conclusion

The development of alien rights in Germany and the United States shows interesting commonalities and differences. Regarding the latter, the devel­opment of alien rights is shaped by different alien-citizen constellations, different relations between the legal and political processes, and different types of aliens at the center of legal and political debates, reflecting different patterns of immigration.

In the United States the boundaries between alien and citizen are per­meable, and the acquisition of citizenship is the routine expectation of (legal permanent resident) aliens. American citizenship is a structurally weak concept, according relatively few privileges beyond those that already accrue to legal permanent resident aliens.^[293] Personhood, not cit­izenship, is the key category of constitutional protection. This has pro­vided an opening for illegal aliens and asylum seekers to wedge their foot in the Golden Door, which cannot be slammed shut as soon as person­hood is acknowledged. The treatment of these two types of aliens is marred by inconsistencies: Illicit trespassers are constitutionally protected, whereas legal first-time entrants may be kept out by the legal fiction of extraterritoriality. But this very inconsistency has provoked a legal move­ment to claim personhood protection for first-time entrants, too. Despite a weak concept of citizenship, which is easily acquired, there has been a clear long-term trend toward strengthening the rights of aliens tout court, fired by the analogy of alienage and race in post-1960s civil rights law and discourse. But this trend is politically reversible, as the recent con­gressional restrictions on the welfare rights of noncitizens demonstrate.

In Germany, by contrast, the boundaries between alien and citizen have generally not been permeable (at least until recently), and the acquisition of citizenship by aliens has been the exception, not the rule.

A second difference in the development of alien rights in Germany and the United States concerns the relationship between the legal and political processes.^[296] In the pluralistic U.S. polity, alien interests are repre­sented by a lobby of civil rights organizations, ethnic immigrant organi­zations, and employers. Accordingly, American expansiveness toward aliens is not just the result of friendly courts but also of interest groups defend­ing the rights of aliens in the political process.^[297] A key example is the failure to control illegal immigration: The restrictionist control intentions in the Immigration Reform and Control Act of 1986, and in the Illegal Immigration and Immigrant Responsibility Act of 1996, have been under­mined by an alien lobby defeating effective sanctions against employers hiring illegal immigrants.

By contrast, alien interests have found no comparable entry into the corporatist German polity. Since the recruitment stop in 1973 the polit- ical process has been restrictive vis-a-vis guest workers. There is a vicar­ious “foreigner lobby” (Ausldnderlobby) of churches, welfare organizations, and unions that has helped to liberalize but has failed to fundamentally alter the restrictionist parameters of the federal government’s foreigner policy. Accordingly, German expansiveness toward aliens is, more than in the United States, the result of friendly courts working against the restric­tionist intentions of parliament and government. Alien interests appeared in the political process not in the form of interest groups but in terms of an emergent moral consensus among the political elites to deal humanely with the guest workers, who had been called into the country and now could not be disposed of at will.

A third difference between the United States and Germany is the type of alien in the center of legal and political debate. Foreign students, tourists, or business executives are “aliens” too, but unproblematic ones (at least most of the time). The aliens subject to legal and political debate are unwanted aliens, whom the state would rather not accept but is forced to because of legal constraints or a sheer incapacity to keep them out. There are three major types of unwanted aliens around whom different political and legal discourses have evolved in different states: asylum seekers, illegal immigrants, and family immigrants. Asylum seekers are pro­tected by customary international law, which prohibits receiving states from “refouling” political refugees to states where they face torture or death. This prime type of migrant protected by an international human rights regime has also been the prime target of self-protective measures by western states since the early 1980s.^[298] Not by accident, first-time entrants into the United States are the type of alien against whom the plenary-power prerogative of the federal state still applies.

Even more than asylum seekers, illegal immigrants have been the type of alien in the center of American legal and political debate. The incapacity of the United States to contain illegal immigration has been the root cause of its protracted immigration debate. More than the constitutional protection of personhood, a federal immigration policy under the sway of interest-group politics is responsible for this outcome. Before the concern about mass asylum seeking became prevalent in the late 1980s, family immigrants were the type of alien at the center of German (and European) legal and political debate. The family became the contested site between two opposite vectors: the state trying to close down a historically unique immigration episode, and settled guest workers invoking their constitutional right to an intact family life. Accordingly, regarding illegal immigrants in the United States, there was a conjunc­tion of equally expansive legal and political processes; regarding family immigrants in Germany, there was an opposition between an expansive legal process and a restrictive political process.

Next to these differences, there are some interesting commonalities in the development of alien rights in Germany and the United States. The powers of nationalism to draw sharp lines between citizens and aliens have become weaker in both societies, although for different reasons. In the United States the post-1960s civil rights culture has likened alien-based discrimination to race-based discrimination. In fact, the very notion of alien has become politically incorrect.

A second commonality is that the resources for alien rights in Germany and the United States alike have been domestic, rather than inter- or transnational. United States courts, in a nation that is very much a crea­ture of its constitution, have been unwilling to resort to international law in their rulings on aliens. German courts, while operating under a Basic Law that has granted precedence of international to national law, have not had to resort to international law because the human rights provisions in domestic constitutional law exceed those of international law. Accordingly, the German and American restrictions vis-a-vis aliens have been self­imposed. Self-limited, not globally limited sovereignty characterizes liberal states in an age of migration.