Excerpted From: Matthew Boaz, Speculative Immigration Policy, 37 Georgetown Immigration Law Journal 183 (Winter, 2023) (268 Footnotes) (Full Document)


mattboazIn a 2020 interview, David Horowitz, a conservative political operative, observed how President Obama had successfully wielded “hope” as a narrative device to achieve certain political goals. But, Horowitz claimed, there was another, stronger weapon--fear. This Article explains how fear was deployed by the Trump administration to capture the imagination of the public for political gain. Moreover, it demonstrates how several policy advisors embraced this strategy, notably Stephen Miller, who was the behind-the-scenes progenitor of a series of draconian shifts in immigration regulations and rules. An unlikely source undergirded this effort: The Camp of the Saints, a 1973 speculative fiction novel by French author Jean Raspail, lauded by Miller, Steve Bannon, and others in the far-right camp. This apocalyptic book, which describes the demise of Western Civilization at the hands of immigrants from the global south, has received acclaim from extremist conservatives, as well as others, and has served as a touchstone for those professing the dangers of increased migration to the United States and elsewhere, since its publication. This Article identifies the notion of ‘apocalypse’ as a conceptual interpretation of fear that was used to bolster support for the Trump administration's efforts to drive down immigration levels into the United States. This Article also argues that speculative fiction, including narratives that are apocalyptic in nature, can be useful for conceiving future policy, despite the harmful interpretation in the instant example. Indeed, this specific narrative form is inextricably bound up with the law because policymaking and legal interpretation are inherently speculative.

Importantly, however, the source of these speculations must shift. Policy makers, advocates, and the public-at-large should be willing to look to speculative fiction authors from marginalized communities in crafting immigration policies that mitigate and reduce harm. In doing so, they will find key perspectives that demonstrate that apocalyptic outcomes have already been rendered for certain communities and that fear of apocalypse has driven policy decisions that are both incoherent and perpetuate harm. This argument is grounded in the lineage of the Law & Literature movement and Critical Race Theory (“CRT”), specifically the scholarship surrounding “oppositional storytelling,” first introduced by Richard Delgado. Law & Literature has identified the relevance of literature to law and the influence that it can have on rule makers and interpreters. CRT, in turn, emphasizes the importance of perspective and critiques the idea that law may be seen through a neutral lens. Importantly, oppositional storytelling synthesizes these ideas by demonstrating that the voice underneath the narrative can help to shift the reader's perspective, providing a new vantage point, and perhaps a shift in perception. Such shifts can create real, visceral change. This Article proposes that, by looking to alternative voices of speculative fiction, a key narrative will be uplifted--that the proposed abolition of current institutions and policies (such as immigration detention, exclusion, and enforcement) is not destructive, but rather generative. Importantly, engaging with speculative fiction as literature invites conversation and debate into policy areas that might otherwise be fraught or firmly grounded in political ideology. Speculative fiction provides a way out.

Part I of this Article provides a definition of speculative fiction, and a critical overview of the primary text referenced--The Camp of the Saints. Part II details how speculative fiction was used by political actors to gain support for extreme restrictionist immigration policies during the Trump administration. Part III briefly explores how, even apart from The Camp of the Saints, narrative and speculation are inevitably bound up in the development and administration of law, and specifically, immigration law. Part IV acknowledges that, if speculation is unavoidable, the voices that guide that speculation and narrative should belong to marginalized groups that have suffered the effects of colonialism, slavery, racism, and other normative and legal forms of oppression in the United States. Part V incorporates conversations about the historic use of legal fictions, particularly in immigration law, and identifies the ways in which narrative is used to make a complex concept like immigration more approachable.

In its conclusion, by looking to the apocalyptic and post-apocalyptic speculative visions of a number of writers from marginalized communities, this Article seeks to reframe conceptions of an apocalyptic world from the viewpoint of the vulnerable as opposed to the most privileged in Western culture. In doing so, this Article concludes by advocating that the present moment offers a unique opportunity for considering an alternate future, rather than the return to “normal” as many have advocated for in the wake of COVID-19. Such considerations are ripe for non-traditional or radically imaginative solutions to such intransigent questions as whether and how to regulate immigration in the United States. Most importantly, they offer an opportunity for reconsidering the traditional notions of abolition as apocalyptic, looking beyond its inherent destructive nature to see it instead, most prominently, as a positive, generative opportunity.

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In conclusion, this Article argues that speculative fiction was present in many of the policy decisions made by the Trump administration. These decisions created real harm, based in an ideology of fear. This Article interrogates those fears and examines how speculative fiction might, in fact, serve a beneficial purpose in the creation of future policy. In so advocating, this Article relies on two areas of scholarship: Law & Literature and CRT. Specifically, this Article builds upon Richard Delgado's theory of “oppositional storytelling,” to offer alternative perceptions about what might be possible to building immigration policy, among other areas. This Article affirms that speculative fiction writers from marginalized communities have much to say about fears of the apocalypse--namely that many of them have already experienced and survived cataclysmic events. Such survival is itself referred to as the first step in crafting a resistance movement. Moreover, many of these writers offer both warnings and ideas for how to build policies (immigration and otherwise) that rely on the radical imagination of the historically marginalized as opposed to those who have historically wielded power. Last, this Article asserts that, in the vein of scholars, such as Amna Akbar, who recommend the incorporation of non-legal writing from grassroots advocates into policy formation, so should the speculative works of Black, indigenous, LGBTQ+, and migrant communities be incorporated into future conceptions of how the law might be written and interpreted. These voices should be brought to the forefront of immigration discussions, and fortunately, for us, there is no shortage of these visions.

Visiting Director, Immigrant Rights Clinic, Washington & Lee University School of Law, J.D. Georgetown University Law Center.