Antje Ellermann

Undocumented Migrants and Resistance in the Liberal State

This article explores the possibility of resistance under conditions of extreme state power in liberal democracies. It examines the strategies of migrants without legal status who, when threatened with one of the most awesome powers of the liberal state—expulsion—shed their legal identity in order to escape the state’s reach. Remarkably, in doing so, they often succeed in preventing the state from exercising its sovereign powers. The article argues that liberal states are uniquely constrained in their dealing with undocumented migrants. Not only are they forced to operate within the constraints of the international legal order—making repatriation contingent on the possession of identity documents—but the liberal state is also constitutionally limited in its exercise of coercion against the individual. The article concludes that it is those individuals who have the weakest claims against the liberal state that are most able to constrain its exercise of sovereignty.

COERCIVE CAPACITY AND THE POLITICS OF IMPLEMENTATION Deportation in Germany and the United States

Why are some bureaucracies in highly coercive policy fields able successfully to implement controversial policies whereas others bow to political opposition? This article challenges the common argument, based on a principal-agent model, that bureaucratic nonimplementation is the result of the absence of effective legislative oversight. Instead, the article argues that in coercive policy fields where the state imposes significant costs on its targets, nonimplementation can in fact be understood as the result of control efforts by elected officials. The article empirically tests this argument by comparatively examining the politics of implementation in the policy field of migration control. Drawing on interview data from Germany and the United States, the article identifies significant cross-national and subnational variation in the capacity of bureaucrats to implement contested deportation orders. The article argues that this variation can be accounted for primarily by institutionally determined differences in the degree of political insulation of bureaucratic agencies.

Do policy legacies matter? Past and present guest worker recruitment in Germany

Immigration policy is shaped by the legacies of the past. Historical legacies create national immigration ideologies that delineate the range of viable policy responses well into the future. Is it the case, then, that policy choices must conform to an immigration ideology even long after its emergence? What is the scope for meaningful policy choice within a legacys substantive bounds? This article examines the relationship between Germanys legacy of postwar guest worker recruitment and subsequent policy choices in the 1990s. The failure of the postwar system to prevent settlement left behind a no-immigration ideology that precluded the future pursuit of economic immigration. I argue that the ability of government officials to resume recruitment in the 1990s critically hinged on their ability to devise a recruitment system that could credibly commit to settlement prevention. Policy-makers pursued policies that—in contrast to the past—were premised on worker rotation, annual quotas, the denial of family unification and the absence of labour market integration. This article shows that policy legacies not only have constraining but also enabling effects. By providing opportunities for policy learning, legacies can create opportunities for policy innovation even within the constraints of paradigmatic path dependence.

When Can Liberal States Avoid Unwanted Immigration? Self-Limited Sovereignty and Guest Worker Recruitment in Switzerland and Germany

Advanced democracies, it is commonly argued, are unable to prevent unwanted immigration because their sovereignty is “self-limited” by virtue of their normative, legal, and economic liberalism. This article challenges this claim by examining a critical test case that is at the heart of self-limited sovereignty arguments: guest worker recruitment in postwar Switzerland and West Germany. The author shows that, contrary to conventional wisdom, the unintended settlement of guest workers was not a universal given but instead was far less extensive in Switzerland than in West Germany. This difference in exposure to unwanted immigration, she argues, was the result of path-dependent processes that can be traced back to the inception of each country’s recruitment program. Whereas West German officials made no concerted effort to control settlement until the program’s termination, Swiss policy from its beginning was marked by state-enforced worker rotation and the prevention of family unification. To account for these critical differences in policy design, the article argues that each guest worker system was fundamentally shaped by two sets of factors. First, program design varied depending on whether or not political elites could draw policy lessons from past experience with temporary worker programs. Where past recruitment had resulted in unwanted settlement, as had been the case in Switzerland, political elites sought to adopt policy provisions designed to prevent the past from repeating itself. Where past policy failure was absent, as was the case in West Germany, policymakers were less concerned with preempting settlement. Second, recruitment policy reflected the degree to which policymakers were able to operate autonomously from cross-cutting interests. Whereas the West German government could pursue recruitment relatively insulated from both business and popular pressure, Swiss policymakers had to repeatedly accommodate both sets of actors, in the process devising a recruitment system firmly premised on the principle of worker rotation.

The Rule of Law and the Right to Stay: The Moral Claims of Undocumented Migrants

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

Studying Migration Governance from the Bottom-Up

This chapter develops a methodology for studying variations in how deportation is or is not enforced. The work analyzes instances of local resistance to deportation initiatives across a range of different countries and aims to understand how local politics relate to national politics and why local politics matter.