Immigration Article of the Day: Cosmopolitan Democracy and the Detention of Immigrant Families by Rebecca A. Sharpless
Cosmopolitan Democracy and the Detention of Immigrant Families by
Rebecca A. Sharpless
, University of Miami – School of Law, June 14, 2016, New Mexico Law Review, Forthcoming,
University of Miami Legal Studies Research Paper No. 16-28
Abstract: The United States has engaged in shifting decisions about the mass detention of immigrant families from Central America. Faced with a “surge” of women and their children crossing the border without authorization, the United States dramatically increased its capacity to detain immigrant families from about a hundred to over three thousand. Immigration officials vowed to hold the family members, most of whom were seeking asylum, until their cases were complete. Yet six months after opening a mammoth family detention center, the Secretary of Homeland Security announced that the U.S. government was making “substantial changes” to its family detention policy and would discontinue long-term detention of women traveling with their children who had made a threshold showing for asylum. Lawyers, law students, and other advocates mobilized to represent the families and played a pivotal role in reversing the decision to detain the families for the long term. Today, families continue to cross the border and, at least for now, U.S. immigration authorities are abiding by their more humane detention policy.
This Article employs the cosmopolitan political theory of Seyla Benhabib as a framework for understanding the U.S. government’s shifting decisions about family detention and immigration policy change more generally. The United States’ decisions about how to treat the surge families reflects different ways of resolving what Benhabib identifies as a constitutive tension of liberal democracies: that between principles of universal application, like human dignity and freedom of movement, and concerns relating to self-determination, like border control. Benhabib subscribes to a discourse theory of democratic change that is both normative and descriptive about the role of rationality in establishing norms and institutions in liberal democracies. But the shift in family detention policy was largely the result of strategic lawyering, mobilizing, and resistance strategies, not rational dialogue within government and civil society. This Article examines the limitations, and radical possibilities, of how immigrants and their advocates might edge the United States toward Benhabib’s vision of a cosmopolitan democracy with more porous boundaries.
KJ