Donald Trump wants to destroy the heterogeneous State

The US has many states, counties and cities and thus a heterogeneity of immigration laws. This diversity—horizontal, vertical and street-level— offers undocumented immigrants daily opportunities that must be defended against Trump’s attacks.

José Luis Rocha

Waving the banner of xenophobia and stirring up hatred against Latino and other immigrants, Donald Trump has turned himself into a vote-harvesting machine among the most conservative sectors of the United States. The reality show being served up by this histrionic character resembles a re-run of the Know-Nothing Party, which in the mid-1900s based its programmatic platform almost exclusively on the rejection of immigrants. That phenomenon bubbled up like foam before disappearing in the blink of an eye. The fight against undocumented Latinos also recalls the fight against the Irish Catholics.

The anti-immigrant proposals
trumpeted by Trump

The nativism of yesteryear had strong religious roots. Today’s version is secular and tinged with a fascism that appeals to the working classes, which Trump assumes want to enter the middle-class paradise but find their path blocked because the continuing influx of cheap undocumented labor keeps their wages at the bottom of the social scale.

On his web page, Trump endorses the most offensive prejudices against immigrants even though they have been refuted thousands of times: that they increase crime, unemployment and fiscal spending. We find these same arguments on the web page of the Minute Men, a paramilitary, anti-immigrant group currently in decline. Stroking his diaphanous hair of questionable origin, Trump trumpets the measures he will employ against immigrants: a coast-to-coast border wall; unrestricted application of immigration laws; tripling of the number of immigration officials; electronic verification of all employees’ migratory status (national application of Arizona’s “E-verify” system); obligatory deportation of all foreigners who commit crimes; detention of anyone who crosses the border without authorization; ending of sanctuary cities by cutting off funds to cities that refuse to apply immigration policies; severe punishments for those who overstay their visa; police roundups against Maras 13 and 18, the youth gangs that “have terrorized the country”; the suppression of jus soli (the right to citizenship for those born on US territory) for children of undocumented parents and tougher admission requirements for people seeking refuge and asylum.

However demented his proposals may seem, particularly given the premeditated delirious tone in which they are proclaimed, the approval they have generated obviously indicates that they strike a chord or rather echo an existing chord in a not-inconsiderable sector of US public opinion. But the very contents of the proposals fly in the face of the heterogeneity of policies among the conglomerate of states, counties, cities and state bodies that make up the United States, which together reflect the many divergences in that opinion.

The hardest blows…

Tripling the number of immigration agents won’t produce better results. Their disproportionate increase in recent years has actually paralleled a drop in detentions on the border. The wall itself has also failed to stop immigrants; it has only forced them to diversify their ways of entering and run more risks.

Trump’s most effective proposals against undocumented immigrants are those that strike at the core of state heterogeneity via unrestricted application of national immigration legislation, thus imposing anti-immigrant collaboration on local police forces. The same would be true of national coverage for E-verify, which would eliminate the possibility of cities and states refusing to implement it. So would more requirements for granting asylum and refuge, reducing the margin of discretion in favor of applicants; and the suppression of sanctuary cities where undocumented immigrants enjoyed almost the same rights as citizens.

So far the anti-immigrant operations of the national immigration police have coexisted uncomfortably with more humanistic local policies. That double standard has been interpreted as an ambivalent game that benefits big capital by maintaining a significant volume of workers in a precarious situation that keeps wages down. But the existence of this “product” does not mean it is the only one or that it is the origin of the conflictive coexistence. Above all it expresses the diversity of opinions and their confrontation in the form of local laws that oppose national laws and local institutions that disqualify national ones.

Trump wants the cunning imposition of a unified policy. He is seeking to demolish the very essence of politics: the expression of dissent. Armed with this objective, he would strike with great force, causing profound collateral damage to the political dynamic, not to mention the direct damage to immigrants. As I don’t think Trump will achieve these two objectives—the first semi-veiled and the second proclaimed—there’s no point in directly denouncing the evils he might inflict on immigrants and on the US political system. Instead it should be done indirectly and positively, mentioning the beneficial effects of state heterogeneity, which in themselves explain why that heterogeneity has become a favorite target of Trump’s attacks.

The State can also be a weighty ally

Undocumented Central American immigrants need fertile terrain to make possible their insertion into daily life and their development in ways that connect with political changes. That terrain consists of the media, universities and their academics, artists and other showbiz figures, organizations and activists, churches and their pastoral agents, and certain businesspeople...
The repeated support they provide through numerous interviews and participatory observation adds up to substantial impact. But there is one big absent actor: the State. The dominant aspect of Marxist tradition accustomed us to perceiving the State as a net instrument of the elites. But as long as it is heterogeneous, it can also be a weighty ally.

State heterogeneity, which at times is obviously present and at others slips along subtly or is barely a backdrop, can be used by the dominated to achieve their objectives. The State of control and surveillance is also the State of sanctuary cities. The Border Patrol Nation still contains elements of the Immigrant Nation. If this weren’t true, the undocumented would have very few opportunities to insert themselves into society. Legislation and certain bureaucratic requirements that are either heterogeneous or applied with a degree of discretion in favor of the undocumented pave the way for opportunities to neutralize exclusions. Trump is aiming his barbs against the source of these opportunities.

The State: A field for class struggle

Pierre Bourdieu warns us against the danger of being mere instruments for the State to think about itself when we use categories constructed by the performance of the bureaucracy.

In another text, he presents a different idea when citing the thesis of neo-Marxist Joachim Hirsch, who according to Bourdieu insists that the State is the site of class struggle and not simply the instrument of the dominant class’ hegemony. Bourdieu argues that people can be found within the State who support either a more liberal or a more conservative side. It is a great sphere of confrontation.

That confrontation exists in the present, but it also existed in the past in the form of dissent among state actors and also between them and the people the policies were aimed at. That confrontation has given rise to bureaucratic uses, jurisdictional borders, distribution of powers and a diversity of policies that have created a diverse State. As a result, thinking with the State’s categories can also amount to thinking based on the struggles that have been waged within that State.

When the State is committed and in need

There are two forms of heterogeneity (horizontal and vertical) and there’s also a street-level bureaucracy that comes into direct contact with people and can be considered an intensification of vertical heterogeneity.

The most frequent cases of horizontal heterogeneity can be grouped into two types: corporative heterogeneity and geographical heterogeneity.

Corporative heterogeneity is what happens when people being pursued by the Department of Homeland Security (DHS) and without a work permit—because the immigration authorities never give it to those who crossed the border unauthorized or exceeded the time limit granted them—can go to the Labor Commissioner’s Office, or be hired by the State as babysitters and pay taxes. Examples of this include the Quichés from San Antonio Sija, Guatemala, who go to the Labor Commissioner’s Office every time their rights are trampled on; and Central American immigrants who are literally hired as babysitters by different state and county governments.

The Labor Commissioner’s Office defends the rights of undocumented people because it is constitutively committed to the rights of workers, regardless of their migratory status. In the case of babysitters, while state and county governments are not committed to provide employment regardless of migratory status, the regulation to which states are linked is to provide childcare services. Hiring undocumented immigrants is a collateral effect that has nothing to do with the State’s attitude toward them, but rather with the impossibility of obtaining enough childcare givers who are either US citizens or authorized immigrants.

The State hires them because it needs them, which is the same thing that happens with the millions of undocumented people who pay their taxes. The State’s financial arm treats immigrants as if they weren’t excluded because it needs their money, demonstrating that heterogeneity can include corporate progressivism and administrative opportunism whose most exquisite expression is “The IRS agrees my taxes are not illegal.”

Regardless of its structural roots in either corporate progressivism or financial instrumentalization, that heterogeneity enables the undocumented to insert themselves and allows their noncompliance—i.e. their unauthorized entry and ongoing presence—to get a legal pat on the back from the State.

The diverse range
of migratory policies

Geographical heterogeneity is the result of the different relationships among local and federal authorities, and among the policies of the different authorities. As regards migratory policies, the range of types of local jurisdictions according to their degree of collaboration with the federal policies is enormous. They include jurisdictions that seek to put the brakes on undocumented immigration by imposing their own restrictions on unauthorized immigrants’ access to housing, employment and municipal services; jurisdictions that help federal authorities apprehend and detain undocumented people; jurisdictions that actively seek to curb the presence of undocumented immigrants in their territory; states and cities that communicate with immigration officials only under very special circumstances; and jurisdictions that have no desire to collaborate with the federal government in implementing measures that distinguish between legal and illegal residents. The latter include jurisdictions that have adopted policies that formally or informally limit cooperation with the federal authorities.

The failed attempts to bring about comprehensive migratory reform have led to a greater legislative and administrative diversity of migrations that increase that heterogeneity even more. According to researcher Susan Martin of Georgetown University, 300 bills were debated and 38 made into law in 2005; that grew to 570 bills of which 84 became laws in 2006; and 1,562 bills with 240 approved as laws in 2007. The complex and beautiful murals created by immigrants in San Francisco and other cities have been made possible because the heterogeneity gives rise to municipalities that encourage the murals, do not penalize them, or prohibit them but residents who encourage the murals and get legal backing to allow them to be painted on the house or garage wall.

Sanctuary cities, counties and states:
Oases for the undocumented

The most proactive mode of geographic heterogeneity for the cause of the undocumented is the “sanctuary.” There are sanctuary cities, counties and states, called that because they are jurisdictions where local authorities refuse to collaborate with federal anti-immigrant policies and even grant a series of rights to undocumented people that cover a wide spectrum, from voting to state scholarships, driving licenses and many social benefits.

Such policies have been applied since Congress approved the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. The federal level does not recognize or regulate sanctuary policies or sanctuary cities. Sanctuary policies often adopt the form of a resolution, ordinance or administrative action, a general or special order, or a departmental policy.

In 2004 and 2011, the states of Maine and Utah approved guidelines allowing undocumented immigrants to live and work there. There are also informal sanctuary policies that are not written but sanctioned by custom: sheriffs who don’t collaborate with the DHS and order their subordinates to do the same; mayors who hire undocumented people on public projects; city administrators and other officials who denounce roundups by the Immigration and Customs Enforcement (ICE)...

Places with sanctuary policies include Tucson (Arizona), New York City, Colorado’s 64 counties, nearly 40 cities in California and 14 cities in Florida. Undocumented immigrants in Maryland, and in San Diego and San Francisco, California enjoy formal sanctuary policies, while those in Los Angeles are informal.

Congressional reports have denounced sanctuary cities for not sharing information with the immigration authorities, limiting arrests for migratory legislation violations, limiting police investigations on migratory status; declining to collaborate with the immigration police in the capture of undocumented immigrants; shielding undocumented youths and stopping them from being detected by the immigration police; and modifying judicial sentences to prevent undocumented people from being deported.

The roots of the sanctuary policies
currently being hounded and accused

Sanctuary cities are inspired by the same concept as churches in the eighties that welcomed into their places of worship Central Americans fleeing their war-torn countries who the federal government refused to recognize as refugees.

In helping those Central Americans, the churches adopted a tradition dating back to the pre-American civil war period that, according to Stephen Nathan Haymes and María Vidal of Chicago’s Loyola University, “took the form of an underground railroad that moved fugitive slaves to northern free states and Canada. Following World War II, church-based immigrant advocates argued for the admission of thousands of displaced persons from Europe and through voluntary associations helped resettle people leaving countries with communist governments during the Cold War era. During the Vietnam War era, sanctuary was offered to war resisters in American churches.”

This modern-day support, which started in churches, also infected local governments. Ordinances and guidelines declared public spaces to be sanctuaries, allowing irregular migrants to leave the ecclesial catacombs for open spaces. Berkeley, California; Madison, Wisconsin; and Cambridge, Massachusetts, approved local ordinances declaring themselves a sanctuary for Central American refugees. Those ordinances immediately extended the stipulated benefits to all unauthorized immigrants, creating a climate of municipal defiance of the federal policies. Today’s sanctuary cities are an institutionalization of those old struggles, still clearly linked to support for Central American refugees.

If San Francisco’s undocumented “DREAMers”—named for those who meet the general requirements of President Obama’s 2012 Development, Relief, and Education for Alien Minors (DREAM) Act—who came to the United States as children and are now at university can hold sit-ins, this is also because the state apparatus was shaped by long waves of undocumented people. The most recent generation is harvesting certain fruit from old trees. In fact, the current conquests achieved by the DREAMers vary a lot from one place to another, depending on the materials embodied in the sanctuary policies that history has left at their disposal.

The sanctuary cities have been hounded and accused of being a breeding ground for criminality. Some federal-level agencies have put a price on the head of the undocumented that cities that continue supporting them would have to pay in the form of less access to federal funds.

It’s the same story with the ICE prisons, but the other way around, as they buy the collaboration of poor towns where they install detention centers. Here they punish sanctuary cities by denying them resources, thus making sanctuary policies a greater and ever more militant defiance.

How far does the arm of the law reach?

Vertical heterogeneity is the kind produced between levels that link up to apply the migratory policies. The federal level is pre-eminent, but without local support no policy and no arm of the law is long enough to work its way to the ground level.

Without a bureaucracy that touches the ground in daily life in the neighborhoods and work centers, the policies aren’t worth the paper they’re written on. New Orleans isn’t a sanctuary city, but in 2010 its police department declined to collaborate with the ICE. Unless the ICE directly sent its own agents to perform roundups—which it hardly ever does—it had no chance of challenging any of the many undocu¬mented immigrants who seek work on New Orleans street corners every day. The same happened in Fairfax County, which was not and is not a sanctuary county, but whose police don’t collaborate with the ICE.

Dutch sociologist Saskia Sassen sustains that “the particular combination of power and legitimacy we call sovereignty is being decentered, partly redistributed onto other entities, particularly supranational organizations, international agreements on human rights that limit state autonomy, and the emergent private international legal regime for business transactions. With all this happening, what is the basis for the usual presumption that the State has exclusive authority over the entry of non-nationals?” Power is also being decentralized downwards, towards lesser entities such as states, counties and cities.

The distribution of sovereignty, which limits possibilities of excluding and including, isn’t new in the United States. In 1957, President Eisenhower had to send the army in to protect the first nine Afro-American students who wanted to exercise their right to attend secondary school free from segregation as granted them by the Brown v Board of Education ruling.

What is perhaps new is the inclusive force of local sovereignty. In the United States undocumented immigrants obtain more rights through top-down decentralization (sanctuary cities, the heterogeneity of local policies, non-collaboration with the ICE) than through bottom-up decentralization, such as the kind that would be expected of multilateral institutions such as the UN Refugee Agency (UNHCR) and the International Organization for Migration (IOM).

There’s a lot of ground in the US
for the “silent invasion” of immigrants

It is the local bodies that, by omission or commission, display tolerance or active support for undocumented immigrants.

Iranian sociologist Asef Bayat argues that “Third World States seem to be more tolerant of quiet encroachment than are those in the industrialized countries such as the United States, where similar activities, albeit very limited, also take place. The industrial states are by far better equipped with ideological, technological and institutional apparatuses to conduct surveillance of their populations. In other words, people have more room for autonomy under the vulnerable and ‘soft states’ of the global South than in the advanced industrialized countries.”

The state heterogeneity in the US offers a lot of ground for the silent invasion of undocumented immigrants from Central America—and other countries—to prosper and even grow stronger. Undocumented people in the US don’t just manage to evade controls in those areas where their civil disobedience is played out, and not only due to tolerance. They also count on the complicity of state actors, which takes on a more active, if less institutional, nature when the immigrants directly deal with bureaucrats, which is a special case in vertical heterogeneity.

When bureaucrats disobey

If the federal level has limited capacity to implement laws when it lacks the grounding local institutions provide, its effects can be even more limited—and quite varied—when we get down to the bureaucrats in direct contact with the population.

According to Michael Lipsky in Street Level Bureaucracy: Dilemmas of the Individual in Public Services, “Teachers, social workers, health workers, public lawyers, superintendents, police officers, judges, jailers and other public employees who provide government services, enforce the law and distribute public benefits to citizens directly are ‘de facto policy makers’ due to their discretionary decisions.”

Those in the “bureaucratic universe” don’t act homogenously and the application of policies has a margin of variation from one bureaucrat to another. Moreover, complete uniformity doesn’t even exist in their formation and training. Replacing their idiosyncratic language with the standardized language of the drawn-up formulas, repeating procedures that run along the same lines and rejecting the novelties and unevenness of daily life aren’t enough to eliminate individualism and the bureaucrat’s background, ideology, judgments and dissent.

Bureaucracy never fully belongs to any government, as Hannah Arendt knew from her own experience given that she had been freed by a Gestapo agent who sympathized with her. Admittedly she didn’t theorize about that episode, perhaps because she considered it an exception to the rule.

Bureaucrats can also use their discretional power for altruistic ends or to contravene the letter of the law to allow its spirit to prevail. Gisel Morazán, a Honduran who works as a nanny, receives support from the social worker who visits her that goes beyond the assistance for which the social worker is responsible.

Chepe Melgar, a Salvadoran who also benefitted from the discretion of street-level bureaucrats, explained, “I’d recently arrived when my daughter got ill. They had to operate on her. It was a complicated brain operation and I didn’t have any papers or work. Without social security, the operation cost many tens of thousands of dollars. They told me to go see the social worker. I went and she asked me a lot of questions. In the end she felt sorry for me and I only had to pay about a thousand dollars in installments as and when I could.”

Meanwhile, Lito Melgar was saved from having to pay fines and being handed over to the ICE thanks to police officers who chose not to collaborate. On one occasion he got away without being fined because the kid in the passenger seat spoke English. Good English is an essential tool for better dealings with police officers and other bureaucrats.

“I acted dumb and
he turned a blind eye”

During my trip through the desert on a bus from Nogales to Tucson, I met a young undocumented Guatemalan woman and her two children who were traveling to San Bernardino, California. They had been detained by the ICE and were waiting for the immigration court to summon them to assess their asylum petitions. They weren’t supposed to travel. When we got to a Border Patrol roadblock, two agents got on to check people’s documents and I heard a female agent telling the young lady nicely that she shouldn’t be traveling, while winking at her and handing back the paper the ICE had issued her.

María García from El Salvador had a similar experience: “The agent who told me I wasn’t from Mexico was serious, but with a half-smile. And I had one, too, knowing I had misled him, but not fooled him, because he pulled me away from the all the emigrants they were taking to a truck with cages to deport them. He grabbed me like this at the back and told me, ‘I want you to know you haven’t fooled me.’ I just pretended I didn’t understand him. I acted dumb and he turned a blind eye.”

There are multiple and daily examples of this; they’re not unusual. With his irreverent and provocative style, Chicano lawyer and writer Oscar “Zeta” Acosta revealed his own discretional actions in the 1970s when he was a public aid lawyer in Los Angeles and helped single mothers who couldn’t get any help from the State: “Once the lie is put before the court, the divorce is granted. Just like that. I have won every single case. And now the poor old woman with the cane can apply for welfare assistance for her kids… which is all she wanted in the first place. She hasn’t seen her old man in five years, but the social worker told her she couldn’t apply unless she filed for a divorce first. I no longer contest this social worker logic. When I first passed my Bar I tried to obey the law. But that was twelve months ago. Now I simply ask a few questions and my secretary does the rest.”

Arbitrariness or dissent
in bureaucrats’ daily work

Just as the bureaucracy can benefit immigrants, it can also do them damage, as when the Border Patrol shoots at immigrants or rapes female immigrants. These aren’t cases of disrespect or discretional application of the law. They involve bureaucrats who apply extrajudicial sanctions or commit crimes abusing the power their post confers upon them.

The most widespread cases of real prejudicial discretion against immigrants are judges’ rulings. In the book Deportation Nation, Daniel Kanstroom states that “over 30% of the nearly 600,000 cases sent to the immigration judges in 2003-2004 involved some form of discretional assistance. Many judges tend to be generous to ensure they aren’t making a mistake. But the system exerts pressure and looks suspiciously on judicial generosity, so they can’t go too far in granting discretionary assistance. Of the 36,000 asylum cases presented to the immigration courts in 2004, 74% were rejected. Only 3% of the applications of the Convention against Torture—whose deliberation implies a high degree of discretion—are successful, and the figures vary alarmingly from one judge to another and one region to another.”

It is the bureaucracy rather than the legislative branch that defines the severity—and arbitrariness—with which the immigration legislation is applied. The law gets part of its legitimacy or has it denied according to the greater or lesser zeal with which it is applied. The bureaucrats vote for or against the law, or in favor of variations of the law, on a daily basis. Their implementation of the laws is the penultimate link to social validation, with the last one being the general public. The bureaucrats’ day-to-day decisions are the amendments made to the law on the fly, perhaps because, as Howard Zinn wrote, “You can’t be neutral on a moving train.”

Bureaucrats’ noncompliance is the day-to-day dissent exercised by state officials Kant wished were obedient. They take advantage of the margin the law gives them to apply it in line with their interpretation. At the street level where those bureaucrats operate, they define whether the immigrant is a total foreigner, an illegal immigrant to be captured and penalized, or a quasi-citizen with rights and whose civil disobedience achieved its objective.

What Donald Trump wants to eliminate

Undocumented immigrants manage to insert themselves and obtain support for their disobedience when geographical or corporative state bodies ignore their legal status or grant the same rights to undocumented people, residents and citizens. The existence of this possibility automatically puts the law into question.

Laws can be questioned not in reference to a hypothetical future change, but rather by a change that already occurred in other states or a neighboring city. When one state rejects immigrants but others don’t, the principle on which that rejection is based is called into question, becomes doubtful. According to legal philosopher Ronald Dworkin, if a law is dubious, people who don’t obey it, instead abiding by their own judgment, aren’t committing an unjust act and the government has the duty to protect that judgment, although not to guarantee immunity.

The states’ heterogeneity is sending out unequivocal signs that are sowing uncertainty: the laws penalizing the unauthorized are dubious. If Maryland issues driving licenses for undocumented immigrants and Arizona imposes heavy fines on people with undocumented immigrants in their vehicles, it is obvious that both states are basing their treatment of the undocumented on divergent principles. The heterogeneity sows the doubt that justifies the disobedience. Which is the correct principle? People have to use their own judgment. And that’s what bureaucrats, US citizens and undocumented immigrants are doing in everyday life.

And it is also precisely what Trump wants to eliminate by replacing a conflictive but dynamic heterogeneity with monolithic and oppressive uniformity. He is seeking to do away with doubt and dissent. If laws are proposed in South Carolina that deny refuge to people the federal government already recognized as refugees and California is tending to expand the rights of the undocumented to a point at which they equal those of citizens, then the debate is open.

Which state is guided by the principles most representative of the interests of its community and the states as a whole? Which state is most consistent with its body of laws? The heterogeneity opens up these and many other questions. Above all, it opens up the possibility of undocumented immigrants being included in different bodies to different degrees. State heterogeneity opens the way for them to turn to the law.

The spaces they move in

To get a grip on the peculiar relationship undocumented immigrants have with the US state apparatus, we must bear in mind that they pay taxes.

In Maryland they can vote in local elections and are counted in the census that forms the basis for assigning subsidies, taxes and the number of representatives in the House. The excluded and illegalized are partially included and in a liminal legality. According to Habermas, civil disobedience must move in this uncertain threshold between legality and legitimacy.

That threshold adequately describes the liminal state in which the undocumented find themselves. During the bus boycott in Montgomery County during the civil rights struggle of the sixties, the drivers involved in car pools—an alternative form of transport to keep the boycott going—were put on trial. All of them were acquitted. That is an example of how Afro-Americans were able to exploit the fact that the denial of their rights wasn’t total. Much is in play on the margins of that partial use of rights and public institutions. Those are the spaces available to the undocumented to improve their life opportunities, and they exploit them courageously and creatively to evade the restrictions and affirm their collective will against all forecasts.

What has to be defended

In the United States the undocumented immigrants employ state heterogeneity to exercise rights and make their ongoing presence a citizenship in the making. That heterogeneity expresses trends that are adverse for them, but also represents the institutionalization of previous conflicts between unauthorized entry and the US immigration policies.

The undocumented are harvesting the crystallizations of past struggles, many of them waged during the 1980s through the work of churches, cumulative organizations and the institutionalization of their achievements in the state structure. The possibility and efficacy of undocumented migrants’ current actions and their possibilities of success are conditioned by this historical sediment.

Adverse policies aren’t the only legacy history has left to undocumented immigrants. There’s also an enormous heritage of pro-immigrant actors, political culture, ideological production, informal and formal norms, leaders, experience and instruments of peaceful constructive and confrontational struggle. That heritage has to be defended because it’s where immigrants find opportunities in daily life.

Trump’s advisers made an accurate assessment: we can’t ignore this heterogeneity. It has to be defended against Trump’s attacks.

José Luis Rocha is a member of envío’s editorial council.

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