The Rights of Aliens in Germany and the United States

CHRISTIAN JOPPKE

Every modern state divides the people of the world into those who belong to it and those who do not, between “citizens” and “aliens.” This reflects the fact that modern states are not only territorial organizations, characterized by the monopoly of violence within a given space, but also membership associations, characterized by space-transcendent reciprocal rights and duties.¹ In an earlier phase of modern state development, mere domicile was sufficient for membership.

Aliens are subject to sovereign state actions that citizens are not: Aliens may be denied entry to the state, or they may be expelled. According to international law, citizens enjoy the right of entry and residence in “their” state; in addition, they cannot be involuntarily stripped of their citizen­ship. The rights of entry and residence are precious commodities in a world where only some states provide its members with the rule of law, democracy, and welfare. In fact, the uneven distribution of these resources motivates increasing numbers of people to leave behind the state in which they are citizens and try their luck in other states in which they are aliens. ^[231] What are the rights of aliens to enter and take residence in a state of their choice, how sovereign are states to prevent this from happening, and has there been a change in these capacities over time?

These are the questions that I address using the examples of the United States and Germany.

the transformation of immigration law

in the united states

In the United States, classical immigration law, formulated at the high noon of “official nationalism”^{[233] [234] in the 1880s, had fused the principles of consent-based obligation, strong sovereignty, and restrictive national com- munity.4 Consent-based obligation modeled the relationship between gov­ernment and alien along the lines of the private law relationship between a landowner and a trespasser, in which the former owed no obligation to the latter except those explicitly consented to. The principle of strong sovereignty was formulated by the U.S. Supreme Court in 1892: “It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to pre­scribe.”[235] Applied to the institutions of government, strong sovereignty meant the unfettered “plenary power” of the political branches of gov­ernment over the admission, expulsion, and naturalization of aliens.}

Since the 1960s, following a turn toward a larger “communitarian” or “participation” in public law, immigration law has moved away from the classical model.^[237] Postclassical immigration law abandons the individualis­tic principle of consent-based obligation and “grants the alien rights according to an ascending scale as her identification with society deepens.”^[238] In the new communitarian model individuals are seen as invested with inalienable human rights and social ties that must be respected and protected by government. No longer allowed to get tough with aliens as illicit trespassers, government “owes legal duties to all indi­viduals who manage to reach America’s shores, even to strangers whom it has never undertaken, and has no wish, to protect.”^[239] This has entailed a cautious but steadily increasing assertiveness of the courts, which refused to defer to the plenary power of Congress and the executive branch in immigration affairs, and invoked constitutional and statutory norms to protect the rights of aliens. Motivated by the antidiscriminatory impetus of the civil rights era, courts have broadened the national community to include legal resident aliens, undocumented immigrants, and even first­time entrants, such as asylum seekers. However, this broadening did not come without a price. As Peter Schuck has pointed out, the legal empowerment of aliens has undermined the very possibility of national self-definition, which necessarily implies the exclusion of nonmembers: “If the American community’s power to define its common purposes and obligations is no greater than the power of strangers to cross our borders undetected and to acquire interests here, our capacity to pursue liberal values - to decide as individuals and as a society what we wish to be - may be critically impaired.”^{[240] [241]}

The major resource for the legal empowerment of aliens has been a constitution that grants broad equal-protection and due-process rights to “persons,” not just to “citizens.”¹¹ Here one must distinguish between three classes of aliens who have successively been brought under con­stitutional protection: legal permanent residents, illegal immigrants, and first-time entrants.

The second class of aliens to enter the orbit of constitutional protec­tion is illegal immigrants. In Plyler v. Doe (1982) the Supreme Court inval­idated a Texas statute that withheld free public education from the children of illegal immigrants. This most famous of all U.S. court rulings on aliens’ rights argued that the Fourteenth Amendment’s Equal Protec­tion clause referred to all “persons” within a state’s jurisdiction,^[245] so that aliens, whatever their legal status, had to be included: “Whatever his status under the immigration laws, an alien is surely a �?person’ in any ordinary sense of that term.”^[246] Procedural due process protections, for instance in deportation proceedings, had been granted to illegal aliens before Plyler; the novelty was to extend substantive entitlements normally reserved for lawful residents to illegal aliens.

With first-time entrants, such as asylum seekers presenting themselves at the borders, we reach the “outermost ring of membership” in which the degree of constitutional protection is at its nadir.^[248] As the authors of Developments in the Law emphasize, the postclassical participation model of immigration law only marginally applies in this case because “the enter­ing alien... has no pre-existing stake in the community upon which a grant of rights might be based.”^[249] Indeed, the exclusion of aliens is inher­ently linked with elementary national self-definition and has accordingly remained a bastion of sovereignty, however besieged, in which the plenary power doctrine is firmly in place.^[250] “Over no conceivable subject is the legislative power of Congress more complete,” the Supreme Court stated in 1909. Plenary power over the admission of aliens was reaffirmed as late as 1977 in Fiallo v. Bell, in which the Supreme Court held that “policies pertaining [to] the entry of aliens... are peculiarly concerned with the political conduct of government.”^[251] However, since the onset of mass asylum seeking in the early 1980s some lower courts have openly chal­lenged the plenary-power doctrine and tried to bring first-time entrants under the umbrella of the constitution. Discussing the lower court chal­lenge to plenary power, Schuck appropriately characterizes the “emergent law of asylum” as an exemplar of communitarian immigration law, “(enabling) any alien to acquire rights against the government to which the latter has not expressly consented.”^[252]

The hurdle to overcome in the empowerment of entering aliens was the so-called Knauff-Mezei doctrine, which stipulates unlimited govern­mental exclusion power by positioning the entering alien outside the con­stitution.^[253] Formulated in the exclusion cases Knauff v.

The legal fiction of extraterritoriality, sometimes called the entry doc­trine, was first advanced in Shaughnessy. Here the Supreme Court upheld the exclusion, without a hearing and on the basis of undisclosed infor­mation, of a permanent resident who had lived in the United States for twenty-five years. In this most drastic of all exclusion cases, in which indefinite detention was sanctioned as “temporary harborage, an act of legislative grace,” the court advanced the argument that Mezei had been “an alien on the threshold of initial entry,” so that constitutional protec­tions did not apply.^[256]

As many legal commentators have pointed out, the Knauff-Mezei doc­trine draws a capricious line between “excludable” and “deportable” aliens.^[257] Deportable aliens, even those who have entered illegally, are con­sidered to be on U.S. territory, so that constitutional protection via acknowledgment of “personhood” applies.This includes Fifth Amendment due process rights, such as access to federal courts and choice of country in case of a valid deportation order.^[258] By contrast, excludable aliens are effectively treated as nonpersons - in dreadful reminiscence of the Dred Scott case, wherein the Supreme Court denied the personhood of a slave and which became the triggering event of the U.S. Civil War (1861-5). According to David Martin, upholding the fiction that aliens denied entry and subsequently detained in high-security prisons are not really in the United States requires “an almost willful shutting of one’s eyes to physical realities.”^[259]

Knauff-Mezei, as originally formulated, implied that illegal entrants wound up in a better constitutional position than legal permanent resi­dent aliens re-entering the United States after a short visit overseas. This was entirely consistent with classical immigration law, which only con­sidered whether an alien was located inside or outside the country - if the former was the case, deportation rules applied; in case of the latter, admission and exclusion rules applied.³⁰ Yet, from the perspective of communitarian immigration law, the nondistinction between first-time entrants and re-entrants had to appear anomalous. This was redressed in Landon v. Plasencia (1982), where the Supreme Court extended constitu­tional due process protection to a returning permanent resident, thus assuring that such residents did not lose their status just by traveling abroad. But this remained the only intrusion of communitarian reason­ing into the exclusion process, and it did not diminish the full force of plenary power on first-time entrants.

In the early 1980s the new phenomenon of mass asylum seeking from Cuba and Haiti caused a serious “due process crisis” regarding excludable aliens.³¹ Facing the arrival of 125,000 Marielito Cubans and 15,000 Haitian boat people in 1980 alone, the Reagan administration ended the previous generous policy of “paroling” asylum seekers into the country and instead adopted an extremely restrictive mass detention and expul­sion policy.³² This policy was perhaps commanded by the imperative of containing illegal immigration, but it entailed extraordinary hardship, such as prolonged incarceration under harsh and oppressive conditions, the summary denial of asylum claims, and erratic and discriminatory treat­ment by the Immigration and Naturalization Service (INS). As Schuck remarked, the denial of elementary due process rights to the innocent victims of economic deprivation, civil war, and political persecution has “seared the judicial conscience as few events since the civil rights strug­gles of the 1950s and 1960s have done.”³³ In a sometimes explicit, more often implicit challenge to the plenary-power doctrine, lower courts have acknowledged due process claims raised by human rights and public inter­est lawyers on behalf of detained or rejected asylum seekers, holding pro­longed detention invalid, prescribing elaborate legal procedures for asylum hearings, and rebuking the INS for discriminating on the basis of national origin and race.

Martin has castigated as “procedural exuberance” the inclination of lower courts to apply constitutional due process and equal protection rules “to anyone in the world who presents himself at our borders.”³⁴ The

30 Motomura, “Immigration Law,” 556.

31 Martin,“Due Process and Membership,” 168.

32 The era of general parole had lasted from 1954, when the Ellis Island Detention Center in New York closed, to 1981, when the new Reagan policy of detaining undocumented entrants was instituted. During this period detention was limited to aliens who were likely to abscond or who posed a threat to national security. See Margaret Scott, “Significant Developments in the Immi­gration Laws of the United States, 1983—1984,” San Diego Law Review 22 (1985): 1123n104.

33 Schuck, “Transformation of Immigration Law,” 68.

34 Martin,“Due Process and Membership,” 171. dilemma is clear: Continuing to treat excludables as nonpersons, as stip­ulated by Knauff-Mezei, violates the liberal and communitarian values of postclassical immigration law; but granting the constitutional status of “person” to excludables would extend constitutional protection to liter­ally everyone in the world and stand in the way of effective immigration control.

Scrutinizing the lower court challenge to plenary power, one can detect at least three patterns: First, there were variable, often contradictory lines of court reasoning. These variations partially depended on the national origins of the plaintiffs: Regarding Haitians, who were automatically detained and categorized as “economic” refugees ineligible for asylum (whereas most Cubans were generously “paroled” into the country), some courts would point at national origin and racial discrimination; regarding detained Marielito Cubans, an alternative line of reasoning was to con­sider detention not as an immigration measure but as “punishment” that was subject to constitutional due process control. Second, contrary to the impression given by David Jacobson, courts were disinclined to resort to international law as a protection for asylum seekers; the major thrust has been to bring the latter under the umbrella of the domestic constitu- tion.³5 Third, and perhaps most important, the application of constitu­tional norms to excludable asylum seekers has remained a lower court phenomenon; the Supreme Court has refused to deliver an equivalent to Plyler v. Doe for excludable aliens.

Regarding the second pattern, which is particularly relevant for the argument pursued here, consider the following detention case: In Fernandez v. Wilkinson (1980), a Cuban who had arrived as part of the Mariel Boat lift in spring 1980 and was deemed inadmissible because of a criminal history, claimed that his prolonged detention was tantamount to cruel and unusual punishment prohibited by the Eighth Amendment, and a violation of the due process clause of the Fifth Amendment. The district court of Kansas concluded that the plaintiff’s status as an exclud­able alien prohibited recourse to the constitution, thus reaffirming Knauff- Mezei: “We have declared that indeterminate detention of petitioner in a maximum security prison pending unforeseeable deportation constitutes arbitrary detention. Due to the unique legal status of excluded aliens in this country, it is an evil from which our Constitution and statutory laws afford no protection.”^{[260] [261] However, the district court decided that arbitrary detention was a violation of customary international law, ordering the government to release the Cuban on these grounds within ninety days. Celebrated by international human rights advocates, this was the only time that a domestic court based a detention or asylum decision on inter­national law.[262] But, as a legal commentator pointed out, this was also a questionable decision.[263] As the Supreme Court ruled in Paquete Habana (1900), international law is the law of the land only interstitially, “in the absence of any treaty or other public act of... government in relation to the matter.” Accordingly, the validity of the respective detention depended on whether or not it was undertaken without presidential approval - which was never considered by the court.}

Without commenting on the district court’s reasoning, the Tenth Circuit Court of Appeals in Rodriguez-Femandez v. Wilkinson (1981) upheld the claimant’s release from detention, but on starkly different grounds. The appeals court argued that indeterminate detention in a federal prison, which resulted from Cuba’s refusal to take the plaintiff back, no longer was part of the process of exclusion under immigration law; rather, it amounted to punishment, for which constitutional protec­tion under the Fifth and Eighth Amendments applies. It is interesting that the court based its ruling on the subconstitutional ground that the INS lacked statutory authority for indefinite detention. But, in Hiroshi Moto- mura’s terms,^[264] the court used “phantom constitutional norms” favorable to aliens in its statute interpretation - “serious constitutional questions (would be) involved if the statute were construed differently,” argued the court.^[265] Overall, the thrust of Rodriguez-Fernandez was to redefine deten­tion as punishment and thus to bring the respective would-be entrant under the protection of the Constitution; the role of international law was diminished from that of a “controlling” to a “definitional” device, as one guideline (among several) for the definition of what was due process.^[266]

basic law to the rescue: alien rights in Germany

Alien rights in Germany are shaped by the dualism of a foreigner law enshrining the unfettered sovereignty of the state and constitutional law protecting universal human rights, independently of citizenship, from the vagaries of the sovereign state. Until it was liberalized in 1990, the for­eigner law of 1965 was characterized by three deficits. First, it conceived of aliens as a threat to the home population, enshrining the supremacy of state interests, with no rights whatsoever on the part of aliens. Paragraph 2(1) of the foreigner law flatly stipulates: “A residence permit may be issued if the presence of the foreigner does not harm the interests of the Federal Republic of Germany.” Second, there was a lack of differentiated residence permits, and no provisions existed for more-than-temporary stays on German territory. The introduction of the so-called permanence regulation (Vefestigungsregelung) in 1978 stipulated conditions under which unrestricted residence permits could be issued. This entailed the introduc­tion of a residence status akin to U.S. legal permanent resident status. A third deficit of the foreigner law was the complete absence of rules for family reunification. This was within the logic of a guest-worker regime, which conceived of the foreigner as a return-oriented, isolated carrier of labor power, devoid of family ties. Detailed rules for reunifying foreign families were not devised before 1981, and then only as a device to close off a major source of unwanted immigration after the recruitment stop.

These residence permit and family reunification provisions, meant to close the most glaring loopholes in the foreigner law, only had the status of administrative rule changes or federal government recommendations, respectively. They did not have the status of binding law. The absence of legislative reform, from 1965 to the passing of a new foreigner law in 1990, has been among the most striking peculiarities of German immi­gration policy. As a legal scholar complained in 1980, “The gravest defi­ciency [in the German foreigner law] is the absolute passivity of the lawmaker, who shirked his responsibility for years.”^[267] Reviewing the defi­ciencies of the old law on foreigners, Kay Hailbronner similarly concluded that “legal security has to replace the largely undetermined discretion of the administration.”^[268]

Filling the vacuum created by the passivity of the political branches of government, activist courts have expansively interpreted and defended the rights of foreigners. They could do this on the basis of a constitution that drew two fundamental lessons from modern German history, especially the history of the Third Reich: first, to subordinate state power to the rights of individuals; and second, to grant the most fundamental of these rights without respect to nationality. Regarding the latter, the first seven articles of the West German Basic Law protect universal human rights, independent of national citizenship. As Karl Doehring and Joseph Isensee write, “the broken nation of the Basic Law seeks to find its spiritual unity and self-consciousness on the basis of human rights universalism.”^[269] This is most emphatically expressed in Article 1 of the Basic Law, which stip­ulates that “the dignity of the individual is untouchable.” Article 1 also introduces the principle of limited sovereignty in obliging the state to “respect” and “protect” the dignity of the individual. In a conscious depar­ture from the German state tradition, the Basic Law puts the individual first and the state second; it is conceived in the spirit of limiting state sovereignty in regard to individual rights.^[270]

Applied to immigration, the limited sovereignty of the German state is expressed in the absence of a U. S.-style plenary power doctrine. The admission and expulsion of aliens and the overall regulation of foreign migration is not deemed a prerogative of the political branches of gov­ernment, in principle out of reach for judicial review. As Gerald Neuman outlined, the greater reach of constitutional limitations on German (de facto) immigration policy is due to a number of factors: most important, the specific delegitimation of unfettered state sovereignty by Nazism, but also the general advantage of a young constitution written in the era of universal human rights and untainted by older international law doctrines of absolute state sovereignty, and, finally, the absence of foreign policy con­siderations in German immigration policy.^[271]

Although German law and policy regarding aliens is thus subject to judicial review in principle, this does not imply that the interests of the state are eo ipso canceled out. The supremacy of state interests in the for­eigner law and of individual rights in the Basic Law are the two antipodes that courts have had to reconcile in concrete case law. This could be achieved, for instance, by means of the legal principle of proportionality (Verhdltnismdssigkeit or Rechtsgtiterabwdgung), which stipulates that restric­tions of individual rights have to be in proportion to the public good to be achieved.

The legal empowerment of aliens in Germany had two pillars: legal scholarship, which carved out the doctrinary principles of constitutional protection for aliens, and actual court rules putting those principles into practice. Regarding the former, the two most important legal statements are Doehring and Isensee,^[272] who deduced the rights of foreigners from the principle of self-limited state sovereignty, and Gunther Schwerdt- feger,^[273]8 who postulated that over time the constitutional rights of for­eigners approximated those of citizens.

Doehring and Isensee’s report, “The Constitutional Status of Foreigners in the Federal Republic of Germany,” presented at the 1973 convention of the Society of Constitutional Lawyers in Mannheim, is based on an impor­tant distinction: Regarding the first admission of foreigners, state sover­eignty reigns supreme, but once a foreigner has been admitted to German territory, the equal protection of the law applies, and state discretion is sub­sequently limited. According to Isensee, the human rights universalism of the Basic Law precludes two classical topoi of foreigner law: unfettered sov­ereignty and the treatment of foreigners according to a special “guest-law” (Gastrecht).^[274] Blowing to pieces the “guest-worker” construction of German foreigner law and policy, Isensee states: “In the age of human rights the foreigner does not enjoy guest rights but rather home rights.”^[275]

Accordingly, foreigners are entitled to extensive civil and social rights. Even the constitutional rights limited to Germans only, such as the rights of association, free movement and residence, or occupation, are not in principle denied to foreigners. In this respect, Article 2(1) of the Basic Law, which protects the “free development of personality,” functions as a general “residual right” (Auffanggrundrecht) that endows the foreigner with legitimate claims in those spheres that transcend the core of basic human rights. For instance, once the state has admitted foreigners to the labor market, the principles of equal protection of the law and self-limited state power prohibit certain types of discrimination, such as higher taxes, bans on joining unions, or the priority hiring of Germans. In sum, the Basic Law “empowers the foreigner with increasing status rights, to which cor­responds on the side of the state a system of progressive self-limitation.”⁵¹

Schwerdtfeger’s Recommendations to Improve the Legal Status of Foreigners in Germany, presented at the 1980 German Lawyers Convention in Berlin, radicalize and systematize an idea that was first introduced by Isensee: With the increasing length of stay on German territory, foreign­ers come to share with German nationals the “legal fate of dependency” (Rechtsschicksal der Unentrinnbarkeit), so that their constitutional rights must approximate those of Germans. In nonlegal terms: Because they have nowhere else to go, settled foreigners must be treated like Germans. Accordingly, the degree of constitutional protection increases with the length of residence. Surveying the legal status of foreigners in crucial areas such as residence rights, state welfare benefits, and labor market partici­pation, Schwerdtfeger concludes: “With increasing length of residence the foreigners of the first generation, as well as their children who have grown up in Germany, reach a constitutional status that is equal or close to that of Germans.”^[276] Like Isensee, Schwerdtfeger interprets Article 2(1) expan­sively as a general AuJfanggrundrecht, which allows foreigners to enjoy the rights normally reserved for Germans (such as residence and occupational rights).^[277] But its material protection is dependent on the length of residence: “The longer the stay in the Federal Republic, and the more the foreigner is dependent on developing his personality only in the Federal Republic (Rechtsschicksal des Unentrinnbaren), the more grows the material protection for the foreigner according to Article 2(1) of the Basic Law.”^[278]

This does not rule out the possibility of restricting individual rights in light of interests of state, according to the principle of proportionality. But from a certain point on, the constitutional claims of settled foreigners become so strong that only parliamentary legislation could legitimate such restrictions.^[279] This was a clear hint that a restrictive foreigner policy based on administrative decrees was unconstitutional. The state was free to deny the entry and settlement of new-seed immigrants, but once they had been allowed in, and the moment of practicing strict rotation had slipped away, there was no going back. “After the state has allowed the �?guest worker wave’ to happen, the automatism of constitutional law steps in. Already for constitutional reasons a return to the status quo ante no longer is possible.”⁵⁶

Isensee’s and Schwerdtfeger’s programmatic statements about the legal status of foreigners both reflected and further incited actual court rules in this area. The three most important rules, set between 1973 and 1987, concerned the residence status of foreigners and their right to be joined by family members. Taken together, these court rules confirmed that the temporary guest worker program had turned into permanent, even self­reinforcing immigration, undermining the restrictionist foreigner policy after the recruitment stop.

Enjoying the broad civil and social rights guaranteed by the federal constitution and the territoriality principle of the welfare state is contin­gent on a secure residence status, originally the Achilles heel in the life of de facto immigrants in Germany.^[280] Two landmark rules of the Consti­tutional Court (Bundesvefassungsgericht) severely limited the discretion of the state in deporting foreigners or denying them a renewed residence permit.The so-called Arab Case, decided in July 1973, concerned the issue of deportation.^[281] Previously, the primacy of state interests in the foreigner law had allowed licentious routine deportation practices, whereby settled foreigners who had committed bagatelle offenses, such as drunk driving or petty theft, were ordered to leave the Federal Republic immediately.^[282] In the Arab Case, the Constitutional Court declared such deportation prac­tices unconstitutional. The case concerned two Palestinian students who had been living in the Federal Republic since the early 1960s. After the Palestinian terrorist attack on Israeli athletes during the Munich Olympic Games in 1972, administrative courts ordered the students’ immediate expulsion as “security risks” because both had been members of a Pales­tinian student organization suspected of harboring contacts with terror­ists. The Constitutional Court ruled that the immediate expulsion orders violated the plaintiffs’ constitutional liberty rights according to Article 2(1) and the principle of legal stateness guaranteed by Article 19(4) of the Basic Law.^[283] Because the two students were not accused of any personal wrong­doing and the risk of their committing a terrorist act during the court consideration of the appeal was negligible, their personal liberty interests outweighed the public interest in their immediate removal. This was a momentous court ruling. For the first time the Constitutional Court affirmed that foreigners had rights protected by the constitution, which - according to the principle of proportionality - could outweigh the interests of the state.^[284]

A second landmark ruling, the so-called Indian Case, decided in Sep­tember 1978, concerned the renewal of residence permits.^[285] According to the foreigner law, there is no legal difference between an initial and a renewed residence permit. Initial and renewed residence permits are essen­tially acts of grace in which the principle of proportionality does not apply and in which the previous length of stay makes no difference.^[286] In the Indian Case the Constitutional Court found this equalization of initial and renewed residence permits unconstitutional. The case involved an Indian national who had first entered the Federal Republic in 1961 as an appren­tice in the metal industry and since 1967 held continuous employment with a construction firm, all on the basis of routinely renewed residence permits. In September 1973 the local foreigner office refused to renew his residence permit, arguing that his further presence would harm the inter­ests of the Federal Republic because he was seeking permanent settlement in Germany, beyond his original purpose of seeking occupational train­ing. A state administrative court upheld this decision in reference to the federal government’s no-immigration policy. In overturning the lower- court ruling, the Constitutional Court argued that the nonrenewal of the residence permit was in violation of Article 2(1) of the Basic Law, in con­junction with the principle of legal stateness. More concretely, the court held that the previous routine renewals had created a constitutionally pro­tected “reliance interest” (according to the principle of Vertrauensschutz) in continued residence.The court added that this reliance interest outweighed the no-immigration maxim of public policy: “For a rejection of the resi­dence permit renewal it is not sufficient to point to the general maxim that the Federal Republic is no country of immigration.”^[287] The Indian decision entailed a significant limitation on the government’s options in foreigner policy. A policy of expulsion and forced repatriation was ruled out for constitutional reasons.^[288]

The Arab and Indian decisions of the Constitutional Court secured the residence rights of de facto immigrants, effectively barring the govern­ment from returning to the status quo ante by means of deportation and termination of residence permits.⁶⁶ In a third landmark decision, the Turkish and Yugoslav Case of 1987, the court turned to the issue of family reunification.⁶⁷ This was a much trickier terrain because it did not involve the rights of established residents but the initial grant of new residence permits. After the recruitment stop of 1973 the chain migration of fam­ilies of guest workers was (next to asylum) one of the major avenues of ongoing migration flows to Germany, in patent contradiction to the offi­cial no-immigration policy. In December 1981 the federal government recommended that the federal states (Lander) severely restrict the entry of foreign spouses of second-generation guest workers and to make such family reunification contingent on an eight-year residence minimum for the resident spouse and a postwedding waiting period of one year. Characteristically, the Lander implemented this recommendation highly unevenly. Liberal Hesse lowered the residence requirement to five years; restrictionist Bavaria increased the waiting period for spouses to three years; and hyper-restrictionist Baden-Wurttemberg even broke the exist­ing elite consensus of not limiting first-generation family reunification by extending the three-year rule from second- to first-generation guest workers.

One Yugoslav and two Turkish parties challenged these restrictive rules on family reunification all the way up to the Constitutional Court, arguing that they violated Article 6 of the Basic Law, which protects the integrity of marriage and the family. In a complicated decision that betrayed a hesitation to restrict the state’s capacity to control a major source of recurrent immigration, the court held that Article 6 did not imply a constitutional right of entry for nonresident spouses. But non­resident family members still possessed family rights under Article 6 that

This reasoning underlies Schwerdtfeger: “After the political branches (of government) have allowed the �?guest worker wave’ to happen, the automatism of constitutional law steps in” (Schwerdtfeger, Welche rechtlichen V0rkehrungen,A131).

66 Still in the early 1970s, Manfred Zuleeg attacked a “divided legal state” (Manfred Zuleeg, “Grund- rechte fur Auslander,” Deutsches Verwaltungsblatt, Apr. 15—May 1, 1974, 341—9) that treated for­eigners like “second-class human beings” (Manfred Zuleeg, “Zur staatsrechtlichen Stellung der Auslander in der Bundesrepublik Deutschland,” Die Offentliche Verwaltung 26, nos. 11—12 [1973]: 361—70). After the Arab and Indian decisions of the Constitutional Court, Zuleeg reconsidered his earlier indictments: “One no longer can talk about a divided legal state (vis-a-vis foreigners)” (Manfred Zuleeg, “Stand und Entwicklung des Auslanderrechts in der Bundesrepublik Deutsch­land,” Zeitschrijtfur Auslanderrecht, no. 3 [1982]: 120).

67 Decision of 12 May 1987 (2 BvR 1226/83, 101, 313/84), in the following referred to as “Turkish and Yugoslav Case.” foreigner law and policy had to respect, according to the principle of pro­portionality. In this light, the court upheld the challenged eight-year res­idence requirement and the one-year waiting period, arguing that these measures were necessary to guarantee the social and economic integra­tion of the resident spouse and to prevent sham marriages. But Bavaria and Baden-Wurttemberg’s three-year waiting rule was found dispropor­tionate because of its destructive effect on young marriages.

The court’s Turkish and Yugoslav decision may be read as “retrench­ment from earlier, more protective attitudes.”^[289] Despite invalidating Baden-Wurttemberg and Bavaria’s three-year rules, the court ruling opened up a “wide space of action” to the political branches of government.^[290] In denying the right of entry for nonresident spouses the court reaffirmed the basic sovereignty of the state to control the entry of aliens: “Legisla­ture and executive are free to decide in what numbers and under what conditions aliens may enter the Federal Republic.”^[291] The court further­more approved some government pressure on families in order to provide incentives for return migration, and even okayed the wide variations in the Ldnder regulations of family reunification. But a less restrictive court ruling, such as construing a right of entry according to Article 6, would have amounted to mandating a generation-spanning, recurrent immigra­tion process, in direct opposition to the government’s policy to prevent just that. Although less assertive than in its ruling on the rights of settled foreigners, the court’s decision on family reunification still went far beyond the most liberal decisions of the U.S. Supreme Court in this area, first in constraining the government’s power to regulate family-based immigration at all, and second in rejecting a quota system as unconsti­tutional and applying constitutional protection to aliens not residing on German territory.^[292] Most important, in deducing a modicum of family reunification rights from Article 6 the court decreed that de facto immi­gration could not remain limited to the directly recruited guest worker population, but had become a recurrent, self-reproducing process for con­stitutional reasons alone.