Remember this moment?
Barack Obama: “There are also those who claim that our reform effort will insure illegal immigrants. This, too, is false – the reforms I’m proposing would not apply to those who are here illegally.”
Representative Joe Wilson: “You lie!”
In fact, President Obama was not lying. The promise he made in his 2009 State of the Union Speech was realized in his signature health reform law of 2010: expanded new health care programs for citizens and permanent legal residents, nothing for “unauthorized aliens” (illegal immigrants).
The March issue of Social Science and Medicine focuses on “health-related deservingness” of migrants – especially those that are not permitted by law. The issue has remained on the margins of American health policy since the 1970s, and is increasingly a legal, ethical, and political challenge in many other rich countries. The issue includes essays that focus on migrants in the United States, Israel, Germany, France, and Kazakhstan.
I will not try to review the many interesting papers in that special issue here, but I do want to hone in on what I think is the most important issue. On what grounds shall we extend the same rights to non-citizens as to citizens?
The editors walk a tightrope in this respect. In introducing the issue Sarah Willen says first that:
“Although we have well-developed analytic toolkits for investigating questions of both entitlement and access, the subtler moral positions that undergird them – identified here as local ways of reckoning health-related deservingness – remain conspicuously under-investigated” (p. 805)
But later that:
“This set of articles is framed not by normative philosophical questions, for instance about health and distributive justice, but rather by social scientific questions about the manner in which moral assessments and ethical decisions are made and expressed via particular forms of discourse and social practice.” (p. 807)
But the premise of neutral social scientific investigation is not so easy to carry through. The intention is to characterize the competing discourses of migration, but the possibility of social critique (i.e., the ability to show the contradictions of anti-immigrant ideologies or to “counter-construct” that subject) is implicit in several of the articles.
Numerous rhetorical perspectives on immigrants are described in the articles. For example, on the matter of how illegal immigrants could have a claim to health care in San Francisco’s universal health care program, health care workers interviewed by Helen Marrow offered a broad set of explanations, ranging from human rights oriented explanations (one respondent, “If you’re sick, you have a right to health.”), public health explanations (essentially arguments like “diseases know no boundaries”), and “social justice” (one respondent argued that everyone has a minimal entitlement to care).
On the other side of the same coin, Anahí Viladrich argues that immigrant advocates marshaled a discourse of injustice after the removal of main benefits to legal immigrants following the 1996 US Welfare Reform law. In particular, advocates drew attention to the plight of vulnerable groups such as elderly immigrants and refugees that were likely to be powerless and perceived as deserving in mainstream discourse. Whatever framework advocates deploy, it is inevitably limited to a specific population with identifiable needs: children of undocumented immigrants, people with infectious diseases, frail elderly, and so forth.
Where the Conversation Needs to Head
I may have missed it, but I did not see a clear articulation of a global justice argument that might apply to migrants in these essays. In political philosophy, Tom Nagel laid down a provocative and important challenge eight years ago. Nagel argues that whatever strong claims states have to their own citizens cannot be broadened to encompass people beyond the boundaries of the state, however much our sympathies might extend to misfortunate non-citizens. Similarly for immigration:
“The immigration policies of one country may impose large effects on the lives of those living in other countries, but under the political conception that by itself does not imply that such policies should be determined in a way that gives the interests and opportunities of those others equal consideration. Immigration policies are simply enforced against the nationals of other states; the laws are not imposed in their name, nor are they asked to accept and uphold those laws.” (p. 129)
Nagel is no libertarian. Rather, his argument focuses on what kinds of relations would need to hold between individuals in order to give rise to claims of justice. His answer is that non-citizens do not stand in the correct relations, only members of the same states. Nagel’s view is that being co-subjects to a sovereign state create certain claims that others do not hold. John Rawls controversially comes to a similar two-tiered conclusion in the Law of Peoples, albeit for different reasons.
To my mind, a successful response to these positions should do one of two things. Either it needs to show that there are grounds for denying the distinction between citizens and non-citizens as a basis for claims to different resources that the state has to offer, or it needs to show that immigrants are a principled exception. The former is the position of many “cosmopolitans” and many in the human rights field, who emphasize that there is a moral equality of persons that transcends state borders. This is a coherent position, but I doubt that it would appeal to many of us if we fully considered the implications: a global welfare state that redistributes resources to poor people in the developing world as substantially as to the poor in rich countries. Many of us (myself included) believe that we have moral obligations to both groups, but the obligations to those that live within the borders of our country is stronger.
This gets to a second reply. One could say that, “immigrants are different than other non-citizens.” They live within our borders, their children attend our schools, they contribute to the labor market, and they pay taxes. These features distinguish an immigrant washing lettuce in a California restaurant from a person who sews clothes in a sweatshop in Indonesia, even if both are equally needy. I think this is a strong line of reply, but it does not immediately argue in favor of equal treatment for all immigrants. Immigrants vary considerably. Some immigrants resemble citizens much more in their connection to the core institutions of a society than others. At one extreme are people that live in a country for short seasons, and then return with much of their money to their home countries, and at the other end are people that will never leave. If reciprocity matters, health (or welfare) policies that provide services to immigrants will need to find a principled basis for allocating limited resources in the safety net to different categories of immigrants. One thing is certain, the challenge of providing care to immigrants is not going anywhere in a rapidly diversifying developed world.