “visa issuance,” arguing that the nondiscrimination clause applied only to the latter, but not the former. Therefore, it could not be a constraint on the government’s authority to exclude entire “class(es) of aliens” under §1182(f ). The federal court that was overruled in this decision begged to disagree. It followed the plaintiffs’ argument that the broad authority delegated to the government under INA could not be allowed to become a “wrecking ball” against an immigration statute that, from the mid-1960s on, had solemnly abdicated the racially motivated national-origin quota system of the past. Indeed, EO-3 “ominously echoes the national origin quotas that Congress rejected in 1965” (Margulies 2017). However, the main question before the court was not statutory but constitutional: Did the “Travel Ban,” which by Trump’s own admission was a “morphed”135 version of the “Muslim Ban” that he had promised in his campaign, inhere the “unconstitutional purpose of excluding Muslims”?136 It is at first puzzling that the religious discrimination charge was made under the Establishment Clause and not the Free Exercise Clause of the First Amendment, because the focus of the former is on “institutions” but not “individuals” (Maltz 2018:407).137 However, if the “clearest command” of the Establishment Clause is that “one religious denomination cannot be officially preferred over another,”138 the religious discrimination charge could be made through this angle also. In fact, by this interpretation of the Establishment Clause, Trump had violated it in all openness. The first version of the Travel Ban, one must know, also included a 120-day ban on all refugee acceptance, after which period “religious minorities” were to be preferred. To allow no doubt about the true meaning of this neutral formulation, on the day of signing the ban Trump explained that it entailed a preference for “Christian” refugees in Muslim-majority states. “This is analogous to declaring the United States a Christian country,” commented Noah Feldman.139

135 136 137

138 139

Trump v. Hawaii, dissent by Justice Sotomayor, at p.6 (quoting Trump). Trump v. Hawaii, majority opinion of Chief Justice Roberts, at p.24. Harvard constitutional lawyer Noah Feldman, in one of the first critical responses to the first version of the Travel Ban in January 2017, held it to be “violating both the equal protection and free exercise clauses” (N. Feldman, “Trump’s Travel Ban is an attack on religious liberty,” Bloomberg, January 30, 2017). Trump v. Hawaii, majority opinion, at p.26. “Trump’s Travel Ban is an attack on religious liberty.”

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The religious discrimination charge fed exclusively on external statements by Trump, made in the course of his campaign and even later in office. These statements were unequivocal. Trump after all is Trump. The infamous “total and complete (Muslim) shutdown” statement remained on his campaign website until May 2017, five months after the issuance of the first “Travel Ban.” Still on his campaign trail, when asked whether his new insistence on “extreme vetting” meant “pulling back” from the “Muslim Ban,” Trump responded: “I actually don’t think is a rollback. In fact, you could say it’s an expansion … people were so upset when (I) used the word Muslim.”140 Freshly elected, when asked whether he would “rethink” his plans to “ban Muslim immigration,” the response was: “You know my plans. All along. I’ve proven to be right.”141 Having signed the second version of the Travel Ban in March 2017, for anyone who would not have noticed, Trump established the direct link to his “campaign promises”: “I keep my campaign promises, and our citizens will be very happy when they see the result”142 – though he himself was not happy about a “watered down, politically correct version” of the “original Travel Ban.”143 Trump’s frustration about hiding behind neutral language and having to make other compromises did not diminish when the final “Proclamation” was issued in September 2017: “The travel ban into the United States should be longer, tougher and more specific—but stupidly, that would not be politically correct.”144 The original hint to move from “Muslims” to “territory” obviously came from his close advisor Rudolph Giuliani, former mayor of New York, who boasted on Fox News: “He [Trump] called me up. He said, ‘Put a commission together. Show the right way to do it legally.’” Giuliani’s apparent advice was to “[focus] on, instead of religion, danger … [The order] is based on places.”145 As is apparent from the previous footnotes, these external statements were meticulously laid out not only in the dissent by Justice Sotomayor, but in the Trump-favoring majority opinion of Chief Justice Roberts itself. If there ever had been a case of “religious gerrymander”146, here was one. The question was how much or how little these statements should count, or, in legal language, what standard of review should be applied by the court. The usual standard in Establishment Clause cases is that of the “reasonable observer.” It was duly taken by dissenting Justice

140 142 145 146

141 Trump v. Hawaii, dissent by Justice Sotomayor, at p.6 (quoting Trump). Ibid. 143 144 Ibid., 8 (quoting Trump). Ibid., 9 (quoting Trump). Ibid. Trump v. Hawaii, majority opinion by Chief Justice Roberts, at p.27, quoting “one of the President’s campaign advisers,” who was Giuliani. This was the plaintiff charge, quoted in ibid., at p.26.

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Sotomayor, who concluded on its basis “that the President was motivated by anti-Muslim animus.”147 Chief Justice Roberts, by contrast, applied a more lenient “rational basis review” standard, which “considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.”148 As the Chief Justice conceded, on this mild review standard “the Court hardly ever strikes down a policy as illegitimate.”149 While there had been no jurisprudential precedence for this choice, Roberts deemed this the right standard simply because one dealt here with an instance of “immigration policies, diplomatic sanctions, and military actions.”150 In other words, the plenary power doctrine trumped all other considerations, including a discrimination charge under the Establishment Clause. Once the choice for the “rational basis” test had been made, all the court majority needed to find to uphold the policy in question was a “justification independent of unconstitutional grounds.”151 They found it in the “national security concerns” proffered by the government.152 But not without lashing out against the “religious gerrymander” charge: the policy “covers just 8 percent of the world’s Muslim population.”153 The same reality, of course, looked different if differently formulated: the Travel Ban denied entry to 150 million people from six countries that were to over 90 percent Muslim. To bolster the government’s “national security” rationale, the court correctly pointed out that even for the covered countries there were “significant exceptions” for “various categories” of foreign nationals – for instance, students and exchange visitors from Iran, America’s enemy No.1, were allowed; and there was a waiver program for all foreign nationals covered, so that each individual, in principle, could make her case for entry.154 However, these considerations could be equally turned against the government. Some of the exempted categories were known to constitute higher risk factors than others that were included in the ban. In a separate dissent, Justice Breyer laid out that the “elaborate system of exemptions and waivers” were not “applied” as they were “written,” whereby “the claim that the Proclamation is a ‘Muslim ban,’ rather than a ‘securitybased’ ban, becomes much stronger.”155 For example, the number of individual waivers was minuscule, and this by explicit order – in the final Proclamation’s first month, there were only 2 waivers out of 6,555 147 148 150 154

Trump v. Hawaii, dissenting opinion by Justice Sotomayor, at p.1. 149 Trump v. Hawaii, majority opinion by Justice Roberts, at p.32. Ibid., at 33. 151 152 153 Ibid., at 32, fn. 5. Ibid., at 32. Ibid., at 34. Ibid. 155 Ibid., 36–7. Trump v. Hawaii, dissent by Justice Breyer, at p.3.

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eligible applications.156 Moreover, two internal DHS memos, written just before the issuance of the second version of the Travel Ban in March 2017, pointed out that citizens of the excluded countries were “rarely implicated in US-based terrorism” (under 15 percent), and that “citizenship” in general was “no good indicator of terror threats”; most foreign US-based extremists “radicalized several years after their entry to the United States.”157 The majority court might counter that it was not up to judges to adjudicate on the wisdom of policy – “We express no view on the soundness of the policy,” Chief Justice Roberts blithely stated.158 However, from the ultimate chaos of its first enunciation on, the Travel Ban has all the appearance of a hastily assembled package that serves a different, essentially polemical purpose, like Trump’s entire immigration policy. Among those who shared the majority opinion in Trump v. Hawaii, Justice Anthony Kennedy alone, the long-time “swing vote” who mediated between the conservative and liberal camps on the Supreme Court, uttered an oblique word of critique. Even if “Government officials” are not always “subject to judicial scrutiny or intervention,” as they apparently were almost not in this case, “[t]hat does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”159 Furthermore, “[a]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”160 This was the last sentence in the last opinion of Justice Kennedy, who has since retired from the Supreme Court. He was replaced, after a tumultuous nomination process that involved an old but serious sexual harassment charge that could not be credibly rebutted, by a conservative justice who cemented the conservative majority in America’s highest court. Trump v. Hawaii ended in a “near-complete legal victory for the Trump administration” (Spiro 2019a:112), and a since recomposed Supreme Court, with the strongest conservative majority since earlier in the twentieth century, is most unlikely to get into its way in the future.

Refuting and Firing Populism: Germany and the 2015 Refugee Crisis Germany’s open door policy for over 1 million Syrian and other refugees in 2015 preceded Brexit and Trump, and it may well have been a causal 156 158 159

157 Ibid., at 4. The DHS memos are quoted by Cole (2017:6). Trump v. Hawaii, majority opinion by Justice Roberts, at p.38. Trump v. Hawaii, concurring opinion by Justice Kennedy, at p.1.

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160

Ibid., p.2.

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factor in bringing about both. With respect to Brexit, not just the issue of EU migration, but the late Leave Campaign’s toxic blurring of the distinction between EU migration and mass asylum-seeking from the Middle East “swung it for Brexit,” to update the foreboding by Financial Times editorialist Gideon Rachman.161 And candidate Trump’s call for a Muslim Ban took off against the backdrop of Islamist terror attacks in Europe, which were in part committed by people who had (re)entered and moved around with the uncontrolled refugee stream. In the malicious reading by a former George W. Bush speechwriter, German Chancellor Angela Merkel and Trump were “functional allies,” because only the “dreamy liberal refusal to recognize the reality of nationhood” had opened the door for its aggressive defense.162 Germany is of interest here as a negative case of notionally and stubbornly refuting yet in effect firing populist nationalism, at home and abroad. At home, the rise of the Alternative for Germany is the direct result of Merkel’s open border policy of 2015. But also, the strengthening of other populist parties in Europe, more recently and spectacularly the Sweden Democrats, in a country that took in more refugees per capita than Germany, is directly or indirectly attributable to the German policy. However, whereas Sweden, under the televised tears of the Greens’ deputy prime minister, would go through a “dramatic shift in policy” in late November 2015 (Barker 2018:54), closing its border to Denmark and accepting refugees only on a temporary basis with restricted or even suspended family rights, Germany under Merkel steadily held a liberal course, alone among its neighbors. There has been much speculation about what motivated the Merkel government’s open border stance in 2015. For a British observer, Germany behaved like a “hippie state,” guided “only by its feelings.”163 In a recent reflection on the moment that has changed the country like no other since reunification a quarter century ago, the Interior Minister at the time, Thomas de Mazière, confirms that “we all, including the media and the politicians, were driven by sentiments (Stimmungen) … [W]hen the people stood at the train stations and clapped, all refugees were

161 162 163

Gideon Rachman, “Immigration could swing it for Brexit,” Financial Times, June 7, 2016, p.7. David Frum, “The roots of a counterproductive immigration policy,” The Atlantic, January 28, 2017. See the interview with British political scientist Anthony Glees (“Wie ein Hippie-Staat von Gefühlen geleitet,” Deutschlandfunk, September 8, 2015) (www.deutschlandfunk.de/ deutschland-und-die-fluechtlinge-wie-ein-hippie-staat-von.694.de.html?dram:article_id= 330441).

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saints.”164 It was a moment that Durkheim would have described as one of “collective effervescence,” in which a collectivity or even an entire society comes together in the same thought and action that reaffirms its unity. In this case, the solemnized refugees functioned as “totemic” badge of unity. The welcoming of refugees, whose apex was toys and ice cream handed out by police officers at Munich train station in early September, was a nationalism of the post-nationals. Importantly, however, this post-national nationalism was fired-up by the altogether different nationalism of those who threw stones at refugees, particularly in the east German province. Merkel, the Flüchtlingskanzlerin, whose selfies with Syrian refugees made her the savior of the distressed in the world, a planetary icon, stumbled into her role against her will. Still in mid-July, when asked in fluent German by a fourteen-year old Palestinian girl, who stood to be deported with her family, why she was not allowed to fulfill her dream and “go to university” like everyone else, Merkel responded coolly that it was just not possible to say “‘you can all come’, that you can all come from Africa,” because “we just cannot manage this” (das können wir auch nicht schaffen) (quoted in Alexander 2017:31). Amazingly, shortly before Merkel immortalized herself with “wir schaffen das” (we will manage this), she had said the exact opposite. In between both statements lay a tumultuous visit at an asylum-reception center, her first ever, in the east German town of Heidenau. There she was booed and attacked by a mob of locals and radical rightists as “Volksverräterin” (traitor of the people) and showered with other insults that are not fit for print. “There is no tolerance for those who are not prepared to help, when helping is legally and humanely required (geboten),” she firmly responded on the spot, every inch the Lutheran pastor’s daughter that she is, and she would stick to the “humanitarian imperative” with determination.165 Previously known for avoiding strong decisions, for which the Germans invented the neologism “merkeln,” in this case she took one. Unlike her predecessor as CDU Chancellor, Helmut Kohl, who had faced a similar wave of hatred against asylum-seekers and foreigners in the freshly reunified country in the early 1990s, Merkel did not shy back from taking sides, even risking the bitter emotion that “this is not my country” if she had to “excuse” herself for “showing a friendly face in an emergency.”166 164 165 166

“Flüchtlingspolitik: ‘Wir haben uns alle von Stimmungen leiten lassen’,” Frankfurter Allgemeine Zeitung, February 11, 2019. Quoted by Doreen Reinhard, “Heidenau: Merkel in der Hassmanufaktur,” Zeit Online, August 26, 2015 (www.zeit.de/politik/deutschland/2015-08/heidenau-angela-merkel). See Gustav Seibt, “Der seltene Gefühlsausbruch der Kanzlerin,” Süddeutsche Zeitung, September 17, 2015 (www.sueddeutsche.de/politik/merkel-zur-fluechtlingsdebatteder-gefuehlsausbruch-der-kanzlerin-1.2650051).

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Was this the same person whom Jürgen Habermas had denounced as an “opinion-poll driven pragmatist of power devoid of all normative commitments” (quoted in Alexander 2017:69)? Yes, to a degree, because, initially at least, Merkel’s moral posture was immensely popular. Note that, at the height of the influx in mid-September, Merkel and her Interior Minister were close to sign a police order that would have closed the border for new asylum-seekers.167 If they stepped back last minute, this was not just for legal reasons (more on this below), but also because this would be “unpopular” and difficult to communicate in this moment of “German ecstasy,” when even the tabloid Bild chanted “refugees welcome, Wir helfen!” In the vision of the German President at the time, Joachim Gauck, “there is a light Germany (helles Deutschland) that shiningly stands out against dark Germany (Dunkeldeutschland)” (in 2017:70). It was politically convenient to ride on this wave. However, there was a price for the chancellor’s unambiguous choice for helles Deutschland. For one, Dunkeldeutschland would build up its own party, the Alternative for Germany. In addition, the entire German party system fell “into a strange disorder” (Thränhardt 2018:35). Regional election wins of the leftist parties over Merkel’s CDU would be taken as “wins for Merkel,” because these other parties supported her asylum policy more than her own party (Alexander 2017:187–8). Apart from the AfD, whose star rose mightily after September 2015, the main opposition to Merkel’s open border policy emerged within the governing CDU’s own Bavarian sister party, the CSU, which stuck to the maxim of its historical leader, Franz-Joseph Strauss, not to leave any space for a political party “right of the CSU.” Indeed, Strauss’ successor, then Bavarian Minister President Horst Seehofer, immediately denounced the so-called “border opening” of early September 2015 as a “mistake that will preoccupy us for a long time,” opening up a “reign of illegality” (Herrschaft des Unrechts).168 This language is amazingly identical with that of the populist AfD (see Butterwegge, Hentge, and Wiegel 2018:69–70). 167 168

This is confirmed in Deutscher Bundestag, Drucksache 18/7311, January 20, 2016. This was meant quite literally, in terms of the assumption that “the federal government is legally obliged for constitutional reasons … to reestablish national border controls when the European border security and immigration system … has ceased functioning” (Di Fabio 2016:118). The former constitutional justice, Udo di Fabio, in a report delivered at Seehofer’s request for the Land government of Bavaria, comes to this conclusion through an argument about federalism: if the federal government fails in its tasks of border control and adjudicating asylum claims, the “statehood” of the Länder (in this case Bavaria), which are (or is) charged with accommodating refugees, is threatened (see also “Is the welcome culture legal?,” The Economist, February 13, 2016, p.21). This view is not shared by many. It is one thing to say that national border controls were possible, despite EU law constraints, but quite another to

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Seehofer started a fight for an “upper limit” (Obergrenze) of 200.000 refugees per year. This was ten times as many as British Prime Minister Cameron promised to take over the span of five years, and it shows the astounding level of acceptance of refugees across the German political spectrum. Merkel responded that “the basic right of asylum does not know an upper limit” (quoted in Alexander 2017:15), never departing an inch from her position. The liberal Chancellor and her intra-party populist challenger were both right in their own way. Under the Geneva Refugee Convention, the right of asylum is the right of the state to grant asylum and thus not a challenge to but confirmation of the principle of state sovereignty.169 By contrast, article 16 in the German Basic Law provides a subjective right to be granted asylum if the fact of “political persecution” is confirmed. There can, indeed, be no quota limitation of a constitutional right, the only right that the German Basic Law hands out exclusively to foreigners. However, the so-called Asylum Compromise of 1992, which had ended an earlier mass influx of asylum-seekers in the early 1990s, has neutralized the constitutional subjective asylum right through the condition of the EU Dublin Convention that asylum-seeking arrivals from other EU states or from safe third countries could be returned. Moreover, with the implementation of EU law, the vast majority of asylum-seekers in Germany are now processed under the Geneva Convention, which – apart from the non-refoulement norm – grants no right of entry, and which ceases to be effective in case of a threat to domestic security (see Hailbronner and Thym 2016). If one combines this with the possibility under EU law to reject asylum-seekers entering from a safe country, “quota,” as envisaged by Seehofer, “may well be a useful and proportionate means to numerically limit the voluntary processing of asylum claims instead of pushing them back to the responsible state,” as the doyen of German immigration lawyers, Kay Hailbronner, argued.170 Legally speaking, of course, there never was any “border opening” in early September 2015. Open internal borders were the default mode under the EU Schengen regime. The only change was that so-called Dublin cases involving Syrians were “factually no longer pursued.” This is the content of the famous tweet by the Federal Office for Migration and Integration (BAMF) from August 25, 2015, which initiated the run

169 170

say that they were required. See the interview with Daniel Thym in Der Spiegel (“Asyl: ‘Das ist eine Legende’”), February 13, 2016. See Hansen (2017:8f ). For the essentials of international refugee law, see Goodwin-Gill (1983). Kay Hailbronner, “Europas Grenzkodex,” Die Welt, November 1, 2015.

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on the German border. But even the lifting of the responsibility-check under the Dublin rules in itself was no big change. For bureaucratic and political reasons, but also due to the simple fact of serial no-shows at the date of deportation, no more than 10 percent of Dublin cases were ever sent back to the responsible state. Accordingly, the real change was entirely in the realm of symbols. When, in early September 2015, German authorities even organized buses to transport refugees from Austria to Germany, and soon thereafter the Chancellor allowed herself to be pictured with refugees on selfies, the whole world knew that Germany was “welcoming” refugees. More than anything else, it was these pictures and their positive message that made “Germany! Germany!”171 the destination of a veritable “youth exodus” (Betts and Collier 2017:ch.3), only half of it from Syria, from where ca. 1.2 million registered asylum-seekers originated in 2015 and 2016 alone. In this sense, Hungarian Prime Minister, Viktor Orbán, was exactly right that the “migrant crisis” was “not a European problem” but a “German problem.”172 “European Solution” to a German Problem. The paradox is that Merkel’s lifting of the EU Dublin rules was in the interest of finding a “European solution” to the refugee problem, whose elusiveness, even improbability was both confirmed and reinforced by her own action. Merkel’s fear was not just the collapse of the Schengen free-movement regime. More concretely, her fear was that controlling the border and insisting on the Dublin rules would produce a domino effect, with Germany’s southern neighbor, Austria, closing its southern border in turn, and the same effect repeating itself in the Balkan states all the way down – until Greece, which had just been badly battered by the financial crisis and brought to its knees under a painful EU–IMF austerity regime, would be left alone to deal with the refugee problem. Germany’s acceptance of what were in most cases “Greece’s” refugees under the Dublin rules, one might argue with Philip Manow (2018:56–7), was an implicit quid pro quo for Germany’s harsh insistence on austerity. However, the “European solution” fought by the “indispensable European”173 occurred at considerable cost, and it was fraught with more paradoxes. The first is that it spurred anti-European populism abroad. 171

172 173

This was the refugees’ chant in Budapest’s Keleti train station, after Orbán had temporarily lifted train service to Austria (“Germany! Germany,” The Economist, September 12, 2015, p.21). “Migrant crisis a ‘German problem’ – Hungary’s Orbán,” BBC News, September 3, 2015 (www.bbc.com/news/world-europe-34136823). Merkel’s portrait with these words was The Economist cover page of November 7, 2015 (“The indispensable European”).

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Merkel’s initial solution was assembling asylum-seekers in designated “hot spots” in Greece and Italy, and then distributing them across Europe according to a quota system. This was fiercely opposed as “moral imperialism” by the eastern member states, who would not accept a single Muslim migrant into their “Christian” lands. Alone the Polish government, led by Donald Tusk’s liberal Civic Platform at the time, gave in after pressure, so that the controversial measure could be imposed through the “nuclear option” of qualified majority voting in the European Council. However, this was received in Poland with outrage, and the liberal government’s “betrayal” was punished by voters with the enthroning of the populist Law and Justice Party just one month later. The “European solution” thus had the unintended effect of strengthening the populists all over Europe, and an alternative vision of “Europe,” not as post-national value community as in the official version but as a loose federation of Christian nation-states, as preferred by the populists, was gaining contours. Because the quota system, though formally put in place in the autumn of 2015, factually failed over the opposition by eastern member states, the focus of a “European solution” shifted outward. An agreement had to be found with the most important non-EU transit state for refugees on the so-called Balkan Route, which links the refugee-generating Near East with Europe. This country happened to be Turkey. The so-called “EU–Turkey Deal” of March 2016 is a misnomer. In reality it was pushed and negotiated by Germany alone, faithful to Orbán’s wisdom that the refugee problem was mainly Germany’s problem. It trades in 6 billion Euros, visa-free traveling for Turks, and the resumption of EU accession talks, against Turkey’s promise to patrol its coastlines and take back the refugees who leave from there to illegally enter Greece, of course, not to stay there but to move further north. To assuage Germany-cum-Europe’s moral conscience, for each Syrian refugee returned from Greece one Syrian in Turkey was to be exchanged. This could not paint over the second paradox of Germany’s “European solution” to the refugee crisis: its open border could be retained only by an entirely correctly labeled “deal” with a notorious humanrights violator and one of the world’s most ruthless populists, Turkish President Recep Erdogan. Robin Alexander’s brilliant portrait of the “180 days that changed Germany” concludes with this laconic line: “The borders continue to be open for refugees. But they also cannot come any longer. About both facts the Germans are quite happy” (2017:277). But what did really “change” in Germany? First, there is the collapse of the old party system, in which the ascendance of the AfD has cemented

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the end of the old pattern of center-right alternating with center-left coalitions. Second, there is the arrival of one million refugees who need to be “integrated.” Third, what has not changed but been further aggravated by the massive refugee arrivals, is the liberal enforcement gap vis à vis rejected asylum-seekers, which must fuel popular discontent with the liberal policy. The Populist Challenge from Within: The CSU and Order at the Border. With respect to the first, the political change, the cordon sanitaire against an increasingly radicalized and völkisch AfD is likely to hold, at least for the time being. Accordingly, the populist impulse is mainly articulated from within, by the Bavarian CSU that has arguably become Germany’s main populist party. After failing with his “upper limit,”174 CSU leader Horst Seehofer, since March 2018 as Federal Minister of the Interior, has tried again to unravel the Chancellor’s liberal asylum policy, this time with the call to reject at the border so-called secondary asylum-seekers, who are already registered in the EURODAC data base but prefer to file their asylum request in their country of choice, Germany. By summer 2018, due to the EU–Turkey Deal and the closing of the Balkan Route,175 asylum requests were sharply down, to under 200,000 per year, that is, below Seehofer’s own earlier “upper limit” request. And the number of “secondary” asylum claims that came to be targeted now was even smaller, at 20,000 per year. So, the alarmist picture of a “system crisis” and a “system failure,” along with the call to “restore order” at the border, which the CSU drew to make its campaign palpable,176 did not correspond to reality. In fact, this was a strategic ploy to win back AfD voters for the forthcoming Bavarian Landtag elections of October 2018, where the CSU was threatened with the loss of its absolute majority, mainly because of an expected strong showing of the radical right party. 174

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The new 2018 Coalition Treaty between CDU/CSU and SPD, which ended a half-year interim in which no new government could be formed after the 2017 federal election, contained only the weaker formula of a “target value” (Richtwert) or “corridor” of 180,000–200,000 new refugees per year. The closing of the Balkan Route, just days before the signing of the EU–Turkey Deal in March 2016, was achieved by the Wunderwuzzi, Austrian Interior Minister Sebastian Kurz, through diplomatic agreements with the West Balkan states. They amount to a controlled version of the domino effect that Merkel’s preference for a “European solution” exactly tried to avoid, because they would put all the burden of dealing with the refugee situation on Greece. Merkel consequently opposed the Kurz agreements (see Alexander 2017:ch.14). The Greek problem, however, was fixed by the EU– Turkey Deal, so that both strategies turned out to be complementary. These are the words of Alexander Dobrindt, the leader of the CSU in the Bundestag. See Matthias Geis and Tina Hildebrandt, “Migrationspolitik: Da kocht was über,” Zeit Online, June 13, 2018 (www.zeit.de/2018/25/migrationspolitik-horst-seehofer-angelamerkel-cdu-csu).

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Like a déjà vu, the question was, again, whether it was possible to reject asylum-seekers at the border. In the dominant legal reading, EU law, under the Dublin III agreement, prohibits this. At a minimum, it first has to be established which other EU state is responsible for handling the respective asylum request; and if this state is determined, a formal request for returning the claimant must be made, to which this EU state needs to agree first. Moreover, even if previously registered elsewhere, the asylum-seeker can always claim to have close family in Germany, or that the country of first registration does not provide a humane and dignified asylum procedure (note that in 2011, Greece was judged by the ECJ as not meeting this threshold); last but not least, the asylum claimant always has the possibility of legal appeal to a return decision. All this is obviously not something that can be done on the spot and instantly, and if the procedure lasts longer than six months, Germany becomes responsible anyway for handling the asylum request. Germany even is responsible from the start if the asylum claimant is an unaccompanied minor – not a rare event, because biological age determination is a legally demanding and contested matter, and asylum-seekers in the age of internet are cognizant of the smallest loopholes in asylum law. One sees: after four decades of successively refined asylum restrictions, the old adage that if a foreigner steps on liberal state territory she is half-way in, still holds. There is, however, an alternative legal view that a rejection at the border is possible. Technically speaking, a person bidding for entry at the border is not yet on the territory of the state that she seeks to enter. Article 20(4) of the Dublin III regulation explicitly states that if an asylum claimant is still under the “jurisdiction of another member state,” it is this state, and not the state to which the asylum claim is made, that has to determine which state is responsible to handle the request. This would mean that at the German–Austrian border, Austria but not Germany has to determine which member state under the Dublin rules is responsible for the asylum request. While there are other parts of the Dublin III regulation that seem to suggest the opposite, some lawyers have argued plausibly that only this interpretation corresponds to the “historical intention” of the European lawmakers, because otherwise asylum-seekers could choose their country à la carte and transit countries would have an incentive to “tolerate or even further secondary migration into other member states.”177 This is a minority view among jurists and 177

Alexander Peukert, Christian Hillgruber, Ulrich Foerste, and Holm Putzke, “Die Flüchtlingskrise kann rechtsstaatlich bewältigt werden,” Frankfurter Allgemeine Zeitung, February 9, 2016.

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not backed by high court jurisprudence. But it is the view that Interior Minister Seehofer made his own to justify his renewed attempt to throw sand into Merkel’s liberal asylum machinery. He cleverly used the legal language of late nineteenth-century liberal constitutionalist Georg Jellinek that is also comprehensible to the average AfD voter: “State power has to protect the state people and the state territory.”178 What is a border and who is in charge? This is evidently a complicated question that, in the end, cannot be decided legally but only politically. France, for instance, never hesitated to do what Germany never dared, reject asylum-seekers at the border who were previously registered in the EURODAC data base. When Seehofer surprisingly announced to jump the Rubicon, and subito, in June 2018, he brought the freshly and with great difficulty established grand coalition government of CDU/CSU and SPD to the verge of an early collapse. What followed was high political drama. Merkel vetoed Seehofer’s plan, which he nevertheless intended to put in place immediately – as if there was chaos at the border, which of course was not the case. If he overstepped Merkel’s veto, this would force Merkel to fire her Interior Minister, and the coalition government, barely three months old, would be dead. This was political instability that Germany had rarely seen, and solely for the CSU’s sake of absorbing the populist radical right by grandstanding on the national border. For Merkel, again, a “European solution” had to be found. She promised to find one within two weeks, at an EU summit in late June 2018, in the form of bilateral agreements with other EU states that would facilitate and speed-up rejections at the border. However, after her return from Brussels, and with the alleged agreement of 14 EU states in her pocket, three eastern member states immediately backed off, denying that any agreement had ever been made;179 and populist-ruled Italy, one of the three EU frontier states where most Dublin cases originated from, had initially not been part of the return-agreement list.180 In the end, coalition peace was restored by agreeing on the creation of so-called transit centers at the Austrian border, in which a “fiction of non-entry”

178 179

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Quoted by Thorsten Jungholt and Christoph Schiltz, “Asylstreit der Union: Jetzt muss Merkel liefern,” Die Welt, June 18, 2018. “Flüchtlingspolitik: Osteuropäer lassen Merkel hängen,” Spiegel Online, July 1, 2018 (www.spiegel.de/politik/ausland/fluechtlinge-osteuropaeische-laender-stellen-sich-gege n-angela-merkel-a-1216021.html). See the internal government memo, Mehr Ordnung und Steuerung in der Migrationspolitik: Bericht zur Lage nach dem Europäischen Rat vom 28./29. Juni 2018 (https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/ 2018/07/bericht-mehr-ordnung-und-steuerung-in-der-migrationspolitik_0.pdf).

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would guarantee rejections at the border, but only on the basis of “administrative agreements” and “consultation” with the concerned EU states.181 As ever, the “European solution” to an asylum question that would not go away, and that this time was cooked up for purely political reasons, looked brittle.182 Most appallingly, the endogenously motivated CSU push for control of the border was not rewarded at the ballot box. In October 2018, the CSU received a paltry 37 percent of the Bavarian vote, the worst showing since 1950 by a party that used to rule with absolute majorities. And the ghost that was meant to be exorcized, the AfD, for the first time entered the Bavarian Landtag with 10 percent of the vote, not as many as they had hoped, but with exactly the margin that the CSU had lost. The Integration Challenge. The second domestic change brought by the 2015 refugee crisis consists of the biggest unplanned migrant intake in the history of the Federal Republic. The official and somewhat selfcomforting reading of it is as “morally required task stemming from Germany’s global responsibility” (Langenfeld 2018:26). However, one striking aspect is the instant economic framing of this intake, uncommon for refugee and asylum policy. A French Socialist deputy, fearful that the influx would strengthen Le Pen’s National Front, even attributed “egoistic demographic motives” to the German policy.183 Considering the huge financial cost of the operation, which one observer estimated to be at the height of the country’s defense budget,184 and in the light of strong local opposition from mayors and administrators who were largely left alone with the giant task of feeding, housing and servicing an unprecedented number of fully state-dependent third-world migrants, the charge of egoistic motive and grand strategy appears odd. However, it is also true that these refugees were immediately perceived “as workers and employees” (Laubenthal 2019:7). Different from the past, business and employer associations aggressively pushed for integrating into the labor market as many refugees as fast as possible. One observer even argued that, in a kind of “spill-over,” Germany’s “new asylum policies strongly 181

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This is the formulation in Seehofer’s famous “Master Plan Migration,” whose contents had long remained secret and whose final version was published only after the coalition peace was restored in early July 2018 (German Interior Ministry 2018, at p.13). Half a year later, just eleven “secondary” asylum-seekers were returned this way, nine to Greece and two to Spain (“Bisher elf unerlaubt weitergereiste Asylbewerber abgewiesen,” Zeit Online, March 3, 2019 (www.zeit.de/politik/ausland/2019-03/ ruecknahmeabkommen-fluechtlinge-abgewiesen-deutsche-grenze). About the negative French reaction to Merkel’s asylum policy, see Nikos Tzermias, “Abweisende Heimat der Menschenrechte,” Neue Zürcher Zeitung, October 1, 2015, p.14. That is, at 21 billion Euros (Thränhardt 2018:32).

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mirror the principles of German labour migration policies” (2019:11). With an eye on enthusiastic employer support for the refugee policy, Wolfgang Streeck (2016b:2) called the latter an “immigration policy by the back door,” and one that knew no “upper limit” and could be sold to a skeptical public as “humanitarian obligation.” Note that the word Willkommenskultur (welcome culture), which was immediately applied to the accommodation of the refugees, had originated in the altogether different context of courting high-skilled immigrants (see Heins and Çopur 2013). Accordingly, the “courting” vs. “fending-off” binary does not quite work in this one instance. Against the backdrop of a labor market losing some 300,000 participants per year because of aging,185 with 600,000 unfilled positions in mid-2015,186 the lack of skilled labor in Germany, known as Fachkräftemangel, ever more extends from high- to semi-skilled workers with more moderate qualifications – therefore, in fact, the Fachkräfteeinwanderungsgesetz of 2019 (see above). However, a “polarized” skill structure of refugees, with one-fifth holding a university degree but 50–60 percent without any professional training, and “hardly anything between these two extremes,”187 was not ideally suited to meet German labor-market needs, thus necessitating additional training and integration efforts. Still, here was an opportunity to be seized. It is paradigmatic that, at the height of the refugee influx, the director of the Federal Office for Labor, Frank-Jürgen Weise, was recruited to head, not in an exchange but in addition to his first job, the Federal Migration Office (Bundesamt für Migration und Flüchtlinge, BAMF). According to Weise, refugees, of whom he deemed 70 percent employable, were “good for our labor market and for our society as a whole. They will make sure that there won’t be only grey old men around who clock our Autobahnen with their slow driving, but that there will be pep in our society.”188 The instant economic framing of refugee acceptance was not merely a matter of opportunity. After a landmark decision by the Constitutional Court in 2012, asylum-seekers, however small their chance to be recognized as refugees, were entitled to exactly the same amount of minimum

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Heike Göbel, “Einwanderungsgesetz: Offen, aber gesteuert,” Frankfurter Allgemeine Zeitung, December 19, 2018. Markus Dettmer et al., “German companies see refugees as opportunity,” Spiegel Online, August 27, 2015 (www.spiegel.de/international/germany/refugees-are-anopportunity-for-the-german-economy-a-1050102.html). German labor economist Herbert Brücker, quoted in ibid. Frank-Jürgen Weise, quoted in Die Welt (“So besonnen relativiert Weise die Flüchtlingskrise”), October 29, 2015 (www.welt.de/politik/deutschland/ article148175570/So-besonnen-relativiert-Weise-die-Fluechtlingskrise.html).

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social aid as citizens or permanent residents – “human dignity as guaranteed by Article 1(1) in the Basic Law cannot be relativized for the purposes of migration policy,” decreed the court.189 Overnight, state support for asylum-seekers had to be increased by 50 percent. Negatively speaking, the court decision implied that, under the austere Hartz IV welfare rules, Germans or other permanent residents, whatever their previous employment and social status, after only one year of unemployment, were subject to exactly the same treatment by “their” state as any recent asylum-seeker, however fraudulent her case might be. Here was an obvious source of resentment by natives, who were treated no differently from asylum-seekers. And here was an obvious incentive for abuse of the asylum system: in the year following the court rule, asylum requests were up by 40 percent, mostly by Roma from Serbia and Macedonia who stood no chance to be recognized as convention refugees but nevertheless had to be supported (U. Münch 2014:81). Equally pulled by economic opportunity as pushed by legal constraint, the German government responded to the asylum crisis by distinguishing, on the basis of their national origins, between asylum-seekers with a “good prospect of remaining” (gute Bleibeperspektive) and those who lacked one, even before an official decision about their refugee status had been reached (see Langenfeld 2018). Those with a good perspective of staying, which was defined by a national-origin recognition rate of above 50 percent (like for asylum applicants from Syria, Iraq, Iran, and Eritrea), were assimilated to the regime for integrating labor migrants. The unlucky remainder, like asylum applicants from the Balkan countries or from North Africa, whose recognition rates were near zero percent, in principle faced the hard hand of the state and were set on a path toward deportation (which in reality rarely arrives; see below). Accordingly, two so-called asylum packages (Asylpaket I and II), passed in late summer 2015 and spring 2016, were opening up integration courses and labor-market training measures to asylum-seekers with a good prospect of remaining; by contrast, the asylum process was meant to be toughened and sped up for the rest by interning them for the entire duration of the procedure, prohibiting them from work, providing only in kind instead of cash assistance, and lifting certain obstacles to deportation (like advance notices or exemptions for laxly defined health reasons). In summer 2016, a new “Integration Law” completed the process of incorporating refugees, including those who are officially 189

Quoted by U. Münch (2014:81). See 1 BvL 10/10 and 1 BvL 2/11, decision of July 18, 2012, at p.30.

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recognized, into the regime for labor migrants. This implied a problematic blurring of the legal distinction between labor and refugee migration, threatening the integrity of the asylum institution for the sake of a speedy labor-market integration of refugees (see Chapter 3). By mid-2018, it was perceived as a success that 28 percent of workingage refugees having arrived within the last four years were in paid employment (Brücker 2018). This is a success considering that in December 2015 only 7.6 percent of them had been in work. However, much of it is marginal employment or paid internships. Turning the figure around, in 2018 over 70 percent of recent refugees were fully dependent on welfare. This figure has not changed much by September 2019,190 which points to a sizable integration task for the years to come. The integration challenge is compounded by the fact that the median refugee is an idle young male, who is a risk factor for any society, and whose impact on German crime statistics is being felt.191 The Germans got a taste of this reality when hundreds of young male migrants, most of them from North Africa,192 assaulted scores of women near the Cologne train station, on the infamous New Year’s Eve of 2015/16. It had long been repressed that most newcomers were Muslim, and at that point the “welcome culture” gave way to a new insistence on a German “Leitkultur” (dominant culture), especially at the right end of the political spectrum. At the level of state policy, however, despite more emphasis being paid on “Wertevermittlung” (value transmission), the economic focus on labor-market integration persisted (see SVR 2019:176-186; see also Chapter 3). The Liberal Enforcement Gap – Or Why Populism is Likely to Grow. Not really changed but further aggravated has been the fact that Germany is a show case for the high political and legal obstacles that stand in the way of enforcing restrictive measures against failed asylum-seekers, in particular deportations. But enforcement is the necessary flip-side of any credible 190

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In September 2019, 75 percent of working-age Syrians in Germany were partially or fully dependent on Hartz IV social aids (“Drei von vier Syrern in Deutschland leben von Hartz IV,” Süddeutsche Zeitung, September 22, 2019). However, their unemployment rate had declined, from 49.6 to 44.2 percent. The discrepancy between the unemployment and Hartz IV figures is explained by the fact that many in marginal jobs are entitled to social aid. Martin Klingst and Sascha Venohr, “Wie kriminell sind Flüchtlinge?,” Zeit Online, April 19, 2017 (www.zeit.de/2017/17/kriminalitaet-fluechtlinge-zunahme-gewalttatenstatistik). Merely one third of the arrests made during the Cologne assault were asylum seekers; two thirds were Algerians and Moroccans, under 10 percent were Syrians (see Rita Lauter, “Kölner Sylvesternacht: Zwei Jahre und 36 Verurteilungen später,” Zeit Online December 31, 2017) (www.zeit.de/gesellschaft/zeitgeschehen/2017-12/koelnersilvesternacht-2015-sexuelle-uebergriffe-ermittlungen).

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asylum policy, and in its absence populist resentment against liberal policy is likely to grow. Let us consider some political obstacles first. After the federal election of 2017, the right to family reunification for asylum-seekers with only “subsidiary protected” status193 was one of the big conflict issues that long prevented the formation of a new government. This right was strongly defended by the left parties in parliament, including the SPD. But it had existed in Germany for only a brief moment in 2015. It is unknown or has been restricted in other European countries, like in Austria or Sweden, because it incentivizes the strategic (ab)use of asylum and may even be considered part of the “business model” of humantrafficking gangs.194 Now it is viewed by the German left as an indispensable minimum for treating asylum migrants humanely. When a rather complex quota compromise could be reached to get the current “Grand Coalition” of CDU/CSU and SPD going in spring 2018, this was rejected by the Greens and the Left Party as “hostile to refugees and unconstitutional,” and as “the opposite of being humanitarian, pure cruelty.”195 The Greens, which currently are represented in no less than ten state (Land) governments, have several times used their veto position in the second chamber of parliament, the Bundesrat, to block the categorization as “safe” of countries with a close to zero rate of asylum recognition, such as the Balkan states in the past or certain North African countries at present. The argument is that certain groups, like Roma in the Balkans or homosexuals and LGBT people in North Africa, face discrimination or persecution there.196 The “safe country” label, of course, does not rule out asylum-granting if a claim is well-founded; it merely accelerates the procedure in the ill-founded multitude of cases. In

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“Subsidiary protection,” unknown in German law before 2011, kicks in when an asylum-seeker fails to qualify as a convention refugee, yet he or she cannot be deported because of the non-refoulement norm or humanitarian considerations. This status is only temporary, and in principle a person granted it is subject to a return obligation. See Alexander (2017:131). The “business model” Alexander refers to is collecting the savings of families who are sending one of their sons (often a minor) in the hope of joining him later via family reunification. Marcel Leubecher, “Islamistische Kundschaft wird durch Familiennachzug belohnt,” Die Welt, May 9, 2018. For the Greens’ most recent “ideological blockade,” as CSU parliamentary leader Alexander Dobrindt called their refusal in the Bundesrat, against an 80 percent majority in the Bundestag, to classify the Maghreb countries and Georgia as “safe,” see “Sichere Herkunftsländer: Bundesrat verschiebt Abstimmung,” Frankfurter Allgemeine Zeitung, February 15, 2019 (www.faz.net/aktuell/politik/inland/sichereherkunftslaender-bundesrat-hat-abstimmung-vertagt-16042507.html).

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addition, by not allowing applicants to work and obliging them to remain in reception camps, it serves as deterrence measure. This points to the legal obstacles to enforcing negative asylum decisions. In 2017, three-quarters of negative asylum decisions were appealed in court, with 40 percent success. A good part of them are socalled “upgrade lawsuits” (Aufstockungsklagen), where someone granted only subsidiary protection claims full convention status (SVR 2019:37–8). Being free of charge to the asylum-seeker, suing is a “value in itself,”197 also because the social aid and health care granted during the legal procedure by far exceed the level and quality found in any single origin country; and sheer time passing builds the case for being allowed to stay for good for humanitarian reasons. With respect to the ultimate enforcement measure, which is deportation, Germany’s leading immigration lawyer considers strong legal protection its “Achilles heel,” with politicians hesitating to “intervene in the affairs of courts.”198 Most deportations fail because deportees predictably fail to show up at the court-ordered deportation date, and until June 2019 no law existed to detain even criminal migrants who have been ordered to be deported.199 But even if the legal possibility to deport exists, one observer noticed the “lacking will to implement” (fehlender Vollzugswille) on the part of “political decision-makers” (Klos 2013:134), considering that deportations are costly and often met by public disapproval.200 Some Länder, like Berlin, which is ruled by a leftist coalition of SPD, the Left, and the Greens, systematically blockade the deportation of rejected asylumseekers, for which they are responsible under German law. The Berlin state government calls for a “paradigm change” in favor of voluntary return only and in effect allowing the majority that refuses to stay permanently in Germany.201 The liberal enforcement gap also applies to recognized refugees. When speaking to a skeptical local party audience in eastern Germany, Angela Merkel assured them that recognized refugees enjoy only “temporary protection,” and that “we expect, when there is peace in Syria and the Islamic State is defeated in Iraq, that you (refugees) go back to your 197 198 199

200 201

See Benedict Neff, “Asylsuchende in Deutschland: Klagen, um zu bleiben,” Neue Zürcher Zeitung, June 6, 2018. Daniel Thym, quoted in ibid. See Marcel Leubecher, “Unerlaubt eingereist, straffällig und auf freiem Fuss,” Die Welt, September 11, 2018. For the “Orderly Return Law” of June 2019, which is to rectify this situation, see Chapter 4. On the difficulties of implementing deportation decisions under the public eye, see Ellermann (2007:ch.4). Marcel Leubecher, “Bundesländer verhindern Abschiebungen,” Die Welt, November 25, 2016, p.5.

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home countries, enriched by the knowledge and the know-how that you have acquired in our midst.”202 In reality, the German refugee administration never checks during the critical first three years, when the residence status of a recognized refugee is only temporary, whether the original “reasons of protection” (Schutzgründe) still apply, although the law requires it. So-called Rücknahmeprüfungen (return checks) are done in larger number (85,000 in 2018), but they only consider a refugee’s legal record and other personal characteristics, never the political situation in her home country. This leads to the paradox that the recognition rate of asylum requests by Iraqi citizens is down from almost 90 percent in 2015 to under one-third in 2018, but that only 1.7 percent of Iraqi refugees who underwent a return check in 2018 lost their right to protection.203 One sees that the Merkel government’s liberal asylum policy, which is “singular” in European comparison (Langenfeld 2018:26), is fairly mainstream in a domestic political and legal context that is highly favorable of refugees and other migrants and so far has proved immune to populist nationalism. However, it is an open question how long this will hold if the dysfunctions of the policy and the liberal enforcement gap persist.

Conclusion Any reflection on immigration policy must start with the restrictive imperative that is constitutive of it. Catherine Dauvergne (2016:72) caught it succinctly: “It is impossible for immigration law to fully embrace a liberal paradigm because of its role in constituting the border.” Expressing the same reality from the perspective of human movement, Jagdish Bhagwati (1984:678) noted that international migration is “characterized by disincentives rather than incentives.” In this spirit, this chapter has tried to do two things. First, it has laid out the structure of immigration policy (or rather policies) in the neoliberal era, which is marked by the dualism of “courting” high-skilled immigration and of “fending-off” most other types of migration, including family migration. Second, the chapter tried to assess the difference that neoliberal-era nationalism makes to (in effect, within) this constellation. For this we homed in on the two events in which both populist nationalism and immigration were heavily implicated, Brexit and the rise of Trump. But we also looked at a negative case, Germany and the 202 203

Marcel Leubecher, “Kaum einem Flüchtling wird der Schutzstatus wieder entzogen,” Die Welt, April 15, 2019. Ibid.

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2015 Refugee Crisis, in which a liberal approach prevailed against the odds. What have we learned in both respects?

Tangential New Nationalism The main message is that the new nationalism has only tangentially touched on the bifurcated structure of contemporary immigration policy. It largely ignored the latter’s “courting the top” prong, sometimes even supporting it, while seeking to lend more severity to the “fending-off the bottom” exercise, not always successfully. This outcome is unsurprising, for two reasons. First, the dualism of immigration policy follows a simple demand-andsupply rationale, in that due to the competitive nature of courting the top, there can never be enough of them; by contrast, the oversupply of the rest, which makes it unwanted migration in an analytical sense, kicks in a restrictive logic, independent of and prior to populist–nationalist mobilization. The restrictive family-migration policies described in this chapter were a universal trend, to be registered in Canada as much as in Western Europe, in most cases unrelated to radical right pressure, and where the latter existed – as in Denmark – it only reinforced an impulse prior and superordinate to it. Asylum policy, though discussed in this chapter only in the context of the 2015 Syrian Refugee Crisis, would be another case in point. The restrictive arsenal of “barriers to entry,” such as visa and carrier sanctions, transit zones at airports and offshore interdiction; “procedural restrictions,” such as safe country rules and the streamlining of the asylum process and curtailing of legal appeal; and “deterrence” measures, such as benefit cuts and in-kind provisions, work prohibitions, and mandatory detention of asylum-seekers:204 they had all been invented during the first wave of “jet-age asylum-seeking” in the 1980s and early 1990s (Martin 1988), prior to the rise of radical right parties and of populism, and spanning the rich-country arc of Western Europe, North America, and Australia. Conversely, one does not need to be a radical rightist to find fault with a “broken” international refugee system and its entirely misguided direction, unsuited to a reality of mixed migration (Betts and Collier 2017). On one side, this refugee system offers the “boutique model” of asylum, which remains in place and attractive despite all the restrictions, to the self-selected 10 percent of the world’s

204

These are the three methods of restriction according to Price (2009:ch.6).

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20 million refugees who manage to reach a Western land (2017:131),205 in the process feeding a human-trafficking industry whose annual profit is estimated at USD 32 billion worldwide.206 On the other side, only a “dependency and destitution model” is on offer for the forgotten 90 percent who remain stuck in a camp near their country of origin (2017:131). Second, if populist nationalism targeted the “fending-off the bottom” type of immigration policy, while being mute on its “courting the top” variant, this is due to the homology between the mostly low-skilled and (presumably) welfare-prone migrants processed by the former and this nationalism’s own support structure. Accordingly, there is direct competition between both, which is deliberately fueled by populist–nationalist actors. The German AfD, for instance, since entering the Bundestag in fall 2017, has showered the government with migration-related parliamentary motions (parlamentarische Anfragen) that are exclusively about refugees and asylum-seekers. They say little if anything about a further liberalization of labor migration, which in Germany in 2019 has for the first time been explicitly conceived of as “immigration” (Einwanderung). The AfD pointedly refers to refugees as “economic migrants” (Wirtschaftsmigranten) to denounce their official protection claims, and it brings them in direct competition with Germany’s precariat that is growing in an age of slimmed welfare and an expanding low-wage sector (Butterwegge, Hentges, and Wiegel 2018:68). In one curious parliamentary motion by an AfD member of the Landtag in Lower Saxony, the state government was asked how much it spent on taxi bills for shuttling asylum-seekers to their interviews and doctors’ appointments – which amounted to EUR 230,000 between 2015 and 2017.207 This is not a small sum for anyone who has experienced the stinginess of German bureaucrats. While it is not unreasonable to question such state expenditure, it must be particularly infuriating to low-income citizens in times of shrinking social budgets, for whom taxi rides are out of reach. Parliamentary motions like this, of which many more examples could be provided, are not policy-minded but primarily aim at the creation of “envy, resentment, and competition” at the lower end of the social scale (2018:77). 205

206

207

A similarly damning critique can be found in Koopmans (2017:ch.3). As Betts and Collier (2017:3) report, for every USD 135 of public money spent on an asylum-seeker in Europe, just USD 1 is spent on a refugee in the developing world. Ewelina Ochab, “Human trafficking is a pandemic of the 21st century,” Forbes, July 26, 2018 (www.forbes.com/sites/ewelinaochab/2018/07/26/human-trafficking-is-a-pandemicof-the-21st-century/#724735f26195). Niedersächsischer Landtag, 18. Wahlperiode, Drucksache 18/497 (Taxifahrten von Flüchtlingen), March 14, 2018.

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The voice of populist nationalism in the curtailing of family, asylum, and low-skilled migration is loud and clear, but one may still doubt that it is driving it. There is an anticipatory, and in the presence of strong radical right parties, responsive sense among centrist governments not to allow any political opening on this front. However, as the case of Danish family-migration policy demonstrated, the same restrictive impulse is generated within a neoliberal logic of requiring migrants to “contribute” and not to constitute a cost factor to society, which in the Danish case was intricately linked to the defense of a comprehensive welfare state that requires high taxes and full employment. Also as demonstrated by “liberal and harsh” Denmark, neoliberal language is easily adopted by populist nationalists themselves.

Transatlantic Convergence A second message from laying out the structure of immigration policy in a neoliberal era is that there is little to no transatlantic variation to it. The days of the “American” or, better even, “Canadian Model” of a liberal and inclusive, settlement-oriented immigration policy are over, as Catherine Dauvergne (2016) has demonstrated with vigor – although her premise of an “older, more holistic, and thus ‘human’ vision of migration” (2016:175), tied more to a “nation-building” than to an “economic” logic (2016:141), may unduly romanticize a past that never was. For this transatlantic convergence stands a new proclivity for temporary migration, even with respect to the high-skilled, in the classic nations of immigrants. The latter thus embrace the European logic of requiring migrants to gradually earn their right of permanent residence through their demonstrated integration efforts, rather than offering settlement from the start on a promissory note (dubbed Aufenthaltsverfestigung [consolidation of residence] in German legal doctrine). At the same time, as again the case of Canada demonstrated, family migration is on the restrictive radar much like in Europe, with the important difference though that Canadian restrictiveness primarily aims at the extended family that in Europe had never been included within the ambit of family reunification. With respect to refugee policy, the United States currently accepts fewer refugees than any other state in the Western world, with a miraculously skimmed Muslim component, which incidentally shows that Trump’s “Muslim ban” could be achieved in a “legal way.”208 208

Refugee advocate Mark Hetfield, quoted in “Yearning to be free? Bad luck,” The Economist, April 21, 2018, p.38. For a “European turn” of Canadian refugee policy, which has embraced a logic of “securitization,” see Soennecken (2014).

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Lessons from the Populist Storm Of our three instances of immigration in the populist storm, the story of Brexit demonstrated that, if the size of the inflow exceeds the level of what is deemed acceptable, resentment may be directed against fellow Europeans just as easily as against migrants “from other civilizations” (aus anderen Kulturkreisen), to use a favorite label of the German AfD (Butterwegge, Hentges, and Wiegel 2018:70). Most importantly, Brexit, while of dramatic import for Britain and Europe, does little to change the structure of immigration policy in a neoliberal age, nor does it challenge its persistent liberal basis – except that it may make the policy more universalistic, if one holds a negative view on preferential treatment for other Europeans. Certainly, the Brexit referendum was “largely, if not entirely, about reducing immigration” (Evans and Menon 2017:121). However, one should not ignore that it was also a classically populist revolt, on populism’s vertical rather than horizontal axis. If during the first British referendum about EU membership, in 1975, the electorate still “took the advice of people they were used to following,” as Roy Jenkins put it memorably (in 2017:71), this time around one might argue, on the opposite, that the elite advice to vote for Europe may have turned the electorate against Europe even more. A most striking facet of the 2016 referendum vote is that three-quarters of those who favored the death penalty, entirely taboo at the British-cum-European elite and institutional levels, also voted for leaving the EU (2017:74). This suggests that the vote expressed a larger disaffection of ordinary people with a political elite that is united across party lines by a “socially liberal, promarket consensus” (2017:122), the all-party “party of Davos”209, which had ruled Britain for the past forty years, but is now ousted. Trump’s immigration policy is the most openly populist–nationalist that can be found anywhere in the Western world. But it also demonstrates how much leverage for it exists within the given statutory framework, as it did not require any legislative changes, and could even build on foundations, particularly in its law enforcement bent, that had been laid by previous Democratic governments, from Clinton to Obama. With respect to the “Muslim” or “Travel Ban,” which is the most problematic of all populist–nationalist interventions in a Western state’s immigration policy, it passed constitutional muster only by denying its racially or religiously discriminatory intention. While the most conservative Supreme Court in living memory was required to come to this result, and a breathtaking level of chutzpah, it is still noteworthy that it was a 209

“The party of Davos,” The Economist, November 16, 2019, p.30.

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facially neutral “Travel Ban,” no directly discriminatory “Muslim Ban,” that came to be licensed by the court. Accordingly, it does not mark a return to the openly racist immigration policy of the pre-1960s period. It is also noteworthy that pluralist American institutions, from recalcitrant federal courts to “sanctuary” cities and states, to the Democratic opposition in Congress to the most symbolically loaded and ludicrous of Trump’s projects, the building of his “Big, Beautiful Wall” at the US– Mexican border, have so far held the line against a populist–nationalist Durchmarsch. Finally, the negative case of Germany’s response to the 2015 Refugee Crisis shows that liberalism, in this case in the garb of unwavering proEuropeanism, is still a potent third player in a migration policy besieged by neoliberal and nationalist imperatives. However, the German troubles with controlling the border, and thus of fulfilling the premier sovereign state function, and of enforcing detention and deportation, which resonates badly with the country’s dark mid-twentieth-century history but which is the necessary complement to a credible asylum policy, may lead one to the troubling conclusion that this is liberalism gone astray, nibbling at the state’s elementary society-protection and security functions.

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3

More Difficult to Get, Easier to Lose, Less in Value The Rise of Earned Citizenship

Much as we said about immigration policy, a structural nationalism is built into citizenship, which is not by nature a liberal institution: “[I]n the very concept of citizenship a distinction is created between the insider and outsider that tugs on their common humanity” (Joseph Weiler, quoted in Jesse 2016:38). Citizenship is, as Rogers Brubaker (1992: ch.1) famously argued, a mechanism of “social closure” that must exclude many more than it could ever include. Both an “instrument” of closure, sorting people at the border into those who belong and the rest who do not, and an “object” of closure, itself accessible only if certain conditions are fulfilled, citizenship allows states to be nationstates, with a personal substrate that is relatively constant and reproduced across generations. However, as scores of “postnational” (Soysal 1994; Jacobson 1996) and “transnational” (Bauböck 1994) analyses in the past three decades have demonstrated, citizenship seems to have lost its nationalist edges, as noncitizens (aka immigrants) have won more rights under an international human-rights regime – a contemporary list of the attributes dividing citizens from noncitizens falls out “strikingly short” (Bosniak 2017:326).1 This international regime, it needs to be said, could not be effective without playing Western liberal states’ own tune, which has sources as deep as the universal “promise of individual salvation,”2 transcending tribal affiliations, in the Christian Gospel – witness the total immunity to human-rights norms in the contemporary “immigration states” of the Middle East or South-East Asia (Joppke 2017a). In this respect, the liberalization of citizenship is more like citizenship’s “internally inclusive” dimension, canonically formulated in a classic text of liberal postwar sociology (Marshall 1950), turning inward out and

1 2

Exclusive citizen rights continue to be protection from expulsion, the right to reenter, diplomatic protection, and (in most countries) national-level voting. Kochenov (2019:18), following Siedentop (2014).

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eroding its “externally exclusive” function, which is visible only in an interstate and international migration context.3 I myself have argued that liberal state citizenship has undergone a process of “lightening,” whereby the access to the status of citizenship has been facilitated; rights are less exclusively attached to citizenship but extended to permanent residents; and nation-state identities are increasingly liberal and universalistic (Joppke 2010a,b). Reconsidered a decade later, the “lightening” thesis has two problems. First, it does not allow distinguishing between what is “liberal” and what is “neoliberal” in changing citizenship, swallowing the ever more important neoliberal aspect under the liberal umbrella. Second, it entirely misses citizenship’s nationalist dimension, whether it is structural or new, the latter as a reaction to too much opening and liberalization in the recent past. As I shall suggest in this chapter, a better formula to capture these other-than-liberal elements and processes, which have moved to the fore in a context of neoliberal globalization, is “earned citizenship.” Unlike “citizenship light,” this is not primarily an analytical category, but the idiom in which citizenship operates on the ground.4 To a degree, earned citizenship is reactive to the liberal lightening of citizenship. Liberalization is said to have profaned the “precious good” of citizenship by handing it out too easily and indiscriminately, and the new diction is that citizenship “needs to be earned,” with naturalization considered not as a tool for but a “last step of a successful integration.”5 That citizenship needs to be “earned” is the central theme in new-millennium restrictive citizenship discourse. This is not to say that earned citizenship no longer operates on a liberal basis. Not even the radical right wishes to return to a racist or sexist past where entire groups, such as nonwhites or women, were excluded from the status of citizenship itself or left with lesser rights within the status. However, the heft of earned citizenship is its neoliberal and nationalist elements. Three Dutch sociologists appositely speak of “neoliberal communitarian citizenship” (Houdt, Suvarierol, and Schinkel 2011:423–4). This seems convoluted but is the precise formula for a citizenship that is neoliberal and nationalist in tandem: “Under a neoliberal communitarian regime, it becomes one’s responsibility, expressed in the form of ‘earning’ one’s citizenship to convert to a nation that is sacralized as a 3 4 5

The hyphenated terms are Brubaker’s (1992:ch.1). For the distinction between “categories of analysis” and “categories of practice,” see Brubaker (2012). The quotes are from the case of Austria, where this view is shared across party lines (Stern and Valchars 2013:41). As I shall demonstrate in this chapter, the earned citizenship idiom can be found throughout Western Europe, North America, and Australia.

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bounded community of value” (2011:424). Earned citizenship is neoliberal because it is contingent on the demonstrated capacity of the selfresponsible individual to achieve and to contribute, even asking more of her than of the average citizen, making her a kind of “super-citizen” (Badenhoop 2017); it is a “prize for performance rather than a status of equality,” as an American jurist put it (Ahmad 2017:260). At the same time, earned citizenship is nationalist because citizenship is conceived of as a “privilege” and not a “right,” reserved for the select few, whereby the exceptional quality and sacredness of the citizenship-conferring community is confirmed and enhanced. Through its neoliberal-cum-nationalist coating, earned citizenship moves away from a liberal conception of citizenship. But what is “liberal” citizenship to begin with? This question is surprisingly difficult to answer, particularly if one observes the liberal vs. neoliberal distinction (see Chapter 1). To anticipate the counterintuitive part of the answer, it involves the grounding of liberalism in something like nationhood. In terms of the right vs. privilege binary, a good start is to argue that liberal citizenship is right not privilege, both formally (in terms of access to the status) and substantially (in terms of the goods attached to it). Hannah Arendt (1948) thus famously understood citizenship as a foundational “right to have rights,” to point out that human and other rights were void if not resting on the solid basis of state citizenship. While not using the Arendtian term, T. H. Marshall (1950:11) certainly shared her intuition when depicting “social citizenship,” the twentieth-century crown of the evolution of citizenship, as the “right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society.” Margaret Somers (2008:2) recovered the Arendtian formula as a foil to attack the current “contractualization of citizenship,” according to which “the relationship between state and the citizenry (is reorganized), from noncontractual rights and obligations to the principles and practices of quid pro quo market exchange.” In her view, this “distorts the meaning of citizenship from that of shared fate among equals to that of conditional privilege” (2008). As a result, “social inclusion” and “moral worth” are no longer “inherent rights but rather earned privileges that are wholly conditional … upon the ability to exchange something of equal value” (2008:3). The discursive mechanism (“conversion narrative,” says Somers) driving this change is the insistence on “personal responsibility,” which has become dominant under neoliberal “market fundamentalism” (2008:chapters 1 and 2). Somers develops her dark contemporary citizenship diagnosis from a Marshallian internal social rights perspective, that is, entirely unconnected to immigration. In particular, she attacks the American federal

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government, under Republican President George Bush Jr., for its incapacity – even unwillingness – to help out its own (predominantly black and poor) citizens after the disastrous Hurricane Katrina had inundated New Orleans in late August of 2005, causing 1,800 deaths. Already the citizens of a neoliberal regime, Somers argues provocatively, have become “internally stateless,” at least the disadvantaged portion that does not meet the “personal responsibility” threshold and lacks the means to fend for themselves, including something as trivial as an automobile to leave the flooded city (2008:114). Earned citizenship thus becomes a metaphor for a post-welfare society that is unwilling to redistribute its wealth and protections internally. However, the premier site of earned citizenship is external, in an immigration context. Here it perversely serves the opposite purpose of symbolically upgrading a membership that, if Somers is correct, has become internally devalued. The British government, which invented the term of “earned citizenship” in the early millennium, defined it as “the expectation … on newcomers to ‘earn’ the right to stay by learning English, paying taxes, obeying the law and contributing to the community” (Home Office 2008a:4). This citizenship reform proposal, which included a new “probationary citizenship” phase in which one’s demonstrated behavior could speed up or delay the “journey to citizenship,” never saw the light of day, apparently because it was not practicable.6 However, it expresses well the underlying idea of rendering the access to citizenship more exclusive, even of making the entire process of integration dependent on the migrant’s examined behavior, where previously there had been trust that the sheer facts of residence and time passing would yield the desired outcome. For Joseph Carens (2013:59), this is precisely the benchmark of liberal citizenship: “Citizenship is not something that normally is earned or that ought to be earned. People acquire a moral right to citizenship from their social membership and the fact of their ongoing subjection to the laws.” In this view, citizenship derives from “social membership” that is “normatively prior to citizenship,” and whose only two criteria are “residence” and the “passage of time.” These criteria are “proxies for richer, deeper forms of connection” that, as a matter of justice, stand to be recognized and are merely formalized by the state’s granting of citizenship. More concretely, Carens’ is an argument against citizenship tests, which have proliferated in Western Europe in the past two decades 6

“[T]oo complicated, bureaucratic, and in the end ineffective,” as newly appointed Tory Interior Minister Theresa May ditched the citizenship reform of her Labour predecessor in 2010 (quoted in Anderson 2013:105).

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as the perhaps most prominent and scholarly belabored expression of earned citizenship (see Bauböck and Joppke 2010). For Carens, these tests are “objectionable in principle” (2010:56), as they rest on an anachronistic model of citizenship that once distinguished between “active” and “passive” citizens, sieving out the active part according to competence, sex, or property. Whether understood as “right to have rights” (Somers), or as derived from “social membership” (Carens), a liberally inclusive citizenship, this seems to be the shared idea, must be non-contractarian. But this is surprising if one considers that the ultimately liberal way of imagining society and state is in terms of a contract. However, already T. H. Marshall (1950:68) had looked at the social citizenship rights of the welfare state as “invasion of contract by status,” thus reversing the famous diction by nineteenth-century legal historian Henry Sumner Maine that “the movement of the progressive societies has hitherto been a movement from Status to Contract,” that is, from ascription to choice in determining the individual’s place in the social order. For Somers (2008:69), “citizenship entails reciprocal but non-equivalent rights and obligations between equal citizens; contracts entail market exchange of equivalent goods or services between unequal market actors.” The attribution of “equal” and “unequal” in these two sets of relationship is not entirely clear. But her proposition is that the citizen proper, unlike the market participant, is not acting out of “self-interest” but “shared fate” that comes from membership in a “preexisting” community. Somers identifies the latter not as “nation” but as “civil society,” a “third sphere” between market and state (2008:30), the “site of the social” that is “effaced” in the classically liberal binaries of public vs. private and state vs. market (2008:150). Carens comes to the same conclusion, but from a different angle, juxtaposing not market and citizenship, as Somers does, but human rights and citizenship rights. Unlike general “human rights,” citizenship rights are particular “membership rights,” which are “derived not from one’s general humanity but from one’s social location” (2013:97). Both Somers and Carens carefully avoid any reference to the semantics of nation and nationalism. But it is obvious that the “nation” has been the historical site of the “bounded solidarity” that is implied in these noncontractarian articulations of liberal citizenship.7 T. H. Marshall was 7

“[T]he primary basis for bounded solidarity is the nation” (Bloemraad, Kymlicka, Lamont, and Hing 2019:86). For Carens (2013:ch.5), it needs to be added, the point of grounding citizenship in a prior social membership is to argue that no sharp line should separate citizenship from permanent residence.

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more forthright in this respect, when arguing that the evolution of citizenship coincided with the rise of “modern national consciousness” (1950:41). The problem is that the non-contractarian core of liberal citizenship may rest on specific historical foundations (“shared fate,” as Somers put it) that it cannot itself generate and, worse still, that lose traction over time. Capitalism’s brief twentieth-century moment, when redistribution on the basis of steeply progressive taxes greatly flattened the disparities in income and wealth, rested on the two most brutal wars the world had ever seen, and on the “nationalization of social life” (Rosanvallon 2013:183-8) that was a consequence of these wars. Note that US President Roosevelt’s famous “freedom from want,” basis of the emergent US welfare state, was compensation for engaging Americans in war, while the building of the British and French welfare states evoked the “spirit of Dunkirk” and the “spirit of 1945,” respectively (2013:201). T. H. Marshall (1950:74) knew that, much as “personal gain” is the engine of the “free contract system,” so “the call of duty” is the presupposition for “social rights,” the crown of citizenship evolution – but that the required “Dunkirk spirit cannot be a permanent feature of any civilisation” (1950:80). Not just had the memory of war to fade with enduring peace and prosperity; in addition, the “expansion in national membership” – ethnic, racial, and religious – that followed from liberalized immigration and citizenship laws since the 1960s, had to weaken the “feelings of mutual obligation” that are required for the creation of social rights (Bloemraad, Kymlicka, Lamont, and Hing 2019:86). As a result, “[a]ccess to welfare resources [has] been … made more conditional on deservingness judgments, which in effect means it is not really a ‘right’ of membership at all, but rather something stigmatized groups need to ‘earn’ in the face of suspicions about their need or effort” (2019). In addition to immigrant diversity, Bloemraad et al. (2019:94) cleverly identify a second factor that has been driving the contractarian turn of citizenship, which is the linking of nondiscrimination with the “belief in meritocracy”: “If ascriptive discrimination has been eliminated in formal law and policy, … then residual inequality must be based on individual achievement. Elites may thus support expanded political, social and cultural membership, but put up less of a fight over social redistribution or affirmative action.” The neoliberal “competition state,” to remember, “champions non-discrimination” (Genschel and Seelkopf 2015:239), which is the ground for the personal responsibility narrative to unfold. Earned citizenship also needs to be situated within the larger context of a coercive and control-minded policy of “integrating” immigrants, often referred to as “civic integration,” which has acquired particularly high

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profile in Europe.8 This is a policy that is exceedingly difficult to categorize, because it combines liberal with neoliberal and nationalist elements, with different mixes in different places and times. For one critic, the bottom line of civic integration is its non- or at best neo-liberal elements: “Rights have become rewards for fulfilling integration conditions, rather than tools to foster integration itself,” with migrants being suspected as “unwilling to integrate” and thus in need to “earn” their rights (Jesse 2016:16). Conversely, one could deduce from this, a pristinely liberal approach to integration would be one in which rights are an instrument for integration, not a reward for having achieved it, with the host society doing its due share in the process. Some critics have gone further, attacking the very concept of “integration,” whether “civic” or not, as incurably nationalist or even racist. There is an element of truth to it. Adrian Favell (2019) has pointed out the paradox that “national integration” is prescribed for immigrants, while the elites indulge in global mobility: “[I]ntegration in Europe is fairly explicitly an exercise in self-conscious top-down nation-building. That is, ‘integration’ sees supposedly self-contained European national societies coercing foreigners to behave more like prototypically (moral, acculturated, patriotic) nationals in the name of some fictitious national unity. It is, in other words, the political denial of the consequences of globalization on the nineteenth-century idea of the bounded nationstate-society” (Favell 2016:2357f; see also Favell 2015:ch.5). In sharper tongue still, Willem Schinkel finds that the very notion of “immigrant integration,” in presuming that migrants “have not really arrived” and in “purify(ing) and immuniz(ing) a preconceived ’society,’” is “only slightly removed from the explicit racism of the current white backlash on the (alt-)right” (2018:5 and 15). One must not share these radical views, particularly Schinkel’s hamhanded racism charge. But they do catch the structural nationalism that is built into the very project of immigrant integration, much as it is built into the concept of citizenship as integration’s terminus ad quem. The underlying picture of the world, to be reinforced by integration policy, is one of sharply bounded nation-states, which runs counter to the fact that these states and their societies are at the same time deeply implicated and enmeshed in an international economic and increasingly political order also, particularly in Europe. The radical critics also correctly see that the concept of integration, as it has been understood in academic sociology

8

The most comprehensive treatment is Goodman (2014). An earlier statement is Joppke (2007).

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from Durkheim on, is a “property of a social system” (Favell 2019:3),9 while at the hands of the politician it turns into a quality of the individual, even a matter of “individual responsibility” that relieves “society” from being questioned or at least involved in the process (Schinkel 2018:3 and 5) – “society” becomes the “great (white) black box,” as Favell says with no small dose of sarcasm (2015:118). Indeed, individual-level integration is a strange idea to begin with, considering that the opposite, a “disintegrated” individual, could at best have a (perversely) physical but not a social meaning (Schinkel 2018:3). And, as the concept of integration moves back from politics into academia, it feeds a dubious “sociology of population groups,” with a fixed and unmarked majority facing generically problematized migrants, who need to be subjected to “(bio)political governing” (2018:9). But one wonders: Is there an alternative to “integration”? Even Canada has an integration policy, albeit a liberal or even “multicultural” one, which lacks the punitive and control-minded thrust of integration policy in Europe that is the real bone of contention (see Banting 2014). Canada can afford a noncoercive integration policy because of its eliteimmigrant selection that rewards skills and language competence. Note that European countries, like the Netherlands or Germany, exempt their high-skilled (and OECD) immigrants from obligatory integration courses and tests, at least in the pre-citizenship phase. Obligatory integration is meant only for family migrants and asylum-seekers, who constitute the large majority of third-state (non-EU) migrants in Europe, and who are not selected but admitted as-of-right, with predominantly low skill profiles and a propensity for welfare dependence. The typical immigrant in Europe is not a global individual forcibly cut down to national size, as in the somewhat romantic view of the radical integration critics. Instead, he or she is a local victim of underdevelopment and social dysfunction that has to be brought to the level of advanced postindustrialism and liberal democracy in the shortest possible time, to avoid the ever-present specter of populist backlash. While the nation-state inevitably continues to be the main site of integration, even in the European Union, the radical integration critics have a rather anachronistic picture of the nationalism or even racism that they attribute to integration policy – while civic integration, in particular, does have a coercive dimension, it is plain nonsense to denounce it as straight continuation of early twentieth-century practices like excluding 9

For the sociological tradition, see the representative definition by Münch (1995:5): “Social integration is a condition of society, in which all of its parts are tightly linked to one another and constitute a unity that is delimited to the outside.”

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“‘undesirable races’ through literacy tests” (Jesse 2016:23) in Australia or America.10 In most European countries, even in those with a strong radical right, as we shall see, pragmatic labor market integration and language training are among the priorities of integration policy, and not the moral formatting and nationalist serializing that the radical integration critics see everywhere at work. Yasemin Soysal (2012a:11) is right: “Integration (in Europe) … is not a nation-centered project. It is not posed as a process of confirming or furthering national collectivity and identity. Instead, the thrust is on individual immigrants’ capacities and efforts to take part productively in the rights and institutions offered in the system … Citizenship or residency is ‘earned’ on the basis of who is worthy, who can contribute and be productive.”11 If this chapter will explore the contours of earned citizenship, and of the larger civic integration policy in which it is embedded, it needs to be stressed that contractual and performance-related imperatives have always framed the processing of immigration. In the classic immigration countries, this has even more – and more brutally – been the case than ever in Europe. Only consider the American late-nineteenth-century practice of “deeming,” resurrected in the mid-1990s’ exclusion of legal immigrants from federal welfare, which makes the private sponsors of family immigration responsible for the financial risks. As Aristide Zolberg (2006:411) astutely observed, the recovery of deeming “revived and moved to the fore one of the oldest fundamentals of American immigration policy, emphasized from the founding onward, namely, the assurance of self-sufficiency as a condition for admission.” In the narrower context of citizenship policy also, contractual and behavioral criteria have always been applied to naturalization, which is the post-birth acquisition of a new citizenship. Unlike birthright citizenship, post-birth citizenship never was unconditional and automatic.12 Only birthright citizenship, be it territorial (jure soli) or by descent (jure sanguinis), is non-contractual – and this is of course the standard mode of acquiring citizenship for most people in the world, including those who later in life decide to acquire another or an additional citizenship through naturalization. In this sense, citizenship is noncontractual for most 10 11

12

Much more nuanced in this respect is FitzGerald, Cook-Martin, Garcia, and Arar (2018). While this reads like the confirmation of a “neoliberal logic” at work, Soysal (2012b:47–8) also insists that the “primacy of individuality” grows out of a deeper concern for human rights that “predates the ‘neoliberal transformation’,” thus reiterating the Leitmotiv of her earlier work (1994). For a normative argument to make post-birth citizenship automatic, even mandatory, see Schutter and Ypi (2015). This had been first proposed by Rubio-Marin (2000).

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people in the world, much like the state into which they are born. Alas, what appears to the romantic as “shared fate” (Somers 2008:3), is to the anarchist “a historically violent and ultimately totalitarian status of premodern nature, both rigid to the extreme and capriciously random in how it is assigned” (Kochenov 2019:xi), revealing the state as the nonoptional and coercive institution that it is. By contrast, for the few who are not born with it, usually immigrants, who – never to forget – are just 3 percent of the world population, even in the current moment of global migrations, citizenship has always been conditional and contractual. This raises the question what is new about earned citizenship. The mere fact of conditionality cannot be it, because it is inherent in naturalization and post-birth citizenship. Instead, new is the foregrounding and reinforcement of conditionality. When earned citizenship advocates trumpet that citizenship is a privilege, not a right, the truth of the matter is that post-birth citizenship qua naturalization has always been a privilege. Nationality law in general, as Peter Spiro (2011:746) observes, is “the last bastion in the citadel of sovereignty” – though one would have to add immigration policy as a prior defense line. Interestingly, when reviewing recent “naturalization trends,” Liav Orgad (2017:348f ) identifies as one of these trends the move “from a privilege to a right,” though he qualifies this with a question mark. Orgad points out that family rights, equal protection, and due process of law, to a degree, have set limits to what states can do in this domain. But as there are huge crossnational variations in states’ handling of naturalization, one must conclude that these limits are more by way of “self-limitation” than set by international law, as I argued some time ago with respect to immigration policy (Joppke 1998). If Germany, for instance, has moved from extreme discretion, according to which naturalization was always exceptional and only granted if it was “in the public interest,” to as-of-right naturalization in the early 1990s, this was in pursuit of a self-imposed integrationist agenda (see Joppke 1999:201–3). Meanwhile, in the UK, naturalization continues to be purely discretionary, with no possibility to appeal in the case of a rejected citizenship application. An elastic “good character” clause in British nationality law, equivalents to which exist in most other countries, allows almost anything to go, such as the denial of citizenship because of the applicant’s “eccentricity, including beliefs, appearance, and lifestyle.”13 This has enabled a Conservative government, in pursuit of its anti-immigration crusade in the age of Brexit, to drastically

13

“Citizenship applications: No sex, please, we’re the Home Office,” The Economist, May 5, 2018, p.27.

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reduce the number of naturalizations, from 194,999 in 2012 to 123,999 in 2017.14 This chapter further examines three central features of earned citizenship: that it is “more difficult to get” and “easier to lose,” but also “less in value.” The first two are complementary sides of the same neoliberalcum-nationalist coin of rendering citizenship more exclusive and conditional on the individual’s behavior and merit. The third feature, however, raises the paradox that the same citizenship that is meant to be upgraded and strengthened by these measures, “re-nationalized” one could say, has also become objectively “less in value,” in our neoliberal age of welfare-to-workfare devolution and of turning everyone into a denizen.

More Difficult to Get Civic Integration Access to citizenship is only the last step in the process of immigrant integration, and contemporary states, particularly in Western Europe, have developed a highly complex and varied architecture of rules and conditions to structure and control that process. The most common shorthand for this is “civic integration.” The underlying idea, differing from a genuinely liberal understanding, is that integration is not just a process in time that involves multiple actors (not only migrants), is potentially infinite, and – if a modicum of transitivity is needed – can at most be aided by accommodative host society structures and policies. Instead, integration is now a condition to be achieved and to be demonstrated by the migrant, and in turn to be examined and controlled by the state, typically in the form of obligatory language and civic knowledge courses and tests. In civic integration, “immigrants have to earn their rights by showing some degree of integration,” as a critic put it concisely (Jesse 2016:5). Growing out of a critique of multiculturalism, the thrust of civic integration is centrist, to bind newcomers into society’s mainstream institutions, particularly the labor market and the education system. But, pace its radical critics (see above), civic integration is generally not nationalist and the notion of “assimilating” migrants, in the sense of forced identity change, is shunned. The official definition of “integration,” given out in 2004 in an influential European Union document on “Common Basic Principles” of

14

Ibid.

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immigrant integration (Council of the EU:2004),15 is in terms of a “dynamic, two-way process of mutual accommodation by all immigrants and residents of Member States” (2004:17). Host society actors and institutions are required to provide “opportunities for the immigrants’ full economic, social, cultural, and political participation” (2004:19). There is no small amount of hypocrisy in this statement because, as we shall see, mostly low-skilled, family and asylum migrants are targeted by a civic integration that is decidedly one-directional. One also must consider that immigrants’ presumed willingness to do things for which natives cannot be found – the proverbial “3D” jobs (Dirty, Dangerous, Demeaning) – is the classic rationale for admitting them (or at least their low-skilled portion) in the first, which sits oddly with the EU “full participation” rhetoric. The EU’s “Common Basic Principles” further stipulate that, in return for being offered “full participation,” immigrants are expected to “respect” the “basic values of the EU” (2004:19). This is less than to “adopt” these values. And they are not culturally specific but general political values, including “liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law” (2004). Immigrants’ obligation to acquire “basic knowledge of the host society’s language, history, and institutions” is within “full respect for (their) and their descendants’ own language and culture” (2004:18) – civic integration does not amount to a cultural assimilation requirement. Sara Goodman (2014), who otherwise insisted that persistent “national approaches to citizenship” make civic integration different in any one country, conceded that it is everywhere “thin nation-building” (2014:25), in the “least ‘national’ way imaginable” (2014:35). A distinct feature of civic integration is the fusion of immigrant integration and immigration policy functions. This, I argued earlier, is the “real European innovation in migration policy” (Joppke 2017b:1). However, the control function is differently strong in different phases of civic integration: pre-departure, residence, and citizenship acquisition. Indeed, and curious for an “integration” policy, civic integration begins before the immigrant has even left, in terms of “Integration from 15

The “Common Basic Principles on Immigrant Integration Policy in the European Union,” which are merely recommendations and not legally binding, have been “reaffirmed” on various occasions, most recently in European Commission (2016). Of course, an understanding of integration as “two-way process” precedes the Common Basic Principles (see Jesse 2016:3). The latter sought to reconcile it with the new integration conditions introduced in the early millennium, which have shifted the burden of adjustment decisively toward the immigrant, hollowing out the “two-way” rhetoric.

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Abroad.” Such “integration” is at the same time an openly declared migration control policy. Like the entire civic integration genre, Integration from Abroad was invented by the Netherlands, and in the meantime, it was adopted by Germany, France, Britain, Austria, and Denmark. It targets family migrants from North Africa, Turkey, or South Asia, who need to demonstrate elementary host-society-language competence and civic knowledge for obtaining a first visa to join a spouse in Europe (see Chapter 2). The background to this measure is endogenous marriage practices, often in the form of arranged marriage, which are widespread among Muslims from the mentioned regions, and which fuel segregation and the dreaded “parallel societies” that have been key in Europe’s much-discussed “retreat” from multiculturalism in recent years.16 At the residence stage, which is the original and main site of civic integration, the migration control imperative is still present but already weaker. While permanent residence titles tend to be increasingly tied to meeting a civic integration requirement, not meeting it rarely leads to the termination of residence. In Austria, for instance, a traditional hardliner on migration even before the radical right was on the map, during the first seven years of its variant of civic integration, the Integrationsvereinbarung, only three migrants were “threatened” with deportation, which apparently never arrived (Permoser 2012:193). In Germany, also a traditional hardliner but one that has recently mellowed significantly, not participating in an obligatory integration course may become a reason for being denied the renewal of a residence permit, but a negative decision has to be weighed against the migrant’s length of residence and his or her “protectable ties” to the Federal Republic, which includes family ties (Gross 2007:317). At the point of citizenship acquisition, finally, the migration control function is wholly absent, because failed citizenship applicants always retain their permanent resident status that, in different degrees of length, is everywhere a condition for applying for citizenship. At this tail-end of civic integration, citizenship tests, oaths, and ceremonies serve exclusively the symbolic function of upgrading or “strengthening” citizenship as a source of national identity and cohesion. There is much variation in organizing and linking the three integration stages and its respective hurdles, and in how difficult each one is to take.17 While the harshest variants are unquestionably in countries with a strong radical right influence on migration policy, most notably the 16 17

For the “retreat,” see Joppke (2004; 2014; 2017c:ch.3). For overviews, apart from Goodman (2014), see also Strik et al. (2010) and Perching (2012).

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Netherlands and Denmark, even in these countries there is much variation that is not explicable in these terms. Is the taking of an integration course required, or only the passing of a test? In the Netherlands, there is no requirement to take a course (in fact, the neoliberally disengaged state does not offer courses at all), only the passing of a test counts; in Germany, by contrast, participation in a state-supervised course is mandatory. Who pays? In the Netherlands, Germany, or Austria, migrants pay at least in part (though they may be reimbursed if passing course or test successfully); in France, the state pays in full. Are the civic integration requirements, across the different stages of integration, additive or substitutive? In the Netherlands and Denmark, separate language and civic knowledge tests, with an ascending degree of difficulty, are required at each stage. In Germany, by contrast, the passing of a language test at the residence stage voids the need for a language test at the citizenship stage; the same applies to the “Life in the UK” test in Britain. Are there exemptions for certain migrant categories? Germany and the Netherlands exempt immigrants from rich OECD countries, which reveals less an ethnic or racial than an economic or class bias; by contrast, for legal reasons (the fear of discrimination charges), Denmark does not grant any exemption. Finally, how difficult are the tests? The general trend has been to toughen the requirements over time, especially with respect to the – in most cases – central language component. However, some countries have put the hurdle high from the start: this is the case for the Netherlands and Denmark, where migration policy is made under strong radical right pressure. By contrast, France, whose Republican integration approach has never been far from civic integration, surprises with a lowkey and service-minded approach, which does not demand much of the migrant. Germany is in the middle, with a relatively demanding (if substitutive, one-test-only) language requirement, but a high level of state commitment to help migrants in the process – this shows in the strange legal formula that to participate in an integration course is both a “right” and an “obligation” (of course, for different migrant categories). Britain started as the initially most liberal and service-minded civic integrationist, but shifted toward raising the hurdle, requiring, for instance, more cultural and historical knowledge in the most recent incarnation of its residence and citizenship test.18

18

A conceptually interesting comparison of “national membership conditionality structures,” which rightly sees that “citizenship no longer holds exclusivity as a category of membership,” draws an empirically anachronistic contrast of an “inhibitory” German and a “promotive” British integration regime (Baldi and Goodman 2015:1154 and 1156).

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In a jungle of different rules and provision at each integration stage, which are also constantly changing, one can still detect some patterns. One is the “reframing of ‘integration,’” from a “rights-based frame,” which had predominated until the 1990s, to a “duty-based concept,” which takes the “individual migrant” to be the “main actor of integration” (Perching 2012:116). A second is the “reversal of the idea that a secure status facilitates the integration process,” toward the notion that the right to permanent residence has to be “earn(ed)” (Böcker and Strik 2011:157). That it has to be “earned,” indeed, is the incontrovertible bottom line of civic integration.

Fördern und Fordern: Why Integration Policies in Europe Are Restrictive Some argue that European states’ restrictive integration policies are a function of radical right pressure, whether directly, by shaping policy, or indirectly, by setting the political agenda (e.g., Lutz 2019). Others point to the “neo-liberal playbook” to explain some of their restrictive elements, such as the strong emphasis on “self-sufficiency” (Jesse 2016:21). While the neoliberalism factor, in particular, is important, as I shall confirm below, one also must consider the fact, entirely external to the neoliberalism–nationalism nexus, that most immigration in Europe is unselected. It is a truism, but rarely acknowledged, that integration policy needs to be seen in the context of the migration that is processed by it. In Canada, for instance, this is a context of selective high-skilled immigration, which allows Canada, to repeat, to be generous and “multicultural” in its integration policy. In Europe, by contrast, the migration to be processed by integration policy is predominantly unwanted. This fact alone inevitably imbues integration with the restrictive imperative of migration control. Note that entire legal categories are formally exempted from the strictures of “integration.” Of course, intra-EU migration on the basis of EU citizenship is exempted. Somewhat less trivial is that high-skilled immigrants also, due to the competitive nature of recruiting these very much wanted immigrants, tend to be exempted from integration requirements; to add insult to injury, they are often endowed with rights, especially family rights, that exceed those of citizens.19

19

See Ellermann and Goenaga (2019:99 and 101), who mention that high-skilled immigrants in Germany and Norway, for instance, have a better chance to be joined by their foreign spouses than citizens, because they are exempted from the Integration

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Apart from these privileged categories, the vast majority of non-EU immigration in Europe is unwanted, consisting of (low-skilled) family and asylum migrants; and much of the low-skilled labor migration that is needed is met by subterfuge, through the free movement clauses of EU law. In 2015, the share of non-EU labor migrants in most EU countries was under 10 percent, while the lion’s share was either family and asylum migration combined (most extreme in Italy and France with 48 percent, in Finland with 56 percent, and in Sweden with 67 percent), or EU internal movement, which is not classified for its entry purposes, and which ranged from 29 percent of total migration in Sweden to a whopping 85 percent in Luxembourg. In comparison, in New World countries, with the exception of the United States, the pattern is the reverse: in 2015, the labor migrant share (including accompanying family) in Canada and Australia was at 62 percent and 56 percent, respectively, while the combined family reunification and humanitarian share was only at 37 percent and 33 percent, respectively.20 The minimal conclusion to draw is that “family reunification and asylum migration have become the major avenues of immigration in Europe” (Hollifield, Heran, Martin, and Orrenius 2019:13). One should more precisely say that they have remained the main avenue despite all attempts to move from “suffered” to “chosen” immigration, to use the words of former French President Sarkozy. In the context of predominantly unselected, and in this analytical sense “unwanted” migration, integration policy is marked by the dilemma of having to reconcile contradictory goals: that of integrating migrants, yes, but also the opposite goal of containing or reducing future flows that may be solicited by too generous integration measures. Any policy “too generous” on the integration side would create incentives for more unwanted migrants to come. This typical dilemma of European integration policy is well demonstrated by Germany’s recent Integration Law, passed in the wake of the 2015 Syrian refugee crisis. Its novelty is to subject (certain) asylumseekers and recognized refugees also, and not only low-skilled and mostly family migrants as previously, to the civic integration regime.

20

from Abroad requirement (in Germany) or from the highest income requirement in Europe (in Norway). These OECD figures are reported in Hollifield et al. (2019:14). In the United States, in 2015 labor (including accompanying family) accounted for 14 percent of the immigrant total, while family reunification was at 65 percent (and humanitarian at 14 percent). This anomaly is due to a family-dominated legal quota system for permanent immigrants, established in the 1965 Immigration Act. Most high-skilled immigrants enter the US with temporary visa and then switch to permanent residence.

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However, the motto of the new law: Fördern und Fordern (Supporting and Demanding)21, points to a second source of a restriction-minded integration policy: neoliberal welfare slimming. Fördern und Fordern, one must know, has originally been the title of chapter 1 of the earlymillennium reform of German Social Law (Sozialgesetzbuch) under SPD Chancellor Gerhard Schröder. This connection between social policy and migrant policy is usually ignored. The pro-migration lobby, which rallies behind the flag of “equal participation,” has attacked the new integration law as marked by a mindset of “suspicion” against migrants and as “dividing” migrants and Germans.22 Not only does this critique rest on the phantasy premise of primal harmony between migrants and Germans that is destroyed by restrictive state policy. More importantly, it overlooks that the migrant policy only mirrors a social policy that has long been a reality for all citizens and residents: the policy of an “activating” or “social investment” state that “Third Way” Social Democratic and Labor parties have devised since the mid-1990s to slim down a bloated welfare state.23 In Germany, this occurred in terms of the Agenda 2010 and subsequent Hartz IV labor market reforms, which adjusted the entitlement-brimming German welfare state to the constraints of neoliberal globalization, in which mobile capital can move to less “costly” places. Interestingly, when the Fördern und Fordern motto was invented in this social-policy context, its two parts had been in reverse order, with the austere imperative of Fordern (to demand) ahead of the ameliorative Fördern (to support). This was later turned around. However, the inversion is merely cosmetic because chapter 1 of the reformed German Social Law still starts with the “Principle of Fordern,” stipulating that “all possibilities to end or reduce neediness (Hilfsbedürftigkeit)” have to be exhausted on the part of the needy individual first, and requiring her to enter into a “re-integration contract” (Eingliederungsvereinbarung) – this contractual reformulation of welfare rights incidentally foreshadowed the “integration contracts” that adorn some European states’ immigrant integration policies today. The communality of immigrant- and citizen-targeting Fördern und Fordern is a perception of the individual as in workable condition yet needy, particularly as unemployed. Again, this is no “divisive” phantasm by populism-whipped politicians but reflective of the fact that the typical 21

22 23

As a legal concept in an immigration context, Fördern und Fordern first appeared in the 2007 version of the Residence Law (Aufenthaltsgesetz), which lays out the federal integration policy (see Thym 2010:300, fn.213). For this critique, see “Integrationsgesetz: ‘Dieses Gesetz spaltet’,” Zeit Online, May 5, 2016. For a defense, see Hemerijck (2013); a brilliant critique is Lessenich (2008:ch.4).

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immigrant in Europe walks straight into unemployment and welfare dependency, which is even more likely in countries with a strong welfare state.24 With respect to its citizen-targeting origins, the idea behind Fördern und Fordern is that the state is no guarantor of social rights, as in the classic era of the welfare state, but an “activating” state that nudges and coerces the individual to take care of herself through her return, in the case of unemployment, to the status of paid or self-employment on the shortest possible and – in effect – demeaning route. The original domain of Fördern and Fordern is minimum-aid policy, which sets in after the expiration of insurance-based and status-protecting unemployment help. Concretely, it means that, in return for receiving tax-based social aid, the individual must demonstrate her proactive effort to find employment or is even required to accept work far below her qualification and legitimate aspiration level; work that, in the extreme, is only symbolically remunerated, so-called One Euro Jobs, just one step away from forced labor. Critics have questioned the disciplinary logic driving this social policy. According to it, welfare clients are unwilling to work and thus at fault for their condition, and they have to be re-socialized into the habit of looking for or being in work. This critique is exactly symmetric to the critique of migrant-targeting Fördern und Fordern as marred by a spirit of “suspicion” and “divisiveness” – only that this time it is more plausible. A new idea of justice underlies this policy. It is no longer the substantive, redistributive justice of the social-democratic era but the formal, procedural justice of our neoliberal time, which is content with nondiscrimination (see Rosanvallon 2000:ch.2). Moreover, social security is redefined from status security to basic security, the reproduction of “bare life” as the philosopher Giorgio Agamben (1998) would call it. And the purpose of social policy is “inclusion” into society’s basic institutions, most importantly the autonomy-securing labor market. This is less than “equality.” But not the individual alone, her immediate social ties also are mobilized by the activating state, following the old principle of subsidiarity, more recently sexed up as “social capital.”25 The essence is that, before the state steps in, not just the individual herself but those closest to her in terms of kinship or family are called into responsibility. In sum, a punitive and disciplining immigrant integration policy needs to be put in the double context of predominantly unselected migration and of a fundamental reorientation of social policy in the neoliberal 24 25

See Koopmans (2010), who also finds that a second factor increasing migrants’ welfare dependence is difference-boosting multiculturalism policies. See the biting critique by Somers (2008:ch.6).

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activating or workfare state, whose aim is to foster the self-responsibility (Eigenverantwortlichkeit) of the individual. If civic integration policy’s first priority is to get migrants into work, and, conversely, if the consolidation of residence is made dependent on migrants’ being in work, this only mirrors the post-welfare state’s treatment of its own citizens. And it rests on the realistic – if strange, for North American eyes – assumption that the typical migrant is not in work. Equal Participation? In the German debate, a liberal-progressive alternative to the restrictive Fördern und Fordern approach has appeared under the name of “equal participation” (gleichberechtigte Teilhabe). It defends the cause of “migrants” in the abstract, and thus sidesteps the control vs. integration dilemma that is inherent in a reality of unselected asylum and family migration. Klaus Bade, a leading German migration scholar who is spearheading the liberal-progressive critique, has denounced the 2016 Integration Law as a “Law to Prevent Integration” (Integrationsverhinderungsgesetz), and as a “populist contribution to the furthering of ’social cohesion.’”26 Similarly, a so-called Brandbrief (Urgent Letter), signed by ninety “scientists, artists, and authors,” attacked the new law as a “step back into the 1980s,” when Germany was still the proverbial “kein Einwanderungsland” (not a country of immigration).27 The past is described as a “society divided into Germans and migrants,” where “integration” was a “one-sided process imposed on migrants and their offspring.” This is, incidentally, an optimistic picture because the policy goal at the time was not “integration” at all but to offer “guest workers” incentives to return to their home countries, if not to force them into it through denying the renewal of residence permits. Correctly pictured or not, the past is contrasted with today’s situation of having “matured to the knowledge that Germany is a country of immigration in which democratic rights according to the Basic Law (Grundgesetz) apply to all – irrespective of their ethnic background, religion, or culture.” The assumption is that, from their day of arrival, “migrants,” whatever their legal status, are due an equal place in German society, which is under the obligation to mend its ways to make this happen. The call is for the new integration law to be replaced by a “Law on Immigration, Cultural Diversity, and Integration Through Participation,” so that in name also the restrictive Fördern und Fordern would give way to the truly

26 27

See Klaus Bade, “Das Integrationsbehinderungsgesetz,” MiGAZIN, May 31, 2016 (www.migazin.de/2016/05/31/bades-meinung-das-integrationsbehinderungsgesetz/). The Brandbrief is reprinted in “Integrationsgesetz: ‘Dieses Gesetz spaltet’,” Zeit Online, May 5, 2016 (www.zeit.de/politik/deutschland/2016-05/integrationsgesetz-offener-briefkuenstler-protest/komplettansicht).

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integrationist principle of equal participation (gleichberechtigte Teilhabe) (see also Atasoy et al. 2016). “Equal participation” is also the motto of progressive Land-level integration laws in Berlin (2010), North-Rhine Westphalia (2012), and Baden-Württemberg (2016).28 Contrary to federal policy, these subfederal integration laws shift the burden of adjustment entirely away from the migrant, toward the institutions of the receiving society, thus moving from one extreme to the other. One envisaged institutional change is the “intercultural opening of the administration,” which includes the preferential hiring of people “with a migration background” (mit Migrationshintergrund). This is a neologism for the one quarter of the resident population in Germany that is either migrant or with a migrant parent, with even much higher concentrations in urban centers like Berlin or Frankfurt. As the very words signify, “equal participation” ignores the fundamental control dilemma in which any integration policy in a context of unselected migration is caught. As Martin Ruhs (2013) exposed in his exploration of the “numbers vs. rights” dilemma, the unspoken truth of low-skilled migration is that the societal acceptance of large amounts of it presupposes a factual, to a degree even legal, deviation from the equality principle to which the liberal state is philosophically committed. By contrast, if “equal participation” is more than rhetoric and becomes the legal and factual standard of processing low-skilled migration, it must further incentivize this migration, putting to the test the reception capacity of the receiving society. Realistically speaking, society would be deprived of any incentive to accept this migration in the first and might lean even stronger toward backlash and restriction than it already does. Control vs. Integration: The Inevitable Dilemma. By contrast, Fördern und Fordern does not target “migrants” in the abstract, as does the “equal participation” alternative, but concrete legal subsets of them. Unlike its liberal-progressive alternative, Fördern und Fordern is attuned to the nature of the migration to processed by it, which lends it an inevitable control outlook. It is thus a misnomer to call the German integration law of 2016 a general “integration law,” because it applies only to refugees, more specifically, a distinct subset of them, those deemed to have a “good prospect of remaining” (gute Bleibeperspektive). Excluded from

28

Only the Bavarian Integration Law, passed in December 2016, explicitly follows the Fördern and Fordern logic of the federal integration law, controversially stipulating as one of its integration “demands” on migrants the “recognition (Achtung) of the dominant culture (Leitkultur)” (see Eichenhofer 2016:256).

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the new law are asylum-claimants from “safe countries of origin” (such as the West Balkan states), who are in principle subject to expulsion and not to be provided with incentives for staying. “Good prospect of remaining” is officially defined as the probability that the respective migrant will “eventually acquire a legal and permanent residence status” (bei denen ein rechtmässiger und dauerhafter Aufenthalt zu erwarten ist)29. Because it is rather difficult to legally establish what a “good prospect of remaining” is, it opens wide discretion to public authorities. The contradictory imperatives of Fördern und Fordern, of supporting and demanding, mark the new German integration law all over. This continues the legacy of the first German integration law passed in 2005, which had already operated in terms of both providing “rights” and imposing “obligations.” On the “rights” side, previously only recognized refugees had a claim to participate in an integration course, consisting of 600 hours of language training and 30 hours of civic instruction; now all asylum-seekers with a “good perspective of remaining,” but whose files have not yet been decided, are included. On the obligatory side, however, the granting of permanent residence status to recognized refugees is now made contingent on their fulfillment of the civic (and other) integration requirements to which “ordinary” (low-skilled, extra-EU, mostly family) migrants have long been subjected. This is a monumental step. Previously, recognized refugees had enjoyed a privileged status with automatic permanent residence rights. Now they are treated like ordinary migrants who have to “earn” their right to remain through passing the mandatory integration hurdles, including to show a clean criminal record, at most a low level of welfare dependence, and knowledge of the German language. While small privileges in the degree of these conditions remain for recognized refugees (see Thym 2016:25), the fact of making permanent residence conditional also for them is decisive. Generally, all European states’ integration policies follow a legal logic of the gradual (not immediate and automatic) acquisition of the right to stay, in contrast to the classic immigration countries that (typically used to) provide instant permanent residence (for recent deviations, see Chapter 2). In German legal language, this is referred to as Aufenthaltsverfestigung (consolidation of residence). The novelty is to subject refugees also to this principle. This tacitly acknowledges the reality of mixed migration, in which economic motives are inexorably fused with a need for protection, with asylum-seeking having become a strategy of migrating to a rich country. In turn, it renders

29

The legal formula, as quoted by Thym (2016:244).

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anachronistic the “exceptionalist” Geneva refugee regime with its heroic “political” refugee construct. On the side of Fördern, it is equally noteworthy that “integration” measures are applied also to failed asylum-seekers without a legalresidence permit, so-called Geduldete (tolerated). They are subject to expulsion but cannot be expelled because their country of origin cannot be established or is unwilling to take them back, or because expulsion would be a threat to the life of a failed asylum-seeker (who is protected by the non-refoulement norm of the international refugee regime). Including the Geduldete in the ambit of Fördern is a pragmatic concession, which places the imperative of integration above that of controlling migration. Key in this respect is the new “3+2” rule. It allows Geduldete who manage to find a vocational training post to complete their training over the usual three-year period and then to work for an additional two years – hence “3+2.” This is not exclusively a migrant-friendly or integrationist, but also an employer-friendly, measure, because it relieves employers of the need to check the legal status of their prospective trainees or employees. The problem is that this pragmatic integration measure provides a legal “track change” (Spurwechsel) from failed asylum-seeking (Duldung) to labor migration, thus creating the “wrong” incentive of abusing the asylum process for immigration purposes, that is, of filing an unrealistic asylum request only to continue on the labor track. Previously, the only hope for rejected asylum-seekers to see their residence legalized was to bet on the gradual workings of time, that is, escaping “expulsion” (the legal order to leave) and “deportation” (the actual implementation of such order if the individual refuses)30. This is an instance of “social membership” à la Carens (2013) being acquired over time, eventually acknowledged legally according to the principle of Aufenthaltsverfestigung. Now, a subjective right for legalization on economic grounds exists immediately after a rejected asylum claim (Thym 2016:251). When confronted with the problem, the German Interior Ministry laconically responded: “[A]n integration that is limited in time is preferable to a time without integration” (quoted in Eichenhofer 2016:10). But there is no denying that, for the sake of effective integration, a powerful incentive for more unwanted immigration has been created. Because it blurs the distinction between labor and refugee migration, the “track change” is controversial – and it was not carried over in the Fachkräfteeinwanderungsgesetz of 2019. It reveals that there is an 30

See Walter Kälin, “Aliens, Expulsion and Deportation,” Oxford Public International Law, 2010 (https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231 690-e745).

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irresolvable conflict between the goals of migration control and migrant integration, which cannot be both fulfilled at the same time (Thym 2016:242–3). Coda: No Cultural Turn. Liav Orgad (2017:352) has argued that integration policy for low-skilled migrants is leaning toward a “cultural approach,” while a more “economic approach” is taken for the highly skilled. However, Germany’s Fördern und Fordern, while factually (not legally) targeting the low-skilled, stays clear of a cultural approach. Certainly, for two decades already, the center-right and now also the radical right, have called for a Leitkultur to be made obligatory for migrants. And Bavaria, ruled by what is Germany’s most powerful populist party, the Christian-Social Union (CSU), even inscribed the “recognition of Leitkultur” into its Land-level integration law.31 However, as something that would require personality change and not just the regulation of external behavior, such an obligation is not legally enforceable. The “free development of one’s personality,” protected by Article 2 of the Basic Law, works against it. Already in the late 1980s, the Federal Constitutional Court had ruled that “integration” could never imply “a complete immersion in the German ways of life and customs (deutsche Lebensumstände und -gewohnheiten), so that the entire personality of the respective foreigner would be seized by it” (quoted in Böhm 2017:211). The demand for integration had to be limited to “adapting external behavior” (2017). A cultural assimilation requirement is thus constitutionally ruled out.32 This does not mean that politicians would not try to push these legal limits. The German Residence Law (Aufenthaltsgesetz), which sets the parameters of federal integration policy, makes a residence permit dependent on the applicant’s “acknowledgment (Bekenntnis) of the liberal-democratic basic order” (Böhm 2017:211). Bekenntnis is more than Kenntnis (knowledge), implying an inner conviction that is constitutionally ruled out of the state’s powers by the constitutional court’s interpretation of the Basic Law’s personality right. As, in practice, this Bekenntnis is delivered by mere declaration, whose truthfulness is never further examined, this inconsistency between statutory and constitutional law is at best an academic problem. When the chance existed to push for a stronger cultural element in Fördern und Fordern, it was not seized. After the infamous 2015/16 New 31 32

For Bavaria’s approach to “manage culture diversity,” see Schultz and Kolb (2015). The same conclusion can be derived from the Federal Constitutional Court’s famous Jehovah’s Witnesses decision of 2000 (see the discussion in Joppke and Torpey 2013:56–8).

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Year’s Eve events in Cologne, when hundreds of women were sexually aggressed and attacked by hordes (the word applies here) of North African males, there was a strong public push, not least by a boosted radical right, to give a more central role to the Leitkultur in integration policy. However, as an analysis of integration course materials and requirements after the passing of the 2016 Integration Law reveals (SVR 2019:183), there has been no “culturalization” of integration. While in civics instruction more emphasis is placed on informal behavioral norms and rules of everyday life (such as punctuality, child education, etc.), these are presented as “negotiable cultural values,” and overall, the emphasis on formal legal rules (such as the contents of the Basic Law) persists. An integration course module on “Individual and Society” highlights the equality of the sexes as important in everyday life, as in the distribution of household work. However, it is immediately mentioned that sex equality was long contested in Germany, that it arrived late, and that it is far from complete today (2019). As the SVR analysis concludes, “a call to adopt ‘German values’, as in the Leitkultur discourse, cannot be found anywhere in the course materials.” The key emphasis in the integration course remains mundane language learning, “as most important tool for accessing the labor market and acquiring financial independence” (2019:180). Earned Citizenship in the United States The United States, except for resettled refugees, never had an explicit integration policy. However, it does have a massive integration problem, arising from the presence of some 11 million illegal immigrants, many of them residing for decades in the United States, or even their entire lives (if they arrived as small children, unable to profit from inclusive birthright citizenship). For two decades, there have been repeated attempts, especially under the Obama administration, to lay out a “path to citizenship” for this illegal population. All these attempts have failed, the last in 2013, essentially because of Republican intransigence. It is still instructive to look at some of the legalization proposals further, for two reasons. First, legalization exhibits, in magnified form, the same control vs. integration dilemma that has made European integration policies restrictive. If integration measures are too generous, in this case amounting to what Republicans have denounced as “amnesty,” this would fuel more of the unwanted migration and even reward lawbreaking, reinforcing the problem that was meant to be resolved. For the critics of “amnesty,” the proof for this perverse logic is the mid-1980s legalization under the Immigration Reform and Control Act (IRCA),

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which had meant to “end illegal immigration forever”33, but which in reality made the level of illegal immigration grow even further to reach unprecedented heights. Second, the language of the American variant of integration policy has been “earned citizenship,” which in Europe has been reserved for citizenship policy more narrowly understood. However, both convene in being, at least in part, an austere response to a presumably too liberal policy in the past. Both of these features, the restrictive impulse and the tying of legal permanent residence and citizen status to individual performance under the motto of “earning,” are especially clear when comparing the prior mass legalization under IRCA with the new proposals that have circulated since the new millennium. That legal status and citizenship have to be individually “earned” is in deliberate contrast to the general “amnesty” granted in 1986, when it was relatively easy for some 3 million illegal immigrants to come out of the shadow; all they had to do was prove five years of continuous residence and to hold a job. There was a sense that legalization was a matter of justice, of rectifying an unfair situation. Even a Republican president thought so. When signing IRCA, Ronald Reagan stated: “The legalization provisions in this act will go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society” (quoted in Ahmad 2017:269). Almost three decades later, in the 2013 State of the Union address, a Democratic President, Barack Obama, laid out a plan for a “comprehensive immigration reform” that struck a very different tone: “Eleven million … have to earn their way to citizenship … We’ve got to lay out a path—a process that includes passing a background check, paying taxes, paying a penalty, learning English, and then going to the back of the line, behind all the folks who are trying to come here legally. That’s only fair, right?” (in Chacón 2018:72, fn.261). Once seen as an obligation of society to a class of disadvantaged people, the new understanding of “fairness” is allowing guilty individuals to redeem themselves. A World Away from IRCA. Compared with IRCA, the punitive and performance-testing diction of the proposed new legalizations stands out.34 Just consider the latest legalization proposal, which is included in the 2000-page strong 2013 “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744). Under IRCA, there was no penalty to be paid, just a small processing fee of USD 185. Now, penalties are exacted at each stage of the legalization process, amounting 33 34

Immigration lawyer Alex Aleinikoff, quoted in Ahmad (2017:269). See the summary of five major proposals for “earned legalization” brought to Congress between 2006 and 2010 by Rosenblum, Capps and Lin (2011).

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to the hefty sum of USD 3,000, coupled with a required acknowledgment that US law has been violated and a “debt to society” has to be paid – which is a lopsided view considering that dual-career middle-class America, to a degree, thrives on the shoulders of underpaid nannies, cleaners, and gardeners, which are the jobs that the undocumented typically do (see Hondagneu-Sotelo 2001).35 More importantly, under IRCA, once the five-year residence condition was fulfilled, only a short 18-month period of holding a provisional residence status, which was largely administrative in nature, separated an applicant from the aspired legal permanent resident status. The logic was retrospective, not prospective. By contrast, under S.744, the provisional status of “Registered Permanent Immigrant” (RPI) extends to no less than ten years, and it is not just administrative but probationary in nature; it is the extended moment in which the immigrant has to prove that she “qualif(ies) for the honor and privilege of eventual citizenship,” to quote from the introductory text of the bill.36 RPI status is to be given at first for six years, and it can be renewed for another four years. In fact, it has to be renewed to reach the required total of ten years before legal permanent residence is in sight. But this renewal is contingent on meeting certain performance criteria, most notably the passing of an English and civics test (previously only required at the naturalization stage). And one of these performance criteria needs to be the proof of continuous employment (paid at least at 125 percent of the federal poverty level), being enrolled in secondary or higher education, or serving in the army. Even if these exacting conditions are fulfilled, legal permanent residence (Green Card) status is still discretionary. And, as it is capped by nationality,37 it could be obtained only after the last legal Green Card applicant in the same nationality category has been served. This is the meaning of 35

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Sullivan’s (2019) case for illegal immigrants’ “earning” legalization and citizenship through military service and “civic service,” though the latter is understood capaciously as including caregiving and support of citizen family members, in my view, does not sufficiently consider the economic benefits that ordinary, non-affiliated middleclass and affluent Americans draw from illegal immigration. This important aspect of illegal immigration first received notoriety with “Nannygate” in 1993, when Bill Clinton’s first nominee for Attorney General, corporate lawyer Zoe Baird, had to withdraw her candidacy after it was revealed that she and her husband had hired two illegal immigrants from Peru to serve as nanny and chauffeur, and without paying Social Security taxes for them. Only one month later, Clinton’s follow-up choice for filling the Attorney General vacancy, federal judge Kimba Wood, also failed because she had employed an illegal immigrant to look after her child. 113th Congress, 1st Session, S.744 (Border Security, Economic Opportunity, and Immigration Modernization Act), at p.11. Under the 1965 Immigration Act, no country may exceed 7 percent of all permanent immigrant visas per year.

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Obama’s “going to the back of the line.” A noted migration historian called it a “cruel joke,” considering the gargantuan visa backlogs for certain nationalities, in particular the Mexican.38 New American DREAM. To be distinguished from the general legalization program under S.744 is a special program for illegal childhood arrivals, the DREAM Act. It had been brought to Congress each year since 2000, and a version of it was included in S.744. The punitive aspect of the ordinary legalization is absent in the DREAM Act – after all, it drew its particular moral force, even among Republicans, from the fact that innocent children cannot be blamed for the deeds of their parents. The “Dreamers,” as they came to be known, “did not knowingly choose to violate any immigration law,” as the US Senate put it when agreeing on the 2013 bill for comprehensive immigration reform (that later failed in the House).39 However, considering that the DREAM Act would target (ex-)youngsters who had not come to the United States on their own, it is all the more astonishing that they nevertheless had to prove their “worthiness,” in each individual case, to escape the yoke of illegality and expulsion that had hung over them since their very first day in the Land of the Free.40 DREAM stands for “Development, Relief, and Education for Alien Minors,” and it lays out a “path to citizenship” for illegal immigrants who had arrived under the age of sixteen and were still under thirty-five when applying for relief under the act. There’s a peculiar contradiction around the “Dreamers.” The acronym DREAM evokes the American national myth, more soberly described as “success against great odds” (Keyes 2013:109). However, if the Dreamers were “American already,” as was the widely consented selling point of the new act, why did they have to “earn their way into the American story,” as President Obama demanded in his 2013 State of the Union address (2013:103, fn.7)? Symbolized by their activists’ preference for parading in caps and gowns and in army uniforms,41 a

38 39 40

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Mae Ngai, “Reforming immigration for good,” New York Times, January 29, 2013. From the 2013 Senate Blueprint for Comprehensive Immigration Reform, quoted in Keyes (2013:115). In a curious defense of “earned citizenship,” Shachar (2011:143) notes that the DREAM Act, to which she would have to add all other proposals for “earned legalization,” asks for more than “mere residence and passage of time,” but “for actual decisions and actions.” But then she defends it as exemplar of “jus nexi,” where “rootedness” opens up a “path for earned citizenship” (p.113). This defense of “earned citizenship” flattens its categorical difference from liberally inclusive citizenship, in which – to use Shachar’s own words – “mere residence and passage of time” would be sufficient. See this description of the “Dreamers’ Movement”: “Graduation caps and gowns became ubiquitous at DREAM events, where students not only protested but also donated blood, prayed alongside religious leaders, and in one case held a ’study-in’ in

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“Dreamer” was not anyone growing up in the United States illegally and just getting by as an average fellow. She or he was someone who excelled, either in higher education or in patriotism. Because, in order to transit from provisional residence status to legal permanent residence status, one needed a minimum of two years of college education or two years of army service.42 And, of course, “good moral character,” a clause borrowed from naturalization law, was a prerequisite of all legalization, not only for the Dreamers. After a draconian tightening of this clause, which occurred in successive steps from the late 1980s on, this meant that the mere possession of marijuana or a small theft, even if long erased from one’s legal record, could not just forever forfeit the chance to obtain US citizenship, but even retroactively send an applicant for legalization on a path toward deportation (see Lapp 2012:1598; see also next section). As Jennifer Chacón (2018:74) notes, “[n]one of the immigration reform proposals of the past 20 years offer a path to citizenship for noncitizens with anything but the most minor of criminal records.” On the one side, the Dreamers, young people of all races and of both sexes, demonstrate how much American citizenship has moved away from its racist and sexist past, how much it has liberalized in the past half-century – truly the whole world can, in principle, be American. On the other side, the Dreamers epitomize a new set of neoliberal and nationalist exclusions that are the mark of earned citizenship. Only those who have proved themselves “worthy,” either through army service (the nationalist part) or college studies (the neoliberal part), qualify as “Americans already,” not the average kid who just moves along. The flip-side of “worthiness” is to “open the door to denying citizenship to those deemed unworthy” (Keyes 2013:141). Perhaps not by accident, in the same moment that earned citizenship rhetoric became dominant in the context of immigration reform, there also was a renewed attack on America’s unconditional jus soli birthright citizenship, this time for its strategic production of “anchor babies” that allegedly allow undocumented immigrant parents to bootstrap their way into legality.43 As

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a Senate cafeteria. Those Dreamers who wish to serve in the armed forces also played their part, dressing in fatigues and donning flags while they marched and saluted their way through the Capitol. These actions reinforced a persuasive narrative of young people who simply want to study and serve” (from a Dissent article by Daniel Altschuler, quoted in Keyes 2013:112–13, fn. 61). Motomura (2014:177) notes that “passage of the DREAM Act has been part of the strategic planning of the Department of Defense as a way to fill the ranks of an allvolunteer army.” As President Trump motivated his curious proposal to end birthright citizenship by executive order, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of

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similar proposals before, this one also was a “political non-starter,” because it required a constitutional amendment for which the hurdles are high (see Rodriguez 2009:1364). In fact, the 14th Amendment’s Citizenship Clause that stands in the way embodies an egalitarian “anti-caste” or “anti-subordination” principle, according to which “citizenship is not earned, it is indefeasible” (2009:1366). Outside the immigration context, recently tightened voter identification laws in the US, in which voting is not a “right” but a “privilege,” and notoriously expansive measures of felon disenfranchisement, extending well beyond the time spent in prison, are in the same performancerequiring and rights-conditioning spirit of earned citizenship (see Keyes 2013:141ff ). But more generally still, earned citizenship “begs the question of what constitutes unearned citizenship,” exposing its “moral arbitrariness” and the “unearned nature of prevailing modes of citizenship transmission” (Ahmad 2017:291). Why should not everyone have to earn one’s citizenship: by military service, by knowledge tests, by community service, and by making citizenship subject to periodic renewal? As one commentator put it, only half-jesting, this would be perfectly in line with the American “ethic of market fundamentalism and personal libertarianism.”44

Restrictive Trends in Naturalization In citizenship law, the main inroad for nationalist mobilization is naturalization. This is because here the connection with immigration is the closest and the visibility of admitting – or rejecting – new members into the national community is the highest, providing ample space for symbolism and posturing. An authoritative overview of the evolution of citizenship laws in European Union countries promptly flagged as its “most important finding” a “new trend in many Member States since 2000 toward more restrictive naturalization policies” (Bauböck, Waldrauch, Ersbøll, and Groenendijk 2006:23), and this trend was particularly pronounced in countries with a strong radical right presence, such as Austria, Denmark, or the Netherlands. Almost fifteen years later, there

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those benefits … It’s ridiculous. It’s ridiculous. And it has to end” (Julie Hirschfeld Davis, “President wants to use executive order to end birthright citizenship,” New York Times, October 30, 2018). While the word is not used in this quote, the “anchor-baby” is a myth, because US courts have never accepted the US citizenship of children not to deport the illegal parents along with them. Eric Liu, “Should all Americans have to earn their citizenship?” The Atlantic, February 2, 2012.

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is little reason to revise this diagnosis, except perhaps that radical right parties have grown stronger still across all of Europe. However, what we already observed for immigration policy, applies even more to citizenship policy: that we should not exaggerate the impact of the radical right. Reviewing the development of “citizenship rights for immigrants” in ten West European countries from 1980 to 2008, Koopmans, Michalowski, and Waibel (2012:1234) found that naturalization, next to cultural rights, was one area where electorally strong radical right parties did provoke restrictions. However, the authors also found that, apart from the fact that all examined countries (except Denmark) were “more inclusive” in 2008 than in 1980, “the 1980 level of rights in a country was the single best predictor of where a country stood at later points in time” (2012:1224 and 1236). This suggests “a high level of institutional inertia” that is prior and superordinate to the mobilization of the radical right (2012:1232). And the radical right’s impact is additionally neutralized by an increasing immigrant-origin share in the electorate.45 Confirming this finding, an analysis of citizenship legislation in all EU member states over the 1992–2012 period found that “the xenophobic right does not seem to determine the direction of the reforms, neither hindering inclusive ones, nor being the only catalyst of restrictive ones” (Sredanovic 2016:450). “Naturalization” is a paradox to begin with. It literally means to establish something as natural. But that seems to be impossible because the transitive diction undermines the desired outcome. To be natural, like to love or to fall asleep, is a “state that is essentially a byproduct” (Elster 1983:ch.2) – by intending it, you will exactly not achieve it. “Naturalization suggests impossibility,” a British sociologist aptly observes, “no one can be made natural – as it suggests artifice and unnaturalness” (Byrne 2014:4). This is why residence time is so important: it resolves the paradox of naturalization by rendering invisible the active part in the process. However, foregrounding the active part, through formalization and the introduction of citizenship tests, while backgrounding the passive workings of time, is the uniform direction that naturalization policy has taken across the West in recent years. As a result, the paradox becomes even more visible. From Average to Super-Citizen. But what is the “natural” citizen condition that is the model for naturalization? One possibility is the “average citizen.” Liav Orgad (2019) calls it the “integration” approach to 45

Koopmans, Michalowski, and Waibel (2012:1234f ) quote as the only exception to “institutional inertia” the case of the Netherlands, which turned sharply restrictive after the rise of populist Pim Fortuyn in 2002.

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naturalization. It predominated in a liberal era of citizenship policy, when the prevailing view was that citizenship acquisition is a tool or step in an integration process that is intransitive, more happening than intended, and infinite. A competing model for naturalization is the “ideal citizen.” Orgad calls it the “selection” approach. Here, “(m)ore is demanded of an alien than of a natural-born citizen,” as a US Federal court put it in 1969 (quoted in 2019:536). Orgad finds that this model “prevails in the liberal state” (2019). This is true in the sense that it articulates the contractarian element inherent in naturalization, which has never been something for nothing but a quid pro quo, contingent on the applicant’s delivering something in return for citizenship. However, it is more precise to locate the “ideal citizen” model in a neoliberal-cum-nationalist constellation. In it, the dominant view is one of citizenship not as start but as endpoint of integration, “the natural conclusion of a successful integration,” to quote former French Prime Minister Manuel Valls (quoted in Elias 2016:2150). Thus, we arrive at the notion of citizenship not as right but privilege that has to be earned, which is interestingly shared by the political center and by the radical right. For the political center, hear British Immigration Minister Phil Woolas, under whose watch “earned citizenship” was invented in the UK: “As a point of principle … if you don’t break the law and you are a citizen, that’s fine. But if someone is applying to be a citizen to our country, we don’t think that you should only obey the law but show you are committed to our country” (quoted in Anderson 2015:187). For the radical right, hear the Norwegian Progress Party: “Becoming a Norwegian citizen should not be an undeserved right, but an earned privilege.” This is also repudiating what its activists, now in a more genuinely populist (because “political correctness” bashing) mode, call “kindism” (snillisme) (quoted in Brochmann 2013:61). A comparison of citizenship ceremonies in the UK and Germany, introduced as in several other European countries in the early 2000s, speaks of their projection of “super-citizens” (Badenhoop 2017). Officials depict the new citizens as endowed with an exemplary “neo-national subjectivity,” in the British variant revitalizing the “specific duty of royal loyalty,” and in the German variant offering a moderate alternative to the rabid nationalism of the “Neo-Nazis” (2017:422f ). The model for both is the United States whose pompous citizenship ceremonies thrive on the notion that “naturalized citizens are somehow more ideal citizens than those born in the United States” (Byrne 2014:42). As was heard at a Manhattan ceremony, “your greatest responsibility is to remind nativeborn citizens what being an American is all about” (2014:41). In culturally stateless America, it may always have been this way. By contrast, the

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spreading of super-citizen rhetoric in new-millennium Europe has a more specific edge: not just “neo-national” but also neoliberal, which is a novelty here, because “the responsibility to maintain public goods (is shifted) to naturalized citizens,” as a British sociologist sharply observed (Badenhoop 2017:422). Restrictions within a Liberal Framework. Citizenship ceremonies are the symbolic reward-end of a naturalization process that has recently been spiked with hard new conditions and requirements. One may look at this as a response to “too much” liberalization, because well into the 1990s, the dominant trend had been toward facilitated naturalization, in terms of lowered residence times, a rejection of cultural assimilation, and the constraining of administrative discretion by formal rules, in some cases even the rise of as-of-right naturalization.46 It is still correct to say, as I did a decade ago, that the restrictive trend has been “within an overall liberal, in some cases even liberalizing, framework” (Joppke 2008:160). This is confirmed by the fact that two other strands of citizenship liberalization: the trend toward conditional jus soli birthright citizenship and the toleration of dual or multiple citizenship, have generally not been touched by the restrictive impulse. Liav Orgad (2017:352) observed that the access to citizenship via naturalization has simultaneously become “broader,” in terms of who has access, yet also “narrower,” in terms of the conditions of access. He thus points to an even more fundamental liberal base of citizenship law that likewise has remained intact: the removal of group-level or categorical exclusions on the base of race and sex (see Joppke 2005b). The new hurdles to naturalization are all at the individual level. One can distinguish here between economic, penal, and cultural types of narrowing or conditioning the access to citizenship. Let me discuss each in turn. Economic Conditionality. A little noticed restrictive trend, which is squarely situated in a neoliberal context, has been economic: to make the access to citizenship more expensive and dependent on the financial self-sufficiency of the applicant. In this respect, citizenship becomes quite literally “earned.” A comparison of eight European Union states found that in seven of them the fees for naturalization have gone up, in some cases drastically. If the average fee in these states was ca. EUR 300 in 2000, by 2014 it was more than two times as much, ca. EUR 650, notably in a no-inflation context (Stadlmaier 2018:50). Particularly in the UK, on top of extraordinarily high visa and permanent residence fees, naturalization fees have dramatically risen over the

46

See Joppke (2008:130–3); also Joppke (2010a:44–6).

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past few years, reaching slightly over GBP 1,200 per adult and GBP 1,000 per child in 2018, which adds up to a non-trivial investment for a family of four.47 This change was deliberate, and it mirrors precisely the rise of neoliberalism and the devolution of the welfare state.48 In the 1920s, before the rise of the postwar II welfare state, there was an attitude among British naturalization administrators that one could call “neoliberal” before the word: an application from an unemployed person “could not normally be expected to succeed.”49 At the welfare state’s height, in the late 1960s, there was the opposite attitude, that the naturalization fees should not be set too high, “not … to form a barrier to worthy applicants of humble means.”50 In yet another drastic turnaround, between 2004 and 2017, the fees skyrocketed, growing more than six-fold, from ca. 200 Pounds Sterling per application (by a person living alone) to over 1,200 Pounds Sterling.51 The fee explosion was aggravated by a rule change, in 2009, to charge each member of a family extra, and no longer treating the family as one unit. Interestingly, the fee hike was not only motivated by making the naturalization process self-financing and to relieve “UK taxpayers” of the bill, which was a dominant motive under Conservative Prime David Cameron’s plan to make the entire British immigration system “self-funded” by 2020.52 In addition, and importantly, the fees were set deliberately higher than the actual cost of naturalization for a symbolic purpose, to express and reinforce the “importance” and “value” of British citizenship. The attendant assessment of “value” peculiarly fused a neoliberal utility and a moral-nationalist element, the new idea being that “the ‘value’ of citizenship has to be reflected in the sum of money that the administration asks foreigners to pay in return for their acquisition of citizenship.”53 This was considered unproblematic from a liberal point of view because naturalization, after all, is voluntary: “A person who is settled in the UK is not required to become a citizen,” as a member of the House of Lords defended the naturalization fee explosion in a 2016 debate.54 It must be conceded, however, that in contrast to other European countries, there was no parallel move in the UK to make the receipt of welfare an exclusion ground for naturalization. Accordingly, one may consider the fee hike the functional equivalent to the exclusion of applicants because of welfare dependence: “People might be unemployed, they might rely on benefits, we don’t care. We 47 48 49 50 53

Compare this to the low naturalization fees in Germany: in 2019, they were just EUR 255 per adult and EUR 51 per child under 18. In the following, I rely on the excellently researched thesis by Émilien Fargues (2019a). A Home Office document, quoted in ibid. 335. 51 52 A Home Office document, quoted in ibid. 343. Ibid. 344. Ibid. 346. 54 Ibid. 345. Ibid. 347.

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want them to pay the fees, that’s it,” as a Home Office bureaucrat describes the prevailing attitude.55 The trend toward economic conditionality is not limited to Europe. In Canada, under the conservative Harper government, which also tried to make Canadian citizenship more nationalistic and “warrior”-type, there has been a significant fee hike in 2014, from CAD 100 to CAD 530. However, it was less morally loaded than in the UK, and simply followed the economic rationale that post-birth citizenship acquisition had become “too cheap” and that the full cost of the process had to be shouldered by applicants. In one commentator’s view, the Harper government undermined its own nationalist intention, because it “tacitly adopted the view that citizenship is a commodity” (Macklin 2017:7). Perhaps even more important than the increasing fees for citizenship acquisition is its conditionality on the applicant’s financial independence and non-use of social assistance. This trend has been particularly marked in Europe, as protective measure for its more developed welfare states. It still boils down to symbolism, considering that residence and not citizenship triggers the access to most welfare benefits. As it is the reverse side of welfare chauvinism, which is the attempted limitation of welfare benefits to co-nationals, the denial of citizenship to welfare-state clients has been a central plank of radical right parties, even though it is not limited to the latter. For instance, in Denmark, a restrictive citizenship circular passed after the 2005 elections, which bore the imprint of the electorally ascendant Danish People’s Party, included a new self-support clause, according to which anyone who had received social aid for more than one year (later reduced to six months) over the past five years was automatically denied access to Danish citizenship – the Danish People’s Party had even demanded to extend the aid-free period to ten years (Ersbøll 2015:25). A somewhat milder self-support clause was hardened in a similar political context in Austria. A 2005 amendment to the Citizenship Law, which was passed under a coalition government that included a radical right party (the BZÖ [Bündnis Zukunft Österreich], a splinter of the FPÖ, and led by populist maverick Jörg Haider), decreed that a citizenship applicant must not have received social assistance for more than three years within the last six years, without any exception.56

55 56

Ibid. 348. Not to allow any exemption from the minimum-income and self-sufficiency requirement, which was an innovation of the 2005 Austrian Citizenship Act, was ruled unconstitutional by the Austrian Constitutional Court in 2013, as it violated the principle of equal treatment for people with disabilities (see Stern and Valchers 2013:22–3).

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However, it must be stressed that radical right parties may have hardened but they did not invent financial self-sufficiency clauses. German citizenship law, for instance, which had never been affected by a radical right party, has always included as condition for naturalization that an applicant does not receive social aid (Sozialhilfe) or unemployment compensation. The difference to Austria is that German lawmakers never tried to waive any exception to this rule: if a person cannot be held responsible for her social aid dependence, she is still entitled to naturalize.57 Overall, a comparison of nine EU countries found that radical right parties had an influence on economic performance criteria in citizenship law “only when they have been strong over a longer period of time” (Stadlmaier 2018:55). Penal Conditionality. A second new hurdle to naturalization, which is likewise closely but not exclusively related to radical right influence, is penal law. In Denmark, a 2002 change of the citizenship law, the first that was influenced by the Danish People’s Party, saw not just an increase of the residence requirement from seven to nine years and the introduction of a language and civics test, but also a new conduct rule that an imprisonment between one and two years necessitated a waiting period of eighteen years, while a sentence of two years or more forever excluded the possibility of acquiring Danish citizenship (Ersbøll 2015:24). In 2005, the conduct rule was further tightened: lighter sentences also incurred long waiting periods, while already an eighteen-month imprisonment permanently precluded naturalization (2015:25). In Austria, under the 2005 reform of citizenship law, any conviction other than for an offense “committed out of negligence” rules out Austrian citizenship, and from 2011 even administrative infractions that are deemed “serious,” including violations of the Road Traffic Regulation, can be regarded as “obstacle” to naturalization (Stern and Valchers 2013:22). Considering the centrality of security and law and order in radical right discourse, and the latter’s notorious association of immigration with crime, these developments do not surprise. However, the German naturalization rules also have always precluded citizenship for penal law violators, and an amendment to the citizenship law in 2006 further increased the ambit of legal infractions that barred someone from German citizenship (Hailbronner and Farahat 2015:12). One must

57

In 2006, an amendment to the German citizenship law removed a privilege for young citizenship applicants (below 23), who previously were allowed to naturalize even if they could be held responsible for their social-aid dependence (see Hailbronner and Farahat 2015:12).

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conclude that the degree but not the fact of tying naturalization to a clean legal record may show the hand of the radical right. By far the strictest, even heinous tying of naturalization and conformity with the law is observable in the United States. The means for this has been the “good moral character” clause, which has been a central part of US naturalization law since its inception in 1790. The clause, which is to test the “fitness” of the applicant (Lapp 2012:1590), was long left statutorily undefined. Interestingly, well into the mid-twentieth century, courts and the federal administration took it in a lax and forward-looking way. Only in the 1952 Immigration and Nationality Act, murder and other offenses, including “habitual drunkenness,” adultery, polygamy, and illegal gambling were formally listed as precluding an applicant from citizenship under the clause, if these acts occurred in the five-year residence period prior to the application. When the first “good moral character” case was adjudicated by a US court, in the mid-1870s, and no clarity existed yet as to what standard to apply, the court argued that “probably the average man of the country is as high as it (the standard) can be set” (2012:1586). Similarly, a mid-twentieth-century training manual for federal naturalization officers decreed that the implementation of the good character clause should leave “ample allowance for reformation” (2012:1589), setting present (and the promise of future) moral character rather than past moral character as benchmark. As the US Supreme Court declared in an early twentieth-century citizenship case, “good moral character” is “being exacted because of what [it] promised for the future, rather than what [it] told of the past” (2012:1585, fn.87). These views were in line with the redemptive “penal welfarism” that had guided the American justice system between the 1880s and 1970s (see Garland 2001:ch.1). With the decline of the “rehabilitative ideal” and the rise of revengeful “expressive justice” in the United States (Garland 2001:8), an archaically punitive and essentialist interpretation of the good moral character clause took hold. Key to this was the late 1980s’ invention and subsequent hardening of the legal concept of “aggravated felony” in immigration law. It automatically makes an immigrant deportable and forever disqualifies him or her from meeting the good moral character requirement in naturalization law, even if the conviction long preceded the five-year residence period prior to citizenship application, and even if the sentence was suspended and removed from a person’s legal record and he or she is thus rehabilitated and “clean.” Once guilty, always guilty, never a citizen – this is the savage logic. Crucially, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) greatly increased the number of crimes qualifying as “aggravated felony,” including even

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minor lawbreaking that is otherwise legally classified as “misdemeanor.” “Aggravated felony” no longer meant, as in the past, only “high crime,” like homicide, but any wrongdoing that is punished with a prison sentence of more than one year, even if the sentence has been suspended. Under current American justice, this means that stealing a videogame worth USD 10 can constitute “aggravated felony” under immigration law and thus not only exclude a person from US citizenship forever but, more seriously, make him or her deportable without the possibility of judicial review (Lapp 2012:1592, and fn.135). In the enforcementobsessed past quarter century, immigration law has added thousands of “classes” of behavior that forever exclude a “good moral character” finding. In addition, a catch-all provision in the law enlarges the scope of potential restrictiveness even further: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such a person is or was not of good moral character” (quoted in 2012:1593). As an American jurist has documented, helped by this clause, the “aggravated felony” construct “prevents or hinders a greater number of immigrants than ever from proving their present good moral character,” and there is now a shadow population that “forego[es] pursuing citizenship because truthfully disclosing past misdeeds creates too great a risk of detention or deportation” (2012). Cultural Conditionality. The single most discussed new hurdle to naturalization has not been economic or penal, but cultural. In his analysis of naturalization trends, Liav Orgad (2017) lists a restriction-minded “cultural turn” as a key development in recent naturalization laws, expressed above all in citizenship tests that have proliferated in Western Europe since the early millennium. The defense of majority culture, or what Orgad (2015) has dubbed the “cultural defense of nations,” has also been the main preoccupation of the populist radical right (see Joppke 2018/19). One might thus think that its effort to change naturalization law would be stronger and more unrelenting in this than in other respects of the law, pushing for a return of cultural assimilation as naturalization requirement. This has generally not happened. The authoritative study of civic integration policies in Western Europe, of which citizenship tests are a central part, concludes that these policies are beholden to “liberal values” (Goodman 2014:15). And, to the degree that thicker and more particularistic “national values” are foregrounded in the naturalization procedure, Sara Goodman subtly observes that “(k)nowing national values and believing in them are two different things … The state can mandate knowledge and the professing of loyalty, but not morality or belief” (2014:33). Even Liav Orgad, who had earlier indicted the “illiberalism” of cultural defense policies in some European states (2015:

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ch.3), later argued that these policies “do not mark a return to cultural assimilation. Perhaps paradoxically, cultural defense policies reveal how light citizenship as a source of identity becomes. Liberal states attempt to define the rules for joining the community in cultural terms, but end up with a thin version of what ‘culture’ is” (Orgad 2017:353). Here is a citizenship test question from the Dutch file, which clearly trespasses the boundaries of the liberal: “Zara works in a retirement home. The director of the home walks into the coffee room. What is the best thing Zara can do? (a) shake his hand and tell him her name; (b) continue to work and wave at him; or (c) wait until he says something to her” (quoted by Orgad 2015:102). The “correct” answer is (a). But crossing the other boxes is neither morally nor legally wrong and, at worst, might condone impolite or inappropriate behavior. The thrust of this test question is purely particularistic, showing a national society as a distinct cultural formation, whereby “culture” is denuded of all normativity, standing for nothing than “the tastes and preferences of the dominant majority” (2015:6). If European citizenship tests would mostly consist of questions like this, the radical right, with its factual insistence on “this is how we do things here” and ethnopluralism (see Chapter 1), would have won. But most citizenship tests are not like this. Ines Michalowski’s examination of the contents of citizenship tests in four West European countries, plus the United States, found that only the Netherlands “requires immigrants to be aware of and accept certain sociocultural norms” (2011:749). The Dutch citizenship test, crafted in the context of a strong radical right, is the only that includes “illiberal” questions about “traditions and public moral.” However, the test can in principle be passed even if all answers in this category are incorrect, because the majority of questions is about liberally inconspicuous topics like “economy and public goods and services” and “politics, history and geography” (2011:758). Importantly, in all other examined countries, surprisingly including Austria and Germany, which Michalowski takes as traditional representatives of an “ethno-cultural understanding of citizenship,” the citizenship tests “[convey] a politically liberal community of citizens, united around legal and political norms, rather than around sociocultural ones” (2011:749). In fact, liberalism, which is perceived in Europe as challenged by its sizable Muslim population of immigrant origins, is the central preoccupation and defense line in naturalization law’s “cultural turn.” This yields the paradox of “illiberal” or “Schmittian” liberalism (Orgad 2010 and Triadafilopoulos 2011, respectively). One example is the Netherlands, where the “Dutch norms and values” that fare centrally in

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its coercive civic integration policies, at closer look, are (neo-)liberal values, such as “[p]rogressive views, individualization, the expectation that you will do anything you can to strive for your own success, taking responsibility for your environment.”58 A second example is Denmark, whose “particular universalism” (Mouritsen 2006), likewise mobilized as a defensive shield against its Muslim immigrants, also revolves around liberal values, such as sex equality, religious freedoms, and free speech, all deemed challenged and insufficiently observed by Muslims. A third, perhaps the most drastic example, is France, where it is official policy, sanctioned by the Conseil d’Etat, that someone who wears a burka cannot become a French citizen, because this is deemed incompatible with the “values essential to the French communauté, notably the principle of gender equality.”59 Taking again the Dutch case, as one of Europe’s most restrictive civic integration regimes, there may be the intention of cultural assimilation. But there is little possibility of enforcement, at least by way of the citizenship test format. Indeed, the standardized and formalized test format itself guarantees a minimum amount of liberality because it increases the naturalization procedure’s calculability on the part of citizenship applicants, who are no longer subject to the whims of an openended, individual interview procedure whose outcome is always discretional. One might even question the assimilatory intention, considering the self-deprecating tone in which the Netherlands presents itself to newcomers as “too cold” and “they really are white” (see Orgad 2015:101). In an interesting exchange on the question whether the new citizenship tests are liberal, Ines Michalowski (2010:6) finds “illiberal” the Dutch “big state” posture to “define cultural and religious difference [not] as the private affair of each citizen [but] as a public issue that may require state interference.” However, even the one-fifth of questions in the Dutch citizenship test that, by Michalowski’s classification (2011:762), pertain to what is ethically “good” rather than to what is morally “right,” and in this sense are deemed “illiberal” by her, qua being pressed into a standardized test format are in the cognitive mode. They are learnable and repeatable, without the possibility for the state, perhaps not even its pretension, to enforce and ensure that the test taker adopts and internalizes the respective standards in her own behavior. Moreover, when answering to Michalowski’s “big state” charge, Randall Hansen (2010:26) makes the useful distinction between knowing about and 58 59

A Dutch Social Democratic lawmaker, quoted by Bonjour (2013:847). From a Conseil d’Etat decision, quoted in Orgad (2015:88).

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accepting social norms as a matter of fact, on the one hand, and being asked to adopt and to “like them,” on the other hand. The latter is arguably not something that the Dutch state could legally and reasonably require of its immigrants and citizenship applicants.60 Of course, the line between acceptance and identification is difficult to draw. But unless it is drawn, societies could not be distinct historical formations. As the philosopher Samuel Scheffler (2007:111) pointed out, even the liberal state “cannot avoid coercing citizens” (and citizenship applicants, one might add) “into preserving a national culture of some kind.” This begins with the trivial fact of establishing and preserving an official language, to learn and master which, however rudimentarily, is a central purpose and requirement of all citizenship tests. New World Restrictiveness. Considering that the United States has known citizenship tests for over seventy years, it is astonishing that their new-millennium introduction in Europe has stirred intense debate. Is there a difference in kind between a more “inclusive” New World and “restrictive” Europe? In the following, I suggest that this contrast is overdrawn, and that there is convergence in a restrictive approach to naturalization. In the standard account, there is a “vast difference” between the European citizenship tests, in which citizenship figures as “a privilege and … scarce good, access to which should be heavily controlled,” and their New World counterparts, which are depicted as more “inclusion”minded, faithful to their legacies as “immigrant nations” (Elias 2016:2159).61 A similar distinction underlies a comparison between the Canadian citizenship test, which is said to be “an instrument to promote naturalization and integration,” even in a recently toughened-up version, and the British “Life in the United Kingdom” citizenship test, introduced in 2005, which is seen more as “an instrument of immigration control” (Paquet 2012:243). To support her claim, the author identifies an interesting operational difference between both tests. The British test, which was quickly extended from a condition for citizenship to one for legal permanent residency (but if taken there is no longer required at the

60 61

This line is trespassed in Prime Minister Mark Rutte’s 2017 Open Letter (discussed in Chapter 1), which is exactly why it has become controversial. In drawing this distinction, Elias (2016) quotes an earlier article of mine that looked at recent US, Canadian, and Australian citizenship tests “through the European looking glass” (Joppke 2013). The reference is correct, but I am now less inclined to support such a sharp contrast. In fact, Elias also observed that legislators in all countries examined by her (US, Canada, Australia, UK, Netherlands, Germany, and France) took a view on citizenship as “a ‘privilege’ that should be ‘earned’” (2016:2108), which suggests a higher level of convergence than she is willing to admit.

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citizenship stage), is situated before submitting one’s application for citizenship. This suggests to the author its control or “gate-keeper” function. By contrast, the Canadian test is situated at the end of the naturalization process, that is, after the legal “basic requirements for citizenship” have already been met. This suggests to her that its function is “primarily symbolic” (2012:251–2). This contrast is overdrawn, particularly on the British side. Note that in intra-European comparisons, the UK case is typically cited as an example of a “liberal” and “inclusive” citizenship test and approach to civic integration in general.62 This may be exaggerated as well, considering that Britain has pioneered the entire “earned citizenship” genre in Europe. But with respect to the citizenship test itself, the Crick Commission (2003:20), which had laid the groundwork for it in the UK, explicitly stated that “the object is not to diminish … numbers of people already settled and employed,” and that “becoming naturalized should not be seen as the end of a process but rather as a good beginning.” The Crick Commission thus bravely reiterated the liberal baseline to naturalization that has become increasingly anachronistic, including in Britain itself.63 Contrary to the classic image of liberally inclusive New World citizenship, most recent naturalization reforms in Canada and Australia have been restrictive, not unlike in Europe. To “strengthen” Canadian citizenship, which boiled down to making it “harder to get and easier to lose” (Macklin 2017:6), has been the guiding light of two restrictive citizenship laws passed by the conservative government of Stephen Harper, in 2008 and 2014. For Canadian jurist Audrey Macklin, they meant nothing less than a retreat from Canada’s self-image as a “normative immigration country” (2017:2). Complementary to this diagnosis, in sociologist Elke Winter’s view (2015:30), the two laws entailed a European-style “renationalization of citizenship,” in transforming naturalization from “stepping-stone” into “end point of the integration process.” The 2008 law, which also happened to be the first new citizenship law in thirty years, reintegrated into the Canadian citizenry so-called Lost Canadians. These are people, a good number of them living for decades as naturalized Americans in the United States, who had unknowingly lost their Canadian citizenship because of anachronistic and discriminatory features of the 1947 Canadian Citizenship Act, which had not been 62 63

See, for instance, Goodman (2014:ch.5), or Baldi and Goodman (2015). See Goodman (2012; 2014), who struggles with classifying an increasingly hardening British civic integration policy, particularly in the post-Blair period, as “liberal” or “restrictive.”

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retroactively rectified by a legal reform thirty years later (Winter 2014:54). At the same time, the 2008 law limited citizenship by descent to the first generation abroad, which made the Canadian regime for transmitting citizenship abroad one of the strictest in the world. At first sight, the dual-pronged 2008 law seems to be of one liberal cloth, because past discrimination based on gender, marital status, and dual citizenship was rectified, in the case of the Lost Canadians, while the restriction of citizenship by descent, which was previously available without a generational stopping-point, strengthened a territorial and socialization-based, nonethnic understanding of citizenship. In reality, both prongs of the reform were of one “re-ethnicization” cloth:64 the Lost Canadians happened to be mostly European-origin Canadians, while the first-generation limitation for Canadians born abroad targeted more recent, non-European-origin Canadians. Prime examples of the latter are Lebanese-Canadians, who had been spectacularly evacuated at great cost after the Israeli invasion of Lebanon in 2006, many of them without much connection to Canada, stirring a debate about “Canadians of convenience” who abuse “Hotel Canada.”65 The favored group being of European-origin, while the disfavored was more likely to be nonEuropean, suggests a “tribal” or even racial subtext to the 2008 Canadian Citizenship Act (Winter 2014:51–4). Further administrative changes, between 2009 and 2012, confirmed the “shift toward a more nationalist citizenship regime” in Canada (Winter 2015:18). There was a tightening of the “ludicrously easy” citizenship test (Joppke 2013:9), and a new rule that members of the Canadian Armed Forces had to be present at all citizenship ceremonies – which prompted Audrey Macklin (2017) to see Canada on the way from “settler society” to “warrior nation.” Finally, in 2014, the appositely entitled Strengthening Canadian Citizenship Act combined a controversial new provision of citizenship-stripping for terrorists with a significant tightening of citizenship acquisition through naturalization. In the latter respect, the required permanent residence time was increased from three out of four to four out of the last six years of prior residence in Canada. Crucially, to further combat globally mobile “Canadians of convenience,” “residence” was now defined as “physical residence,” with at least 183 days per year spent in Canada, to be proved by one’s income tax returns. In a nasty but hugely significant side-plot, those who had entered 64 65

As correctly observed by Winter (2014:57), borrowing a term that I introduced earlier (Joppke 2003). See William Kaplan, “Is it time to close Hotel Canada?” MacLean’s 119, 51, 2006, pp. 20–3.

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as temporary workers, but also as refugees or international students, could no longer earn “half-time credit” toward fulfilling the residency requirement for naturalization (that is, having their non-permanent-residence time at least partially recognized) (2017:12). If one considers the new reality of “two-step migration,” as a result of which most newcomers to Canada arrive on temporary work or study visa, this constituted a significant new hurdle to citizenship. This and most other provisions of the 2014 Canadian Citizenship Act were immediately rescinded by the Liberal government of Justin Trudeau, who won the national elections in 2015. Trudeau had made a liberal line on citizenship a central motif of his successful campaign against Harper, particularly attacking the controversial banishment provision with the notion that citizenship is an inalienable right.66 However, the nine-year-long Harper regime still shows the darker possibilities in a country that is globally hailed for its progressive immigration and citizenship policies. These darker possibilities are also apparent in Australia. Recent Australian reforms confirm the general trend, across the liberal state world, toward a “more conditional” understanding of citizenship (Thwaites 2017:30). In late 2015, a provision of citizenship-stripping for terrorist acts was introduced, which, unlike the Canadian, remains in place. More relevant for our discussion of naturalization trends, a new citizenship bill, proposed in 2017, aimed at “strengthening the requirements to become an Australian citizen” (Australian Government 2017:6). Presented in the contemporary standard diction that (Australian) citizenship is “an extraordinary privilege” (2017:5), one of the bill’s key provisions was to increase from one to four years the required time spent in permanent resident status, prior to the citizenship application. This was still low, by European standards. However, previously it had sufficed to have spent twelve months as permanent resident over a four-year residence period. Even more than the kindred provision in the 2014 Canadian Citizenship Act, this would have huge implications in a context of “two-step,” at first only temporary migration, which initially was introduced for lowskilled immigrants but by now predominates among the high-skilled also. Between 2006 and 2013, the stock of temporary visa holders in Australia more than doubled, from ca. 350,000 to over 800,000 (Mares 2016:56). Most of them eventually try to move toward permanent residence status. 66

“A Canadian is a Canadian is a Canadian,” candidate Justin Trudeau fired against his opponent Stephen Harper in a direct confrontation, to great public applause (www .theglobeandmail.com/canada/video-video-a-canadian-is-a-canadian-is-a-canadian-harpertrudeau-spar/).

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However, the number of permanent residence visas per year is capped, while that of temporary visas is not. This disparity leads to the rise of a “class of long-term residents who are denied full inclusion and participation in the Australian community through citizenship” (Thwaites 2017:27). And this is not all. In 2013–14, 50 percent of all permanent immigrant visas went to people who already resided in Australia on temporary visas (2017:28, fn.133). However, the second step in twostep migration, from temporary to permanent, since the introduction of “priority processing” in 2009, which aimed at reducing an escalating backlog, is essentially reserved to the high-skilled and to students, in particular if their skills are in high demand (2017:28). This means that the access to Australian citizenship is increasingly skewed by class and education. The neoliberal logic of this has been pristinely articulated by the Secretary of the Department of Immigration and Border Protection, when celebrating his department’s seventieth birthday: “In the world of globalized travel, investment and labor mobility, the art of tapping into the resource of international human capital no longer consists of the slow and steady build-up of the population base, in the way it did seven decades ago. Today, we need a strategy and plan for attracting those in the ready-made global pool of travelers, students, skilled workers and business-people, the latter with money to invest and ideas to commercialize.”67 However, there is a second, even more interesting implication in the 2017 Australian citizenship bill’s extension of the required permanent residence period: it “will enable greater examination of an aspiring citizen’s integration with Australia” (Australian Government 2017:9). Among the integration efforts to be exacted and “documented” during this period, a government paper lists the following: whether “people who can work are working, or are actively looking for work or to educate themselves,” “contributing to the community by being actively involved in community or voluntary organizations,” “properly paying their taxes,” “ensuring their children are being educated,” and their “criminal records” (2017:6). Moreover, the new law would toughen the English language requirement, from “basic” to “competent,” newly to be fulfilled before taking a citizenship test; it would “(strengthen) the Australian Values Statement,” by formally “requir(ing) applicants to make an undertaking to integrate into and contribute to the Australian community”; and it would “(strengthen) the test for Australian citizenship” by 67

Michael Pezzullo, “Sovereignty in an age of global interdependency: The role of borders,” speech at the Australian Strategic Policy Institute, Canberra, December 4, 2014, p.10 (http://fliphtml5.com/ufty/qmaj).

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adding new test questions that really “confirm an applicant’s values” (2017:10) – which would come dangerously close to transforming a previously knowledge-based test into a morality test. The few paragraphs in the government paper that summarize the new integration requirements are littered with the word “strengthen,” which is a code word for restricting. For a critic, the stipulation of “virtuous behavior” and other integration requirements as precondition for citizenship was “copying Europe” (Askola 2020). The 2017 Australian citizenship bill was eventually struck down in the Senate because of strong opposition to the new English language requirement. However, the fact that all other new integration requirements apparently were uncontroversial, suggests a convergence of restrictive naturalization trends in Europe and the New World. In an influential mid-1990s’ survey on the “return of the citizen” in political theory and in public policy, Will Kymlicka and Wayne Norman (1994:353) warned against conflating “citizenship-as-legal-status” and “citizenship-as-desirable-activity”: “[W]e should expect a theory of the good citizen to be relatively independent of the legal question of what it is to be a citizen.” This distinction no longer holds. To an alarming degree, at least for a liberal eye, to be a “good citizen” has become a prerequisite for becoming a citizen. Citizenship-by-Investment At first sight, the possibility of buying residence or citizenship, which has evolved into “big business,”68 seems diametrically opposed to the trend toward “earned citizenship.” The latter erects new behavioral burdens beyond mere residence time. By contrast, putting down between USD 100,000 and USD 2.5 million (plus fees) (see Surak 2019:4), dependent on the “quality” of the country whose residence or citizenship is being sought, exactly relieves the wealthy of the plethora of new requirements that have piled up for ordinary citizenship applicants, as described above. One observer appositely speaks of a “dual track model of citizenship,” in which a “heavy-type, culturalized concept of membership coexists with a lighter-touch, cosmopolitan one,” the dividing line between the “earned” and the “casual” new citizens being the availability of large amounts of cash (for what she uses the euphemism “talent as output”) (Strumia 2016:1, 18f ). Thus, in one criticism, citizenship-by-investment “contradicts the very recent efforts of states to re-substantiate citizenship 68

See “Investment migration: A home in the country,” The Economist, September 29, 2018, pp.53–5.

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through tests and integration requirements” (Barbulescu 2014:15), and it “link(s) access to citizenship once again to social class” (Bauböck 2014:20).69 If “earned citizenship” aimed at revaluing citizenship as “sacred bond,” to be granted only to immigrants “who prove themselves worthy,” its handing out against mundane cash raises the obvious question why “the rich (should) be allowed to jump the queue,” particularly as the evidence abounds that many of them are “crooks or taxdodgers.”70 A closer look, however, reveals citizenship-by-investment to be an instance of earned citizenship, both being of the same neoliberal cloth. They thrive on the same “contractualization of membership,” whereby “once guaranteed rights (are reworked) into a privilege secured through quid pro quo exchanges.”71 Both schemes push back legal-residence time as the traditionally liberal pathway to citizenship. But they do it in contrary ways: either by throwing out the residence requirement entirely, as does citizenship-by-investment (narrowly understood, as subset of investment migration); or by making residence count for less, as in the civic integration requirements imposed, in addition to (sometimes lengthened) residence times, on the non-moneyed multitude. Christian Kälin, himself a major player in the citizenship-by-investment industry, distinguishes pointedly between “buying” and “earning” citizenship, suggesting that only “earning” it is legitimate: “The real risk, we feel, lies in unaccredited agencies commodifying citizenship as something that can be ‘bought’ rather than earned through substantial economic contribution to a particular country.”72 Indeed, if aspiring buyers are properly “vetted,” so that the “thieves and crooks” of global “Moneyland” (Bullough 2018) are weeded out, it is not clear why citizenship-by-investment should not be seen as an instance of the same conditional and “transactional approach” (Shachar 2017:810) to citizenship that is gaining ground everywhere in neoliberal times. Citizenship-by-investment is thus of considerable conceptual interest, while it is of little import empirically. With respect to its negligible

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To be precise, Bauböck (2014:20–1) argues that the class-citizenship linkage also applies to civic integration requirements, albeit “implicitly,” because “education and the capacity to learn for tests is strongly related to social class.” “Citizenship for sale: What price a passport?,” The Economist, September 29, 2018, p.12. For passport-buying as one way for “thieves and crooks” to “rule the world,” see Bullough (2018:ch.9). Surak (2019:7), referring to Somers (2008). Interview with Christian Kälin, Investment Migration Yearbook 2018–2019, p.22. Kälin is Group Chairman and CEO of Henley & Partners, a Zürich-based law firm specializing in investment migration and the selling of citizenship.

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empirical importance, by 2019 only ten countries in the world, all of them small and peripheral, had formal programs selling citizenship: two in the EU (Cyprus and Malta), five in the Caribbean (St. Kitts, the pioneer of the genre, Antigua, Dominica, Grenada, and Saint Lucia), plus two newcomers in the Middle East (Jordan and Turkey) and one in the post-Soviet space (Moldova). No more than an estimated 10,000 people worldwide per year acquire their second citizenship in this way (Surak 2019:4). In the European Union, where the issue stirred controversy when Malta introduced its policy in 2014 (with the automatic acquisition of EU citizenship being its drummed-up selling point), only 700 of 800,000 naturalizations per year are through the investment route, which is less than 0.01 percent of the total.73 So, in the global naturalization picture, citizenship-by-investment is ultra-marginal. A bit more interesting is the fact that the ultrarich who are asking for it mainly hail from three countries or regions: China, Russia, and the Middle East. This points to an enormous growth potential. The citizenship buyers are drawn from the growing non-Western pool of absolute globalization winners, situated on the furthermost elevated upper-trunk region on Milanovic’s Elephant Curve (Milanovic 2016). Between 2000 and 2016, the portion of the world’s “ultra-high net worth” individuals who live in low- to medium-income countries has increased from 7 to 18 percent (Surak 2019:27)74, while the number of “new millionaires” popping up outside North America and Europe over the same period is 4.3 million (2019:6). The result is what Kristin Surak (2019:18) has described as “new wealth paired with ‘bad passports’.” This is the main demographic basis of the citizenship-by-investment industry, which rides on an exponentially growing demand side. Moreover, one must know, citizenship-by-investment is only a small part of a much larger “investment migration” phenomenon, which was introduced by none other than Canada in 1986 and is practiced by over 100 states today, many of them rich core countries like the United States, the UK, and France. However, investment migration is less radical than citizenshipby-investment, in that it usually requires the residence of investors, who in addition have to go through the regular naturalization procedures if they wish to acquire citizenship later. In turn, the radicalism of citizenship-by-investment is the automatism of citizenship and the dispensation with any prior residence requirement. This contradicts the common

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Interview with Christian Kälin, p.21. In global investment industry jargon, “ultra-high net worth individuals” hold more than USD 30 million in liquid assets (Surak 2019:17 fn.13).

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understanding of citizenship under international law, to express a “genuine connection” between citizen and citizenship-conferring state.75 The most important conceptual innovation of citizenship-by-investment is that it is acquired more for the external than the internal value of the respective citizenship. This is precisely expressed in the dispensation with legal-residence time. The traded citizenship’s value is determined primarily by its uses outside the state rather than inside it, in particular, by the number of countries that can be accessed with a passport visa-free. The passport is the totem. And, naturally, the world’s leading intermediary of selling citizenship, the global (originally Zürich-based) law firm Henley and Partners, gives out a yearly Passport Index that ranks the value of the world’s passports in terms of its original function, which is to allow its holder to “pass ports.” In the 2019 Henley Passport Index, the world’s most valuable passport in these terms is that of Japan, which gives visa-free access to 190 countries (followed by those of Singapore and South Korea, with 189 each) (Henley and Partners 2019:28–9).76 By contrast, an Afghan or Iraqi passport, at the bottom of the list, gives access to only thirty other countries. A Chinese passport, the rich holder of which is the single most likely client of the citizenship industry, does a bit better, opening the doors of seventy-four countries, but this is the same number as Lesotho’s passport, and not commensurate with China’s economic and increasingly also political great power status. Hence the unique attraction of the Maltese passport, which ranks ninth on the Henley index, providing visa-free access to 182 countries (including free mobility within the European Union qua EU citizenship) – this is the world’s highest-ranked passport available for cash. Globalization, with its wealth explosion in some previously underdeveloped countries that continue to be marred by notoriously “bad” (i.e., immobilizing) passports, has reasserted Austrian mid-twentieth-century jurist Hans Kelsen’s (1949:241) classic insight that citizenship, domestically speaking, is “a legal institution lacking import,” while he deemed it relevant more for “the relations between the States than within a State,” that is, at the international plane – only that Kelsen had not yet seen the individual as autonomous strategic actor at the interface of states.77 False Ammunition: Nottebohm and the “Genuine Connection.” Today’s critics of investment citizenship, like Ayelet Shachar (2017:812), love to 75

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The “genuine connection” formula was introduced in the famous Nottebohm decision of the International Court of Justice (1955). It interestingly involved a case of bought citizenship (i.e., of a German national having acquired the citizenship of Liechtenstein against a payment and enduring financial obligation) that was deemed not “genuine” or “effective” enough to have to be recognized by a third state (Guatemala). In 2020, the world’s most valuable passport became the French. For this aspect, see Joppke (2019).

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quote the International Court of Justice’s Nottebohm doctrine of “genuine connection” as justification for their rejection of a citizenship that comes without a prior residence requirement.78 This doctrine’s full wording is: “[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred … is in fact more closely connected with the population of the State conferring nationality than with that of any other State.”79 The critics are silent about the fact that this formula, which was illicitly transferred by the court from a dual-nationality context into one that dealt with a single-citizenship holder,80 and which was spiked with an assimilation requirement that was unknown under international law,81 was used in a blatantly individual-crushing and state power 78

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Shachar’s (2009:165) proposal of a social-attachment-respecting “jus nexi” membership principle to counterbalance or even replace the random and unjust “birthright lottery” of jus soli or jus sanguinis builds explicitly on the Nottebohm decision. Shachar speaks there of the “growing acceptance” of the “genuine-connection” principle (ibid.). In reality, the latter had already been criticized when introduced in Nottebohm, including by three dissenting judges on the court, and quickly thereafter it has been discarded in international law. As Audrey Macklin (2018:492) writes, “[a]mong legal scholars …, there is a strong consensus that Nottebohm was wrong then, and may be even more wrong now.” Entirely oblivious of its repressive original meaning in Nottebohm, the genuine connection principle lives on in normative political theory as providing the basis for an inclusive citizenship regime. In reality, as Thwaites (2018:670) has pointed out, Nottebohm teaches that “conditioning citizenship status … on substantive connections, deformalizing it, makes it less stable and more vulnerable, and its protections more precarious.” International Court of Justice (ICJ), Nottebohm Case (Liechtenstein c. Guatemala), April 6, 1955; at p.23. The “genuine connection” principle was not new but previously used in adjudicating dual nationality cases. Friedrich Nottebohm, however, upon naturalizing in Liechtenstein in late 1939, had automatically lost his German nationality. He thus continued being a mono-national. As Judge Read, one of the three dissenting ICJ judges in the case, pointed out, it is “not … permissible to transfer criteria designed for cases of double nationality to an essentially different type of relationship” (Nottebohm Case, Dissenting Opinion of Judge Read, at p.42). The court insinuated, not unrealistically, that Nottebohm, a German national residing in Guatemala, who acquired the nationality of Liechtenstein just when Hitler had started WW II, did so only “to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein.” It found problematic that his motivation was “not of becoming wedded to (Liechtenstein’s) traditions, its interests, its way of life or of assuming the obligations – other than fiscal obligations – and exercising the rights pertaining to the status thus acquired” (ICJ, Nottebohm Case, at p.57). The dissenting Judge Read dryly responded that “international law, apart from abuse and fraud, (does not permit) the consideration of the motives which led to naturalization as determining its effects” (Nottebohm Case, Dissenting Opinion of Judge Read, at p.42). See also dissenting Judge Guggenheim: “[I]nternational law contains no rule which makes the effectiveness of nationality dependent upon a sentimental bond between the naturalizing

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asserting way. It effectively had made the poor plaintiff in this case, Friedrich Nottebohm, stateless, depriving him of his “right to a nationality” guaranteed in Article 15 of the Universal Declaration of Human Rights. The Nottebohm case is one of the interests of states, arguably also of Siegerjustiz, brutally overriding the interest of the individual. As a result, “the protection of the individual which is so precarious under existing international law (was) weakened even further,” as the dissenting ICJ judge Paul Guggenheim correctly feared.82 Depriving Mr. Nottebohm of his Liechtenstein nationality retroactively justified his extradition from Guatemala and two-year-plus internment in the United States, which had occurred for no other reason than being deemed the “enemy” German that he legally no longer was (following the essentialist logic “once a German, always a German”). At the same time, Guatemala and the United States, allies during World War II, happily confiscated all of his properties and assets, as Nottebohm was not really “poor” but very rich indeed.83 Nottebohm, which is celebrated for establishing the norm that true citizenship is one of “genuine connection” to “one’s” state, is really a case of using an idealized concept of citizenship to plunder and victimize a productive and apparently perfectly honorable man, turning him into the “scum of the earth” that Hannah Arendt called the stateless. In turn, this most famous of all citizenship cases under international law, a kind of “citizenship-by-investment” case before the word, provides some ammunition to those who find that the “core function of citizenship (is) exclusion and complacency” (Kochenov 2019:12), and who in turn defend citizenship-by-investment as a small if imperfect antidote to a birthright citizenship that is by nature “arbitrary and unjust” (Kälin 2015:198). The “Fairness” and “Corruption” Charges. It is a strange coincidence that the same scholar who has frontally attacked birthright citizenship as the unjust and arbitrary institution that it is, Ayelet Shachar (2009), has also become the most outspoken critic of investment citizenship, because of its “erod[ing of] the ideal of citizenship as a political relation grounded in equality rather than competition” (Shachar and Hirschl 2014:232). The American philosopher Michael Sandel (2012:10) has plausibly argued that, as a result of neoliberal “market triumphalism,” “we drifted from having a market economy to being a market society,” in which the

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state and the naturalized individual” (Nottebohm Case, Dissenting Opinion of Judge Guggenheim, at p.57). Peter Spiro called Nottebohm’s sentimental-bond requirement an “almost comically nostalgic conception of nationality” (2019b:19). ICJ, Nottebohm Case, at p.63. By the 1930s, the Nottebohm family was the second-biggest coffee producer in Guatemala.

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market crowds out all other social logics. In particular, he identified a “fairness” and a “corruption” problem that goes with this transition. Ayelet Shachar has applied both objections to citizenship, as a good that empirically is but morally should not be marketized. With respect to “fairness,” her argument is that investment citizenship “exacerbate(s) inequality”: “Giving preference to those who can pay hefty sums of cash-for-passport transactions adds yet another barrier to mobility for the majority of the world’s non-affluent population” (2017:804). Shachar calls it “the global-inequality moral hazard” of citizenship-by-investment (2017). However, while it is incontrovertible that passport-buying expresses inequality, in terms of the unequal distribution of wealth, it is not plausible to argue that it increases inequality, in terms of diminishing the chances of the non-moneyed to acquire citizenship. This is only possible on the assumption that there is an absolute cap on citizenship, so that its acquisition through jus pecuniae would diminish its availability on the ordinary naturalization path. In reality, no country practices citizenship caps – not to mention that in no major immigration country, not even in the Anglo-Saxon spearheads of neoliberalism, is citizenship for sale. Where these programs exist, they are not zero-sum but positivesum – they are like “fast-track lanes at airports for First and Business class passengers,” and “no harm (is) done to those who are unable or unwilling to pay the price to jump the queue” (Kälin 2015:213). The second line of critique, the “corruption” charge, is also on shaky grounds. Michael Sandel (2012:46) defined it thus: “We corrupt a good, an activity, or a social practice whenever we treat it according to a lower norm than is appropriate for it.” The notion that investment citizenship undermines “citizenship as we know it,” as based on “participation, co-governance, and a degree of solidarity” (Shachar and Hirschl 2014:247), thrives on an idealized political conception that is out-oftouch with real-world citizenship. The latter is more “Roman” than “Greek,” more legalistic and rights-oriented, for those who acquire it as much as for those who already are in possession of it.84 Hans Kelsen argued in this respect that “allegiance,” which is the minimal citizen condition that moneyed newcomers are suspected of lacking,85 is “devoid of legal significance”: “There is no special legal obligation covered by the term allegiance. Legally, allegiance means no more than 84 85

For a juxtaposition of a participatory “Greek” and a more legalistic “Roman” citizenship, see Joppke (2019:860–4). As already in the Nottebohm case: “Naturalization is not a matter to be taken lightly … It involves [the] breaking of a bond of allegiance and [the] establishment of a new bond of allegiance” (ICJ, Nottebohm Case, at p.24). Nottebohm was then suspected of having “taken (it) lightly” (see p.26).

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the general obligation of obeying the legal order, an obligation that aliens also have” (1949:241). As a citizenship industry leader writes, “nearly 100% of the applicants under Citizenship-by-Investment programs have absolutely no interest in the political participation aspect of citizenship” (Kälin 2015:213). This may not be so different for those who naturalize, or anyone else for that matter: “In the age of post-heroic geopolitics plenty of people naturalize or cherish the nationality they already have for entirely different reasons” (Kochenov 2014:28). Critics argue that citizenship-by-investment “risk[s] further eroding the willingness of members who habitually contribute to the civic fibre of these societies” (Shachar and Hirschl 2014:249), by seeing the rich newcomers “freeride” on their efforts. But no evidence is provided for the underlying psychodynamics. It would be difficult to find, because “not all price tags leave residues” (Surak 2019:9); small as they are, these programs and their beneficiaries remain largely “invisible to the existing citizenry” (Spiro 2014a:10). More seriously still, the status-quo-ante assumption of an “ideal of political membership…as a relation grounded in equality and participation” (Shachar and Hirschl 2014:234) that is at risk to be “morphed” into “more calculated and strategic transaction” as a result of the selling of citizenship, bears little resemblance with political reality. This is a reality bifurcated between populism and apathy, the realm of the political being hollowed out by friend–foe polarization, on the one hand,86 and by technocracy, on the other,87 already before the (moneyed) foreigner joins the citizenry. Finally, if the corruption charge is one of “marketizing once sacred matter,”88 the unspoken presupposition is a nationalist citizenship that none of the liberal political citizenship advocates would openly condone.89 Net Win of Freedom and Curtailing the Risks. Like other cases of “instrumental citizenship” (Joppke 2019), citizenship-by-investment, even if one must denounce market fundamentalism in most other respects, amounts to a net win of individual freedom and curtailment of arbitrary state power. No other conclusion is possible if one rereads the International Court of Justice’s rights-quashing Nottebohm decision with current sensibilities and without ideological blinders. This is not to belittle the risk that less honorable figures than Mr. Nottebohm may want to take 86 87 88 89

For a provocative analysis of democratic politics as one that “pulls us apart, stultifies and corrupts us, and makes us civic enemies,” see Brennan (2016: vii). See the cartel party thesis (Mair 2013), and the discussion in Chapter 1. As paraphrased by Surak (2019:33). Shachar and Hirschl (2014:252) speak, more cautiously, of the “semi-sacrosanct political realm of citizenship.” For a more detailed metacritique, see Joppke (2019:864–7).

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advantage of this path to citizenship. However, as the commodity value of citizenship is entirely determined by its uses outside the state, “third countries can curtail its worth, which renders crucial the legitimacy of such programs in the eyes of third-powers” (Surak 2019:3). Third-state pressure, in combination with the interest of the mediating citizenship industry not to see itself delegitimized by crookery, is the best guarantee to keep the latter out. Accordingly, when there were irregularities surrounding diplomatic passports issued by Saint Kitts, Canada promptly revoked the islanders’ visa-free entry privilege in 2015, greatly diminishing the value of the Saint Kitts passport – the sale of which the weak island economy is entirely dependent on.90 Similarly, when the European Commission lambasted Malta that “citizenship must not be up for sale,”91 the Maltese government was forced to add a (however tokenist) residence requirement to its scheme and to beef-up the due diligence procedures.92 In turn, citizenship industry representatives are well aware that the “diversity of players in the advisory space,” which also includes “less reputable firms,” is one of the “biggest challenges” of an industry that is “still largely unregulated.”93

Easier to Lose About a current trend toward forced denationalization and citizenshipstripping, one could say what we already noted about citizenship-byinvestment: that it is conceptually interesting but empirically rare.94 At the political level, forced denationalization has been a response to Islamist terror, in particular the specter of returning “Islamic State” (IS) fighters, who have been recruited from disaffected Muslim youth in Western countries and continue to pose a considerable security risk. A number of Western states, including France (as early as in the mid1990s), the UK, Canada, the Netherlands, Australia and most recently Germany, have passed laws (or tightened already existing laws) that allow

90 91 92

93 94

The citizenship-by-investment program helped Saint Kitts to reduce its debt-to-GDP ratio from 140 percent in 2011 to 66 percent in 2016 (Surak 2019:10). www.eubusiness.com/news-eu/malta-citizenship.svx. However, following the brutal murder of political journalist Daphne Caruana Galizia, a serious corruption problem surrounding the Maltese government, which includes its passport sales, is hard to deny. See “Daphne’s shadow,” The Economist, November 30, 2019, p.25. Interview with Christian Kälin, op. cit., p.22. In the UK, for instance, which is the country with the most far-reaching provisions of citizenship stripping, only five to six people annually lost their citizenship in the past decade (Gibney 2019:10).

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the denationalization of terrorists. These laws are mostly limited to dual nationals, in observance of the international norm to avoid statelessness. Citizenship-stripping is high on the agenda of radical right parties. The 2017 party programs of the French Front National, the Austrian FPÖ, and the German AfD, to name just three examples, all contain such propositions. However, it is not limited to such parties. The most draconian of all denationalization laws was passed in the UK, already preceding the IS phenomenon, in 2002 and 2006, under a Labour government. And one of the most spectacular if unsuccessful campaigns, which in legal terms would have merely extended the French state’s denationalization powers from naturalized to born citizens, was led by a Socialist government, under Françoise Hollande. This was right after the November 2015 massacre in the Parisian Bataclan concert hall, when 131 youngsters were shot down like cattle by Islamist gunmen. “La France est en guèrre,” a visibly shaken Hollande declared three days later to a rare and hastily convened meeting of both houses of parliament in Versailles (Finchelstein 2017:101). The fact that forced denationalization “is not an idea of the left,” as the chair of the French Socialist Party said indignantly (2017:110), contributed to the failure of Hollande’s proposal after 180 days of acrimonious debate. Most Socialist deputies in the French National Assembly strongly opposed it, including the Interior Minister herself, who resigned over the matter. However, one does not have to favor the radical right to endorse the idea that “the national community (should) have the power to decide to sanction those who through their comportment aim at destroying the social bond,” as the December 2015 bill passed in the French National Assembly (but later rejected in the Senate) asserted.95 President Hollande explained his commendable motivation more plainly: “How can we permit a French to kill other French just because they are French?” (quoted in Joppke 2016:746). Islamist terror is the immediate trigger of the trend toward citizenshipstripping. At the political level, the latter is thus part of the wave of antiterrorism and security laws and policies that have proliferated since September 11, 2001, the day of the most-deadly Islamist attack of all, killing nearly 3,000 Americans. But citizenship-stripping also – as in the French case – may be understood as the symbolic evocation of national unity in a moment of serious threat. At the conceptual level, which mainly interests us here, to make citizenship “easier to lose” is the exact corollary of making it

95

Assemblée Nationale, Projet de loi constitutionnelle, no.3381, December 23, 2015, p.5.

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“more difficult to get.” Both are complementary sides of the same trend toward earned citizenship and the post-liberal idea that citizenship is not right but privilege. Not only various commentators have seen the logical connection between citizenship’s tendency to become both “harder to get and easier to lose” (Macklin 2017:6; Winter 2015:27); also the governments implementing the trend have been conscious of the connection. The British government, for instance, which pioneered the whole move toward earned citizenship, pointed to its negative backside from the start, in its influential 2002 White Paper Secure Borders, Safe Haven: “The Government believes that a corollary of attaching importance to British citizenship is that the UK should use the power to deprive someone of that citizenship” (quoted in Mantu 2015:185, fn.47). Similarly, when French President Sarkozy, in 2010, pushed for a law that would denationalize naturalized French citizens who assault or kill a police officer or other public officials, this was framed as the wrongdoers’ having “broken the moral contract which founds their accession (to French citizenship).”96 One observer aptly called such denaturalization “the logical extension and reversal of earned naturalized citizenship” (Mills 2016:14). In an earlier article, I argued that citizenship-stripping is an instance of the “lightening of citizenship,” because it “moves (citizenship) ever more toward a contractarian logic” (Joppke 2016:737). To which a young French political scientist, Émilien Fargues, objected that citizenshipstripping is better understood as part of a “renationalizing” countermovement to citizenship’s increasing “denationalization” in recent years, reinvigorating the notion of the “national community as a homogenous entity” against liberal cosmopolitanism (2017:985).97 While I think that Fargues has got it right, there is still an element of truth to my earlier argument. The problem, as stated in the beginning of this chapter, is that the “lightening” hypothesis confounds liberal and neoliberal elements. There is nothing “liberal,” properly understood as individual-rights protecting, in citizenship-stripping – in fact, liberals consider the latter odious precisely for its close association with the twentieth-century totalitarianism that annihilated the individual, even physically.98 By contrast, there is much “neoliberal” in citizenship-stripping, namely, the conditioning of citizenship on individual performance. But, as already suggested, there is more to it. Émilien Fargues (2019b:357), again, has 96 97 98

A UMP deputy in the National Assembly, quoted by Mills (2016:14). A similar argument is made by Pélabay and Sénac (2019). For one of the earliest liberal critiques of the recent trend toward citizenship stripping, see Gibney (2013).

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got it right when arguing that citizenship deprivation “combines both communitarian and neo-liberal features.”

Nationalist and Neoliberal Denationalization is both nationalist and neoliberal. Nationalist is the ambition to “strengthen” and “protect the value” of citizenship, as a Canadian immigration minister had motivated the appositely entitled “Strengthening Canadian Citizenship Act” of 2014.99 The central claim in this respect is that citizenship requires “loyalty” (or “allegiance,” in Common Law terms) on the part of the citizen, the breach of which, through an act of terrorism, for instance, requires the severing of formal ties. Neoliberal, to repeat, is the conditioning of citizenship on individual behavior, which had already undergirded the new requirements in access to citizenship. The difference is that in denationalization the direction is not positive but negative, the loyalty breach itself bringing about the severing of the citizen bond. Tellingly, most citizenship-stripping laws operate with the legal fiction that the individual, through committing a terrorist act, has voluntarily expatriated herself, perhaps also to deny any association with totalitarian state practice, in which entire categories of people (such as Jews under Nazism) were involuntarily deprived of their citizenship before they were killed. Sensing the intrinsic link between both directions of conditioning citizenship, the positive and the negative, an Australian lawyer noted that “schemes for the revocation of citizenship encourage the idea that the allegiance of citizens should be fostered, or even tested by the state” (Irving 2019:383; emphasis supplied). And in a critique of the 2019 German denationalization law, two lawyers find that “being German (Deutschsein) is not a quality label (Gütesiegel) and membership does not cease if a person was ‘disloyal’ (illoyal)” (Gärditz and Wallrabenstein 2019:6–7). The notion of “quality label” is well chosen, stemming both from the nationalist and the neoliberal lexicon. Let us probe deeper into the nationalist and neoliberal prongs of citizenshipstripping. Nationalism. With respect to nationalism, to associate citizenship with loyalty, of course, is no invention of the new nationalists, but goes back to the historical origins of citizenship, marking the latter as a deeply illiberal institution. This is because loyalty logically requires that partiality trumps universalist commitments. In Calvin’s Case (1608), the legal decision that founded jus soli birthright citizenship in England, “allegiance” 99

Chris Alexander, quoted in Pillai and Williams (2017:21).

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connoted a “true and faithful obedience of the subject due to his Sovereign” (quoted by Orgad 2013:11), which was reciprocated with the Sovereign’s protection. Well into the mid-nineteenth century, “allegiance” was held to be “perpetual.” Importantly, even when the feudal subject became the democratic citizen, and the latter could change her allegiance, loyalty persisted as the quintessential citizen virtue, shifting from the person of the king to the impersonal state as representative of the citizenry. Loyalty and obligation obviously conflict with the universalist ethic of liberalism. Because they are still held necessary for political order, even a liberal one, they have become an enduring concern of normative political theory.100 And citizenship, apart from the migration context, figures in liberal political theory precisely with respect to the problem of “political obligation.”101 Contrasting it with “exit,” George Fletcher (1993:5) took “loyalty” as nothing less than the “beginning of political life.” To the degree that citizenship is connoted with loyalty, it inherits from the latter its “relational and partial” nature, which makes citizenship opposed to liberalism with its “impartial morality” (1993:8). Loyalty, and hence citizenship, is in conflict with liberalism, because it “takes relationships as logically prior to the individual” (1993:15). The loyal citizen is “an historical self,” who has a “duty to stand by those who have become a critical part of one’s biography” (1993:39). For loyalty to be compatible with liberalism, George Fletcher importantly notes, the loyalty of the citizen can only be “minimalist,” a “quiet, passive virtue,” in the sense of “not betraying,” of “not fighting for the enemy” (1993:40) – an expectation, incidentally, to which immigrants are also subject. Surely, there is an “enthusiastic dimension” to loyalty (1993:61), which in the citizen realm goes under the name of patriotism. However, it is tempered in the liberal-constitutional state by the privatization of loyalty, according to which “the state should not force people to betray their commitments to their friends, lovers, family, community, or God” (1993:79) Even in the early 1940s, a high moment of nationalism because the world was at war, the US Supreme Court, in its historic Barnette decision,102 sided with the Jehovah Witnesses’ refusal to salute the American flag, as a matter of free-speech protection. As Justice Stevens solemnly declared for the court, “If there is any fixed star in our constitutional constellation, it is that no official high or petty, can 100 101 102

Among many others, see Pateman (1979) and Stilz (2009). See Schutter and Ypi (2015), who conclude from such perspective that long-term immigrants are obliged to acquire citizenship. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

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prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”103 Interestingly, when the conservative British think tank, Policy Exchange, in a report published in 2018, sought to revive the moribund 1351 English Treason Act to prosecute returning jihadists and terrorists, incidentally as an alternative to citizenship-stripping, it operated with a liberally thin understanding of loyalty. The “duty of non-betrayal,” it argued, whose violation a reformed Treason Act would punish with life imprisonment, was only to be “a narrow one,” “it does not require ‘total loyalty’ or for the citizen’s first loyalty to be to their country rather than to their religion or to some other country or cause” (Ekins, Hennessey, Mahnood, and Tugendhat 2018:16). Recent citizenship-stripping laws rely on the 1961 UN Convention on the Reduction of Statelessness that, while in principle denouncing citizenship-stripping as “unjust and cruel,” still permits it in the case of a breach of the “duty of loyalty to the Contracting State.” These laws abstain from definitions or discussions of what loyalty is, thin or thick, apart from laying down which acts or memberships constitute loyalty breaches that trigger denationalization. However, the fact that all of these laws, even the British, limit their range to dual nationals,104 suggests that a latent hostility to dual nationality, and the divided loyalties that traditionally have been attributed to it, is not far from the surface.105 That is, the message is that proper loyalty, and thus citizenship, is undivided. This notion, which in an era of increasingly accepted dual citizenship seemed to have become anachronistic, is gaining ground, not least in the context of citizenship-stripping laws. Pointing in the same direction, though in the quest for a centrist alternative to the populist right’s nationalism, a leading German centerright politician recently proposed to his fellow Germans to warm up to a French-style “Bekenntnisnation,” which is a nation that is inclusive of “all who confess to it, irrespective of origins, race, or religion.”106 However, he insists, this nation has to exclude dual nationality: “The confession

103 104

105 106

Barnette, at p.642. British law, since 2014, allows denationalization also in the case of producing statelessness, but only on the (perhaps face-saving) assumption that there are “reasonable grounds to believe” that the respective person can (re)acquire another nationality (see Mills 2016:11). See Lenard (2017:9), for whom dual-national-targeting denationalization rests on a view that dual nationality “generates an unfairness of some kind.” Tobias Hans (CDU), Minister President of Saarland, “Deutsch – eine Frage des Bekenntnisses,” Frankfurter Allgemeine Zeitung, June 5, 2019.

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(Bekenntnis) in the concept of Bekenntnisnation is not divisible. Loyalty must be unambiguous (eindeutig).”107 This is no Germanic particularity, with its ethnic nationhood legacy lurking around the corner. “Undivided allegiance has never been absent from the concept and discourse of citizenship,” argues Helen Irving (2019:383), with an eye on Australia, which also has recently hardened on dual nationality.108 Neoliberalism. Moving to the neoliberal prong of citizenship-stripping, one can detect it in the fact that the latter operates on a contractarian understanding of citizenship. A remarkable feature of recent laws is the legal fiction that not the state, but the individual herself, through her disloyal action, abdicates her nationality. “[The terrorists] will have, in effect, withdrawn their allegiance to Canada by these very acts,” declared Canadian Immigration Minister Chris Alexander when presenting the 2014 Strengthening Canadian Citizenship Act in parliament.109 Similarly, the 2010 Dutch citizenship-stripping provision states that “the irrevocably convicted person has demonstrated that he has renounced his bond with the Kingdom” (quoted by Lenard 2016:76). In a similar German law passed in 2019, which merely extended already existing grounds for citizenship deprivation from having served in a foreign army to having joined a non-state “terror militia” (Terrormiliz), the latter “brings to the expression that [the respective person] has turned away from Germany and her foundational values and has turned toward a foreign power in form of a Terrormiliz” (quoted in Gärditz and Wallrabenstein 2019:2). In the 2015 Allegiance to Australia Act, where under certain conditions the loss of citizenship is automatic, without any ministerial discretion, there is “the legal fiction that there is no decisionmaker” (Thwaites 2017:26), at least on part of the state: “[C]itizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed (the common bond) and repudiated their allegiance to Australia” (quoted in Irving 2019:375). In the United States, the Patriot II Act (which never arrived in Congress) included a provision that material support to a terrorist organization constituted “prima facie evidence that the act was done with the intention of relinquishing U.S. nationality” (quoted in Spiro 2014b:2176). And a likewise unsuccessful “Expatriate Terrorists Act,” proposed in 2014 by Republican Senator Ted Cruz, stipulated that “any 107 108 109

Ibid. According to a spectacular 2017 Australian High Court rule, members of parliament must not possess a second nationality. https://openparliament.ca/debates/2014/6/12/chris-alexander-17/?singlepage=1

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American that takes up arms with ISIS has, in doing so, constructively renounced his or her American citizenship” (quoted in Sykes 2016:755). The extra-voluntarist language in the US law proposals reflects an unusually liberal citizenship regime, in which not the state but “the citizens themselves are sovereign.”110 Indeed, as a result of US Supreme Court jurisdiction in the late 1960s, nothing short of the verbally expressed intent on part of the citizen can bring about her loss of American citizenship. Accordingly, even more visibly in the American than in the other cases, liberal language, which revolves around the individual’s actions and intentions, is used to put behavioral conditions on citizenship, which is, at best, a neoliberal and by any means a disciplining and restrictive measure. Weakening Citizenship – and Strengthening the State To the claim that forced denationalization “strengthens” citizenship, critics have retorted that, on the contrary, it “weakens” citizenship (Macklin 2014a:1). For Canadian jurist Audrey Macklin, “[m]aking legal citizenship contingent on performance demotes citizenship to another category of permanent residence” (2014a). Indeed, what Macklin has polemically called “the return of banishment,” is part of a larger trend, to be further explored in the next section, of immigration-control objectives invading and hollowing out citizenship, and of downgrading citizenship rights to the lesser rights of immigrants. This downgrading can be concretely traced in the British and Canadian citizenshipstripping cases. In the UK, a further lowering of the threshold of citizenship-stripping, in 2006, from being necessary for the protection of “vital state interests” to being “conducive to the public good,” borrowed the new formula from immigration law, thus establishing the same threshold for revoking citizenship as the one that already existed for revoking permanent residence status (called “indefinite leave to remain” in the UK) (2014a:28). In Canada, the 2014 Strengthening Canadian Citizenship Act entailed even lesser procedural protections for losing citizenship on grounds of “misrepresentation” than for losing permanent residence on the same grounds (2014a). In conclusion, “[b]oth UK and Canadian law shift citizenship closer to permanent resident status on a 110

From the famous dissent by Chief Justice Warren in Perez v. Brownell, a landmark citizenship stripping case in 1958 (356 U.S. 44, at p.65). The story of the US Supreme Court’s production of the “sovereign citizen” is told by Weil (2013). If Weil (2011) argues, more generally, that citizenship has been transformed “from conditional to secured and sovereign,” the rise of earned citizenship suggests that the movement is back toward “conditional.”

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spectrum of relative conditionality and contingency … Citizenship emerges as an enhanced form of conditional permanent residence, revocable through the exercise of executive discretion” (2014a). In the lead-up to the 2015 Canadian elections, its later winner, Justin Trudeau, argued against citizenship-stripping that “as soon as you make citizenship for some Canadians conditional on good behavior, you devalue citizenship for everyone” (quoted in Pillai and Williams 2017:25). The first part of this statement plays to the fact that the weakening of citizenship through its forced loss is selective, applying only to dual nationals. Thus two classes of citizen are created, mononationals, whose citizenship is as secure as before (at worst symbolically “devalued,” from a liberal point of view), and dual nationals, whose citizenship has become “less robust” in the process (Lenard 2017:9). This violates the principle, constitutive of citizenship, that all citizens are equal, introducing instead a hierarchy of citizens. Notionally, the limitation of citizenship deprivation to dual nationals is to align citizenshipstripping with international law, which prohibits statelessness. But, empirically, because most dual nationals are of immigrant background, this limitation divides the citizenry by ethnicity, race, and religion, which – next to sex – are the classical markers of discrimination that are verboten in the liberal state. This is the main reason why French President Hollande’s proposal to extend the “déchéance de nationalité” (loss of nationality) from naturalized to born French, which looks like a small change on paper, would create such fierce opposition: it singled out France’s entire Muslim population, estimated at 5 million people, the majority of whom hold two nationalities, for inferior treatment, seemingly legitimizing the distinction between “Français de souche” (French by origin) and “immigrés” (immigrants, broadly understood, including the second or third generations) that has been the traditional optic of the radical right.111 While citizenship-stripping weakens (certain) citizens’ rights, at the same time it greatly increases the power of the executive state. This has been the general “9/11 effect” of reinforced anti-terrorism and security laws after 2001.112 The most extreme case of executive state aggrandizement is Britain, which has passed by far the harshest citizenship-stripping laws in the new millennium. Their mindset is well-expressed by Theresa 111 112

See Olivier Roy, “La déchéance des valeurs de gauche,” Le Nouvel Observateur, January 7, 2016, pp.72–3. In his comparison of counter-terrorism laws and policies in four Western and five nonWestern countries, Roach (2011:3) observed that “[t]he differences between the responses of democracies and countries with poor human rights records to terrorism diminished in the wake of 9/11.”

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May, who as UK Home Secretary engineered the toughest last round of this development, within her “hostile environment” policy: “If human rights laws stop us from [fighting terrorism], we will change those laws so we can do it” (quoted in Lenard 2017:6). The British story started, in 2002, with replacing the feudal “breach of allegiance” justification for citizenship-stripping with the formula “vital interests of the United Kingdom,” which was taken almost verbatim from the 1961 Convention on Avoiding Statelessness. The new law broadened the reach of citizenshipstripping from naturalized to native-born Britons, notionally putting all citizens “on an equal basis” (Gibney 2013:653). This was necessary to bring British legislation in line with the 1997 European Convention of Nationality (which the UK eventually did not sign). However, the real change was to use nationality law to sidestep criminal law, with its higher protections for the individual, and in effect to increase the state’s deportation powers, which has been the main intention all along. As a British government representative frankly stated in parliament, “… we do not believe that liability to deprivation should arise only following a conviction. For example, there may be situations where the evidence of seriously prejudicial conduct would not be admissible in criminal proceedings. The protection of vital interests which the deprivation provisions would allow would extend wider than that afforded by criminal law” (quoted in Mantu 2015:187). In other words, even people who had not been convicted by a criminal court could be deprived of their citizenship, simply because in the Home Secretary’s opinion they posed a security risk or, in legal terms, threatened “vital interests of the UK.” After the 2005 London Tube bombings, the British state’s citizenshipstripping powers were further extended by replacing the “vital interests of the UK” test with the still less demanding “conducive to the public good” criterion, which was taken verbatim from immigration law. It equalized the grounds for citizenship-stripping with the grounds for deporting legal permanent residents. These grounds were put down on a “list of unacceptable behaviors,” which included “writing, producing, publishing or distributing material, public speaking, including preaching, running a website, using a position of responsibility such as teacher, community or youth leader to express views which the government considers to foment terrorism” (Mantu 2015:195). This was an extraordinarily long list of “behaviors” that could trigger the loss of citizenship, and thus deportation, the latter being the intended goal; in fact, it handed out a carte blanche to the responsible minister. To counter persistent difficulties in deporting terrorism suspects, the Immigration Act 2014, shepherded through by Home Secretary Theresa May, extended the

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Home Office powers even further, de facto allowing statelessness as a result, yet only for naturalized Britons. Nevertheless, if one considers the small number of people actually affected by the tightening screw of citizenship deprivation, it has been “all thunder with no lightning,” as Matthew Gibney (2017:379) commented more generally on denationalization’s “recent revival.” Terror: No Ordinary Crime, and Its Punishment The British case is only the most extreme case of handling citizenship deprivation through administrative law, with states claiming that no “punishment” at all is occurring. This has the “advantage” that the individual is less protected, while in reality a punitive agenda is pursued. Some critics have argued that ordinary penal law, with no special regime for terrorism, is sufficient to deal with the latter. Audrey Macklin (2014a), for instance, finds that “banishment” is “both superfluous and anachronistic” because “modern states have criminal justice systems” to deal with the issue (see also Paskalev 2014). Patti Lenard (2017:8) even thinks that, as the logic of modern penal law is “rehabilitation,” denationalization “denies opportunities for reform.” Is terrorism ordinary crime? One might argue, with Shai Lavi (2011), that it is not. Ordinary crime is “private”: the criminal does not question public order but wants an “exemption” from it. By contrast, terror is “public”: the terrorist is the “urfelon, who challenges the very existence of the public rule” (2011:807).113 The terrorist breaches what Lavi calls the “constitutional bond,” which is the democratic follow-up to feudal “allegiance.” Consequently, “terror” is the contemporary equivalent to feudal-era “treason.” And, as the terrorist has “violently attempted to undermine the power of the community to self-govern,” the logical punishment is “to deny her the right of membership in the political community” (2011:805). Importantly, “punishment” it has to be, precisely to acknowledge the constitutional importance of citizenship. Lavi thus lashes out against the British-style administrative-law processing of “banishment” (a term he uses without polemical intent). This downgrades citizenship to a “means to a social end” (2011:786), such as providing public security. Instead, Lavi insists, citizenship revocation 113

See also Offe (1985:827), who distinguishes “terrorism” from “private crime” through the fact that the “ends” of terror are “binding for the wider community if accomplished” while those of crime are not. The legal consequences of distinguishing between “terrorism” and “crime” are drawn in Günther Jakobs’ (2004) controversial (because Carl-Schmitt-reminding) distinction between “civil penal law” (Bürgerstrafrecht) and “enemy penal law” (Feindstrafrecht).

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has to be “punishment,” “deserved outcome of the criminal’s own doing.” And only banishment is commensurate with the particular heaviness of the crime, which (to paraphrase French President Hollande) is the killing of other citizens for no other reason than that they are citizens. The random-citizen-killing intention of Islamist terrorism, incidentally, makes it different from previous forms of terrorism, like that of the 1970s German Red Army Faction or the Italian Red Brigades, which had targeted high functionaries of the “capitalist” system – bankers, politicians, judges, generals etc. (Joppke 2016:730–6). No wonder that citizenship-stripping was not on the agenda at the time. By contrast, here is the statement of a 2005 London Tube bomber: “I and thousands like me are forsaking everything for what we believe … Our religion is Islam … Your democratically-elected governments continuously perpetrate atrocities against my people all over the world. And your support of them makes you directly responsible for protecting and avenging my Muslim brothers and sisters … We are at war and I am a soldier. Now you will taste the reality of this situation” (quoted in 2016:733). Considering the ordinary-citizen-targeting nature of Islamist terrorism, which explicitly posits itself outside the national community, it is an overstretch to call citizenship-stripping “cruel and unusual punishment,” “more primitive than torture,” as a US Supreme Court Justice famously did over sixty years ago,114 in light of much less serious transgressions of the law being punished this way (see below). And it is paternalistic to apply to this type of terrorism the principles of ordinary penal law, according to which there is an “obligation to treat a wrongdoer as though she can be rehabilitated” (Lenard 2017:8).

Right or Privilege? Window into the Nature of Citizenship More than any other recent legal–political development surrounding citizenship, the debate surrounding denationalization raises the question of what citizenship is: “right” or “privilege.” That citizenship is “privilege” has been the unison battle cry of the proponents of denationalization, from Britain – where the notion of citizenship as privilege is coeval with the invention of “earned citizenship”115 – to Canada, where Immigration Minister Chris Alexander’s attempt to “strengthen” and “protect” citizenship by making it easier to deprive certain people of it, 114 115

Trop v. Dulles (356 U.S. 86 [1958]), at p.99 and p.101, respectively. “[T]he system of earned citizenship … establishes the principle that British citizenship is a privilege that must be earned” (UK Minister of State for Borders and Immigration, Phil Woolas, in his foreword to Home Office 2008b).

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went along with the reminder that “citizenship is not a right; it is a privilege” (quoted in Pillai and Williams 2017:21). Even in the United States, where the opposite notion that citizenship is the “right to have rights” has been famously enunciated by the Supreme Court, the “citizenship is privilege” discourse has taken hold, at least in the sphere of politics. “United States citizenship is a privilege. It is not a right. People who are serving foreign powers … or … terrorists … are clearly in violation … of that oath which they swore when they became citizens,” declared US Secretary of State Hillary Clinton, in support of Democratic Senator Joseph Lieberman’s 2010 proposal of a Terrorist Expatriation Act.116 When commenting on the UK Government’s position that “citizenship is privilege, not a right,” one observer gasped that this “seems to emerge from nowhere…, with no acknowledged sources” (Sykes 2016:754). In fact, it can be traced back to pre-democratic times, when “citizens” were “subjects” (Kingston 2005). Its more contemporary source is the fact that, under international law, even under European Union law, the determination of citizenship remains a sovereign state prerogative. This is even more true for naturalization, which is by definition conditional, today more than ever because of the growing list of behavioral and character requirements discussed above, and whose strong contractual element allows the state to always say “no.” The legal meaning of what a “privilege” as distinct from a “right” is, and why states qua states have an interest to favor the “privilege” line, has been crisply expressed by Audrey Macklin (2014a:53): “A privilege in law belongs not to the recipient, but to the patron who bestows it. A right belongs to the one who bears it. When members of the executive declare that citizenship is a privilege and not a right, what they are asserting is their own power to take it away.” Conversely, when opponents of citizenship-stripping have asserted that “(c)itizenship is not a ‘privilege’, but a protected legal status” (Goodwin-Gill 2014:1), they are no less nebulous about the sources of their claim. Taking denationalization as hub for a reflection on “what kind of right the right to citizenship is,” Patti Lenard (2017:1) grounded it, domestically, in “the very strong interests that individuals have in security of residence,” and, internationally, in protecting the individual “from the harms of statelessness.” In consideration of both, she concludes that citizenship must be “permanently irrevocable” (2017:12). The domestic part of her argument echoes Carens’ case for “social 116

“Bill targets citizenship of terrorists’ allies,” New York Times, May 6, 2010 (www .nytimes.com/2010/05/07/world/07rights.html).

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membership” (2013), and both are ultimately normative statements of what citizenship ought to be, rather than what it legally or institutionally is. In this respect, the international part of Lenard’s argument seems to be on firmer ground. The UN Universal Declaration of Human Rights, in its Article 15, provides a “right to a nationality” and that “[n]o one may be arbitrarily deprived of his nationality nor denied to change his nationality.” However, this is pointedly the right to “a” nationality, not the right to nationality in a particular state. And the 1961 UN convention that has been explicitly devoted to the “reduction of statelessness,” as mentioned, does allow citizenship-stripping for loyalty breaches and “misrepresentation or fraud,” even if this may result in statelessness, but the thresholds are set very high.117 The most solid and developed case for considering citizenship a right can be found in American constitutional jurisprudence, and precisely in the context of citizenship deprivation. When, in its landmark decision Afroyim v. Rusk (1967), the US Supreme Court decreed that the government lacked the power to revoke citizenship from a Jewish American who had voted in an Israeli election contest, the court, in its words, did “no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”118 This theory had first been laid out in the famous dissent of Chief Justice Earl Warren in the Supreme Court’s Perez v. Brownell (1958) decision, which was overruled in Afroyim. Like most of the 22,000 cases of denaturalization in the United States between 1907 and 1967 (Weil 2013:197), the citizenship-stripping in Perez had been for a smallish digression, voting in a foreign election, incidentally the same digression declared nil nine years later in Afroyim, but which the court majority in Perez deemed in contravention of US foreign policy interests. Against the court majority in the Perez decision, Warren held that a “(g)overnment … born of its citizens,” and whose function is to “secure the inalienable rights of the individual,” is “without power to sever the relationship that gives rise to its existence.”119 Citizenship, he famously continued, in an obvious (but not acknowledged) borrowing of the term and reasoning from Hannah Arendt, is “the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.”120

117 118 120

For the current interpretation of the 1961 Statelessness Convention, see UNHCR (2013). For a short summary, see Mantu (2018:30). 119 Afroyim v. Rusk (387 U.S. 253 [1967]), at p.268. Perez v. Brownell, at p.64. Ibid.

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Interestingly, Warren left intact the official doctrine that underlay America’s licentious citizenship-stripping practices at the time, which is that “conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship”121; and that in this case there was no stripping at all but “giving formal recognition to the inevitable consequence of the citizen’s own voluntary surrender of his citizenship.”122 Only the threshold for what counts as “voluntarily relinquished”123 had to be set higher, Warren argued in Perez, the “mere act of voting in a foreign election … is not sufficient”124. When Warren’s minority opinion in Perez became constitutional law in Afroyim, Justice Black (arguing for the court majority) added little to the substance of Warren’s rightsfocused theory of citizenship. Except that he laid out in more detail that the 14th Amendment’s Citizenship Clause had to be “read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.”125 Black added the observation, criticized by dissenting Justice Harlan as “essentially arcane”126, that the “citizenry is the country and the country is its citizenry.”127 In a brilliant commentary, Alex Aleinikoff (1986:1499) argued that the rights theory of citizenship, originally laid out in Warren’s dissent in Perez and by the court majority in Afroyim, while commendable from a liberal point of view, is “internally incoherent.” Where in the American constitution, Aleinikoff asks, is there a “right to citizenship”? Both judicial sources, in particular Afroyim, mention the first sentence of the 14th Amendment, the so-called Citizenship Clause, whose function had been to overrule the Supreme Court’s infamous Dred Scott (1857) decision that members of the “negro race” were not citizens: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Indeed, this “reads like a definition” (1986), of who is an American citizen, but not like the stipulation of a right. While certain rights may flow from it, “that does not make citizenship itself a ‘right’” (1986). But two other liberal theories to justify an absolute Verbot of citizenship-stripping, based on “consent” and “contract,” respectively, do not work either. A theory of citizenship as based on a “mutual consent” between a person and the state (Aleinikoff 1986:1488) cuts both ways. Peter Schuck and Rogers Smith (1985) have controversially derived from it that the American-born children of illegal immigrants 121 125 126 127

122 123 124 Ibid., at 68. Ibid., at 69. Ibid., at 66. Ibid., at 78. Afroyim v. Rusk, at p.262. Justice Harlan, writing for the dissenting court minority in Afroyim v. Rusk, at p.270. Justice Black, Afroyim v. Rusk, at p.268.

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were never meant to be American citizens, at least not by way of constitutional right. By these authors own admission, this theory “seems to imply a national power to denationalize citizens at will.”128 A closely related “contract” theory of citizenship, according to which state and citizenship are the result of an original hypothetical “agreement[] among individuals” (Aleinikoff 1986:1490), shines through in Justice Warren’s statement that “[t]his Government was born of its citizens”129. However, it is likewise no ground for Warren’s principled voluntarism on the loss of citizenship: “[I]s there any reason to believe that the hypothetical contractors would not allow denationalization for at least some of the allegiance categories?” (1986:1493). Interestingly, the one theory that, according to Aleinikoff, comes closest to what citizenship actually is, is not liberal at all: he calls it the “communitarian perspective” (1986:1494). One could also call it a nationalist perspective. Justice Black evoked it in the Afroyim judgment: “Citizenship in this Nation is part of a cooperative affair. Its citizenry is the country and the country is its citizenry.” These are fuzzy words that inspired Aleinikoff to a plausible description of citizenship as “not a right held against the state,” but “a relationship with the state or, perhaps, a relationship among persons in the state. It is membership in a common venture” (1986:1488). Incidentally, Margaret Somers’ (2008) and Joseph Carens’ (2013) liberally capacious understandings of citizenship, discussed in the beginning of this chapter, had exactly the same ring, grounding liberal citizenship on an unacknowledged national if not nationalist fundament. The disavowal of denationalization, in the Supreme Court’s Trop v. Dulles decision (1958), for its “total destruction of the individual’s status in organized society,” for its being “punishment more primitive than torture,” and for its similarity to medieval “banishment, a fate universally decried by civilized people,”130 certainly articulates a nationalist–communitarian understanding of citizenship, as providing a home in a homeless world. Today’s critics of “banishment,” for whom “citizenship revocation inflicts an intrinsically grave harm” (Macklin 2014b:3), while professedly taking a liberal position, implicitly liken the state to a family. Aleinikoff (1986:1496) has put it well: “In much the same way that the parent is responsible for the child, so the state is responsible for the citizen. Under this reasoning the state – like the family – could punish, but it could not banish.” However, much as “violated, naked” a citizenship-deprived individual may feel (1986), it does not provide an argument against citizenship deprivation on 128 129

Schuck and Smith (1985), quoted by Aleinikoff (1986:1489). 130 Perez v. Brownell, at p.64. Trop v. Dulles, at pp.101–2.

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allegiance or loyalty grounds: “[W]here the citizen has, in effect, declared war on society, the claim that denationalization destroys one’s concept of self is much less persuasive. The citizen’s actions may be the best signal that the individual’s conception of self does not include attachment to the core principles of society. In such a case, denationalization may simply ratify an unfortunate social fact, it would not sever the self. Thus, denationalization could be a justifiable response to treason or subversion…” (1986:1497). Or to Islamist terrorism, which is the gist of denationalization’s contemporary revival.

Less in Value As the irony would have it, much as citizenship has become “more difficult to get” and “easier to lose,” it has also become “less in value.” This seems wildly counterintuitive. Branko Milanovic, author of the “elephant curve” (see Chapter 1), has also shown that, with respect to the sources of inequality, we have turned into a “non-Marxian” world where “citizenship” has replaced domestic “class” position as main factor to explain global inequality. If in 1870 over 45 percent of global income inequality could be explained in terms of “class,” and less than 20 percent in terms of “location” or “citizenship,” by 2000 this constellation had more than reversed, “location” explaining over two-thirds of total income inequality (Milanovic 2012:19). Citizenship, indeed, has become the “key to global stratification” (Harpaz 2019:ch.1), “humanity (being) stratified by citizenship more than by class” (2019:19). Despite all the advances of India, China, and other threshold countries over the past thirty years, the age of globalization, the five percent of Americans in the lowest income bracket are still in the 60th percentile of the global income distribution, that is, their income is higher than that of 60 percent of humankind. The lowest 5 percent of the more egalitarian Danes even make it into the global 90th percentile.131 In nonmonetary terms, a child in Sierra Leone is sixty times more likely to die before the age of five than a child in Norway; one-third of young women in Pakistan cannot read, while female youth illiteracy in Europe is at zero percent (Harpaz 2019:20). The “citizenship premium” (Milanovic 2016:133) has never been bigger than today. There is thus more than a grain of truth when rich country governments, from the UK and the Netherlands to Canada and Australia, are touting that citizenship in these blessed places is “privilege” 131

Harpaz (2019:19), quoting figures from Milanovic (2016).

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or even “first prize,” as a Dutch populist immigration minister once had memorably praised Dutch citizenship.132 And Dimitry Kochenov (2019:121) is right that the single “most important” right of citizenship today is the one that allows citizens (of the “right” countries, of course) to “enter the territory controlled by the authority issuing the status and to reside and work there, without a threat to be deported abroad.” However, Kochenov also noted the psychological fact that citizenship becomes “invisible when the one you have is the best available” (2019:6). There is thus a mismatch between the objective value and the subjective valuation of the “right” citizenship, which in this respect functions not unlike the “unmarked marker” that some have attributed to “whiteness” in the domain of ethnic and race relations (Frankenberg 1997:1). But there are not only psychological but legal-institutional sources to the invisibility of citizenship in those happy countries that few would want to run away from. Alexander Bickel (1973) has shown for the United States that the rights of “citizens” do not exceed much the rights of “persons,” which happens to be the protected category under the American constitution. Peter Schuck (1989) even diagnosed a further “devaluation” of American citizenship in the human-rights era. In his view, the “liberal ethos” of the equality principle and the rule of law (“due process”) have eaten away the citizen–alien distinction. In the process, citizenship is reduced to symbolism, a “haven from universalism,” an “enclave in which [members of a liberal society] can define themselves and their allegiances more locally and emotionally” (1989:15). What Bickel and Schuck have diagnosed for America is valid more generally: the triumph of liberalism is to reduce citizenship to parochialism. As early as in the beginning 20th century, a British lawyer had noticed a trend “to make residence rather than citizenship the essential and sufficient title of state membership” (Salmond 1901:271). Hans Kelsen (1949:241) argued more radically still that “the existence of a State is dependent upon the existence of individuals that are subject to its legal order, but not upon the existence of ‘citizens’.” From the start, there has been a “latent tension” in the construction of the modern state, between being territorial Herrschaftsverband (authority association), on one side, and being democracy, on the other, the latter strangely echoing the medieval principle of person- rather than territory-based political association and legitimacy.133 Rechtsstaat (legal state) and welfare state operate on the basis of territoriality and legal residence, sometimes bare 132 133

Rita Verdonk, quoted by Van Oers, de Hart, and Groenendijk (2013:13, fn. 36). Gärditz (2013:51f ). See also Gosewinkel (2016:649).

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presence, not on the basis of citizenship (Ferrajoli 1994). In the postwar human rights era, there has been a further shift from citizenship to “personhood” (Soysal 1994) as anchor of individual rights, so that the only quintessential citizen right is that related to the practice of democracy. The German constitution, to mention the model of a modern constitution strongly influenced by human-rights principles, may attribute some civil rights, such as Vereinsfreiheit (freedom of association), Versammlungsfreiheit (freedom of assembly), or Berufsfreiheit (professional freedom) exclusively to citizens (in Articles 8, 9, and 12, respectively). But constitutional jurisprudence, in the early 1970s, has extended these Deutschenrechte (rights of Germans) to foreigners, making them Jedermannsrechte (rights of everyone), through invoking the principle of “general freedom of action” (allgemeine Handlungsfreiheit) guaranteed in Article 2 of the Basic Law (Thym 2018:86). This is the backdrop to Dimitry Kochenov’s (2019:133) acute observation that not the right to vote, as most believe, but “the right to remain in the territory of your state of nationality is … the citizenship right, making the majority of other rights possible” – enduringly possible, he should have said, because resident noncitizens also have access to most of these rights but can always be deported. The devaluation of citizenship through the leveling-up of immigrant rights has been rehearsed many times (Soysal 1994; Jacobson 1996; Spiro 2008). Much less known is the reverse movement of devaluing citizenship through leveling-down its rights to the lesser rights of immigrants, or reducing both in tandem. This reverse process, I shall argue, is intricately related to the neoliberalism–nationalism nexus, and therefore it needs our attention. While neo-nationalist states are conjuring up a “fantasy citizenship” separated by an ever brighter and tighter line from immigrant status, with tests and ceremonies and other behavioral requirements described earlier in this chapter, the reality is one of increasingly diminished and “differentiated citizenship,” which happens to be mostly the result of neoliberalism.134 The leveling-down of citizenship occurs in two ways, one being the infiltration of citizenship by immigration-control concerns, the other being the neoliberal depletion of social citizenship. Let me discuss both in turn.

The Immigration-Control Wedge One example of the extension of immigration law into “the hallowed realm of citizenship” (Gibney 2017:378) we have already encountered: 134

See the imaginative analysis by Bridget Anderson (2015).

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the trend toward forced denationalization. It pretended to “strengthen” citizenship but in reality made it more precarious, particularly for dual citizens. A second example of immigration concerns weakening citizenship is through restricting family reunification. Previously, French and German law, for instance, provided more family reunification rights for citizen than for legal permanent residents. In 2007, both countries reversed course, removing these privileges and subjecting citizen sponsors also to the income, housing, age, or integration-from-abroad requirements that had already been in place for legal permanent resident sponsors (Bonjour and Block 2016). The backdrop to this restrictive measure is the fact that over time, with the rise of a second or third immigrant generation with domestic citizen status through facilitated naturalization or territorial birthright rules, family migration has come to involve ever more citizens and fewer resident foreigners on the sponsoring side. In Germany, for instance, in 1996, 65 percent of spousal migrants joined foreigners and only 35 percent joined citizens; by 2006, the ratio was exactly inverted, with two-thirds of spousal migrants joining a citizen (Bonjour and Block 2016:787). The result has been a “disjunction between the formal citizenry and the imagined community” (2016:792), negatively affecting the rights of citizens. Lawmakers were fully aware of this circumstance. In France, a legal exemption for returning expats with foreign wives was justified by distinguishing between mixed marriages of “openness” and mixed marriages of “closure,” whose French citizen part was in name only and which involved two people of the same foreign background (2016:785). Similarly, a German bureaucrat describes the motivation for restricting the family rights of only nominal “Germans”: “(The decreasing rights of German sponsors) are certainly also motivated by the increasing naturalization rates, in the sense that ‘reunification with Germans’ often means that these Germans are former foreigners who have been naturalized, and then still bring in their spouse[s] from their original country of origin. This was surely an argument to have no reason to treat (German citizens) differently (from foreigners) in this context” (2016:788). Evidently, a crypto-nationalist reasoning, distinguishing between “real” and only nominal fellow citizens, underlies these restrictions of the family rights of citizens. At the same time, a neoliberal logic may lead to the opposite and rather perplexing result of favoring certain migrants over citizens. This has long been the case under European Union law, where in most member states, after decades of attacks on unwanted family migration, free movers have more family rights than domestic citizens. In addition, in some countries, the courting of high-skilled immigrants has had the same result of

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disadvantaging citizens. In Germany, for instance, not only the thirdstate spouses of EU migrants but also the spouses of high-skilled immigrants from outside the EU are exempted from the “integration from abroad” requirement that the third-state spouses of citizen sponsors are now subjected to, leading to “indirect…discrimination against (the state’s) own citizens” (Ellermann and Goenaga 2019:89). In countries like Britain, which never formally favored citizens in the distribution of family rights, extraordinarily high income requirements for family reunification have a similar effect, though stratified by class, of disfavoring the majority of low- or middle-earning British while factually favoring highearning immigrants – over 60 percent of wage-earning British women do not meet the 18,600 Pounds Sterling threshold for sponsoring spousal migrants, which is over 5,000 Pounds Sterling above the minimum wage, but most high-skilled immigrants, by formal entry or permanent residence conditions, do meet this threshold (2019:100). In Norway, “skilled workers” are exempt from Europe’s highest income requirement for spousal migration, which is at ca. USD 30,000 (twice the Norwegian median income), guaranteeing them a success rate of 99 percent; by contrast, only 68 percent of citizens (but including permanent residents and refugees) succeed with their family reunification claims (2019:101). What Antje Ellermann (2019a) has called the rise of “human capital citizenship” not only stratifies citizenship rights by merit and class; it also reverses the citizen–immigrant distinction, because productively valued immigrants are placed above many a country’s own citizens. The Neoliberal Depletion of Social Citizenship When Bryan Turner (2016:679) proclaimed that “we are all denizens now,” his reference point was the “erosion of social citizenship.” Next to the invasion of citizenship by immigration law, this has been the second avenue of leveling-down citizenship rights. However, this is less a case of reducing citizen to immigrant status, as suggested by Turner’s “denizen” formula, than of letting both sink together. This outcome incidentally attests to the difficulties of “welfare chauvinism” to be realized in a liberal-constitutional state. One of the main planks of populist radical right parties, “welfare chauvinism” may be defined as “a political view that promotes nativism as the main organizing principle of social policy” (Ennser-Jedenastik 2018:294). However, the territoriality principle of the welfare state sets narrow limits to favoring “members of the native in-group, as delineated by citizenship, ethnicity, race or religion,” which is the meaning of “nativism” that is at the heart of welfare chauvinism (2018). An interesting question in this regard is

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whether restrictions on certain welfare schemes that disproportionately affect immigrant groups have been implemented for this reason. It is incontrovertible that mass publics hold “deservingness perceptions” that persistently rank immigrants lowest (Van Oorschot 2006), and that “these deservingness frames are also used in political justifications of social assistance reforms” (Emmenegger and Careja 2012:139). Comparing Britain, France, and Germany, Patrick Emmenegger and Romana Careja nevertheless find it “hard to believe” that governments seek to deliberately hurt immigrants when restricting welfare; but they also suspect that governments “tacitly accept” it if this is the result of their reforms (2012:141). In this respect, “welfare chauvinism” has at least an “indirect effect” on welfare-state reforms that notionally affect citizens and immigrants equally but in effect hurt immigrants more (2012:142). Importantly, radical right parties have adjusted to the liberal constraint on direct welfare chauvinism in demanding, not to exclude immigrants from welfare benefits per se, but to greatly increase the residence-time requirements before welfare can be accessed. The Dutch PVV, for instance, the party of populist maverick Geert Wilders, demands that immigrants should live and work in the Netherlands for ten years before becoming eligible for social benefits, which is double the residence time required for legal permanent residence (which currently triggers equal treatment). An analysis of populist party manifestos in four European countries with a notorious radical right presence: Sweden, Netherlands, UK, and Switzerland, found that their restrictive claims are mainly “directed at groups that have no contribution history” (Ennser-Jedenastik 2018:307), such as asylumseekers and illegal immigrants. By contrast, social-policy areas that strictly or mainly operate on the basis of own contributions, such as unemployment compensation or old-age pensions, have seen no or little welfare chauvinist claims. Real-existing welfare chauvinism thus operates less on an ethnic or racial agenda, which is usually attributed to it, than on a strong sense of “equity” or “reciprocity,” that is, the notion that not need but merit or desert triggers social rights (2018:296). But the idea that the “benefit one receives from the community should be in proportion to one’s contribution” (Ennser-Jedenastik 2018:206), whose flip-side is self-help and personal responsibility, is a neoliberal idea. And it is the basis of a new nationalism of “hard-working people,” whom former British Prime Minister David Cameron tried to assemble under the umbrella of “aspiration nation”135. Europe’s most extreme neoliberal welfare reform that Cameron signed as responsible for, in two 135

David Cameron, speech on immigration and welfare reform, March 25, 2016 (www .gov.uk/government/speeches/david-cameron-immigration-speech).

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acts of parliament passed in 2012 and 2016, is a prime instance of neoliberalism and nationalism operating in tandem rather than in opposition, yielding a “neoliberal nationalism.” Cameron devised his welfare reform for a strangely positively valued “Age of Austerity,” which was to replace an “Age of Irresponsibility.”136 In reality, welfare reform under the lodestar of “responsibility,” which meant tying welfare closely to a duty to work, because “work is the best form of welfare” (Tony Blair)137, plainly followed a path carved out by New Labour. In a June 2000 lecture given to the Global Ethics Foundation in Tübingen, Blair had declared that “you can’t build a community on opportunity or rights alone. They need to be matched by responsibility and duty” (Morris 2007:43). What Cameron radicalized is the hard sense of reciprocity, according to which “real fairness … is about the link between what you put in and what you get out” (Cameron quoted by Morris 2018:7). Fairness, above all, is fairness to the “Taxpayer,” who has replaced the citizenry as the collective subject to which public policy is accountable. Also new is Cameron’s depiction of welfare reform and immigration restriction as “two sides of the same coin,” according to which a mutually reinforcing “’something for nothing’ culture” of freeloaders had to be ended: “Migrants are filling gaps in the labour market left wide open by a welfare system that for years has paid British people not to work … [We] will never control immigration properly until we tackle welfare dependency.”138 Cameron thus subtly combined anti-welfare with antiimmigrant resentment, with cleverly inverted sets of culprits that neutralize any possible charge of racism or of ethnic favoritism. On the welfare front, the “go-getting migrant” is extolled over the “lazy Brit” (Anderson 2015:189), while on the immigration front the “genuine concerns of hard-working people” about “uncontrolled immigration” have to be heard, now the native being posited above the immigrant.139 But this deliberate confusion cannot hide the fact that “the experience of citizens and migrants moves closer together” (Morris 2016:696), because the rights or prerogatives of both are subject to restriction, for the sake of “‘fairness’ to the taxpayer” (2016:703). As Lydia Morris has demonstrated in a lucid analysis of British court cases, citizen rights no longer serve as “normative yardstick” for immigrant rights, while legal

136 137 138 139

David Cameron, “The age of austerity,” speech to the Conservative Party on April 26, 2009 (https://conservative-speeches.sayit.mysociety.org/speech/601367). Tony Blair, quoted in Macnicol (2010:3). David Cameron, quoted by Morris (2016:693). David Cameron, speech on immigration and welfare reform.

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contestation is increasingly in terms of “human rights … for both groups” (2016:696). From Citizen to Worker Citizen: The British Universal Credit. The socalled “Universal Credit” system, created with the British Welfare Reform Act of 2012, and which fuses several separate social benefit schemes into one, was praised by the responsible minister as the “most far-reaching programme of change that the welfare system has witnessed in generations.”140 While its basic idea is early capitalist or Victorian: to assure that welfare benefits can never exceed the benefits accrued from work,141 in contemporaneous terms it drives the neoliberal welfare-toworkfare transition to a new extreme. Its core is a “strong system of conditionality,” that is, of stringent behavioral requirements backed up by an ascending scale of sanctions for repeat violators, which is to ensure that “unemployed people who can work will … take all responsible steps to find and move into employment.”142 Initially, the disciplinary apex of the new policy was “Mandatory Work Activity” (MWA), which kicked in when “advisors believe a jobseeker will benefit from experiencing the habits and routines of working life.”143 While MWA was discontinued in 2015 for its lack of effectiveness, it epitomizes the ethos of neoliberal welfare reform: to “hold individuals as primarily responsible for the adverse life situations they experience,” and it shows the “powerful stigmatizing anti-welfare rhetoric” of our neoliberal times (Dwyer and Wright 2014:30). In particular, “welfare dependency,” which is said to be the self-generated result of the past receipt of indiscriminate social benefits, is seen as the main cause of a person’s persistent client status, motivating the move toward workfare.144 Among the more long-lasting innovations of the Universal Credit scheme is, first, the Household Benefit Cap, which imposes an absolute limit on the cash benefits a household can receive per week, irrespective of the number of children. An extremely popular measure, probably on the assumption that it most hits minority families with a large number of children, this cap was meant to ensure “greater fairness in the welfare system,” so that “people on benefits can no longer receive more from the state than the average wage of a hardworking family” (DWP 2014:21). By the government’s own reckoning, it had to disproportionately affect lone mothers and ethnic minority families, forcing their children to grow

140 141 142

Ian Duncan Smith, Secretary of State for Work and Pensions, in his foreword to DWP (2010:1). See “The politics of virtue,” The Economist, January 11, 2020, p.27. 143 144 DWP (2010:4). Ibid., 29. Ibid., 1.

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up in poverty.145 In 2018, 85 percent of benefit-capped households were led by single mothers, and for each child seeing their parent(s) move back into work, as intended by the measure, there were eight children growing up in families whose financial situation had worsened as a result of the measure.146 As Lydia Morris (2016:706) concludes, in breaching the principle of a guaranteed subsistence income, the Household Benefit Cap has removed the central plank of Marshallian social citizenship, “the right … to live the life of a civilized being according to the standards prevailing in the society” (Marshall 1950:11). Lady Hale, lone dissenter in a High Court judgment that upheld the measure, has acknowledged its de-civilizing impact: “The prejudicial effect of the cap is obvious and stark. It breaks the link between benefit and need. Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children.”147 A second innovation of the Universal Credit is the “default requirement that claimants treat looking for work as their full-time job” (Watts, Fitzpatrick, Bramley, and Watkins 2014:4). This is to be understood literally, as having to look for work thirty-five hours per week as precondition for receiving benefits. This quid-for-pro is legally cast in a “Claimant Commitment” that requires meticulous job-search documentation, regular “signing-in” at job-center offices and online and advisor interviewing by phone (Dwyer and Wright 2014:28). Moreover, the “level of conditionality” was increased for certain categories that previously had been treated more leniently or even exempted entirely:148 lone parents with children from the age of five were moved into the highest level of “full conditionality” where full-time “active job search” is required; and people with a disability or sickness, who previously were exempted from conditionality, were moved to the second-highest conditionality level of

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Nigel Morris, “Benefit cap will hit lone mothers and minorities,” The Independent, August 4, 2011 (www.independent.co.uk/news/uk/politics/benefit-cap-will-hit-singlemothers-and-minorities-2331443.html). Rajeev Seyal, “Benefit cap: Single mothers make up 85 percent of those affected, data shows,” The Guardian, January 4, 2019. (www.theguardian.com/society/2019/jan/04/ benefit-cap-single-mothers-make-up-85percent-of-those-affected-data-shows). Supreme Court (UK), R v. Secretary of State for Work and Pensions, [2015] UKSC 16, March 18, 2015, at par. 180. The Universal Credit scheme distinguishes between four “levels of conditionality” for out-of-work benefits, ranging from “full conditionality” as the default assumption to “no conditionality” at all, with the two levels of “work preparation” and “keeping in touch with the labour market” in between. The four levels are in a descending order of demandingness (see DWP 2010:31).

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“work preparation,” where they are “expected to take reasonable steps to prepare for work.”149 Third, in addition to enlarging the range of the structurally out-ofwork who are to be kicked back into the habit of work, what “work” is has been more stringently defined, again for the sake of “fairness” to the taxpayer. Those in low-paid or part-time jobs, in order to qualify for additional income support under the Universal Credit scheme (which includes not only unemployment but also housing or child benefits, among others), must ensure that their weekly earnings exceed the “conditionality threshold” of 35 hours per week paid at the national minimum wage; if they find themselves below that threshold, they are required to find an additional job, ask for a higher wage, or find a better-paid job to avoid financial sanctions. Sanctions, it should be noted, have become epidemic under the Universal Credit policy, increasing in the core jobseeker’s allowance category from 580,000 between October 2012 and June 2013, the first nine months of the policy (Dwyer and Wright 2014:32), to 1 million between January and June 2014 (Anderson 2015:188). Gøsta Esping-Andersen (1990:37) famously defined the function of social citizenship rights as “decommodification,” which was to “uphold a socially acceptable standard of living independently of market participation.” In an even more exuberant passage, he described decommodification as a state in which “citizens can freely, and without potential loss of job, income, or general welfare, opt out of work when they themselves consider it necessary” (1990:3). Exemplified by the British welfare reforms under Cameron, neoliberal social policy’s exact opposite purpose is “re-commodification,” the demotion of citizens into what Bridget Anderson (2015:188) has aptly called “worker citizens.” The worker citizen not only negates what T. H. Marshall had defined as “social citizenship”: “an absolute right to a certain standard of civilization” (1950:43); the worker citizen is also at best a faint shadow of what Marshall had thought to be “citizenship” in general: “basic human equality associated with the concept of full membership of a community” (1950:8). Diminished by Welfare Chauvinism and Neoliberalism: EU Citizenship. In light of the neoliberal cleansing of British welfare, it is difficult to believe that the depiction of the UK as “welfare magnet” should have been a 149

The Universal Credit plight, which starts with the fact that claims can only be made online, not a given for many poor or elderly, and which exacts grievous work-finding obligations even on disabled and sick people, is vividly described in a prize-winning film by the British cineaste Ken Loach, entitled I, Daniel Blake (2016).

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major factor in Britain’s retreat from the European Union, even though it was (Harris 2016). It is even more astonishing that, with impoverished third-world migrants long out of the picture,150 the “welfare magnet” demon was held against EU migrants whose access to social benefits not only came to be cordoned-off by controversial, yet European-Court-ofJustice-sanctioned, residency requirements;151 but who were also, by the UK Government’s own admission, net payers to rather than beneficiaries of the state (2016:132). In fact, European Union citizenship, not least due to British-type “welfare tourism” allegations, has recently devolved into a “worker citizenship” that strikingly resembles the one that the British and other European governments have established at member-state level already. As Bridget Anderson (2015:191) put it aptly, the EU citizen today is “paradigmatically a worker citizen.” Because EU citizenship is the one citizenship that perhaps most dramatically has become “less in value” in recent years, due to a complex and paradoxical combination of successful welfare chauvinism at member-state level and the neoliberal extolling of individual responsibility and self-sufficiency at all levels, it needs to be discussed further. EU citizenship, of course, is not a “real” citizenship, because there is no state attached to it – it is “additional to and (does) not replace national citizenship,” as is the famous wording of the Citizenship Clause introduced by the Maastricht Treaty in 1992 (today’s Article 20.1 in the Treaty on the Functioning of the European Union, TFEU). It did little more than cast in a citizenship idiom the free movement of “workers” that had been constitutive of building a common market. Critics have thus denounced EU citizenship, at all levels of its development, as “an unhappy misnomer” or “no citizenship” at all (Menéndez 2014:907). From the start, this was a citizenship of “those who move, those who have resources, and those who participate actively in the economy” (2014:921), in short, a “market citizenship” (Everson 1995). It did little for those who stayed in place, and who are thus categorically outside the

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Since the early 1990s, third-state immigrants have been categorically excluded from UK welfare benefits as long as they do not hold permanent residence (“Indefinite Leave to Remain”) (ILR) status. ILR status is granted after five years of legal residence, but mainly if one has entered through the Tier 1 “exceptional talent” or Tier 2 “skilled worker” categories of the points-based immigration system. Low-skilled third-state immigrants are thus structurally kept away from permanent residence and British citizenship. See the European Court of Justice’s opportunistic Commission v. United Kingdom decision of June 14, 2016, issued nine days before the British EU referendum, and the critical discussion by O’Brien (2017).

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ambit of EU law.152 Worse still, it meant “less collective goods for all” (Menéndez 2014:920) because, in the absence of a supranational state to compensate for the social risks of unbound markets, national states were likely to become less socially protective as more European comers had to be served. “Small gains in civil rights (of individuals freely to enter into contractual relations),” Wolfgang Streeck (1997) warned presciently, “are likely to be paid for with considerable losses in social and industrial rights.” A decade later, when there was more optimism that EU citizenship, due to an activist European Court of Justice, would turn into “the fundamental status of nationals of the Member States,” Alexander Somek (2007:52–3) still characterized its ethos as “individualism,” “the political worldview of neoliberalism,” marked by the “experienced absence of a corresponding political community.” From the heights of individualism, “national solidarity begins to appear both ugly and unkind” (2007:55), Somek writes darkly. He cites the drastic example of the Austrian university system, which was told by the European Court of Justice to shift from egalitarian admissions for Austrians to competitive admissions for all, thus compromising the Austrian “own national understanding of solidarity”: “Now the less wealthy and less mobile taxpayers of Austria do in effect subsidize young members of the middle-class from other Member States who are most likely to return to their home state … [I]t is difficult to make out how … catering to the desires of the mobile class helps to create an ever closer union among the peoples of Europe” (2007:58f ). To dismiss the EU as neoliberal elite club has been a constant among Euro-skeptics of all shades. It tends to romanticize the nation-state as beacon of solidarity and ignore the neoliberal demolition of citizenship that is happening at the state level, quite independently of the machinations of Euro-institutions. It is therefore all the more remarkable that, in a progressive middle period of EU citizenship’s short lifeline, between 1998 and 2014, Union citizenship seemed to take on the contours of a “real” citizenship, that is, a citizenship in which not only “workers” but also the economically nonactive are endowed with the freedom of movement and equal treatment rights, including full access to the resident state’s welfare system, qua being Union citizens.153 This was entirely the result of judicial activism, faithful to the “integration by law” out of which

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This partially changed with the Rottmann (2010) and Zambrano (2011) decisions of the European Court of Justice. The scope of this “substance of rights” jurisdiction, however, remained limited to highly circumscribed situations. It is not further discussed here. I described this progressive middle period in Joppke (2010a:165–72).

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“Europe” is made (Weiler 1991). In its programmatic Grzelczyk decision (2001), the European Court of Justice pronounced that “Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality.”154 This was the case of a French student in Belgium who had been denied by Belgian authorities a minimum subsistence allowance that would have allowed him to finish his studies. Reversing this refusal, the ECJ admonished the member states to show “a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States,” particularly because in this case the additional cost was only “temporary.”155 Much has been mused about what kind of “transnational solidarity” might undergird European Union citizenship. The kind that eventually prevailed is a minimal “reciprocal” solidarity that insists on retaining the initial construction of economic activity or “worker” status as precondition for equal treatment and social protection.156 In EU citizenship’s progressive middle period, by contrast, a thicker sense of transnational solidarity was invoked that included the non-economically active, as one would expect of a true citizenship in the Marshallian sense. However, the “financial solidarity” formula in Grzelczyk suggests that, even in its most enthusiastic moment, transnational solidarity was only an extension of national solidarity, individual by individual. As Loı¨c Azoulai (2017:180) astutely observed, “the legal concept of European citizenship appears to be more concerned with forming ties in a host society which are equivalent to those formed in the home country.” But would not a “proper citizenship regime,” he muses, go beyond the right to free movement and provide a “right to enjoy the community of values anywhere within the European Union, regardless of territory”? This is the leap that EU citizenship never took, because it would require a federal state. It is furthermore significant that the inclusion of the French nonworker in Belgium’s welfare system qua “fundamental status” of EU citizenship was additionally justified by being only “temporary.” This points to the fact that the EU citizen’s “right to move and reside freely” was never unconditional, but “subject to the limitations and conditions laid down in this Treaty and by the measures adopted go give it effect,” as the European Union Treaty’s Citizenship Clause put it (Article 21.1 TFEU). 154 155 156

ECJ, Rudy Grzelczyk v. Centre public d’aide sociale d’ Ottignies-Louvain-la-Neuve, case C-184/99, at par.31. Ibid., at par.44. For a defense of this minimal position, see Somek (2007) and Sangiovanni (2013).

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And secondary Union law, in terms of the 2004 Citizenship Directive, states clearly that an unconditional right to move and reside exists only for three months; for longer periods, the “right of residence” is conditional on either being a “worker” or, if non-economically active, possessing both “sufficient resources,” in order “not to become a burden of the social system of the host Member States,” and “comprehensive sickness insurance.”157 That’s why the Belgian authorities could confidently say “no” to Rudy Grzelczyk’s request for a “minimex” allowance: first, he was not a “worker,” and second, he obviously did not have “sufficient resources,” otherwise he would have had no need for the requested benefit. In Grzelczyk and similar cases in the progressive period, the European Court of Justice simply overrode these secondary law constraints, which expressed the member states’ interest to ward off “welfare tourism” and protect their national welfare systems. The court did this through invoking the quasi-constitutional primary Treaty rights of citizenship (TFEU Articles 20 and 21) and of equal treatment or nondiscrimination on grounds of nationality that citizens are due (TFEU Article 18). But this override required the application of a “proportionality” lens and a scrupulous assessment of the circumstances of each individual case. “A genuine link,” a “certain degree of integration,” and not to become an “unreasonable burden on the public finances” was always a condition for including the non-economically active (Verschueren 2015:364f ). A “fair balance” between nonactive migrant rights and the protection of national welfare states had to be struck, and this was also the approach taken in the 2004 Citizenship Directive (2015:365). Alexander Somek’s inquiry into the content of the “integration” or “genuine link” required for including the inactive showed that “being and time,” that is, sustained presence in a Member State, was sufficient, and he deemed this “amazingly meagre” (2007:38). But, importantly, a “factual” or “quantitative” understanding of integration amounted to a duty of the host state to integrate. Only later, when the ECJ abandoned the progressivism of the middle period, and in the context of adjudicating permanent residence cases, the court would move to a “normative” or “qualitative” understanding of integration, as “compliance with the structure and values of the host society,” but now as a duty of the individual and no longer of the host state (Azoulai 2017:187). In the progressive middle period, the social inclusion of noneconomically active EU migrants qua EU citizenship thus was never 157

Article 7.1 (a and b) of the EU Citizenship Directive, passed in April 2004 (Directive 2004/38/EC).

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unconditional and always the result of a balancing act. However, the fact remains that “citizens tended to win their cases” (Shuibhne 2015:894). Why the ECJ would retreat from its progressivism and move into a reactionary mode, in its benchmark Dano v. Jobcenter Leipzig decision of November 2014, is controversial in the literature. There are three competing accounts why EU citizenship would recover its original position of a “market” or “worker” citizenship. One is that “ECJ judges read the morning papers” (Blauberger et al. 2018), and that they fell to the pressure of populist-plagued member-state governments to do something against “welfare tourism” in a context of severe financial crisis and obvious poverty migration from new member states. A second account is that not “the court” but “the cases” have changed, as most drastically in the case of Elisabeta Dano, who had moved from Romania to Germany without any intention to work or to be looking for work, and who was “the kind of the person who was never intended to have access to social assistance or even to residence rights in other Member States” (Davies 2018:1454). Similarly, a third account found the Dano judgment to be no rupture at all, but this time not in view of the lesser deservingness of court-going claimants; instead, the judgment was taken to be the “logical evolution of the case law on Union citizenship after the adoption of Directive 2004/38” (Carter and Jesse 2018:1). In this optic, the 2004 Citizenship Directive was a hard-fought legislative compromise between welfare-state-protective member-state interests and the EU-citizen-protective European court, providing the modicum of legal certainty that member-state authorities had been urgently asking for; accordingly, the European court came to rely on it more literally in its citizenship and social rights jurisdiction. While there is an element of truth to all three accounts, the welfare chauvinism charge is particularly plausible. In 2013, one year before the lifting of the temporary restriction on the free mobility of persons from recently joined Romania and Bulgaria, who were separated from the other member states by the largest wealth gap that the EU had ever seen, there was a debate throughout Western Europe about EU “poverty migration” and “benefit tourism.” The interior ministers of Austria, Germany, the Netherlands and the UK asked the European Council to act against the “new immigrants” that “abuse” their free movement right (Roos 2018). While this seems to be out of the notebook of the populist right that was surging in many countries, it cannot be reduced to it – in Germany, the AfD was still insignificant, and in the UK also, UKIP would have its breakthrough only one year later, in the European elections of May 2014. Reaching deep into the political mainstream, the “welfare tourism” campaign could achieve little at national level, where

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legal permanent residents had to remain included on constitutional grounds; accordingly, its biggest effect had to be at Union level, where it came to be directed against the free movement of nonworking EU citizens. The precedence-setting Dano decision allowed the German authorities to withhold Hartz IV social benefits from a young, lowly educated Romanian woman, who had entered Germany to live with and be provided for by her sister, and who apparently “was not seeking employment and … did not enter Germany in order to work.”158 The court’s plain argument was that Mrs. Dano did not have the “right of residence” according to Article 7.1(b) of the Citizenship Directive, because she lacked “sufficient resources” and thus constituted a “burden on the social assistance system of the host Member State.” While Gareth Davies (2018:1448) is surely right that a “mainstream moral perspective” that was not novel at all undergirded this judgment, there are still two remarkable departures from previous jurisprudence in this decision. First, as Nic Shuibhne (2015:891) has put it most succinctly, “the primary-ness of Union citizenship has imploded.” Previously, the quasiconstitutional Treaty rights of citizenship had trumped the limitations laid out in the secondary law of Directives and Regulations. Now it was the other way around: if no “right to residence” according to the Citizenship Directive existed, no rights of Union citizenship at all: “The Court … poured the content of the primary right to equal treatment into a statement in secondary law. That method turns the standard approach to conditions and limits on its constitutional head—the latter no longer temper equal treatment rights; they constitute the rights” (2015:909). As a result, in Dano and further decisions that followed the same line, the court would no longer engage in the “balancing” and “proportionality” analyses assessing “real” or “genuine links” and “integration” in each individual case; the mere establishment of the absence of “sufficient resources” or of other conditions laid out in secondary law was sufficient to void EU citizen rights. This notably exploited, as Daniel Thym (2015:26) observed, a “deliberate ambiguity” in the Citizenship Directive, which claims, in different parts, to “facilitate the exercise of the primary … right to move and reside freely” and to “prevent economically inactive Union citizens from using the host Member State’s welfare systems.” With Dano, the emphasis shifted decisively from “facilitation” of movement to “prevention” of benefit abuse.

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ECJ, Dano v. Jobcenter Leipzig, Case C-333/13, at par.66.

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Second, the bone of contention throughout the ECJ jurisdiction on the social rights of economically inactive EU migrants had been so-called mixed noncontributory cash benefits, which combine elements of contribution-based “social security” and of tax-financed “social assistance,” the two classic pillars of the welfare state. It was never in question that social assistance proper could be reserved for a closed circle of nationals and permanent residents, whereas “social security,” as it is based on own contributions, has always been open for all. Conflict was exclusively about the “mixed” benefits. They are a bit like social assistance, in that they are to assure a minimum standard of life in “human dignity,” as German social law put it, and in being tax-based and thus redistributive and expressive of national solidarity; and they are a bit like social security, in that they are provided as-of-right and with the purpose of insuring the individual against unemployment and other typical risks, and lately geared toward the speedy reintegration into the labor market. In the early phases of the EU (when it was still the European Community), there was dispute whether mixed benefits should be exportable or not; eventually, a compromise was reached that tied them to a relatively lax “habitual residence” requirement, which is not to be confused with the more exacting “legal residence” requirement under the later Citizenship Directive. Mixed benefits came to be included in Regulation 883/ 2004, which deals with the coordination of social security rights across member states, while this regulation left out social assistance proper as outside the purview of European Union law. This suggested that, under EU law, mixed benefits should be treated more like social security rights, to which the principle of equal treatment applies, and not like social assistance, to which equal treatment does not apply. The Dano decision turned this around. The Hartz IV social benefit, which Mrs. Dano had claimed unsuccessfully from German authorities, was unquestionably a “mixed non-contributory cash benefit,” according to Regulation 883/2004. But, for the purpose of determining the right of residence under the Citizenship Directive 2004/83, the court reinterpreted the same benefit as “social assistance” that the German lawmaker had the good right to reserve for its own nationals and permanent residents. Any other decision, argued the court, would let the “sufficient resource” proviso in the Citizenship Directive “run empty” (Farahat 2016:47), because the latter could “automatically and de facto”159 be fulfilled and bootstrapped by claiming the social benefit in question: “To deny the Member State concerned (the) possibility (of refusing to 159

Opinion of Advocate General Wathelet, May 20, 2014, Case C-333/13, ECLI:EU: C:2014:341, at par. 106.

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grant social benefits to economically inactive Union citizens) would … thus have the consequence that persons who, upon arriving in the territory of another Member State, do not have sufficient resources to provide for themselves, would have them automatically through the grant of a special non-contributory cash benefit which is intended to cover the beneficiary’s substance costs.”160 This sounds logical. But it leads to the “paradox,” concisely formulated by Herwik Verschueren (2015:381), that “a Union citizen is only entitled to social assistance in the host state, if he/she has sufficient resources and therefore (is) not in need of any social assistance.” Moreover, because the Dano court approach shifts the residence criterion for the receipt of mixed benefits from “habitual” to “legal residence,” which is the determining criterion under the Citizenship Directive, it creates the possibility of locking out the Union citizen from these benefits even in their state of origin, for which the “habitual residence” criterion under the Social Security Regulation (883/2004) is still decisive. The court thus “establishes a new … exception from the equal treatment principle in the coordination of social security benefits, destroying decades of systembuilding in this domain without the slightest scruple” (Farahat 2016:49). Regulation 883/2004, which deals with the coordination of social security benefits, and the Citizenship Directive 2004/38, which in the court’s current interpretation is primarily a protection of member states’ welfare systems from needy free movers, were ironically passed on the very same day. In a brilliant analysis, Daniel Thym (2015:34–9) showed that the two measures stand for fundamentally different models of “transnational social solidarity” in Europe, a “residence model” and an “integration model,” respectively. In the residence model, “residence is the new nationality,” as Gareth Davies (2005:56) once argued in an imaginative paper: “The new Belgians are those who choose Belgium.” This is the vision of “(a) community … defined by its current members more than its history, … belonging to those who participate, not those selected at birth. This is an appropriate extension of the European project; finally, an assault on national and historical determinism, and its replacement by a voluntary society, open to change” (2005). Less prosaically said, in the residence model, equal treatment or nondiscrimination is “perceived as a means to facilitate social integration” (Thym 2015:34). This echoes a liberal view of citizenship acquisition as tool of integration. And it is the spirit of the EU’s social security coordination regime under Regulation 883/2004, 160

Dano, at par. 79. The court followed here Advocate General Wathelet’s opinion, at par. 106.

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linking noncontributory benefits to a Euro-citizen’s “habitual residence,” which is wherever she decides to “hang her hat,” to put it with Gareth Davies (2005:43). Resembling Joseph Carens’ notion of “social membership” (2013), in the residence model mere territorial presence over time, “being and time” (Somek 2007), is the thin benchmark of integration, obliging the state to treat the respective person equally. This was, however incomplete and unachieved, the promise of European citizenship in the progressive middle period. With Dano, the court has moved to an “integration model.” It incidentally mirrors the model of earned citizenship that we have traced throughout this chapter across Western Europe, North America, and Australia. In the integration model, the individual is obliged “to actively pursue incorporation into societal structures” (Thym 2015:36). Equal treatment is no longer to facilitate integration, but – on the contrary – successful integration, which the migrant is entirely burdened with, triggers equal treatment as reward. The Union thus shifts from being a “playground of opportunities”161 for vagabond free movers, as under the residence model, to being dependent on social cohesion, which each individual is expected to contribute to. Importantly, as Thym astutely observes (2015), “social cohesion is not about classic nationalism.” In fact, Article 7.1(b) in the Citizenship Directive, which asks for “sufficient resources” and “sickness insurance” as conditions for the right of residence of the economically nonactive, “lays down in abstract that those without sufficient resources are not integrated” (2015:38, fn.142). Selfsufficiency and the capacity to contribute is decisive, not race or ethnos – this is the same neoliberal nationalism that we have observed at memberstate level already, and throughout Western states. At EU level, this implies that the meaning of integration has shifted from a quantitative, territorial presence- and time-based understanding, toward a more demanding qualitative understanding. The ECJ adopted it in its recent jurisdiction on permanent residence, which is as reactionary as that on access to welfare: “[T]he integration objective … is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in the host Member State.”162 In this optic, EU citizens are no longer equal, or to be made equal, as had been the ECJ direction in its progressive phase. Now, an implicit distinction between “good” and “bad” citizens is made, though less in a Republican moral than a neoliberal utility sense, with lesser rights being extended to the “bad” citizens. It is the same “differentiated citizenship” or “worker 161 162

Kochenov, quoted by Thym (2015:36). From the ECJ’s 2011 Dias decision, quoted by Thym (2015:37).

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citizen” that Bridget Anderson (2015) had seen emerging in the UK, and beyond. Only that at European level this is not really new but merely a return to its original position of market citizenship. Eleanor Spaventa (2017:220) appositely called “earned citizenship” the new-old Union citizenship for the “wealthy, healthy and good.” She only forgot to mention that its exact parallel has been established at state level also.163 If she exclaims that “no citizenship at all is preferable to such an unequal citizenship” (2017:206), this might apply further down as well, although that call immediately gets stuck in one’s throat, would it leave one without any citizenship at all. In 2013, almost 17 percent of the EU 28 population had incomes below the national at-risk-of-poverty thresholds, which is 80 million people. According to the currently reactionary ECJ jurisprudence, they are de facto deprived of their European Union citizenship. To be more precise, they are allowed to enter, but “at their own risk” (Heindlmaier and Blauberger 2017:1190). This is because under the same Citizenship Directive that has allowed the poor’s automatic denial of the right of residence, their expulsion, which in principle should follow, “should not be the automatic consequence of recourse to the social assistance system.” That is, expulsion is still subject to the usual EU law principles of proportionality and individual case examination to respect higherorder Treaty rights.164 If the poor insist on moving, whether by habit or by necessity, and the amplified presence of begging and roughsleeping by entire families in many a rich Western European metropole suggests that they do, the result must be the creation of an exploitable and legally precarious “EU Lumpenproletariat” (Schiek 2017:360). The creation of “tolerated” citizens who are socially excluded yet not deported and perhaps not even deportable, as Daniel Carter and Moritz Jesse (2018:1199) put it appositely, “goes against the very idea of ‘citizenship’ as a philosophical concept.” Of course, as far as “workers” are concerned, EU law continues to lay out red carpets, and it has even further improved their equal treatment. An example is family reunification. A 2018 ECJ decision has enforced same-sex spousal rights, ironically against Romania, home state of Mrs. Dano and cause of much of the “welfare tourism” debate, and which on the cultural front does not recognize same-sex marriage.165 Therefore, the last frontier of demolishing the EU citizenship construct is to put 163 164 165

By contrast, the “earned citizenship” parallel at Union and state level is noted by Kramer (2016). Citizenship Directive 2004/38/EC, “Whereas” no.16. ECJ decision on Coman, Case C-673/16, June 5, 2018.

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hands on the hitherto privileged “worker” category. It should not surprise that the UK, in its late years of EU membership, has been good at this, acting out its “welfare magnet” phantasm with the help of its “worker citizen” toolbox (O’Brien 2016:953–61). EU law has traditionally espoused a wide definition of “work,” operating with a “presumption of work” unless an activity is “marginal and ancillary,” which is not further defined but to be rebutted by member states. Against this, the UK, in 2015, passed a Minimum Earnings Threshold below which there is a “presumption of marginality,” to be rebutted by the claimant’s showing that his or her “work” is “genuine and effective” – without, however, giving him or her any guidance on how to prove it. Similar schemes were put in place in Belgium, Finland, Denmark, and the Netherlands. Furthermore, after three months of claiming a Jobseeker’s Allowance, to maintain “worker” status under EU law, there was a new “Genuine Prospect of Work” test in the UK, which required “compelling evidence” for work that naturally had to meet the new income threshold. As a result, the ECJ requirement of showing a “genuine chance” of being employed was, in effect, transformed into having to show the “practical certainty” of having a job at hand (O’Brien 2016:959). While certain categories of UK nationals and permanent residents have reduced work obligations even under the mean and lean Universal Credit scheme, such as lone parents or the disabled, this concession did not apply to EU movers without permanent resident status – as part-timers they would lose their worker status and thus not only the access to benefits but legal residence itself. One sees, after removing the economically nonactive from its ambit, the next – and ongoing – step in the devolution of EU citizenship is restricting the range of “workers” who are entitled to free movement and equal treatment. “Welfare nationalism is washing away the traces of EU citizenship,” while “wealth and class are becoming increasingly relevant to the exercise of free movement” (O’Brien 2016:937 and 961): this is a concise summing up of the downward trajectory of EU citizenship. It points to the neoliberalism–nationalism nexus that has devalued citizenship as we know it, putting in its place the rump of “earned citizenship,” in the EU as much as throughout the Western state world. Conclusion In a furious and iconoclastic essay, Dimitry Kochenov (2019:195) concedes that citizenship, while at heart “totalitarian and oppressive” and randomly assigned by the grace or curse of birth, has recently become “more inclusive.” Kochenov’s endpoint, not quite explicable within his

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dark frame, has been our starting-point. We argued that liberal citizenship, in a context of neoliberal globalization counterpointed by nationalism, has become “more difficult to get” and “easier to lose,” but also “less in value.” We called the outcome “earned citizenship,” and could show that it was centrally involved, both as operative category of practice and as reflective category of analysis, in each of these three processes. Earned citizenship is still liberal citizenship, in the minimal sense of being no return to discriminatory categorical exclusions, on the grounds of ethnicity, race, or sex, but including or excluding at the individual level only, in consideration of what the individual does rather than what she is. But citizenship’s enhanced conditionality betrays other-than-liberal elements, a neoliberal stress on productivity and self-responsibility, and a nationalist frame of “strengthening” citizenship by making it more exclusive and “privilege,” not right. Earned citizenship is this book’s clearest instance of a neoliberalism–nationalism nexus that is “constitutive” rather than “reactive,” that is, both elements working in sync rather than in opposition to one another. In brief, one could say that earned citizenship is expression of a neoliberal nationalism. The central paradox of earned citizenship is that what in nationalist diction is praised as “first prize” or “precious good,” has at the same time become “less in value,” at best a shadow of Marshallian citizenship. Of course, from a global–spatial perspective, a few “super-citizenships” (Kochenov 2019:248) command large sums on the market for passports or investment visa. However, from a domestic–temporal perspective, Marshallian citizenship, whose lodestar was “to enable every man to be a gentleman” (1950:4), has all but disappeared. If once the “equality of citizens” was the great antipode to the “inequality of classes” (1950:12), allowing workers to make peace with capitalism, citizenship today has itself been infested with inequality, economic inequality (as in the neoliberal depletion of social citizenship rights) and noneconomic inequality (as in the infiltration of citizenship by immigration law, often following a crypto-nationalist agenda). It is still true that neoliberally depleted citizenship, to use that bit of jargon one last time, is vastly superior to being the inmate of a failed state, so that the Yemenite refugee (if she can become one) will continue to ask for the former. But the contradictory movement of rhetorical upgrading and legal–factual downgrading of liberal state citizenship should not go unmentioned. While there are many reasons for the declining value of citizenship, it is plainly connected to the fact of large-scale migration and the increasing openness of liberal societies. This openness is at most marginally affected by the restrictive tendencies in citizenship and immigration policy, as discussed in this and the previous chapter. Bloemraad, Kymlicka,

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Lamont, and Hing (2019:83 and 85) noted that “over the past 50 years, definitions of membership have become more pluralistic and inclusive, but judgments about social citizenship … have become more restrictive or more fraught.” What the authors call “stigmatizing deservingness judgements” (2019:86) on part of the mass public, toward lone mothers, the unemployed, immigrants, and the poor in general, exactly mirror the regressive social-policy trends toward these groups, some of them depicted in this chapter. While the authors are hopeful that “multiculturalism might help” (2019:88) to allay these pejorative judgments and the policies aligned with them, multiculturalism might as well effect the opposite. This is because reinforced group boundaries are unlikely to generate the sense of “mutual regard” (Collier 2013:61) on which redistributive welfare solidarity rests. The classic nation-state was “hard” and impenetrable to the outside but “soft” and inclusive to the inside (Thym 2014:224). As its hard edges are waning in globally enmeshed societies, it is inevitable that the state’s capacity for equal inclusion is impaired. Compared with immigration policy, it is obvious that citizenship is much less subject to populist–nationalist onslaught. There is no equivalent here to Trump or Brexit, both of which were centrally about rejecting certain kinds of migration. This reflects that citizenship deals only with secondary admissions, which cannot change much the outcome of primary admissions at the border, where consequently all the thunder and the lightning is. If on the immigration front nationalism and neoliberalism were more clearly marked as separate forces, their nexus in the case of Brexit even being of an oppositional and “reactive” kind, on the citizenship front the two could not be easily distinguished, their nexus being most often of the “constitutive” kind. Earned citizenship is driven by a neoliberal nationalism, whose boundaries are nonethnic, excluding only those who are deemed unwilling or incapable to “contribute,” and in which the Taxpayer replaces the Citizen as the unit of democratic accountability. Immigration and citizenship policy convene, however, in the ultimate importance of the neoliberalism factor, which often drives and justifies the restrictions that tend to be wrongly attributed to nationalism. However, not all restrictiveness in citizenship policy, if broadly understood as integration policy, can be attributed to the neoliberalism– nationalism nexus. This I tried to show along the case of Germany’s integration policy after the Syrian refugee crisis. It exposed the dilemma of any integration policy in a context of unwanted migration: that this policy must simultaneously minimize the incentives for more of this migration, thus having to be restrictive for demographic reasons alone. A pristinely “liberal” integration policy in such context, which in

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generous reading was the project of the “progressive” opposition to Germany’s 2016 Integration Law, amounts to nothing less than waving the border. With respect to citizenship-by-investment and the revival of citizenship-stripping also, this chapter took positions that do not often run under a liberal flag. With respect to the first, the liberal critics of selling citizenship are espousing an idealized Greek model of political citizenship that bears little resemblance with real-world citizenship, which is more of the Roman rights-protecting and opportunity-providing kind. And these critics hide behind a citizenship as “genuine connection” ideology that, when it was created by the International Court of Justice almost seventy years ago, was seriously injurious to individual freedoms and regressively nationalist (not to mention the kleptocratic interest of the winning states in this case). Second, the revival of citizenshipstripping, in my view, is logical response to a new kind of globally operating religious terror that targets citizens qua citizens. It is not clear why its perpetrators should be able to avail themselves of the citizenship that they have callously attacked and openly renounced. That the radical right, in alliance with self-aggrandizing executive states, have embraced this measure, does not make it any less apposite an answer to the killing of fellow-nationals just “because they are French,” as French President François Hollande put it, aghast. If the random possibility to be hit by religious terror constitutes the contemporary citizen’s universalized “moment of conscription,” as political philosopher Paul Kahn (2011:156) has argued, to deprive the terrorist of this citizenship is only a matter of consistency. Which is not to say that there are not weighty pragmatic reasons to desist from it (see Joppke 2016:743–6). Finally, much as we said about the structure of immigration policy (or rather policies) in the neoliberal era, in citizenship policy also (which is more comfortably presented in the singular) there is little variation between Europe and the classic immigrant countries of North America and Australia. While required residence times for naturalization still tend to be shorter and the transition to citizenship more routine in the classic immigrant countries, this is more by way of a hang-over from the past than of a renewed commitment to nation-building through settlement and immigration – thus Catherine Dauvergne’s (2016:ch.7) entirely persuasive diagnosis of the “loss of settlement.” The same idiom of earned citizenship has taken hold everywhere, which is broadly restrictive and mixes an economic utility rationale with a nonethnic sense of collective self.

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4

End of Liberalism?

Liberal Crisis A few months before the Berlin Wall came down, an unknown member of the US State Department’s policy planning unit pronounced that the “end of history” had arrived: “The triumph of the West … is evident … in the total exhaustion of systematic alternatives to Western liberalism” (Fukuyama 1989:1). A long generation later, Fukuyama’s famous statement is considered a laughingstock and the opposite claim, that the end of liberalism is nigh even on its Western home ground, is making the rounds.1 There are several ways of making this claim. One is with a focus on socioeconomics, arguing that liberalism has lost its support structure. Writing in the immediate aftermath of the Brexit Referendum and the ascent of Trump in 2016, Edward Luce (2017:12) refers the “retreat of Western liberalism” to a “backlash of the West’s middle classes, who are the biggest losers in a global economy that has been rapidly converging.” “No bourgeoisie, no liberalism,” as one could update Barrington Moore’s famous diction, “no bourgeoisie, no democracy” (1966:418). Undoubtedly, the decline of the Western middle classes is the ultimate source of liberalism’s current troubles. This is not an absolute but a relative decline, consisting of a widening gap to exploding upper-class wealth and a narrowing gap to the bottom.2 And perhaps it is even more stagnation than decline: if, in twentieth-century America, inflationadjusted wages “roughly doubled” from generation to generation, for the past thirty years they have “essentially remained flat” (Mounk and Foa 2018:33). But even stagnation goes along with a loss of hope for a better future, which has been the (probably unsustainable) energizer of 1 2

For instance, Luce (2017); Deneen (2018); King (2017); and, most imposing of all, Krastev and Holmes (2019). As Markovits (2019:105) reports about income development in the United States, “the poor/middle-class income gap has narrowed by about a quarter since midcentury, while the middle-class/rich income gap has nearly doubled.”

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over two centuries of Western development. Edmund Fawcett (2014:406) defined the “liberal project” as “a search for order amid endless conflict and unceasing change guided by resistance to power, faith in progress, and respect for people.” Of the listed elements, “faith in progress” is the one that has been most battered in the West. A 2017 global Pew poll promptly found “advanced nations” much less optimistic about the future than “emergent” or “developing” countries.3 All West European countries, as well as the United States, Canada, and Australia, but also Japan and South Korea, provided more “no” than “yes” answers, sometimes by large margins, to the question whether respondents believed that the children growing up now in their country would be “better off financially” than their parents. By far the least optimistic of all advanced countries were the French, only 9 percent of whom believed in a better future. Predictably, at the top end of the scale were two big winners of globalization, India and Vietnam, where big to vast majorities – 76 percent and 95 percent, respectively – were hopeful about the financial betterment of the next generation. The massive loss of hope in the future and fear of falling extend wide into the Western middle classes. This has been the crucible of Western populism, which may be understood as all-out attack against a “self-serving liberal elite” system that has not served “ordinary people” well.4 More with a focus on political ideology, a diametrically opposed diagnosis is that “liberalism has failed … because it has succeeded” (Deneen 2018:2). Already Francis Fukuyama (1989:17f ) had noted that, after the victory over its twentieth-century competitors, fascism and communism, liberalism might become complacent and exhaust itself, echoing Tocqueville’s fear that democracy’s future was an entropic decay of human creativity and imagination. With a focus on Eastern Europe, Ivan Krastev and Stephen Holmes (2019:204) picked up the Tocquevillian ball to argue that “liberalism was fatally weakened by its loss of a peer competitor that boasted the same secular and post-ethnic commitments and equally stemmed from the European Enlightenment. With no alternative centre of power challenging its claim to the future of mankind, liberalism fell in love with itself and lost its way.” They depict the current global wave of populism and authoritarianism, spanning Eastern Europe, Russia, the United States, and China, as discontent with the “Age of Imitation,” lasting from 1989 to 2008/16, when politics was reduced to 3

4

Pew Research Center, “Global publics more upbeat about the economy,” June 5, 2017 (www.pewresearch.org/global/2017/06/05/global-publics-more-upbeat-about-theeconomy/). “A manifesto,” The Economist, September 15, 2018, p.11.

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the adoption of a “Western-dominated unipolar order” (2019:5). This is ultimately a psychological argument that “human beings need choice, even just the illusion of it” (2019). But then it is not quite clear who the “liberalism” is that, like a person, might be able to “fall in love with itself” and “lose its way.” Philip Selznick (1952) had argued incisively that communist regimes, liberalism’s most long-lasting twentieth-century competitor, were “combat regimes” that are vitally dependent on the existence of “enemies” to be defeated, capitalists, fascists, imperialists, etc., and that success in that struggle had to be followed by their loss of purpose. Liberalism, however, is not like that. As an idea system, liberalism is not one but many things, spanning classical and modern, libertarian and social-democratic positions (Ryan 2012). But it still can be reduced to a single doctrine, “the belief that the freedom of the individual is the highest political value, and that institutions and practice are to be judged by their success in promoting it” (2012:23). Contrasting the “liberty of Ancients” with “that of Moderns,” the early nineteenth-century liberal Benjamin Constant put it more briefly: “Individual liberty … is the true modern liberty” (1816:8). Fukuyama defined the “liberal idea” much in this way, as “a rule of law that recognizes certain individual rights or freedoms from government control” (1992:45). On this basis, he argued that, post-1989, “there is now no ideology with pretensions to universality that is in a position to challenge (it)” (1992:45). Only this is the meaning of the “end of history.” To ridicule this notion has become somewhat of a standard reflex and “correct thinking.” But it is difficult to see how one could not agree with it. Note that those who deem liberalism a “light that failed” are quick to add that “a chastised liberalism … remains the political idea most at home in the twenty-first century” (Krastev and Holmes 2019:205). Fukuyama had notably not said that “liberal practice,” but that the “liberal idea,” had “emerg(ed) victorious” post-1989 (1992:45). And it remains as true today as it was in 1992 that “Islam,” which Fukuyama rightly considered liberalism’s only global competitor as a “systematic and coherent” blueprint for building state and society (1992:45), has “no resonance for young people in Berlin, Tokyo, or Moscow” (1992:46). “Liberate Hong Kong, Revolution of Our Times” is the central slogan of the 2019 mass protests in Hong Kong.5 This reminds one of Maurice Cranston’s unbeatably elementary definition of who is a “liberal”: “A liberal is a man who believes in liberty” (quoted in Gaus 2018). It is entirely implausible to argue that the clarion call of

5

See https://qz.com/1699119/chants-and-slogans-of-hong-kongs-protests-explained/

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liberty, heard in protest after protest around the world, should become any less compelling, or even exhaust itself, only because liberalism has no serious competitor as a legitimate principle of political order any longer. Quite the contrary, one would think that this could only fuel the urge to move the liberal “idea” to “practice.” The crisis of liberalism claim is most often, and in fact most plausibly, made with respect to the international order. Only here the talk of an exhaustion or even demise of liberalism makes some sense – even though one should not assume that “open borders” for people had ever been part of the “liberal order,” as one observer seems to imply (Speck 2016:1).6 John Ikenberry defined “liberal internationalism” as a regime of open trade and exchange, rule-based multilateral relations, and security cooperation; it is based on an understanding that society can be reformed in a “progressive direction” of “mutual aid and protection,” which is another word for the welfare state (2018:11). Importantly, the liberal international order was at first not a global order but built “against Soviet communism” (2018:9). When liberal internationalism went global after the end of the Cold War, it faced two crises: a “crisis of authority,” with new states entering the system that were not trained in democratic ways; and a “crisis of social purpose,” with the idea of a “mutual aid and protection society” losing ground – which is Ikenberry’s circumscribed way of describing the successful neoliberal attack on Social Democracy (see Chapter 1). As a result, Ikenberry argues, “(t)he liberal order lost its identity as a western security community. It was now a far-flung platform for trade, exchange and multilateral cooperation” (2018:20). There is nothing in it anymore for the citizens of Western democracies. Indeed, liberal internationalism came to look “more like neo-liberalism – a framework for internationalist capitalist transactions. The ‘embedded’ character of liberal internationalism has slowly eroded” (2018:21). Globally expanded capitalism made liberalism give way to neoliberalism, on the one hand, and to reactive “nationalism, protectionism, spheres of influence and regional Great Power projects” (2018:8), on the other. The new nationalism is as much a challenge from without, with Russia’s leader Putin cockily declaring that “the liberal idea has exhausted itself” (quoted in Müller 2019:9), as it is a challenge from within, with parts of the Western middle classes rebelling against a “liberal order” that they perceive as “rigged” (Colgan and Keohane 6

Speck (2016:2) argues that “populists” want a “return of borders as major impediment for the flow of people, goods, capital and information.” Except within the EU, and except certain categories (tourists, business, etc.), “people” have never enjoyed unimpeded cross-border mobility.

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2017). “We did not pay enough attention as capitalism hijacked globalization,” as Jeff Colgan and Robert Keohane lament after the fact (ibid.). This diagnosis is especially pertinent to Trump’s America, where – through the imaginative lens of Krastev and Holmes (2019) – the politics of “imitating” liberalism by others, in particular China, was experienced as “dispossession.” Accordingly, the positive-sum idea of “leading by example” gave way to the zero-sum notion of “winning” in an amoral Darwinian struggle for survival: “To make America great is to ensure that America stands for nothing uplifting and inspiring” (2019:144). While America under a populist ruler is busily destroying the world that it built in its image,7 and China has ironically taken the role of defending the global trade system (Luce 2017:19),8 it is important to see that this apparent change of guard does not go along with the arrival of a grand alternative: “There is simply no grand ideological alternative to the liberal international order” (Ikenberry 2018:23). This is corroborated by the fact that China, the new hegemon, is an aloof and non-proselytizing “civilization-state” that is unwilling to impose its ways on other countries (Milanovic 2019:122). Inspired by China’s phenomenal successes, Branko Milanovic (2019) has argued that capitalism, though it has been since 1989 the “sole socioeconomic system in the world” (2019:2), now exists in two stable variants: “liberal meritocratic,” as in the United States and Europe, and “authoritarian” and “political,” as in China. Where Fukuyama really erred, is that this dualism is unlikely to go away.9 However, even in this changed constellation, Fukuyama’s core claim of the superiority of the “liberal idea” is confirmed. This is because not even the kleptocrats who profit from the authoritarian alternative would argue that “authoritarianism,” and the corruption that it necessarily breeds (see Milanovic 2019:107–12), is a superior “idea” that enjoys public legitimacy. 7

8

9

It is entirely irrelevant if this international order was built “by the desire to advance liberalism abroad,” or, on the contrary, by the “need to do what was necessary to preserve liberal democracy at home,” as a skeptic (Allison 2018) holds against the more exuberant observer (Ikenberry 2018). According to Luce (2017:19), the “global economy changed guard” at the January 2017 World Economic Forum in Davos, where Chinese President Xi was shining while US President Trump was absent. This error has been shared by many. Deudney and Ikenberry (2009), for instance, like many others, were betting that “capitalism connects to political democracy,” first, because of capitalism’s rise of a middle class that eventually would “challenge closed political decision-making,” and, second, through the need for capitalist property to be protected by the “rule of law.” Ten years later, the number of rich autocracies has grown, and “within the next five years, the share of global income held by countries considered ‘not free’ … will surpass the share held by Western liberal democracies” (Mounk and Foa 2018:30).

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Milanovic comes to the same conclusion. He argues that liberal meritocratic capitalism has the “natural” advantage of being tied to an intrinsically valued “democracy,” a “primary good” in the Rawlsian sense, while political capitalism can only be legitimized “instrumentally,” by efficient management of the economy and higher growth rates (2019:208–9). Accordingly, political capitalism “must be permanently on its toes” if it wants to prevail against its liberal meritocratic competitor; the latter, by contrast, can take “a more relaxed attitude toward temporary problems” (2019:209). This confirms Fukuyama’s basic claim that, post-1989, “liberal democracy remains the only coherent political aspiration” (1992:xiii). However, not all is well with “liberal meritocratic” capitalism. Milanovic (2019) contrasts it unfavorably with its predecessor, “social democratic” capitalism, and he develops a compelling account of the former’s systemic deficiencies that fuel the populist discontent of our time. As indicated by the label “liberal meritocratic,” Milanovic critically homes in on the “meritocratic” aspect of Western capitalism. Its biggest problem is the rise of a “self-perpetuating upper class and polarization between the elites and the rest” (2019:11). From this perspective, the populist rebellion, to the (limited) degree that it is directed against these elites (and not against scapegoated immigrants and minorities), is a rational act. Milanovic importantly notes that economic inequality has become so extreme because of “homoploutia,” which is the concentration of high capital and high labor income in the same individual (2019:34).10 The new importance of labor income also for the rich is both effect and reinforcement of meritocracy. Certainly, the meritocratic “upper class” is nominally “open” to the “best” members of the lower classes (2019:66). However, it gets sealed by “assortative mating” and homogamy, which is the fact of increasingly highly educated working women marrying only men of the same quality and profile (already noticed by Lash 1995:ch.2). No less than one-third of the inequality increase between 1967 and 2007 in the United States can be attributed to greater homogamy (Milanovic 2019:39). Homogamy, in turn, leads to “greater intergenerational transmission of inequality” (2019:20), because much of the dual-career couple’s energy and resources go into making their pampered children elite-college-bound. Paul Collier (2018:110)

10

See also Markovits (2019): “[R]ich people today owe the bulk of their incomes to their labor, and work has become the dominant path to wealth” (ibid. 5). He thus speaks of a “superordinate working class,” and he estimates that the top 1 percent of earners in the United States today “owe perhaps two-thirds or even three-quarters of their total incomes to their labor and therefore … their education” (ibid. 13).

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called the new phenomenon “nuclear dynastic family,” which strategically passes on its privileged class position to their carefully curated “trophy children”; it has replaced the “extended ethical family” of old, where grandma watched over the small (but could not help with their homework). When the relationship between education and class first caught the attention of sociologists, education was mainly believed to serve in the “reproduction” of (otherwise constituted) classes (Bourdieu and Passeron 1977). In advanced meritocracy, boosted by homogamy, the class-producing function of education moves to the fore. A recent soulsearching of liberalism besieged by “popular rebellion” thus correctly identified a “liberal meritocracy” that is “closed and self-sustaining” as one of the main drivers of this rebellion: “The ruling liberal elite tell themselves that they preside over a healthy meritocracy and that they have earned their privileges. The reality is not so clear-cut.”11 This is eerily similar to Michael Young’s fable of The Rise of the Meritocracy (1958), which had invented the word “meritocracy.” Durkheim had thought that a society in which “social inequalities express precisely natural inequalities” would be a society without classes (1984:313). Not so, insisted Young. In a perfect meritocracy, class divisions would become even more extreme: “Now that people are classified by ability, the gap between the classes has inevitably become wider” (Young 1958:106). Having been robbed of their most talented members, there is only “helpless despair” for the lower classes; and the losers’ old excuse that only “inequality of opportunities” had kept them back, is no longer available: “For the first time in human history the inferior man has no ready buttress for his self-regard” (1958:108). In fact, on part of the lower classes, there is “no longer … a distinctive ideology in conflict with the ethos of society” (1958:124). On the other end, the members of the “upper class” have become truly convinced that “they deserve to belong to a superior class,” and they “lose sympathy with the people whom they govern” (1958:107). In May 2034, the “Populists,” led by women dissidents from the upper class, call for a “general strike,” and the story breaks off because its fictitious narrator reportedly was killed in the turmoil. It is not quite clear in Young’s parable how opposition to (and not only within) a meritocratic regime could be possible at all, if this is a regime whose “ethos” is shared also by the losers. Incidentally, the same 11

“A manifesto,” The Economist, September 15, 2018, p.11. In reality, in 1999–2013, the most prestigious American universities “admitted more students from the top 1% of households by income than from the bottom 50%” (ibid.).

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problem arises in Milanovic’s real-world account. The latter includes a breathtakingly dark description of liberal capitalism being deprived of any sense of morals and even of the possibility of experiencing “alienation.”12 In his view, today’s “hypercommercialized capitalism” has become imbued with “inevitable amorality” and soul-snatching “commodification” (2019:ch.5). While classical authors, like Montesquieu, had believed in the civilizing effects of “sweet commerce,” Milanovic registers only “the most selfish and greedy behavior,” an “outsourcing (of ) morality,” after which people follow the naked letter of the law without any “self-imposed limits,” and “everyone tries to game the system” (2019:178, 181, 183). With the rise of the “Gig” economy and fully flexible labor markets with no more than temporary jobs, the distinction between private self and work life gets eroded. Much as in Young’s disappearance of the possibility of an oppositional idiom under meritocracy, even the experience of “alienation,” as a pre-ideological disposition for opposition, is no longer available: “(W)hen economic agency is within ourselves, the order of things is externalized in such a way that there is nothing jarring anymore … [P]eople have become capitalistic calculating machines” (2019:193, 195). Milanovic’s empirical diagnosis of a capitalist regime atrophied of opposition resembles Young’s fable of meritocracy, in which the lower classes are deprived of a “distinctive ideology.” Both thus raise the same problem of being unable to explain how there can be opposition, populist or whatever. By Milanovic’s own admission, this opposition must exist because of the “polarization between the elites and the rest,” which he considers a “threat … to the system’s … survival” (2019:10). This constellation is the usual point of entry for “populism.” But this word (or anything related) strangely does not appear in his index.

The Populist Challenge: More Cultural than Economic This suggests that an economic explanation of populism just is not enough. Strange as it may be, “neoliberalism,” and the mounting economic inequality that is associated with it, does not fire the populist imagination. On the contrary, in Europe, populist radical right parties often have quasi-neoliberal roots – what also applies to the American Tea Party – as anti-tax and anti-state platforms of the traditional middle class of small artisans and entrepreneurs. Only lately, and opportunistically, 12

This part of the analysis (Milanovic 2019:176–96) does not specify the variant of capitalism; but from the examples provided, one must infer that only the liberal meritocratic variant is meant.

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have the radical right parties (but not the Tea Partiers) adopted a redistributive welfare agenda, if only for natives. They mostly do not bother that the rich have become immensely richer, in ways that are not unrelated to the stagnating fortunes of the lower middle classes. No European populist radical right party program offers any concrete proposal to alleviate this situation (Offe 2019a:376); nor does the program, to the degree that he has one, of the world’s chief populist-in-power, Donald Trump, whose regressive tax reform has even driven the income and wealth gap in the United States to a new extreme. Instead, what bothers the populists is the rise of a “globalist class,” which has split off from national society: “Its members live almost exclusively in big cities, they speak English fluently, and if they switch jobs between Berlin, London, or Singapore, they everywhere find similar apartments, houses, restaurants, stores, and private schools.”13 On the other side are the “simple people,” whose main characteristic is to be rooted: “Home (Heimat) is a value in itself for them. And they are the first to lose it, because it is their neighborhoods in which the immigrants arrive. But they cannot just move away and play golf somewhere else.”14 One sees: not money but the preservation of culture is the populist’s main concern, nationalism is her main ideology, and immigrants are her most directly perceived threat – “Burkas, headscarf girls, state-alimented knifemen, and other slackers,” as Alternative for Germany leader Alice Weidel described the enemy in an infamous speech in the German Bundestag.15 “In the center of the right populist class struggles,” as a German sociologist argues to the point, “are not material issues but the culture conflict” (Koppetsch 2019). Her political science colleague Wolfgang Merkel (2017) agrees that “not the communitarian containment of inequality-generating markets is high on the populist agenda, but the fight against Otherness or even the Others.” Populism is by nature a reaction to deficient democratic representation (see Pappas 2019:124), and thus primarily situated in, and to be explained by, events and structures in the political sphere. However, if one wants to explain its contemporary formation in the West, where it has mainly appeared as populist nationalism, the real challenge is the calibration of economic and cultural factors. Ernest Gellner (1983:129) once commented on a momentous moment in the competitive twentiethcentury history of nationalism and socialism, when German socialists succumbed to nationalism on the eve of World War I: “[T]he awakening 13 14

Alexander Gauland, “Warum muss es Populismus sein?” Frankfurter Allgemeine Zeitung, October 6, 2018. 15 Ibid. www.youtube.com/watch?v=ZEGj1T0pnR0.

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message was intended for classes, but by some terrible postal error was delivered to nations.” Something quite similar is occurring in the populist nationalism that is gaining ground in neoliberal times. While the source of their grievance must be economic, following Barry Eichengreen’s dictum that “[p]opulist revolts rarely arise in good economic times” (2018:x), it tends to be articulated as culture-focused opposition to immigrants and minorities. Claus Offe has expressed the paradox well: “Fear of the uncertainties of one’s socioeconomic future is … being reframed as fear of ‘the other’ (2019b:33). How this “reframing” works is an intriguing question for which various answers have been provided, such as in terms of “status anxiety” (Gidron and Hall 2017) or of “rural consciousness” (Cramer 2016). But the really important matter is that it seems to occur. It is often argued that Western populist nationalism is opposition to a “double liberalism” (Koppetsch 2019:83), an economic liberalism of markets and a cultural liberalism of rights. Koppetsch even thinks there is a “new, ‘neoliberal’ alliance between the modern knowledge-based entrepreneurs, the post-1968 social movements …, and the academic cosmopolitan middle- and upper-class” (2019:88). The locus classicus of this diagnosis is Nancy Fraser’s notion of “progressive neoliberalism”: “In its U.S. form, progressive neoliberalism is an alliance of mainstream currents of new social movements (feminism, antiracism, multiculturalism, and LGBTQ rights), on the one side, and high-end ‘symbolic’ and service-based business sectors (Wall Street, Silicon Valley, and Hollywood), on the other. In this alliance, progressive forces are effectively joined with the forces of cognitive capitalism, especially financialization” (2017). For Fraser, “[i]t was that mix that was rejected in toto by Trump’s voters” (2017). The most complete version of the “double liberalism” tale is by Andreas Reckwitz (2019:ch.5).16 According to him, “left liberalism” and “economic liberalism” are united by their adherence to a “dynamization paradigm,” which prefers openness to closure. It has replaced the “regulation paradigm” of the Social Democratic era, which had been situated within a relatively closed nation-state: “The new diction [is] the unleashing of markets and of identities, not maintaining boundaries but transcending them, not forming structures but dispensing with structures that are held anachronistic. The planning and controlling state is supposed to withdraw in favor of markets and subjective rights. The new liberalism, in both of its incarnations, has propelled individualism and

16

A shorter and characteristically lucid version is Koschorke (2018).

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globalization alike.”17 “Apertistic liberalism,” which is Reckwitz’s (2019) name for the progressive–neoliberal alliance, currently faces a triple crisis: the “marketization of the social” that results from neoliberal economics; the rise of “parallel societies” that results from the left-liberal “politics of subjective rights”; and de-democratized “post-democracy” in the political sphere, which obviously answers more to the needs of the neoliberals than of the progressives. For all three crises, “populism” is depicted as the main force of opposition: “If … there is an absolute opponent of apertistic liberalism, it is (right-wing) populism” (2019:282). Reckwitz conceives of the latter as “illiberal democracy,” clamoring for national regulation and the closure of economy and culture in tandem, carried by a “precariat” underclass, the “old” middle class, and a residual mix of “all” classes. So far, so conventional. Much of this analysis corresponds to the “reactive” mode of the neoliberalism–nationalism nexus, as discussed in Chapter 1. And it corresponds to the populists’ own perception of being opposition to a single “globalized class” recruited from “economy, politics, and culture.”18 However, at second sight there are problems. A penchant for openness over closure, and a rejection of nationalism and ascriptive origin discrimination in both quarters, does not yet make a “social class” in the Weberian sense, defined by “shared interests” plus a “status” (ständisch) element of “way of life” and “conventions”; not to mention that the leap from “class situation” (Klassenlage) to “class action” (Klassenhandeln) is even bigger (Weber 1976:177–80). Moreover, the double-liberalism prism is mute on the observed economics–culture asymmetry, falsely suggesting that populists oppose neoliberal capitalism just as much as they dislike liberal multiculturalism. Perhaps most importantly, the joint “liberalism” label for both of its alleged contemporary articulations, the economic and the cultural, while not without an element of truth, is troubling in this generality. It concedes too much to the populists’ view that “liberalism” is the enemy and to be held responsible for their clientele’s malaise. “Neoliberalism,” to begin with, is not liberalism, neither for the nineteenth-century liberal classics, as masterfully reconstructed by Stephen Holmes (1995), nor if we follow John Rawls’ canonic late twentieth-century formulation of liberalism. Rawls (1971), to remember, added to his first “equal liberty” principle of justice, on which the neoliberals would of course agree because it chimes with maximal economic freedoms, a second 17 18

Andreas Reckwitz,”Liberalismus: Ein Ordnungsruf,” Die Zeit Online, November 13, 2019. Gauland, “Warum muss es Populismus sein?”

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“difference” principle of justice. According to the latter, social and economic inequalities are only allowed if they are to the “greatest benefit of the least disadvantaged members of society” (1971:266). To this difference principle the neoliberals emphatically do not agree, because it entails redistribution and “social justice,” which they dismiss as a “mirage” or barely camouflaged “envy” (Hayek 1982:99). From this follows that to oppose neoliberalism, which the populists anyway do only reluctantly, if at all, is not the same as opposing liberalism, which, of course, the populists emphatically, in fact, by definition do. The second equation, that of liberalism with cultural liberalism and thus with multiculturalism, is on safer ground. Kymlicka’s influential “liberal multiculturalism” (1995) would naturally agree. I myself have argued that liberalism, properly understood as liberal constitutionalism that protects individual rights, necessarily bears diversity and multiculturalism (Joppke 2017c,d). From both positions, yes, liberalism is cultural liberalism. However, it is another thing to argue, as Reckwitz does (2019:273), that the “liberal politics of multiculturalism has contributed to the cultural disintegration of immigrant societies,” that it has favored the “self-insulation of cultural communities on the basis of ethnicity and religion,” and that even the new “‘white’ identity politics” is but a response to its liberal–multicultural progenitor. This sounds populist itself. Identity politics, which does proliferate on the ground, is not the same as the liberalism of rights. It may well be, as Francis Fukuyama (2018:118) has argued, that multicultural identity politics has “stimulated the rise of identity politics on the right.” Fukuyama has even identified two plausible mechanisms for this connection, first, that identity politics gives rise to “political correctness, opposition to which has become a major source of mobilization on the right” (2018); and, secondly, that the “idea that my particular group is being victimized” (2018:122) can be easily adopted by majority groups, not least due to their demographically imperiled situation in many Western societies. Let us stay with the example of “political correctness,” which is a major expression of identity politics today. Certain student activist claims, say, of the “microaggression” or “trigger warning” type, made on (mostly privileged) college campuses from San Diego to Montreal (see Campbell and Manning 2014), and which tend to be quickly accepted by over-accommodating university administrations, amount to the very opposite of liberal rights; they are the suppression of rights of free speech and expression in the name of hypostasized minority group sensitivities. It is wrong to hold the “liberal politics of subjective rights” (Reckwitz 2019:275) responsible for this outcome.

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Moreover, it is a tired conservative-to-populist trope to find the “liberal politics of multiculturalism” at fault for the “cultural disintegration” of immigrant societies (Reckwitz 2019:273).19 In this context, the equation of “liberal” with “multicultural,” and even more of the two with “disintegration,” is misleading. One way to confirm the claimed equation of “liberal” with “multicultural,” and of both with “disintegration,” would be to identify a systematic tendency of jurisprudence in Western countries to favor this outcome, because the institutional site of liberal rights is the legal system. But there is no evidence for this. Consider the critical case of legal Islam integration (see Joppke and Torpey 2013). As in any other domain, courts have never taken subjective rights as absolute but needing to be balanced against the rights of others, or against institutional or public order considerations, which likewise may enjoy constitutional status. For instance, when female Muslim teachers claim religious freedom rights to wear the headscarf in the classroom, this has to be balanced against the negative religious rights of students and of the education rights of parents, or against the constitutional neutrality mandate of the state. This “balancing” may fall out differently from case to case, from country to country, and over time. However, one can observe that, to the degree that “integration” has been perceived as a societal problem since the early 2000s, this balancing has leaned ever more against counter-institutional religious rights claims. It is simply not correct to say that the “liberal politics of subjective rights is helpless to work against the process of disintegration” (Reckwitz 2019:275). Liberal law does have the tools to counteract “disintegration,” such as the public order principle and its proportionality and balancing tests, according to which no subjective right is ever absolute. Already with a view on the liberal classics, Stephen Holmes forcefully asserted that liberalism is “one of the most effective philosophies of state building ever contrived” (1995:xi). Looking at the contemporary scene, the equation of a liberalism of subjective rights with multicultural identity politics, and of both with cultural disintegration and the rise of “parallel societies,” is a canard that should be put to rest. It follows that Reckwitz’s plea for an “embedding liberalism,” mobilized against the reigning “liberal paradigm of delimitation (Entgrenzung),” and which in the realm of culture amounts to a “search for basic rules,” is both incontrovertible and irrelevant. Properly understood, liberalism is nothing but “basic rules” and, with respect to immigration and citizenship, these rules are currently busily reasserted under

19

A classic “neoconservative” example is Schlesinger (1992).

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the rubric of “civic integration,” which merges liberal, neoliberal, and nationalist elements, as we discussed in Chapter 3. Akin to liberal nationalists (e.g. Miller 1995), Reckwitz argues that the drumming of political liberalism and reference to the Basic Law are “not enough,” and he wishes instead to strengthen a thicker “cultural value consensus” (2019:298–300). Yet by his own admission, such values need to be “implicit” to be effective, and we mostly notice them only after they have “disappeared.” It follows that this is impossibly an area of regulation by the state. A telling demonstration is the attempt by former German Interior Minister, Thomas de Mazière, to formulate a list of cultural values that needed to be accepted by immigrants.20 The starting point of de Mazière’s intervention is that a post-national, merely procedural Verfassungspatriotismus, as prescribed by Germany’s foremost public intellectual, Jürgen Habermas, may not be enough to keep a society together – on its premises, Québec would never have wanted to leave Canada. This has been the standard riposte by liberal nationalists against Habermasian post-nationalists, from Will Kymlicka (who compellingly brought up the Québec analogy, in 1995:188f ) to Yael Tamir or David Miller. In their view, shared by the German interior minister, there has to be something more, something informal, something cultural, a necessarily particular “identity” that keeps “us” together “in the innermost” (im Innersten), as de Mazière betrayed his Protestant background.21 The German protagonists of liberal nationalism call this identity the Leitkultur, deficiently translated as “dominant culture” because leiten (to guide) is more pastoral than coercive. On this premise, the German minister recites a Decalogue of substantive communalities and commitments that exceed a merely procedural and universalist constitutional patriotism:  to shake hands and not to wear burkas (Wir sind nicht Burka [We are not burka] is the bizarrely ungrammatical title of his pamphlet);  a penchant for Kultur and Bildung;  Leistung, the one neoliberal while also typically bundesrepublikanisch entry in this list;  religion (in perfect political correctness, not only in the Christian but Jewish and Muslim variants also);  and five or six other incontrovertible things, all of which, notably, are not exclusively “German.” 20

21

The text, originally published in the tabloid Bild-Zeitung, has been reprinted as Thomas de Mazière, “‘Wir sind nicht Burka’: Innenminister will deutsche Leitkultur,” Zeit Online, April 30, 2017. Ibid.

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In confirming that there is not, and that there cannot be, an exclusively “German” Leitkultur, de Mazière’s Decalogue is already self-defeating. However, the decisive concession comes at the very end: “Can the Leitkultur be legally prescribed? Can it be mandatory?” the minister asks, apparently rhetorically. Because he swiftly provides the answer himself: “No.” While the liberal minister’s intention has been the opposite, he only demonstrates the impossibility of a legal (and thus ultimately coercive) defense of a substantive ethic (Sittlichkeit) in the still “liberal” state that subscribes to freedom and individual rights. Pondering the question of whether the handshake could be made mandatory in certain public settings, like schools, a Swiss lawyer has formulated the liberal position well: “The modern liberal legal state (Rechtsstaat) is well advised not to precipitately cast into law what are social conventions. Doing so would amount to moral intrusiveness (Gesinnungspflege). The belief that the task of coercive state power is to inculcate ‘values’ and ‘attitudes’ is … illiberal.”22

Cultural Majority Rights? However, what populists want and what the liberal state does (or is not allowed to do) are separate matters. It is undoubtedly true that burkas, burkinis, handshake refusals, religious diets in public canteens, and other cultural minority claims and practices, especially when of Islamic provenience, are the issues that really agitate the populists, because they are perceived as threat to (Christian) majority culture. Do they have a valid case? A recent liberal movement for “majority rights” thinks they do. Let us therefore look at it closer. This movement follows the populist nationalists on their preferred cultural terrain, on the plausible assumption that it would be a “tragedy if nationalism … were left in the hands of extremists” (Tamir 2019:181). The most extreme version is Eric Kaufmann (2018:1), who has argued for a symmetrical multiculturalism in which “white identity” would be acknowledged and protected as “an ethnic identity like any other.” In practical terms, he favors an immigration policy that operates with “cultural points” (in addition to economic or humanitarian criteria), to recruit immigrants “who are more likely to assimilate into the existing 22

Kurt Seelmann, “Der Staat sollte das Händeschütteln nicht verordnen,” Neue Zürcher Zeitung, April 26, 2017. The German minister and the Swiss lawyer share a Kantian understanding of law (Recht) as regulating only the external behavior of people, but not their morals. For this liberal distinction, see Fletcher (1987).

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ethnic constituencies in a country” (2018:523). But this is not a return to the racist immigration policies of the past, because Kaufmann at the same time sticks to the ultra-liberal idea of a strictly neutral state, asking the latter to “de-centre itself from the ethnic majority and treat it as just another stakeholder” (2018:524). The result would be a multicultural yet national-origin selective immigration system, apportioning quotas according to the ethnic composition of a country, with the post-racist difference that no minority is categorically excluded (as Asians and Africans were under the US national origins system that was in place until 1965). Instead, each “group,” the majority and each minority group according to its size, is given its due share of immigrants. This stunningly iconoclastic proposal fails over the assumption that “white” or “majority” identity could be like any other, to be adjudicated by a neutral state that “doesn’t play favourites, but must carry out its duty to represent the cultural interests of its stakeholder communities” (Kaufmann 2018:523). One wonders: who would administer this state from nowhere – would it not require a kind of “gelding” of state elites that may have been common in some agrarian societies of the past but surely is anachronistic today (see Gellner 1983:15–16)? How realistic is it for the majority, usually endowed with the insignia of nationhood, not to lay hands on the state? As it is the nature of culture and identity politics to defy compromise, this can only be aggravated in the case of a group that once had the privilege not to be in need of an identity in the first place, the group that Kaufmann strangely calls “whites.” It is not obvious how a consented, a reasonable and a nondiscriminatory immigration policy could follow from the logic of ethnic groups clamoring for their share. Can there be a legitimate “white identity” politics? Another way of posing the question is to ask whether the “myths of descent, symbols and traditions,” which is Kaufmann’s (2018:1) description of the content of “ethnic identity,” could ever be innocent in the case of “whites.” The answer must be: No. Kaufmann slights the crucial distinction between racial and ethnic. “White” is a racial, not an ethnic category. If we follow Max Weber’s (1976:234) classic understanding of “race membership,” it is primarily defined by a negative demarcation from the “conspicuously different” (auffällig Andersgeartete). Unlike ethnicity, Weber seems to suggest, race is not in the first place a positive and self-defined marker – it is always pejorative and a discriminatory intention by others is constitutive of it. The matter is complicated by the fact that “whites” have been on the beneficiary end of a racial hierarchy that it has brought into existence at great cost to all others. That a positive and nondiscriminatory “white identity” is nevertheless possible is the provocative claim of a recent survey analysis of the United

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States, by Ashley Jardina (2019). The Trump phenomenon, indeed, is usually explained in terms of “white identity politics,” though in the standardly negative and discriminatory variant, implying that it is illegitimate. On the contrary, Jardina suggests, “[m]any whites identify with their racial group, without feeling prejudice toward racial and ethnic minorities” (2019:5). According to her in-depth analysis of a broad swathe of data, 30–40 percent of the white population in the United States is “high on racial solidarity,” and the “vast majority” of them “reject white supremacy and racism” (2019:8). These positive race identifiers, she shows, simply favor policies that are in their group interest, like social security, Medicare, or legacy college admissions. At the same time, they are indifferent rather than hostile to minority-favoring policies like affirmative action or Medicaid (2019:ch.7). Jardina concludes that “we must … think about white identity in the way we think of black identity” (2019:34), or of any group identity studied in the terms of psychological “social identity theory.” “Racial identity” is simply “a conscious favoritism for one’s in-group and recognition that one’s group has shared interests” (2019:47–8). Somewhat dissonant with this symmetry assumption is Jardina’s unavoidable concession that in the case of “whites” we are dealing with “dominant group identity,” which is actualized by the realistic “threat” of becoming a numerical minority by the mid-century (2019:42). If one probes into this “dominance,” “white” immediately loses its innocence and can no longer be just another “ethnic identity.” One would have to be forgetful about the ignoble past of “white” as America’s Herrenrasse (master race), reigning and protecting itself through Jim Crow segregation and racially discriminatory immigration policies well into the midtwentieth century, to find dignity in it today. Moreover, the very fact that “so many white Americans (were) drawn to a candidate like Donald Trump, who was often derisive of racial and ethnic minorities” (2019:3), suggests that the boundaries between in-group favoritism and out-group hostility must be more porous than Jardina would have it. Pace Kaufmann (2018), in Europe a legitimate “white identity” is even less plausible. Some liberal scholars thus prefer to speak of “cultural majorities,” whom they deem demographically and politically endangered and in need of moral support or even legal protection. In a paradigm-setting work, Liav Orgad (2015) has argued that, complementary to a liberal theory of minority rights (provided by Kymlicka 1995), the moment has come for a liberal theory of majority rights. Indeed, is it not true that the concept of “minority,” which the liberal world has held high like a monstrance for almost half a century now, logically requires the concept of “majority”? But the latter remains legally

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uncharted, even morally despised, despite the fact that its existence has never been more precarious than in the global age of persistent mass migration and the “diversity” doxa. Nevertheless, for good liberal reasons, Orgad (2015:ch.6) radically thins down the legal scope of majority protection to what he calls “national constitutionalism,” which closely resembles Jürgen Habermas’ “constitutional patriotism” and does not go beyond the standard precepts of liberal constitutionalism. Ruud Koopmans (2018) makes a more far-reaching case for the legal protection of non-liberal, culturally thicker majority claims. He shows sympathy not only for the innocent Dutch “Black Pete” pre-Christmas ritual, which was attacked by a farcical multiculturalism squad a few years ago; in addition, he seems to endorse more liberally problematic cases like the Swiss minaret ban and the French burka prohibition.23 Not unlike Orgad (2015), Koopmans’ argument for cultural majority rights is mostly by analogy: if “minorities” enjoy such protection, especially “national minorities” (as argued incisively by Kymlicka 1995), it is a matter of “normative and logical consistency” (Koopmans 2018:18) to grant the same legal treatment to majorities, given their demographically diminished and morally ostracized status, in an age of global migrations and hypertrophied minority rights. The usual counterargument is that majorities have the electoral process at their disposal. Koopmans refutes this for the pragmatic reason that the lack of “normative legitimacy” of cultural majority claims “polarizes and poisons the public debate,” breeding “nationalist populism.” One sees that this is no endorsement of populism but, on the contrary, a liberal proposal to avert it. However, to consider only the Dutch Black Pete controversy, which fares centrally in Koopmans’ account (2018), it casts doubt on the need for special legal majority protection. Should constitutional majority protection, whatever that might mean concretely, and particularly in this instance, silence the freedom of expression of those who find fault with Santa’s black-faced assistant, misleadingly comparing this old European custom to twentieth-century American “blackfacing”? Would the legal silencing of this opposition not be a deep affront to what it historically has meant to be “Dutch,” a world-open, liberal people since the days of Erasmus when obscurantism and freedom-stifling Catholic Church orthodoxy were rampant in the rest of Europe? Would a speech prohibition not be a much deeper affront to “Dutchness” than allowing Black Pete to be attacked by an unintentionally comical truth squad? Incidentally, the very fact of debate revitalized the Dutch majority’s insistence 23

All three incidents are listed as delegitimized “rights claims by … cultural majorities” that call for a friendlier reception (Koopmans 2018: abstract).

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not to have their kids’ pre-Christmas ritual destroyed by a haughty UN bureaucrat and Jamaican academic, who admonished the Dutch that “you people (do not) need two Santa Clauses anyway” (Verene Shepherd, chairwoman of the UN Working Group of Experts on People of African Descent, quoted in 2018:6). Even the legal system, suspected by Koopmans to be minority-friendly and majority-crushing, worked as it should: a lower court decision that had prohibited a Sinterklaas parade in Amsterdam, on the obscure legal argument that it negated the privacy rights of “black people” under the European Convention of Human Rights, was simply overturned by an appeal court (2018). Dutch kids still have their Black Pete, and game lost for the “anti-racists.” So why clamor for further legal protection? From a liberal perspective, orthodox multiculturalists and populists are to be equally rebutted in their strangely symmetric claims to have their “cultures” placed under legal protection – Jürgen Habermas (1994:30) ridiculed the whole idea as “species conservation,” and there is little to add to it. The constitutional jurist Christoph Möllers coolly observed that “many questions, which are handled under the register of cultural difference, are, legally speaking, traditional individual rights problems” (2008:235). Accordingly, there is no necessity for a “new multiculturalist constitutional paradigm” (2008:223). But then the case for cultural majority rights collapses too, which is basically the attempt to render symmetric a previously asymmetric multiculturalism. Möllers acutely notes that “culture” has a double face, being both “contingent” and “fundamental”: the concept of culture logically implies a plurality of cultures and that things can always be different; but culture also consists of “differences that cannot be otherwise explained” and that are immune to “intentional change” (2008:227–8). This yields the paradoxical but concise conclusion that culture is “non-malleable difference” (nicht gestaltbare Differenz). Through being nicht gestaltbar, that is, outside the reach of deliberate change, culture is simply not something that the state, and the liberal state at that, is competent to deal with. Immigration and Citizenship Policy under the “Nexus” But the main task of this book was not to establish the causes of the populist challenge to liberalism, even though this question could not and should not be avoided (see Chapter 1). Instead, the main task was to assess populism’s impacts in the one substantive domain that matters most to it: the regulation of membership in the state, which is the domain of immigration and citizenship policy (see Chapters 2 and 3). What have

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we learned in this respect, and what can we say about the fate of liberalism in this domain? The first thing to notice is the difficulty of determining the status quo ante, that is, what a “liberal” immigration policy and a “liberal” citizenship policy are before either meets the “neoliberalism–nationalism nexus.” Both immigration and citizenship policy are inherently illiberal, because they must erect and police the boundaries that must be an affront to the equality of human dignity and to the unbridled individual freedoms (short of harm being done to others) that liberalism commands. As we said, a kind of “structural nationalism” is built into the immigration and citizenship functions, which sets a high ground floor for, and thus limits, the additional havoc that populist new nationalists can inflict. “I’m already here,” says the Hedgehog to the Hare in the Grimm Brothers’ fairy tale. Many restrictions in family migration, for instance, were “already here,” established by restriction-minded mainstream parties under the diction of “zero-immigration,” almost forgotten today, long before populist nationalists arrived. These restrictions were beefed up in the early 2000s, when “suffered” immigration was to be replaced by “chosen” immigration, and they followed a “fending- off the bottom” rationale that was not invented by radical rightists but merely hardened by them, at least in the countries in which their parties mattered or matter. In all of this, one must never forget that immigration and citizenship are sovereign state functions under international law, with little leverage by the international human-rights regime that has been built since World War II. This does not mean that anything goes. Categorical, group-level exclusions of the racist kind that were standard in the first half of the twentiethcentury were eschewed in its second half, and they continue to be eschewed under the “nexus.” The best proof is the “Muslim Ban” under the Trump Administration in the United States. It was constitutionally licit only after being transformed into a racially anonymous “Travel Ban,” even though the most conservative Supreme Court in living memory had to hold its nose to let it pass. This has been the most serious challenge to a racially nondiscriminatory, and in this minimal sense “liberal” immigration policy post-2016, and it was deflected. Of course, as Antje Ellermann (2019b:2) has shown, immigration and citizenship law “continues to create hierarchies,” on gender, race, nationality, religion, and – not least – class grounds, and she concludes that “groupbased discrimination remains an integral part” of these laws and policies (2019b). However, this is mostly indirect and not direct discrimination, unlike in the past. And where there is direct discrimination, it is in a positive direction, such as exempting rich OECD-country immigrants

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from civic integration requirements in Germany, Britain, or the Netherlands. Furthermore, as in the civic integration exemptions, it is more “class” than “race” that drives extant discrimination, reflecting more a neoliberal than a nationalist imperative. Further examples of class-based discrimination are ultra-high-income requirements for family (re)unification in Norway or the UK, which leave high-skilled (and thus high-earning) immigrants better off than the bulk of their own citizenry (see Ellermann and Goenaga 2019). The real question is not whether populist nationalists will throw us back into a racist stone age – they will not, nor do they want to. Instead, the question is, as Ellermann (2019a:14) has well put it, “whether we really want to live in a society in which only highly autonomous and highly educated individuals are fully valued,” in fact, often valued higher than states’ own citizens. This does not mean that ethno-racial “assimilability” considerations are absent from contemporary immigration policy. But they can operate only by stealth, never directly. They are thus bound to remain muted, even if strong radical right parties are around. Comparing early twentieth-century literacy tests in the Americas and contemporary prearrival integration requirements in six Western European countries, David FitzGerald et al. (2018:28) noticed a fundamental difference between “then” and “now”: “Unlike historical precedents in the Americas, the contemporary European approach is not based on group-level racial categorization, but rather an individual’s supposed capacity to integrate. That capacity is considered culturally achievable rather than biologically determined as it was in the past … Assimilability policies have shifted from asking potential immigrants ‘who are you’ to ‘who can you become’.” At the same time, the authors found European policy makers fairly open about their motivation to “reduce Muslim immigration,” particularly from Turkey and Morocco. This reveals that a notional “integration” policy is, in reality, a selection policy (2018:27) – and one that has been successful, because family migration from Muslim majority countries has plummeted, sometimes decisively, after the introduction of the policy (2018:41–2). Considering that the six European countries examined by FitzGerald et al. (2018) include four countries with persistently strong radical right presence – Denmark, the Netherlands, France, and Austria – one must assume that this is as bad as it can get under the nexus. At the same time, a recent analysis of more than fifty years of mainstream party manifestos in twelve West European countries, between the early 1960s and 2013, found that “[o]n dimensions of salience, substance, and stance, [there is] little evidence that [anti-immigrant parties] dictate or even influence how centrist parties address the topic [of immigration]” (Dancygier and

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Margalit 2019:33). With respect to “substance,” that is, which aspect of migration is addressed by mainstream parties, the authors also find that “cultural concerns have not marginalized economic ones. Instead, a dominant focus on culture is limited to specific elections and countries” (2019). This means that radical right parties have generally not managed to impose their obsession with culture on mainstream parties. The central task of this book has been to calibrate liberalism, neoliberalism, and nationalism as three competing principles and forces in the shaping of immigration and citizenship policy. Perhaps the most surprising finding is the profound imprint of neoliberalism, whose disciplining and restrictive possibilities tended to exceed the weight and influence that the new nationalism has had on the direction of policy in both domains. In fact, very often it was difficult to keep the two apart. A case in point is Denmark, widely considered the showcase for rightwing populists driving immigration policy for almost twenty years now. That may be true, and probably in no country in Western Europe has there been a more visceral and openly displayed anti-Muslim animus, from the early millennium Danish Cartoon controversy to today’s Ghetto Law. However, the main driver of Danish policy is the immigrant’s capacity to “contribute” to the financing of an expensive welfare state. As in this case, neo-nationalists often speak neoliberal language, one might argue, because this broadens their appeal and camouflages more tribal impulses that do not fly in polite society. Neoliberalism-speak favors an open and welcoming policy for high-skilled immigrants, but it also favors a harsh and punitive approach toward those who are considered a cost factor to society, like family migrants and asylum-seekers. The Danish case thus displays the typically dual structure of immigration policies (in the plural), which can also be found in classic immigrant societies like Canada or Australia, and which can be entirely accounted for in neoliberal terms. Neoliberalism induces an “economization” of immigration, in which the latter is reduced to a single cost–benefit consideration. It is a short step to an “inhumane” and xenophobic discourse that finds fertile ground in the radical right. Ruth Wodak (2015:31) has put it in plain words: “The discourse about migrants has been economized and is uncritically accepted by many: human beings don’t matter in it but financial advantages or disadvantages in ‘our society.’” Neoliberalism’s imprint has been even stronger on citizenship policy, whose recently restrictive trends I have tried to capture with the notion of “earned citizenship.” Also, this is an instance of neo-nationalists and neoliberals moving in tandem, perhaps even more than in immigration policy (where the economic interest in cheap migrant labor still drives a

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wedge between the two). Earned citizenship is the one instance of a distinct neoliberal nationalism, which is harshly exclusive but in strictly nondiscriminatory ways. The most puzzling aspect of earned citizenship is certainly the attempt by a notionally re-nationalizing state to increase the value and exclusiveness of citizenship by making it “more difficult to get” and “easier to lose,” which are complementary sides of one strategy; but that this occurs in a context of neoliberally devalued citizenship, which resembles ever less the Marshallian mid-twentieth-century ideal of socially inclusive citizenship. The twenty-first-century reality is that “we are all denizens now,” to reiterate Bryan Turner (2016). This reality is marked by an entirely novel development of citizen rights being leveled down to immigrant rights or of both declining together, which is the exact opposite of the liberal late-twentieth-century moment of immigrant rights approximating citizen rights, as influentially captured by Yasemin Soysal (1994). Of course, at the same time, the “citizenship premium” (Milanovic 2016) was never bigger than today. Both trends coexist, simply because a Somalian is infinitely better off in Washington, DC than in Mogadishu, however bad things may get in DC. If I foregrounded the darker part of the picture, it was to set a polemical counterpoint to the smug politicians’ talk of the grand “privilege” that citizenship supposedly is. In reality, citizenship has long been thrown from its late-twentiethcentury throne, and it is bound to fall further still. Not least due to the central role of neoliberalism in the ongoing evolution of immigration and citizenship policy, no clear lines can be drawn between the classic immigrant nations and Western Europe. This is the second key finding of this book: the times of the great “American” or rather “Canadian Model” showing a parochial Europe how to deal liberally with immigration and citizenship, are over. For almost all restrictive policy and legal trends discussed in Chapters 2 and 3, we could immediately identify parallels and mutual influencing between Europe and overseas, the direction of influence and innovation being ever more from Europe to overseas rather than vice versa. Examples are the trend toward temporary migration, even among the high-skilled, who have to gradually “earn” their way into the new society, following the European legal logic of Aufenthaltverfestigung (consolidation of residence); or restrictions on family migration, even though they started from a higher level of extended family in the classic immigration countries that had never been allowed in Europe; or “civic integration,” which is a European invention that has made inroads in recent Canadian and Australian citizenship laws. The architecture of dualistic immigration policies (in the plural), with opposite logics for the top and bottom of the skill- and economic-utility ladder, and the rhetoric and legal reality of

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“earned citizenship,” are strikingly similar in the rich and neoliberal Old and New Worlds. There is, increasingly, only one migration world, at least in the developed West.24 Liberal Futures What, then, about liberalism? If we agree, with Fukuyama, that there is no defensible alternative to it, what should a “liberal” immigration policy, what should “liberal” citizenship in an inevitably globalizing and ever more interconnected world, look like? Liberal Immigration Policy Much ink has been spilled on immigration policy from a normative point of view. A simple and compelling middle way between the unappealing extremes of cosmopolitanism and statist realism has been proposed by Ryan Pevnick (2008; 2011). Cosmopolitan liberals may be right that “the earth belongs to humanity in common” (Mathias Risse, quoted in Pevnick 2008:241), but they are wrong to conclude from it that “there can be nothing wrong with illegal immigration” (Risse, in 2008) and that borders should be open. This is because what immigrants typically seek in a new country is not virgin land but to partake in the fruits of social cooperation that are superior to the ones in their homelands – the rule of law, functioning markets, social benefit schemes, etc. These are not natural goods, but things “created and sustained by a particular community, which … [has] a special claim to them” (2008:243). Who “did not contribute” has no prima facie claim – here is the one defensible bit of neoliberalism, which also a nationalist can subscribe to. Cosmopolitan liberals, like Risse, in effect prioritize immigrants’ claim to natural resources over citizens’ claims to the result of their labor, “without justification” (2008:245). Pevnick’s “associate ownership” model argues instead that the citizenry “constitutes an association extending through time that comes to have a claim over state institutions as a result of the efforts …that make such institutions possible” (2011:11). While the details are for political philosophers and theorists to worry about, only a construct like this, centering around a kind of ownership or priority consideration based on effort and contribution, provides a justification for Rawls’ famous a priori of his theory of justice, which is a view of society as a “system of fair social cooperation between free and equal 24

For the very different situation in the rich immigration states of the Middle East, see Lori (2019); also Joppke (2017a).

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persons” (1985:229). Paul Collier (2013:25) is in agreement and shows the link to migration: “Nations are important and legitimate moral units: indeed, the fruits of successful nationhood are what attracts migrants.” As Collier acidly rebuts an ultra-liberal line of unrestricted migration, if the nation-builders “were not climbing a ladder, … their descendants cannot be hauling one up” (2013:60). Liberal nationalist reasoning à la Pevnick and Collier, which does not deny humanitarian obligations and absolutize the “national interest,” is a robust starting point for thinking about contemporary migration dilemmas. In a recent special report on migration, The Economist was particularly fond of Australia, one of the world’s most prosperous and peaceful countries, nearly 30 percent of whose population is foreign born – naturally skill-selected. However, “Australia’s unusually open immigration policy is underpinned by toughness. Successive governments have made it clear that Australia decides who can or cannot come. Those who try to migrate illegally are picked up at sea and, if no other country will take them, dumped in a camp on Nauru, a remote Pacific island.”25 This is a euphemism for Australia’s brutal policy of offshore asylum processing, which never, never ends with a positive decision, and whose gruesome camp conditions – with suicide the only relief (if a razor blade can be found) – have been rightly condemned by the liberal world public. However, complementing an open but selective front-door policy with slam shutting the back door works. It “makes it easier to win public assent for admitting lots of immigrants via the legal route.”26 As a result, “[m]any Aussies are fond of their South African dentist and would rather appreciate a plumber from absolutely anywhere. Anti-immigrant violence is rare.”27 Liberals in Europe have not understood this. Consider, for instance, the vituperate liberal opposition to the “Orderly Return Law” (GeordneteRückkehr-Gesetz), which the German government, under its combative CSU Interior Minister, Horst Seehofer, passed in June 2019. Notably nested within a larger “Migration Package” that also included the new Fachkräfteeinwanderungsgesetz that opens Germany to medium-skilled labor migration and performs the paradigm shift to an explicit “immigration law,” the Orderly Return Law simply sought to remove some of the legal obstacles that prevent public authorities from deporting rejected asylum-seekers, who have no right to stay and are in principle subject to expulsion. To be able to deport them is the necessary flip side of the open-border policy for refugees, from which the German government, in 25 27

“Special report: Migration,” The Economist, November 16, 2019, p.5. Ibid.

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26

Ibid.

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principle, has never moved away. As Seehofer credibly outlined the rationale of a policy framed as “Humanity and Order”: “In order to maintain our (liberal) asylum law, to integrate (newcomers) successfully, (and) to find acceptance for this in the population, it is indispensable that … the legal state (Rechtsstaat) proceeds with rigor against those who have no need for protection, but who for various reasons do not want to return to their home countries.”28 This simply applies the Australian lesson, endorsed by the always-liberal Economist, that an open immigration (and, in the German case, also asylum) policy is in need of being backed by enforcing the law against those who have no legal right to stay – only that the German way of trying to enforce the law was considerably more humane than the Australian neglect of its international human-rights obligations. Among the many homegrown reasons why rejected asylum-seekers cannot be deported is that they do not show up on the day and hour of their scheduled deportation, duly announced to them in advance by mail, and that they disappear. Accordingly, the new law foresees detaining them (though only after a thirty-day notice to return voluntarily has not been observed – controversially, however, detention could also be in separate prison sections because of the lack of purpose-made detention facilities); not announcing their deportation beforehand; sanctioning officials who illegally pass on information about a planned deportation; and other coercive measures that aim at getting hold of the deportable individual (including allowing the police to enter her residence). Moreover, a new legal category of “Duldung mit ungeklärter Identität” (Toleration in Case of Undetermined Identity), dubbed by critics Duldung Light, was introduced that denies a work permit and imposes a residence obligation (Wohnsitzauflage) on deportable individuals who obstruct their removal by falsifying their identity, destroying their passports, and other tricks. All this is fairly obvious. To have to pass a law on measures that one would think have always been in place only shows how far out on the extreme liberal end Germany has been in its asylum processing, incidentally even after passing the new law, if compared with other western European countries where most of these restrictive measures have long been standard. But the liberal response was ferocious. Germany’s best known migration editorialist, Heribert Prantl, opined that the “Orderly Return Law” would “exclude many refugees from participating in society. This spirit of exclusion is not only morally despicable but also politically stupid. It 28

Horst Seehofer, Deutscher Bundestag, 19. Wahlperiode, 105. Sitzung, Berlin, June 7, 2019, p.12874.

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excludes people from helping create our future, it denigrates them, it takes away their self-confidence, it will make some people lethargic, other people aggressive.”29 This is a well-meant but deeply problematic statement. First, it ignores that not “refugees” but individuals who have been denied refugee status under the Geneva Convention, and who are thus subject to deportation, are affected by the law; second, it implies that Germany should be open for all comers; and third, it mildly insinuates that if there is “aggression” (aka, terrorism), the government only brought it on itself. Blowing into the same horn, and in the same way well-meant but distorting the facts and hyperbolic, the parliamentary interior affairs specialist of the Left Party (Die Linke), a former hairdresser, called the new law an “unprecedented attack on the protection rights of … refugees,” a “catalogue of horror brimming with inhumanity and kowtowing to racists and unscrupulous fanatics of order.”30 Her colleague of the Green Party deemed the part of the law that sanctions officials for illicitly passing on information to a deportable person an “attack on civil society” and he opined that “human beings are to be criminalized.”31 This glosses over the fact that only state employees are targeted by this measure. Overall, it seemed that the “‘Orbanization’ of German migration policy … [was] nigh,” as Daniel Thym summarized the hysterical tone of the liberal and progressive critics.32 In reality, Germany will remain on the liberal far end in its asylum processing, not least because it continues to be the only EU country where detainment before deportation (Abschiebungshaft) has to be ordered by a court and thus is not a matter of administrative fiat. Thym lists several other reasons why the new law is a “sheep in wolf’s garb” and not the “catalogue of horror” as what it was depicted. For instance, most Länder are likely to ignore the only “optional” measure of detaining deportable foreigners in a prison facility. Thym underscores what the liberal-progressive critics of the Orderly Return Law are unwilling to concede: “To be an immigration country (Einwanderungsland) does not mean that it is open for all comers.”33

29 30 31 32 33

Heribert Prantl, “Pfingsten ist ein Fest gegen die Ausgrenzung,” Süddeutsche Zeitung, June 10, 2019. Ulla Jelpke (Die Linke), Deutscher Bundestag, 19. Wahlperiode, 105. Sitzung, Berlin, June 7, 2019, p.12878. Konstantin von Notz (Bündnis 90/Die Grünen), ibid., p.12879. Daniel Thym, “Ein Schaf im Wolfspelz,” F.A.Z. Einspruch, June 12, 2019. Ibid. See also his programmatic statement for an immigration policy that reconciles “humanity” and “toughness,” Daniel Thym, “Humanität und Härte,” Frankfurter Allgemeine Zeitung, June 17, 2019, p.6.

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The German case may be extreme in Europe, because state coercion is immediately associated with the country’s dark mid-twentieth-century history. But it shows the difficulties of establishing an immigration policy that, in a context of skeptical if not hostile mass publics, can be liberal and open only if the state does not hesitate to enforce the law against its violators. In the meantime, never to be forgotten is the applied liberalism of the capillary and client-protective rule of public law, which will continue to erect hurdles to the political state’s will to enforcement. An even more controversial, second requirement of a liberal and open immigration policy is to reconsider the dogma of equal participation, or what the German liberal migration establishment calls gleiche Teilhabe. Its advocates refuse to concede that this approach is only viable, even required, toward high-skilled immigrants, even though the growth of the meritocratic elite that must be the result of it cannot but feed, in turn, the populist groundswell against this elite. The critical issue is lowskilled migration, which, as Branko Milanovic (2019:54f ) agrees with most migration economists, is “adversely selected” by “well-developed welfare systems.” The pressure on these welfare systems, which is high already because of the neoliberal rich–poor polarization and the rich’s preference for private-sector services, must grow further as a result of low-skilled migration that tends to be attracted by developed welfare states. As Milanovic points out, there are only two solutions to this problem: “equalization of endowments,” which is a further reduction of already diminished welfare services; or to move toward temporary and circular migration, with no automatic access to welfare benefits and citizenship. Milanovic calls the latter solution, which he favors, “citizenship light” (2019:217). This is on the assumption, also shared by many economists, that from the point of view of global wealth production, “the best policy regarding labor” is one that allows “full free and unimpeded movement of people from one country to another” (2019:139), while the “worst option” is “zero migration” (2019:145). Because the open borders solution is not politically possible, and if the worst option is to be avoided, the “realistic solution,” so Milanovic (2019), is to give “differential rights to different categories of residents,” with a “robust and possibly violent enforcement of exits when the time is up” (2019:147). He is fully aware that this is liberally problematic, because of the “creation of an underclass,” but he deems it preferable to the “worst-case scenario” of zero-immigration (2019:146, 145). Of course, differential rights for different migrant categories, and the “end of a strictly binary division between citizens and noncitizens,” which is the essence of Milanovic’s “citizenship light” proposal (2019:217), have long been in place and thus are not as novel as he

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claims. But the importance of it is likely to grow. Just consider the demographic disproportion between Africa and Europe: by 2050, an estimated 450 million Europeans will stand against 2.5 billion Africans, two-thirds of them under thirty years of age – and they are more likely than not to be unemployed and intent on joining the “scramble for Europe” (Smith 2019:8). According to a 2016 Gallup survey, 42 percent of all Africans between fourteen and twenty-four years said they wanted to emigrate; a 2017 Pew Survey even found that 74 percent of Nigerians had this wish – no small thing considering that Nigeria is Africa’s most populous country, with 190 million inhabitants and expected to have more than double as many by mid-century, almost as many as the entire EU will have at that point (2019:12). “Equal participation” is no realistic proposal to deal with the African migration tsunami that is most likely to occur sometime this century. Instead, to cope with it, the bifurcated treatment of low- and highskilled immigrants cannot but become more extreme. The British model of flatly excluding non-permanent migrants from all (non-contributory) social benefits, which the European Union has recently applied even to its own nonworking mobile citizens (with a growing tendency to initially exclude those who are working too), is already the default option. The real crux is how to deal with the residence question. Could a liberal state ever do it like, say, South Korea? South Korea has recently opened up for migration in a big way, but it is very harsh on low-skilled workers (who still constitute 95 percent of the total). A temporary residence permit, which is the only permit available for low-skilled workers, is limited to four years and ten months – because from five years on, a migrant would qualify for permanent residence. Due to employer pressure, the possibility of doubling the stay exists, but only after a two-month return home, to retain the iron five-year hurdle (Sagang 2016). Accordingly, low-skilled migrant workers can stay in Korea for almost ten years, which renders the principle of temporariness de facto invalid, but without the possibility to ever obtain permanent residency, not to mention Korean citizenship. Low-skilled migrants are simply unwanted, and the government does not hide the fact: “Unskilled foreign workers have brought about many side effects including low added value, delay of the industrial structural reform, and illegal overstay. Therefore, the government is planning to focus more on foreign professionals rather than unskilled or low-skilled foreigners when accepting immigrants” (Korean Immigration Service 2017:3). In effect, South Korea, more than any Western country, has two completely opposite migration regimes, a Gulf-State exclusive regime for the low-skilled plenty and a Western-State-type inclusive regime for the high-skilled few (students included), whose size the

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government has recently tried to boost through facilitating access to permanent residence status and citizenship (2017). South Korean officials have no problem treating high- and low-skilled migrants as if they were two separate kinds of human being.34 By contrast, this distinction is much more difficult to sustain in the West, with its legacy of Christian universalism turned into liberalism that requires treating all people as “individuals,”endowed with equal dignity (Siedentop 2014). However, Western human-rights thinking, which underpins the most under-ratified of all UN human-rights treaties, the 1990 Migrant Workers Convention, in reality protects the rights of “existing migrants” at the cost of “potential future migrants,” as Martin Ruhs (2013:9) has pointed out. There thus is a case for graded rights, which is in conflict with the dominant integration concept in the West, whose core value is equality. But can low-skilled migrants’ exclusion from permanent residence be forever, with which South Korean officials seem to have no problem? Consider that Ruhs, the hard-nosed messenger of the “numbers vs. rights” dilemma and declared opponent of “rights fetishism” (2013:165), quickly loses nerve, arguing that after four years of temporary residence, access to permanent residence and citizenship should be available – which is even less than is current practice in most Western states, including the European Union, where the threshold is five years (2013:172–8; Carens:2013:113–4). There is no easy solution to the vexing problem of low-skilled/temporary migration, to accept larger numbers of which is simply the best that rich societies can do to combat global inequality and to live up to their liberal conscience. Effective enforcement and differential rights are certainly not elements of a liberal immigration policy. With respect to its elements, there is little to add to Joseph Carens (2013:191), who argued that a liberal policy (not considering refugees and asylum) must be nondiscriminatory and open to the immediate family of residents and citizens. Rather, effective enforcement and differential rights are inevitable presuppositions of a liberal and open immigration policy, not generally understood or accepted by liberals but required for such a policy to meet public approval in a non-ideal-cum-globalizing world. Liberal Citizenship Citizenship, as a second hurdle of admission after the all-important immigration gate, is largely symbolic. Joseph Carens (2013:109) noted: 34

This is my impression having attended a high-level “Global Symposium on Immigration Policy,” organized by the Korea Immigration Service in Seoul in early April 2017.

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“The idea that citizenship is the special status that distinguishes insiders from outsiders is so deeply rooted in our traditions of thought and expression that it is hard sometimes to recognize how poorly this fits with our actual practices, how rare it is to reserve rights exclusively for citizens, and how difficult it would be to justify doing so.” Almost two decades of attempted renationalization by identity-mongering and integration-anxious Western states have not changed much in the tight coupling of citizenship and permanent residence. While it seemed, for a while, that citizenship would be devalued and lose in importance because of leveling-up, that is, of settled immigrants acquiring most of the rights that citizens enjoy (Soysal 1994), the new master trend, as we saw in Chapter 3, is leveling-down, in particular, citizens and permanent residents sinking together, in a kind of Soysal-in-reverse. From a global perspective, particularism and arbitrariness must be the starting point for reflecting on citizenship, as it divides and locks humankind into highly uneven segments with sharply differing life chances, on no other ground than the luck (or curse) of birth. Dimitry Kochenov (2019:xi), therefore, is not far off the mark in denouncing citizenship as “totalitarian.” “Liberal citizenship” is a most unlikely combination, as the vast majority of humanity can attest who have little chance ever to escape their bad draw in the planetary “birthright lottery” (Shachar 2009). How “liberal” gets connected to citizenship is thus far from obvious, even mired in contradiction. The organic connection, of course, is the democratic equality principle, and the opposition to the feudal subject condition that modern citizenship has been connected with since its birth in the late eighteenth century American and French revolutions. At the time, there was little distinction between citizen rights and human rights, as a quick reading of the 1789 “Declaration of the Rights of Man and of the Citizen” will confirm – anyone who agreed to the trinity of “freedom, equality, solidarity” was welcome as a French citizen (as was, famously, the American revolutionary, Tom Paine). The liberal-egalitarian infrastructure of modern citizenship then worked like a virus to disable citizenship’s external exclusion function. The liberalization of citizenship in the past half-century in the West can be retold in this way (Joppke 2010a:43–53), and for some the endpoint of this development has to be the oxymoron of “cosmopolitan citizenship” (see Tan 2017). With the arrival of “earned” citizenship, things have changed – new types and levels of behavioral conditionality were built into the acquisition and loss of citizenship, and the benefits and privileges accruing from the latter have become less. But what exactly did the status quo ante of liberal citizenship look like, and is there a way back to it?

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In political theory, the adjective “liberal” is usually attached to citizenship when distinguishing it from “Republican” citizenship (see Honohan 2017). In this vein, liberal citizenship refers to a “legal status protecting individuals” (2017:84), from one another but above all from the state, while the state remains neutral about what the common good and the good life for its citizens are to be. Michael Oakeshott (1975:251) has expressed the neutrality aspect well: “[A]ssociates [in a ‘civil association’, aka, citizens] are free precisely because they are not joined in the pursuit of any common purpose but only in respect of their common acknowledgment of the authority of a system of law which does not and cannot specify substantive conduct and which does not require approval of the conditions it prescribes.” By contrast, in the Republican tradition, freedom is “related to self-government and concern for the common good,” and “citizens” come into their own only through common-good-related “active commitment” and “civic virtue” (Honohan 2017:85). Since the appearance of “Neo-Republicanism,” which conceives of freedom more soberly as “non-domination” (Pettit 1997), and which is only a tick away from (but some advantages ahead of )35 modern liberalism’s constitutive concern for “non-interference” (1997:10) or “negative liberty” (Berlin 1969:ch.3), the liberal–republican distinction has lost its previous edges. Because the liberal–republican distinction covers only the internal dimension of citizenship, it is of less relevance for understanding citizenship in the context of immigration, for which citizenship’s external dimension is central. Interestingly, depending on whether you look at it from the inside or the outside, you will get different, even contradictory, answers to the question of what liberal citizenship is or commands. With a focus on citizenship’s internal rights dimension, T. H. Marshall (1950), which may be considered the “classic statement of liberal citizenship” (Honohan 2017:91), held that citizenship “requires … a direct sense of community membership based on loyalty to a civilization which

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Freedom as non-domination, going back to Roman times but also “the ideology that lay behind the American revolution” (Pettit 1997:20), allows overcoming modern liberalism’s “relative indifference to power or domination … in the home, in the workplace, in the electorate, and elsewhere” (1997:9). The point of neoRepublicanism is not to take political participation as value in itself, but as best tool for the defense of civil liberties. Pettit’s compelling example is slaves who are still unfree even if they have benign masters: “But if even the slave of a kindly master—the slave who suffers no interference—is unfree, then freedom must require the absence of domination, not just the absence of interference” (ibid. 35). In addition, only a neoRepublican position allows a proper understanding of freedom in terms of citizenship: as freedom “by the laws” rather than “from the laws” (which had been Hobbes’ modern understanding of freedom, whereby he cut the line with classical Republicanism and came to conceive of freedom as unrelated to citizenship) (ibid.).

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is a common possession,” and he observed that citizenship’s rights evolution was coeval with the “birth … of modern national consciousness” (Marshall 1950:41). His was no primordial view of nationhood, in terms of a “fiction of common descent” (1950:40), which he rejected. Instead, he preferred to see nationhood as constituted by the “loyalty of free men endowed with rights and protected by a common law,” and as evolving out of the “struggle to win those (citizenship) rights” (1950:41). Whatever you want to call it, liberal or civic, Marshall deemed nationhood and nationalism to be both cause and effect of citizenship rights, and particularly tight is the connection he draws between nationhood and their most demanding stage, social rights. Marshall does not reflect on the conditions of entry into the national community, but one would suspect that to maintain a high level of rights, particularly social rights, the hurdles could not be set too low. Perhaps a liberal nationalist position like that of David Miller (2016) comes close to what Marshall might have endorsed: a “reciprocal bargain” of “fair treatment” by citizens against the requirement for immigrants to “contribute to society and uphold its legal and social norms” (2016:150, 127). This would include civic integration requirements like citizenship tests, without, however, the need to “adopt” but only to “recognize” the values or “principles under which the society declares it will operate” (2016:138) – all things that correspond to current liberal state practice. Against Joseph Carens (2013), who argued for a distinctly lower “social membership” threshold for citizenship, Miller shrewdly points out that “immigrants” are people who “by definition were willing to break … the ties that bound them to the places where they themselves had been raised” (Miller 2016:123). Accordingly, he finds it unwarranted to place immigrants’ “new ties above all other considerations”; instead, these ties “can be legitimately set against the other goals that immigration policy is intended to achieve” (2016:124), such as the protection of current welfare-state arrangements. By contrast, with a focus on citizenship’s external exclusion dimension, Joseph Carens (2013:ch.8) argued that “social membership” alone, acquired through bare “residence” and “the passage of time,” generates a “moral claim to citizenship” (2013:164, 165, 158). This position comes close to the liberal status quo ante, that is, before civic integration and more demanding types or levels of conditionality came to be added to the residence and minimal behavioral and character requirements that have always existed as conditions for naturalization. To be sure, not even David Miller (2016:135) would insist that “social integration” (which he distinguishes from “civic” and “cultural” integration) can be imposed as a testable requirement on immigrants (only the “civic” variant can, in

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Miller’s view). However, Carens still displays not a small amount of liberal optimism (or credulity) when he argues that “[r]elationships with fellow immigrants should be seen as just as important as relationships with nonimmigrants in establishing claims to social membership” (2013:167). Given today’s advanced possibilities for leading diasporic lives, this would mean that a perfectly sealed life in an ethnic enclave would be sufficient to generate the “social membership” that Carens deems the moral basis of host society citizenship. This is a proposal that all Western societies, even the “multicultural” Canadian, have emphatically refused. Carens does not discuss the implications of his liberal laissez-faire for even the most minimal of welfare schemes, but one must suspect that they could not be positive. How far is “earned citizenship” away from the liberal “citizenship light” that I diagnosed a decade ago (Joppke 2010a, b)? To repeat, a weakness of the citizenship light construct was not to distinguish explicitly between “liberal” and “neoliberal” elements. Earned citizenship carries the thick imprint of our neoliberal age, but also of a new nationalism that is not antagonistic to, but deeply imbibed with, neoliberal precepts. These two elements had not been sufficiently highlighted in the “liberal model” of citizenship (2010a:vii). However, to reiterate also this important point, earned citizenship still operates on a liberal basis, because it shuns categorical exclusions and only brings to the fore the contractual element that had always been constitutive of post-birth citizenship. On the condition that you are self-sufficient, obey the law, and grasp the essentials of the liberal-democratic order (without necessarily identifying with it), earned citizenship is open for all comers. At the same time, it provides fewer privileges and benefits than the social citizenship of the Social Democratic era did. This seems to be the price to pay for the fundamental opening that Western societies have waged in the past halfcentury.36 Neoliberal-cum-nationalist restrictions could only affect this opening at the margins, and they are unlikely to roll it back completely.

36

But see Kymlicka (2015), who is hopeful that “multicultural nationhood” can be an alternative to the unhappy choice between a neoliberal “inclusion without solidarity,” which clearly predominates in the West today, and a welfare-chauvinist “solidarity without inclusion,” which runs into considerable constitutional obstacles (ibid. 27, 22).

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Index

active citizenship (Denmark), 101 African migration, liberal immigration policies and, 278 Afroyim v. Rusk decision (US Supreme Court), 223 Agamben, Giorgio, 175 Akkerman, Tjitske, 65 Aleinikoff, Alex, 182, 224 Alexander, Chris, 216, 221 Alexander, Robin, 142 Allegiance to Australia Act, 216 Alternative for Germany (AfD) and refugees, 87, 137 anti-immigration ideology of, 69, 71 Bavarian Landtag elections and, 143 Bundestag and, 45, 154 citizenship stripping laws and, 211 demographics of members, 44 German domestic politics and, 139, 143 high-skilled immigration and, 37 party program of, 50 party system disorder and, 142 völkisch ideology of, 42 American exceptionalism, 52–54 Anderson, Bridget, 235–36 Anderson, Elizabeth, 17 Anderson, Perry, 18 anti-populist norm, rise of Trump and destruction of, 117–36 Arendt, Hannah, 160, 207, 223 Arpaio, Joe, 125 Asian vote, in Brexit referendum, 115 asylum boutique model of, 153 British policy, 106 German refugee crisis of 2015 and, 89, 140, 144 German upgrade lawsuits (Aufstockungsklagen) and, 150–51 integration policies and, 179 liberal immigration policies and, 275 new nationalism and, 153

Asylum Compromise of 1992 (Germany), 140 asylum packages (Asylpaket I and II) (Germany), 148 attachment rule in Danish family immigration policy, 99 audience democracy, 25 Australian immigration and citizenship policies asylum offshore processing and, 110, 274 citizenship stripping and, 216 family migration in, 90 foreign students and, 85 high-skilled immigrant recruitment in, 86 nationalism and, 83 naturalization restrictions, 198, 200 permanent immigration model and, 77 points system for immigration in, 78, 84, 109 Austrian immigration and citizenship policies citizenship law amendment, 191 integration of immigrants in, 170–71 Integrationsvereinbarung policy and deportation, 170 penal conditionality in naturalizationn, 192 Austrian School, 8 authoritarianism as variant of capitalism, 254 criteria for, 118 Azoulai, Loı¨c, 238 Babb, Sarah, 13 Bade, Klaus, 176 Baldwin, Richard, 30–34 Bale, Tim, 54 Balkan Route for Syrian refugees, 142–43 Bannon, Steve, 128, 130 Barnette decision (US Supreme Court), 214 Barry, Brian, 72 Bartolini, Stefano, 3

317

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318

Index

Basic Law (Germany), 176 Becker, Gary, 15, 60, 70 Besson, Eric, 58 Biao v. Denmark decision (European Court of Human Rights), 99 Bickel, Alexander, 227 Black, Hugo (US Supreme Court Justice), 224 Blair, Tony, 25, 35, 78, 232 Bloemraad, Irene, 163, 247 Blue Card Directive (EU), 81 Blunkett, David, 108 Böckenförde Dilemma, 60 border security, US immigration policy and, 121, 139, 182 Boucher, Anna, 77 Brexit referendum Breaking Point Poster for, 114 British immigration policy and, xi, 103, 109 Conservative Party policies and, 111 ethnic demographics and, 115 EU migration trends and, 137 net migration numbers and, 109 political momentum for, 113–17 populist nationalism and, 102, 156 Breyer, Stephen (US Supreme Court Justice), 135 British immigration and citizenship policies, 236 asylum, 76, 106 citizenship as right or privilege in, 222 citizenship stripping (denationalization) and, 215, 217–18 citizenship tests, 197 Conservative Party and, 110–12 earned citizenship and, 161 EU enlargement and free movement and, 105 high-skilled immigration in, 78 limiting unwanted immigration in, 104 naturalization requirements in, 190 New Labour and, 105–10 non-permanent migrant exclusion from social benefits, 278 points-based system in, 111 seminar room theory, 106 social citizenship and, 231 welfare reform and, 231 British Universal Credit policy, 233–35 British Welfare Reform Act (2012), 233 Brown, Gordon, 4, 110 Brown, Wendy, 13–14, 59 Brubaker, Rogers, 1, 39, 41, 55, 158 Buchanan, James, 8

Burka restrictions (France), 59, 196 Bush, George W., 118, 121, 161 Buy American and Hire American executive order, 128 Californian Proposition 187 (“Save Our State”), 121 Calvin`s Case (1608 English court decision), 213 Cameron, David, 110, 113, 190, 231 Campbell, John, 124 Canadian Citizenship Act, 198, 200 Canadian Experience Class (CEC) visa, 83 Canadian immigration and citizenship policies citizenship as right or privilege in, 221 citizenship stripping (denationalization) in, 217 citizenship test in, 199 family migration and, 90 high-skilled immigration and, 82, 172 integration policies in, 165 Lost Canadians initiative and, 198 nationalism and, 83 naturalization and, 191, 198 points system in, 78, 83 student migration and, 200 temporary migration and, 199 Canovan, Margaret, 38 capitalism democracy and, 18 liberal-meritocratic vs. authoritarian, 254 (lower-)middle class decline and, 23, 34, 250 Caramani, Daniele, 41 Careja, Romana, 231 Carens, Joseph, 161, 179, 225, 244, 279, 282 cartel parties, 24, 40 Carter, Jimmy, 132 Centaur state, neoliberalism and, 11 Chacón, Jennifer, 185 Chakroun decision (ECJ), 95 Chicago School, 10 children as immigrants, 128, 184 China authoritarian capitalism in, 254 citizenship-by-investment and, 204 Chinese Exclusion Case (US), 131 Chrétien, Jean, 90 Christian Democratic Party (CDU) (Germany), 79 Christian Social Union (CSU) (Germany), 143 Christianity, radical right’s embrace of, 49

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Index Citizens United v. Federal Election Commission decision (US Supreme Court), 13 citizenship. see also earned citizenship average vs. super-citizen models, 187 birthright citizenship, 185 civic integration and, 168–72 communitarian theory of, 225 contract theory of, 225 contractual vs. non-contractual, 166, 203, 222 cultural conditionality and, 194 denationalization as weakening of, 217 devaluation of, 226–28 economic conditionality and, 189–92 fairness and corruption charges against citizenship-by-investment, 207 globalization and, 34 immigration-control wedge and, 228–30 instrumental, 209 intrinsic illiberalism of, 213 liberal citizenship, 189, 279–83 lightening of, 159 loyalty and, 213–16, 223, 226, 281–82 mutual consent theory of, 224 neoliberal nationalism and, ix, 158 neoliberalism-nationalism nexus and, 268–73 penal conditionality and, 192–94 purchasing of, 76, 202–10 restrictive trends in naturalization, 186–202 right to have rights as, 222–23 right vs. privilege binary in, 160, 221–26 rights theory of, 223 stripping of, 210–13 structural nationalism in, 158 terrorism as threat to, 220–21 Citizenship and Immigration Services (CIC) (Canada), 129 Citizenship Clause (14th Amendment), 186, 224 Citizenship Clause (Maastricht Treaty), 236, 238 Citizenship Directive (EU), 239–40, 243 citizenship tests, proliferation of, 194 citizenship-by-investment, 202–10, 249 civic integration citizenship and, 168–72 migration control and, x civil society citizenship and, 162 political parties’ withdrawal from, 25 class capitalism and, 18

319 citizenship and, 226 education and, 256 immigration policy and, 270 Clinton, Bill, 16, 26, 121 Clinton, Hillary, 27, 118, 121 Colgan, Jeff, 254 Collier, Paul, 2, 255, 274 Common Basic Principles for Immigrant Integration Policy (EU), 168 communitarian theory of citizenship, 225 compensatory logic of statist nationalism, 58 competition state, concept of neoliberal, 12 Conservative Party (UK), 110–12 consolidation of residence (Aufenthaltsverfestigung), 178 consolidation state, concept of neoliberal, 23 Constant, Benjamin, 252 constitutive logic of statist nationalism, 59 Cook-Martin, David, 78 Cool Britannia campaign, 108 corruption, citizenship-by-investment and, 207 courting the top in immigration policy, 101, 154 Cranston, Maurice, 252 Crouch, Colin on neoliberalism, 8, 20, 23 on post-democracy, 24 Cruz, Ted, 216 cultural conditionality, naturalization and, 194–97 culture majority rights and, 264–68 populism and, 257–64 Danish immigration and citizenship policies asylum and, 57 attachment rule in, 98 citizenship restrictions in, 191 citizenship tests and, 196 family reunification and, 97–101 Integration from Abroad, 96 integration in, 170 neoliberalism-nationalism nexus and, 271 overview of, 4, 70 populism in, 56 Danish People’s Party, 56 attachment rule and, 102 citizenship requirements and, 191 family immigration policies and, 97 high-skilled immigration policies and, 87 nationalist ideology and, 48 Dano v. Jobcenter Leipzig decision (ECJ), 240, 242 Dano, Elisabeta, 240

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320

Index

Dauvergne, Catherine, x, 74, 152 Davies, Gareth, 241, 243 De Benoist, Alain, 47 de Vries, Catherine, 43 Declaration on Integration and Active Citizenship in Danish Society, 101 Deferred Action for Childhood Arrivals (DACA) (US), 122 democracy, 117 capitalism and, 18 economic theory of, 46 liberal democracy, 39 neoliberal criticism of, 11 populism and, 117 post-democracy, 24–30 Tocqueville on, 251 demographic change, political polarization in US and, 124 denationalization (citizenship stripping) increased popularity of, 210–13 loyalty-breaches as grounds for, 213–16 neoliberalism-nationalism nexus and, 213–17 rights v. privilege binary in, 221–26 weakening of citizenship through, 217, 224 Department of Homeland Security (DHS) (US) Muslim Travel Ban and, 127 US immigration policy and, 127 deportation German immigration policy and, 151 US immigration policy and, 122 detention US immigration policy use of, 126 double liberalism, 259 DREAM Act (US), 184 Dred Scott decision (US Supreme Court), 224 Dublin Convention (EU), 140 “European solution” to refugee crisis and, 141–43 Dublin III agreement (EU), 144 Duldung Light policy (Germany), 275 Duru, Deniz, 87 earned citizenship, see also citizenship average vs. super-citizen models, 187 declining value of, 247 defined, 159 Dream Act (US) and, 184 economic conditionality and, 189 EU policies for, 245 immigration and, 161–68 liberalism and, 283

neoliberal nationalism and, x, 158 purchased citizenship vs., 203 rise of, xi US policy on, 123, 181–86 Eastern Europe, radical right ascendancy in, 51 economic conditionality, naturalization and, 189–92 economic inequality capitalism and, 255 immigration and, 68 Economist, The, 68, 274 Eichengreen, Barry, 20, 53, 259 electoral politics radical right emergence and, 52 rise of Trump and, 119 Syrian refugee crisis in Germany and, 139 Elephant Curve (Milanovic), 32–34, 119, 204, 226 Elias, Stella Burch, 197 Ellermann, Antje, 85, 230, 269 Emmenegger, Patrick, 231 enforcement in German immigration policy, 149 in US immigration policy, 120–24 English Treason Act (1351), 215 Enzensberger, Hans Magnus, 3 equal participation (gleichberechtigte Teilhabe), German integration policies and, 176 Erasmus student exchange program, 105 Erdogan, Recip, 142 Esping-Andersen, Gøsta, 235 Establishment Clause (US Constitution), Muslim Travel Ban and, 132 ethnopluralism, 47, see also nationalism Europe Britain in, 104 citizenship tests in, 194 civic integration in, x consolidation of residence (Aufenthaltverfestigung) in, 272 decline of electoral participation in, 27 demographic decline in, 278 faith in progress lost in, 251 family immigration restrictions in, 91 globalization and, 31 high-skilled immigration in, 78 integration restrictions in, 172–81 neoliberalism-nationalism nexus in, 270 non-EU immigration in, 173 recurrent immigration in, x, 77 temporary migration in, 77 European Convention of Nationality, 219

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Index European Court of Human Rights (ECtHR), 99 European Court of Justice (ECJ), 94 European Debt Crisis, migration during, 112 European Union (EU) citizenship of, 113, 186, 222, 235–46 family rights of free movers in, 93 free movement in, 95 integration principles in, 168 national citizenship laws in, 170 EU-Turkey Deal, Syrian refugee crisis and, 142 Executive Order No. 13769 (US), 129 expedited removals, US policy of, 126 Expression of Interest (EoI) immigration system (Canada), 84–85 expressive justice, in US penal law, 193 fairness, citizenship-by-investment as threat to, 207 family immigration British restrictions on, 102, 112 Canadian restrictions on, 90 citizenship policies and, 229 Danish restrictions on, 97–101 German restrictions on, 89, 102 opposition to, 87 parallel societies threat and, 96 reunification policies for refugees, 95, 150 right to, in EU Family Directive, 94 Syrian refugee crisis and, 144 US policies for, 90 Family Reunification Directive (EU), 95 fantasy citizenship, 228 Farage, Nigel, 105 Fargues, Émilien, 190, 212 Favell, Adrian, 96, 164 Fawcett, Edmund, 251 Federal Office for Migration and Integration (BAMF) (Germany), 140, 147 Federal Skilled Workers Program (FSWP) (Canada), 83 Federation of German Employers (Bundesvereinigung der Deutschen Arbeitgeberverbände, BDA), 79 fending- off the bottom in immigration policy, 101, 154 Fidesz party.(Hungary), 51 FitzGerald, David, 166, 270 Fletcher, George, 214 flexicurity policy (Denmark), 100

321 Fligstein, Neil, 104 Flores v. Reno (US court settlement), 127 Fördern und Fordern (Supporting and Demanding) policy (Germany), 29, 67, 172–81 Fortuyn, Pim, 55 Foucault, Michel, 6, 15 Fourcade-Gourinchas, Marion, 13 Frank, Thomas, 27 Fraser, Nancy, 259 Free Exercise Clause (US Constitution), Muslim Ban and, 133 Free Movement Directive (EU), 95 Freeden, Michael, 1, 39 Freeman, Gary, xi, 73, 104, 117 Freiheitliche Partei Österreichs (Freedom Party of Austria) (FPÖ), 45, 48, 71 French immigration and citizenship policies Burka restrictions and, 196 denationalization (citizenship stripping) and, 218 family immigration restrictions in, 92 high-skilled immigrants and, 92 integration and, 171 national identity campaign and, 58 postcolonial migration and, 92 suffered to chosen immigration transition in, 92 Friedman, Milton, 20 Front National (France), 44, 50, 71, 146 Fukuyama, Francis, xii, 250–52, 254 G7 countries, workers and firms in, 32 Gamble, Andrew, 9, 59 Gauck, Joachim, 139 Gauland, Alexander, 37 Gellner, Ernest, ix, 2, 258 Geneva Refugee Convention, 140 Geneva School, 9 Genschel, Philipp, 12 genuine connection doctrine, citizenshipby-investment and, 205–6 German immigration and citizenship policies citizenship stripping and, 215–16 constitutional human rights principles and, 228 European solution to refugee crisis in, 141–43 family reunification and, 229 high-skilled immigration in, 79 integration policies in, 146–49, 171, 173 legal residence permit (Geduldete), 179 liberalism in, 274 neoliberalism in, 28

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322

Index

German immigration and citizenship policies (cont.) Orderly Return Law (GeordneteRückkehr-Gesetz), 274 penal conditionality for naturalization in, 192 populism and, 37, 136–52 Residence Law (Aufenthaltsgesetz), 81, 180 Skilled Workers Immigration Law (Fachkräfteeinwanderungsgesetz), 81, 147, 179, 274 Syrian refugee crisis and, 104, 143 West Balkan Regulation in, 106 German Ordo-Liberals, 8, 15 German Social Law (Sozialgesetzbuch), 174 Gest, Justin, 77 ghetto law (Denmark), 100 Giddens, Anthony, 60, 64 Gingrich, Newt, 124 Giuliani, Rudolph, 134 globalization citizenship linked to, 226 income inequality and, 33 income winners in, 33 low- vs. high-skilled immigration and, 76 populism’s rise and, 38–44, 258 technology and, 31 winners and losers in, 26 Goodhart, David, xii, 4, 42 Goodman, Sara Wallace, 76, 164, 169, 194, 198 Gorokhovoskaia, Yana, 85 Gorski, Philip, 119 Gove, Michael, 40, 103 government, governance vs., 11, 12, 15, 23, 25 graded migrant rights, 279 Greece, refugee crisis in, 141, 144 Green Card restrictions (US), 84, 128, 183 Greenspan, Alan, 23 Grzelczyk decision (ECJ), 238 Guggenheim, Paul, 207 H1-B visa (US), 84, 86, 128 Haas, Hein de, 74 Habermas, Jürgen, 139, 263, 267 Hampshire, James, 88 Hansen, Randall, 106, 196 Harper, Stephen, 83 Hartz IV labor market reform (Germany), 28–30, 148, 149, 174, 242 Hartz, Peter, 28 Harvey, David, 10

Hayek, Friedrich, 5, 8, 11, 17, 20, 64 Hemerijck, Anton, 174 Henley and Partners law firm, 205 high-skilled immigration British policies for, 108, 111 Canadian policies for, 82 competitive immigration regimes and, 70 German policies for, 79, 147 global demand for, 78 H1-B visa (US) and, 86 integration policies and, 172 radical right and, 86 student recruitment policies, 85 tax privileges in Denmark for, 71 two-step (temporary) policies for, x, 88 Hochschild, Arlie, 53 Hoffmann, Isabell, 43 Hollande, François, 211, 218, 221, 249 Holmes, Stephen, 8, 39, 251, 254, 260, 262 homogamy, inequality and, 255 homosexuality radical right and, 50 horizontal Europeanization, 96 Household Benefit Cap (UK), 233 How Democracies Die (Levitsky & Ziblatt), 117 human capital citizenship and, 230 globalization and, 201 high-skilled immigration and, 78, 81, 83 neoliberalism and, 15 temporary migration and, 82 Hungary radical right in, 51 hyperglobalization neoliberalism and, 12 post-democracy and, 12 hyper-partisanship US immigration policy and, 125 Ikenberry, John, 253 illegal immigration British hostile environment policy and, 112 childhood arrivals, US policy concerning, 184 in United States, 120, 183 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (US), 121, 193 immigration family, 95 high-skilled, 78–88 integration and, 169 liberalism and, 273–79

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Index low- vs.high-skilled, 76 neoliberalism-nationalism nexus and, ix, 268–73 numbers vs. rights dilemma in, 70, 279 populism and, xi, 42, 68–78 radical right and, 3–5, 49 transatlantic convergence, 155 wanted vs. unwanted, 101 Immigration and Nationality Act (INA) (US), 126, 193 Immigration and Refugee Protection Act (Canada), 83 Immigration and the Nation-State (Joppke), ix Immigration Reform and Control Act (IRCA) (US), 123, 181 income inequality citizenship and, 226 globalization and, 33 individual freedom, liberalism and, 252 information and communication technology (ICT), 30 Inglehart, Ronald, 43 Institute for Public Policy Research (IPPR) (UK), 107 instrumental citizenship, 209 Integration from Abroad, 93, 170 Integration Law (Germany), 173, 176 integration policies control dilemma in, 177 cultural approach in, 180 earned citizenship and, 163 equal participation maxim, 176 EU definition of, 168, 244 European restrictive approach in, 172–81 German refugee crisis and, 146–49 in Netherlands, 93 in United States, 182 naturalization process and, 187 neoliberalism-nationalism nexus and, 270 Iranian Hostage Crisis, 132 Islam integration, 262 Islamic State (IS) fighters, denationalization of, 210 Ivarsflaten, Elisabeth, 49 Janmaat, Hans, 55 Jardina, Ashley, 266 Jellinek, Georg, 145 Jobbik party (Hungary), 51 Jobseeker’s Allowance (UK), 246 Johnson, Boris, 113, 114, 116 jus soli birthright citizenship (US), 185 justice neoliberalism and, 8 Rawls’ theory of, 260 social, 2, 6–8, 28, 261

323 kafala immigration system (Middle East), 77 Kälin, Christian, 203 Kant, Immanuel, 17 Katz, Richard, 24 Kaufmann, Eric, 106, 264 Kelsen, Hans, 205, 208, 227 Kennedy, Anthony (US Supreme Court Justice), 14, 136 Kenney, Jason, 82, 91 Keohane, Robert, 254 Keynes, John Maynard, 8 Kitschelt, Herbert, 46 Kochenov, Dimitry, 227, 246, 280 Kohl, Helmut, 138 Kohn, Hans, 1, 35 Koopmans, Ruud, 154, 175, 187, 267–68 Koppetsch, Cornelia, 259 Krastev, Ivan, 251 Kurz, Sebastian, 45 Kymlicka, Will, 64, 202, 247, 261, 263, 266–67, 283 Laclau, Ernesto, 38 Lavi, Shai, 220 Le Pen, Marine, 36, 45 Leave campaign (UK), 113 Lega Nord, 50 legal immigration, US restrictions on, 122, 128 legitimation crisis in late capitalism, 22 Leitkultur (dominant culture) (Germany), 149, 180, 263 Lenard, Patti, 215, 220, 222–23 Lessenich, Stefan, 62, 174 Levitsky, Steven, 118 liberalism apertistic, 36, 60, 260 citizenship and, xi, 189, 214, 279–83 crisis of, 250–57 democracy and, 39 democracy vs., 38 double liberalism, 259 embedded liberalism, 18 future immigration policy and, 273–79 German refugee crisis and, 157 luck egalitarianism and, 17 membership policy and, 67 meritocracy and, 255 nationhood and, 137 radical right and, 50 rights-based, viii Life in the UK test, 171, 197 lightening theory of citizenship, 159, 212 Linz, Juan, 118

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324

Index

low-skilled immigration graded rights and, 279 labor vs. non-labor (de facto vs. de jure), 77 liberalism and, 277 opposition to, 87 penal nationalism and, 61 problems of, 70 temporary status and, 88 Luce, Edward, 250 Macklin, Audrey, 198–99, 206, 217, 220 Maine, Henry Sumner, 162 Mair, Peter, 24 majority rights, liberal advocacy for, 264–68 Mandatory Work Activity (Britain), 233 Manin, Bernard, 25 Mann, Michael, x, 11 Manow, Philip, 141 Mariel Boat Lift, 132 market citizenship in EU, 236 market fundamentalism hegemony of, 13 neoliberal advocacy for, 6 market people, concept of neoliberal, 22 Marshall, T. H., x, 160, 162–63, 281 Martin, Philip, 88 Mau, Steffen, 16, 24, 66 May, Theresa, 111, 114, 219 Mazière, Thomas de, 137, 263 McCain-Feingold Act (US), 13 McGann, Anthony, 46 Melville principle, 73 membership policy and neoliberalismnationalism nexus, 67 meritocracy, xii, 27, 163, 255–57 Merkel, Angela German party politics and, 145 Syrian refugee crisis and, 136–52 Merkel, Wolfgang, 258 Metock decision (ECJ), 95 Michalowski, Ines, 195 middle class complicity with neoliberalism of, 23 decline of liberalism and, 250, 253 Middle East, citizenship-by-investment and, 204 migrant labor as Brexit catalyst, 115 in South Korea vs. the West, 279 Migration Advisory Council (MAC) (UK), 116 Milanovic, Branko, 32–34, 226, 254, 257, 277 Miliband, Ed, 108

Miller, David, 4, 282 Miller, Stephen, 128, 130 Minimum Earnings Threshold (UK), 246 Minkenberg, Michael, 51 Möllers, Christoph, 268 Mont Pèlerin Society, 18 Montesquieu, 257 Moore, Barrington, 250 Morris, Lydia, 232, 234 motivation crisis in late capitalism, 22 Mouffe, Chantal, 38 Mounk, Yascha, 16, 61 Mudde, Cas, 38, 46 multiculturalism asymmetric and symmetric, 268 civic integration and, 168–72 death of, vii liberal, 60, 261–62 nationalism and, 36 nationhood and, 283 neoliberalism and, 261 Münch, Richard, 12, 15, 165 Muslim Ban (US), 103, 129–36, 157, 269 mutual consent theory of citizenship, 224 Nachtwey, Oliver, 29 nationalism, 47, see also ethnopluralism citizenship and, 158 current evolution of, ix defined, 1 denationalization (citizen stripping) and, 213–17 ethnic-civic distinction in, 1 immigration policy and, 74, 102 in Danish family immigration policy, 98 integration and, 270 liberal nationalism, 253 modernist theories of, 2 neoliberal nationalism, xi, 61, 63, 65, 158 neoliberalism and, 1–5 penal nationalism, 61 populist variant of, 35–57 radical right parties and, 44–52 statist variant of, 57–63 structural nationalism, 3–4, 164 tangentiality of, 153 thin ideology of, 1, 39 nationality, right to, 223 nativism radical right and, 47 US immigration policy and, 125–29 welfare chauvinism and, 230 naturalization citizenship-by-investment and, 202–4 cultural conditionality and, 194–97

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Index defined, 187 denationalization, 210–13 economic conditionality and, 189–92 penal conditionality and, 192–94 restrictive trends in, 186–202 neoliberalism capitalist class power restoration and, 18 cultural rationality of, 13 Danish family immigration policies and, 98 democracy and, 11 denationalization (citizenshp stripping) and, 213–17 depletion of social citizenship and, 230–46 globalization winners and losers and, 30 historical markers of, 19 immigration and citizenship policies and, 69, 102, 230–46 nationalism and, x, 1–5 social citizenship and, 230–46 state and, 8–13 state people vs. market people and, 22 theory of, 5 neoliberalism-nationalism nexus denationalization and, 213–17 immigration and citizenship policy under, 268–73 integration and, 172 statism and, 61 summary of, 63 neo-nationalism, 2, see also nationalism Neo-Republicanism, 281 Netherlands immigration and citizenship policies citizenship tests in, 195 cultural identity and, 267 integration and immigration in, 170 populism in, 55 social citizenship and, 231 New Labour (UK), immigration policy under, 105–10 New Public Management (OECD), 20 New Zealand immigration policies, 84 Norman, Wayne, 202 Norris, Pippa, 43, 46, 52 Nottebohm doctrine (International Court of Justice), 205–6, 209 numbers v. rights argument in immigration policy, 70, 177, 279 Oakeshott, Michael, 281 Obama, Barack, 16, 53, 121–22, 182 Offe, Claus, 63, 259 oil crisis of 1973, 19 Operation Gatekeeper (US), 121 Orbán, Victor, 51

325 Orderly Return Law (Geordnete-RückkehrGesetz) (Germany), 274 Ordoglobalism, 9 Orgad, Liav, 167, 180, 187, 189, 194, 266 Pappas, Takis, 38 parallel societies, immigration and threat of, 96 partisan polarization German refugee crisis and, 139 populism and, 53 US immigration policy and, 124–25 party structure, cartel parties in, 24 Passport Index, 205 patrimonial capitalism, 19 Pegida (German anti-Islamic movement), 49 penal conditionality naturalization and, 192–94 nationalism and, 61 Perez v. Brownell decision (US Supreme Court), 217, 223 personal responsibility earned citizenship and, 160, 163 integration policies and, 176 neoliberal rhetoric of, 16 neoliberalism-nationalism nexus and, 61 Personal Responsibility and Work Opportunity Reconciliation Act (US), 16, 27 Pettit, Philip, 281 personhood, citizenship vs., 228 Pevnick, Ryan, 273 Philippot, Florian, 50 Pierson, Paul, 120, 124 Piketty, Thomas, 18 Pinochet, Augusto, 10 Plamenatz, John, 1 Poland, Syrian refugees refused by, 142 Polanyi, Karl, 9, 35 Policy Exchange (British think tank), 215 Polish migrants as Brexit catalyst, 115 political correctness, 261 politics, economic theory of, 9 law vs., 3 populism Brexit and, 102 cartel parties and, 24 causes vs. impacts of, viii cultural vs. economic explanations of, 257–64 defined, 38 democracy and, 41, 117 global expansion of, 38–44 horizontal vs. vertical axis of, 41

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326

Index

populism (cont.) immigration and, xi, 68–78 impact of, 55 in Germany, 136–52 in Netherlands, 55 left vs. right populism, 38 liberalism and, 257 nationalism and, viii, 35–57 political style as defining, viii, 39 radical right parties and, 44–52 technocracy and, 40 thin ideology of, 39 United States and, 42 Posner, Eric, 127 Posner, Robert, 60 postcolonial immigration, 91, 106, 109 post-democracy, rise of, 24–30 postnationalism in Europe, 263 in Germany, 138 Powell, Lewis, 22 Prantl, Heribert, 275 prevention-through-deterrence strategy in US immigration policy, 121 Priority Enforcement policy (US), 122 probationary immigration (Canada), 85 progressive neoliberalism, 259 public choice theory, 8 race membership, Weber’s theory of, 265 Rachman, Gideon, 137 radical right parties citizenship policy and, 187, 211 cultural change and, 257–68 demand- vs. supply-side explanations of, 52, 86 denationalization and, 211 ethnopluralism and, 47 high-skilled immigration and, 86 impact of, 54 liberal themes in, 257 low-skilled immigration and, 87 nationalism and, 44–52 nativism and, 47 neoliberal roots of, 257 student immigration and, 85 welfare chauvinism and, 42, 231 working class and, 42, 46, 63 Rasmussen, Anders Fogh, 95 rational basis test, Muslim Ban decision (US Supreme Court), 135 rationality, neoliberal, 13–17 Rawls, John, 8, 17, 255, 260, 273 Reagan, Ronald, 10, 16, 20, 27, 125, 132, 182 Reckwitz, Andreas, 36, 259, 262

Refugee Act (US), 128 Registered Permanent Immigrant (RPI) status (US), 183 rehabilitative ideal, decline of in US prison policy, 193 religious nationalism Muslim Ban and, 134 radical right and, 49 Trumpism as, 119 responsibility rhetoric in neoliberalism, 16, see also personal responsibility rights theory of citizenship, 223 Riker, William, 39 Rise of the Meritocracy (Young), 256 Risse, Thomas, 105 Roberts, John (US Supreme Court Chief Justice), 134 Roche, Barbara, 78, 107 Rodrik, Dani, 12, 41 Rosenblum, Marc, 123 Roy, Olivier, 50 Ruhs, Martin, 70, 88, 177, 279 Russia, citizenship-by-investment and, 204 Rust Belt Revolt, Trumpism and, 119 Rüstow, Alexander, 10 Rutte, Mark, 56 Sandel, Michael, 207 Sanders, Bernie, 42 Santelli, Rick, 53 Sarkozy, Nicolas, 58, 92 SB1070 law (Arizona), 122 Scheffler, Samuel, 197 Schinkel, Willem, 164 Schmitt, Carl, 38, 49, 59, 195, 220 Schröder, Gerhard, 27, 62, 79, 174 Schröder-Blair Paper (1999), 27 Schuck, Peter, 224, 227 Secure Borders, Safe Haven (White Paper) (UK), 212 Secure Communities program (US), 122, 126 Secure Fence Act of 2006 (US), 121 Seehofer, Horst, 81, 139, 143, 274 Seelkopf, Laura, 12 self-sufficiency, neoliberal rhetoric of, 172 Selznick, Philip, 252 seminar room theory in British immigration policy, 106 Sessions, Jeff, 127 Shachar, Ayelet, 67, 74, 184, 205–8 Shuibhne, Nic, 241 Sidgwick, Henry, 4, 66 Skilled Workers Immigration Law (Fachkräfteeinwanderungsgesetz) (Germany), 81, 180, 274

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Index Slobodan, Quinn, 9 Smith, Rogers, 224 social citizenship decommodification, 235 earned citizenship and, 162 migration and decline of, 272 neoliberal depletion of, 230–46 Social Democratic order, neoliberal dismantling of, 19, 26 Social Security Regulation (883/2004) (EU), 243 Somek, Alexander, 237, 239 Somers, Margaret, 160, 162, 225 Soros, George, 6 Sotomayor, Sonia (US Supreme Court Justice), 134 South Korean immigration policies, 278 Soysal, Yasemin, 166, 272, 280 Spaventa, Eleanor, 245 SPD-Green coalition (Germany), 80 Spiro, Peter, 132, 167, 207 stagflation, 20 state activating state, 63, 175 as association, 227 Centaur state, 11, 60 competition state, 12 denationalization and strengthening of, 217 membership policy and, 67 nation-state, 2, 59, 66, 158, 164, 237 neoliberalism and, 8–13 neutrality of, 262 Rechtsstaat (legal state), 7 sovereignty of, 3–4, 58, 73 tax state to consolidation state transition, 22 welfare state, 163, 174 state people, concept of, 22 statist nationalism, 57–63 Strauss, Franz-Joseph, 139 Streeck, Wolfgang, 147 on EU citizenship, 237 on global governance, 12 on post-democratic state, 24 on state people vs. market people, 22 Strengthening Canadian Citizenship Act (2014), 199, 216–17 student immigration British policy on, 111 high-skilled recruitment and, 85 Sunstein, Cass, 52 super-citizen model, naturalization policies and, 188 Sweden Democrats, 137 Syrian refugees European solution to crisis with, 141–43 in Germany, 136–52

327 tax state, concept of, 22 Tea Party movement (US), 52 demographics of, 43 neoliberal roots of, 257 temporary migration Canada and, 199 convergence in, 155 high-skilled immigration as, x human capital and, 82 in Europe, 77 low-skilled immigration as, 88 terrorism citizenship stripping and, 220–21 Thatcher, Margaret neoliberalism and, 6, 10, 20 on post-democracy, 24 populism and, 40 statist nationalism and, 60 Thelen, Kathleen, 29, 100 Ther, Philipp, 29 Third Way left parties high-skilled immigration and, 78 integration policies and, 174 neoliberalism and, 103 Three-plus-two (3+2) rule, German refugee integration policy, 179 Thym, Daniel, 68, 107, 140, 151, 241, 243, 244, 276 Tocqueville, Alexis de, 63, 251 Tooze, Adam, 11 track change (Spurwechsel), in German refugee integration policy, 179 transnational marriages, family immigration policies and, 96, 98 transnational solidarity, EU citizenship and, 238 Trenz, Hans-Jörg, 87 Trop v. Dulles decision (US Supreme Court), 225 Trudeau, Justin, 91, 200, 218 Trump, Donald American exceptionalism and, 52 immigration policies under, xi, 103, 117–36, 156 Muslim Ban and, 129–36 nationalism and, 36 nativism and support for, 117, 125–29 populism and, 42 principled realism of, 48 religious nationalism of, 119 Trump v. Hawaii decision (US Supreme Court), 132 Tullock, Gordon, 8 Turkey, Syrian refugee crisis and, 142 Turner, Bryan, 230, 272 Tusk, Donald, 142

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328

Index

UK Independence Party (UKIP) (UK), 105 ultranationalism (Eastern Europe), 51 UN Convention on the Reduction of Statelessnes, 215, 219 UN Global Compact for Migration, 73 Universal Credit social policy (UK), 234 Universal Declaration of Human Rights, 223 US immigration and citizenship policies aggravated felony concept in, 193 citizenship right vs. privilege binary in, 222 citizenship tests in, 197 denationalization and, 216 devaluation of citizenship and, 227 earned citizenship in, 181–86 enforcement turn in, 120–24 high-skilled immigration in, 86 nativism in, 125–29 party polarization and, 124–25 penal conditionality for naturalization in, 193 under Trump, 117–36 white identity politics and, 264 Valls, Manuel, 188 Vattel, Emer de, 131 Venstre party (Denmark), 98 Verschueren, Herwik, 243 voting rights, immigration and, 186 Wacquant, Loiı¨c, 10, 11, 12, 60 wall- and fence-building, statist nationalism and, 121 Walsh, James, 78 Walzer, Michael, 5 Warren, Earl (Supreme Court Chief Justice), 223 Washington Consensus, 21 Weber, Max, 260, 265

Weidel, Alice, 50, 258 Weil, Patrick, 217 Weise, Frank-Jürgen, 147 Weiss, Volker, 49 welfare chauvinism defined, 230 denial of citizenship and, 191 globalization and, 41 in EU, 71, 235–46 neoliberalism and, 46 social citizenship and, 230 welfare state neoliberal transformation of, 174 war and emergence of, 163 welfare tourism, EU free movement and, 240 West Balkan Regulation (Germany), 107 white identity implausibility in Europe of, 266 in United States, 265 protections for, 264 Wilders, Geert, 56, 231 Willkommenskultur (welcome culture) (Germany), 147, 149 Winter, Elke, 198 Wong, Tom, 121, 125 Woolas, Phil, 188 Working Holiday Makers policy (UK), 108 World Trade Organization (WTO) creation of, 26 hyperglobalization and, 12 Young, Michael, 256 Zadydas v. Davis decision (US Supreme Court), 131 Ziblatt, Daniel, 118 Zolberg, Aristide, 72, 166

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