Jacob T. Levy on Tensions Between Immigration Control and the Rule of Law

On this episode, Nathan Goodman interviews political theorist Jacob Levy about the rule of law and its tensions with modern immigration enforcement. Drawing on his 2018 article, “The rule of law and the risks of lawlessness,” Levy explains that the rule of law requires laws to be general, predictable, and applied equally. Referencing thinkers like Montesquieu, Fuller, Hayek, Oakeshott, and Shklar, Levy argues that immigration control often violates these principles, especially when it involves militarized policing, extrajudicial punishment, and fear-based governance, which ultimately threatens both civil liberties and democratic institutions.

Dr. Jacob T. Levy is Tomlinson Professor of Political Theory and associated faculty in the Department of Philosophy at McGill University. He is the coordinator of McGill’s Research Group on Constitutional Studies and was the founding director of McGill’s Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds. He is a Senior Fellow at the Niskanen Center. He is the author of The Multiculturalism of Fear (Oxford University Press, 2000) and Rationalism, Pluralism, and Freedom (Oxford University Press, 2014).

TRANSCRIPT:

NATHAN GOODMAN: Today we're talking about how border policies relate to the rule of law. So, first I want to start at just a very basic level and ask what is the rule of law and why is it important?

JACOB LEVY: The rule of law is a way of defining the rules of governance and the rules of regulation that requires that rules be general and prospective. There are going to be some other considerations that we'll talk about, but we can just start with the idea that in order for something to be a law rather than a command or a demand, a law should be a rule that applies across different people. So we don't have to know who you are to know that you're supposed to drive on the right or you're supposed to refrain from murder, and it’s knowable in advance. If a rule is enacted retroactively, then it can't be general because we already know who's done the thing. So a retroactive rule can't guide people's behavior and is very likely to be targeted at people who have already committed the act or action that's now going to be subject to some kind of institutional disfavor, whether that's criminal punishment or loss of civil status or just failure to gain some benefit that was expected under the rules.

The rule of law has a couple of different kinds of advantages. One of the most important and one that we'll talk, I suspect, the most about is its protection for freedom from unjust punishment. The rule of law as a constraint on the criminal law means that people can go about their lives knowing what the rules are. and that if they follow the rules, they won't be subject to violent state action, execution, imprisonment, torture, and all the rest. But there are other advantages, and advantages apply beyond the criminal law as well. The rule of law as a matter of contract and property law famously is a tremendous advantage in the development of stable economic expectations. If I know what the rules of contract and property are in advance and they're general, then I'm able to engage in long-term economic planning of the sort that allows me to choose careers or create businesses or buy and sell, or buy and sell future goods to make an agreement that I will pay you now for service you're going to provide me in a year. And we both know that that contract's going to be valid because contract law is general and prospective. We both know now what law is going to govern the contract in a year. And I don't need to know the details of who you are in order to know what law is going to govern the contract between us. So that has advantages both from the perspective of just people trying to lead and plan their lives, to be able to lead a life where you're not subject to constant chaos. And from the perspective of economic growth and long-term economic stability, the ability to coordinate specifically economic activities of the sort that a great deal of the private non-criminal law is concerned with.

NATHAN GOODMAN: Excellent. So it seems like there's a set of advantages related to restricting arbitrary power, related to allowing people to have autonomy and plan their own lives, and related to aligning expectations and incentives in a manner that can generate the ability for individuals to coordinate their plans with each other and engage in productive mutually beneficial activity. Is that a fair assessment? Excellent.

JACOB LEVY: Absolutely right. Yep.

NATHAN GOODMAN: So what political and social theorists shape your understanding of the rule of law? Because you're a political theorist by training, so often it seems as though political theorists are really grounding their analysis in the works of particular scholars and thinkers. So how do you ground your understanding in the rule of law in the works of political and social theorists?

JACOB LEVY: For me, Montesquieu sits at the root, and then there are, I'll say, four very important 20th century thinkers who helped me shape and make sense of what we get out of Montesquieu. Montesquieu's great work of political theory, The Spirit of the Laws, is substantially a work about the relationship between jurisprudential governance and statecraft or state rule. His central distinction among forms of government challenging the way that political theorists ever since Plato and Aristotle had carved up the different systems of government. His central distinction is between despotic governments on one hand and on the other all of the moderate forms of government which are monarchy, aristocratic republics, and democratic republics. The distinction has to do with the despotism's lawless system of government. it's Just complete rejection of an absence of the rule of law that means that people's lives are governed by fear. Montesquieu says there's an animating principle of each of the basic forms of government. There's honor in a monarchy and virtue in a democratic republic. But the governing principle of the despotism is fear. Because in the absence of the rule of law, you have no way of stably knowing when the despots, police and guards and armed forces and secret police are going to come and commit violence upon you and punish you. even though you haven't violated any known knowable law. The despot governs by, well, in the 20th century we come to especially identify as the concept of terror, a terror state in Montesquieu, it's just fear. And Montesquieu talks a great deal about what institutions across the various moderate forms of government, monarchy, aristocracy, democratic republic, what institutions make it possible to live without that kind of fear.

and make it possible for there to be a stable enough system of law, even in the face of the fact that the modern government still have politics and they still have violent coercive force, and they have political actors who are in command of the violent coercive force. It's difficult to ensure the protection of legalness and lawfulness. Montesquieu centers his political theory on how it is the moderate governments are going to do that, how it is we can best try to avoid the collapse into despotism and rule by lawless fear. The four 20th century theorists are the legal theorist Lon Fuller, the economist Friedrich Hayek, the philosopher Michael Oakeshott, and the political theorist Judith Shklar. And I'll give just a couple lines of what it is that I get from each of them. And I think that each of them are building on and drawing on in various ways the idea that Montesquieu had generated. And I should note before I go on that, Montesquieu is not the originator of the idea of the rule of law. A century before him, there were thinkers during the English Commonwealth era who talked about the idea of a government or an empire of laws, not men, and the practices of trying to create lawful systems of jurisprudence that had some degree of immunity from retroactivity and political interference, all the rest. Those had one kind of roots in the English common law tradition and other kinds of roots that just date back to the idea of law and lawfulness as separate from politics itself. Montesquieu is for me the figure who draws all of that together and makes it available for what came before. But I don't want to leave the impression that he's the inventor of the whole concept. Lon Fuller is probably the most famous 20th century theorist of the rule of law. 

And Fuller identifies eight criteria that he says in order for something to be fully law or lawful must all be satisfied. That it should be general and that it should be prospective. Those are the kinds of criteria at stake. But there's also, they must be public. In order for a rule to be a law, it's not just that it has to exist in a forward-looking fashion, people need to be able to know it. And this is a genuinely very old rule of law and jurisprudence. It only counts as a law once it's been published. It only counts as a law once the people whose behavior is meant to be guided have access to knowing about it. Laws have to be non-contradictory. If you have two different prospective laws that you can't satisfy both of at the same time, then you're always a criminal. There's not that safe space to be able to lead and plan your life knowing that you're following the rules because following the rules isn't possible. Fuller goes through a fable of a king, who is King Rex, who is trying to make law and is not very good at it and Fuller narrates each of the ways in which well one day Rex says I'm the wisest person in the kingdom and What I'm going to do is just decide each case as it comes to me. And if you decide each case as comes to you, then you have neither generality nor prospectivity. All you have are the subjects trying to guess what outcome you're going to come up with.

Over and over again, Rex fails to properly do law. And he fails to properly do law for understandable reasons. The idea of judging each case on its merits rather than being bound by some hard and fast formal rule, that has some appeal. But the absence of the hard and formal rules means people can't properly structure their lives. Fuller enters into a famous debate or is drawn into a famous debate with the most important philosopher of law of the English-speaking world in the 20th century, H.L.A. Hart, about whether the rule of law so construed is morally valuable, whether the rule of law so construed means that there's a kind of morality to the law. And what Fuller says is the rule of law is the inner morality of law. It's separate from the question of whether by extra-legal standard. The laws in question are fair or just or equitable or progressive. The inner morality of the law isn't, says Fuller, the whole morality that we'd want to be concerned with respect to law. But it is a morality and it is better that people should be able to lead their lives in accordance with stable long-term possibilities of planning than otherwise. And Hart argued that the law as such was morally neutral, including the law governed by the rule of law was morally neutral, saying that law as governed by the rule of law is like a knife being sharp. Sharpness is the virtue of a knife. But whether that makes the knife morally good or not depends on whether it's being used to prepare food or kill someone. So Hart says it's not useful to think of the rule of law as a desiderata, as being an inner morality of law, they're just the excellence or virtue of a law which might then be good or bad. I want to set that question aside and just take Fuller as having given a very good sense of what the shape of the rule of law is like.

Hayek is very intellectually close to Fuller in some important ways, and Hayek emphasizes the ways in which those generality constraints, as we started off talking about, make possible the emergence of, for Hayek, especially a spontaneous economic order, but more generally the possibility of mutual coordination. Fuller's emphasis is on, as it were, my ability to plan my life. Hayek's is on our ability to coordinate our plans. And in the spontaneous order, even a simple one as a spontaneous order of people being able to drive according to rules of the road, which Hayek distinguishes from the way that a military brigade is ordered to march in lockstep from one place place to another place, where the commanding officer has chosen the whole path and the destination. And there's an orderliness to the way a military brigade marches. But there's also an orderliness to the way in which traffic moves, where everyone is trying to get to their own destination. But provided that everyone is actually adequately following the rules of the road, drive on the right, stay to the right at a roundabout or a traffic circle, stop on red, go on green, then people are able to coordinate the otherwise chaotic fact that they're all trying to go to different places. That kind of emergent order, Hayek emphasizes, is only possible when there's a generality and a shared knowledge of the rules. If the rules of the road weren't general, if I had to know what religion you are before knowing whether you drive on the right or the left, and I can't know what religion you are when I just observe your car coming at me on the road, then the coordination of plans that we see in traffic patterns would be impossible.

For Hayek, spontaneous orders in general are like that. They emerge out of the possibility of the mutual coordination of plans in light of the fact that everyone has their own ends. Everyone is pursuing their own separate goals, but we're able to adjust when we have rules that have a particular shape. The philosopher Michael Oakeshott made one really valuable addition to this conversation, and he was otherwise again, substantially in alignment with Fuller and Hayek. But Oakeshott gave us the very useful concept of the rule of law as adverbial conditions. Law under the rule of law, says Oakeshott, doesn't tell us what to do. Remember the military brigade. Law as the rule of law doesn't tell us where to go. It puts adverbial conditions. Here's how you do it. Law under the rule of law doesn't tell us the price to put into a contract. It tells us adverbially, here's how you do contracts. Here's the kind of negotiation that needs to happen. Here's the kind of witnessing that needs to happen. Here's the kind of language that needs to go into a contract to make it a valid contract. And if everybody knows the same adverbs, we all know here's how we contract when we want to contract together. Here's how we get married when we want to get married. Here's what we do in a will. If I want a valid will, the law doesn't tell me who I have to leave everything to. The law tells me how I express in a binding way my intentions about who I leave things to. And those adverbial conditions for the private law, civil law part of the rule of law. I think Oakeshott thinks it governs the criminal law as well, but I think he's mostly wrong about that. But for the private law, civil law part, the rule of law is rules that are adverbial in form, telling people how to do, not what to do. 

Now the political theorist Judith Shklar sees the ways in which Hayek in particular and Fuller to a certain degree are drawing on Montesquieu. But says Shklar, Fuller and Hayek have missed the actual political importance that Montesquieu ascribed to all of this. The actual political importance is our protection against punishment. It's our protection against arbitrary violent state power and the terror states that result. She's particularly critical of Hayek for joining the concept of the rule of law too closely to the market economy. And for variety of reasons, Fuller and Hayek both think that the administrative state and the regulatory state is in direct tension with the rule of law. Shklar says, what's really in direct tension with the rule of law? When the police and the secret police have the authority to arrest you without you having committed a crime. And if you're not putting that front and center, says Shklar, you're missing why Montesquieu gave us this vision in the first place. And whatever it is Shklar thought Hayek and Fuller were partially right about, she thought they were wrong about what importance to ascribe to it. And she thought they systematically underplayed the centrality of police power, punishing power, and despotism in why we care about the rule of law.

I am somewhat more of an admirer of Fuller and Hayek and Oakeshott than Shklar is. I take on board what all three of them had to say about the rule of law and the civil law. But I think that Shklar is absolutely right about the primary political purpose and primary political importance of the rule of law when it comes to the criminal law and the executive powers of imprisonment, punishment, policing, and violence.

NATHAN GOODMAN: Excellent. So it seems like one thing that's really useful about what you've laid out here is we see convergence towards an ideal of the rule of law from people working in different academic disciplines, somewhat different scholarly traditions and coming from somewhat different political ideologies, right? So that's one thing we observe, though I think all of the scholars you've cited could be described as part of the liberal tradition broadly conceived, certainly. Is that fair?

JACOB LEVY: Oakeshott has a complicated relationship to liberalism. Yeah.

NATHAN GOODMAN: Yeah, because he's a conservative, but yeah. But yeah, yeah, I'm never sure whether to classify him because of his closeness to Hayek as kind of like a Burkean sort of liberal conservative or conservative liberal, or whether we should classify him as a separate tradition entirely. But they're all adjacent despite having a different set of concerns. And it seems like the first three that you named, Lahnfeller, Friedrich Hayek and Oakeshott are all emphasizing kind of the positive outcomes that can result from the rule of law insofar as it allows people to plan their own lives and then to coordinate their plans and how this can result in positive outcomes for people with diverse aims, even if we don't all agree on what aims we're pursuing. Whereas it seems like Judith Shklar is really identifying here what the rule of law is protecting us from, what outcome we should be most afraid of, which is partially why the liberalism of fear is a phrase very commonly associated with her work. And so she's bringing state violence into the foreground and the sheer terror that we need to protect ourselves from and need to be aware of that has been something that's marked pretty much every serious despotism that humanity has seen.

JACOB LEVY: That's right. Montesquieu's maybe most famous in the history of political thought for the development of the idea of the separation of powers. That is a phrase and a concept that he, more than anyone, is responsible for inventing out of a partial misreading of the English constitution of his day. But he idealizes and stylizes the English constitution to say, really what you want to do if you want to prevent despotism is distinguish legislative, judicial, and executive power in different agencies acting at different times. Because that assures the citizenry that they'll be able to follow the known stable rules and won't be subject to executive punishment if there's not already a law passed by the legislature and a trial finding them in particular in violation of the law by a judicial agent. So that central Montesquieuan concern, the development, the separation of powers, is recognizably connected to the piece of the rule of law that Shklar called our attention back to, the punishing power of the state and how it is we make sure, in Montesquieu's sense, that people remain free when Montesquieu says, my freedom partly consists in my opinion of my security, that I know that as long as I'm following the law, I'm safe. that I know there won't be ex post facto laws or what in French were called lettre de cache, a letter issued by the king ordering that a particular person be seized and thrown into prison or secret police or extrajudicial seizures in the night where the police come knocking on your door without a crime. That concern in Moscow generated the separation of powers and that concern, that negative oriented concern is what Shklar put back at the center for thinking about the rule of law.

NATHAN GOODMAN: Excellent. I think that's a really important point. So we've got our framework for understanding the rule of law and why it's important. Now let's apply it to a concrete issue. So you write that, quote, any system of mostly closed borders and immigration control, as became common from the early 20th century onward and as characterized as the US today, will be a regime of only imperfect and partial protection of the rule of law. So why is that? Why is there a tension between immigration control and the rule of law.

JACOB LEVY: Immigration control presents a physical fact of state violence. It concentrates state power and state violence at the edge of the country as if we were positioning armies on the frontier against invading forces. And warfare isn't governed by the rules of law. There are laws of war, but that's not just the same thing. In war, you can shoot and kill people without a trial. Having a permanent pseudo law enforcement agency acting like a defending army, pointing guns at people who have not committed a crime, but are simply peacefully moving toward or across a border. That's a way of turning police and punishment powers into something more lawless. All the more so given that the violent power doesn't have the time, isn’t interest in taking the time, of doing the due process of law that's involved in finding out whether the particular person you're pointing a gun at is a citizen, is a lawful resident, is a lawful asylum seeker. There are any number of ways that one could have the right to cross the border, that you can't actually prove without due process of law, without a trial. 

Border control, by turning this big fact of violent policing power into a regime where there's not the time taken for a trial, where there's not due process, and where there's the possibility of simple violence, we can shoot you, or indefinite extrajudicial detention; we can seize you and throw you into a cage without a trial because we think you're not entitled to a trial because we think you don't belong here. That's a way of turning one of the biggest law enforcement, pseudo law enforcement functions, into a giant exception to the rule of law. As long as borders have that closed feature, as long as borders have that kind of armed, semi-military, semi-police presence, the country as a whole doesn't have the rule of law in a general way. The deeper into a society immigration enforcement penetrates, the more erosion of the rule of law the system as a whole has.

NATHAN GOODMAN: Excellent, yeah, so this highlights several important themes, right? On the one hand, the rule of law is a way of moving away from a sort of militant society where you're operating on the basis of discretionary commands by those who are issuing orders to soldiers and by soldiers who are able to use discretionary force against a perceived enemy towards a regime where we can plan our own lives and have a sphere of freedom. And so in part, you're arguing that closed borders and immigration restrictions fuel a sort of militarization of society that weakens the rule of law and limits the scope of the rule of law. So that's part of what you're arguing. And then the other part that you're really highlighting is the absence of due process and therefore the inability of people to stably expect that just because they have a legal right to immigrate or cross borders, they will be safe from extrajudicial punishment. Is that a fair summary of what you see as some of the core issues here?

JACOB LEVY: Yes, I think those, I have a hard time thinking of those as two sets of issues. They overlap very, very closely, but there are two articulations, certainly, of them.

NATHAN GOODMAN: Yeah, excellent. So one thing that this means is that there's a disjoint between what we as classical liberals mean by the rule of law and what people, by the way, who wouldn't be necessarily classical liberals but have a similar understanding of the rule of law mean, and what immigration restrictionists mean when they say... that they want law and order or that the law is the law, what part of illegal don't you understand and so on, right? So why do different people see threats of lawlessness in very different places? Why are we looking at this and seeing the threat of lawlessness being arbitrary state violence and other people are looking at this situation and seeing, well, the threat of lawlessness is that someone moved and accepted a job offer without filling out the right forms and getting the right paperwork permission from a bureaucrat.

JACOB LEVY: So some of this tension is long standing even in non-immigration cases. One thing that people can in good faith mean when they say the rule of law is that there should be safety and protection to go about one's life not only from police violence but also from private violence. And the society governed by the rule of law has enough policing to protect people from ordinary criminality. So that would be the point of legitimate slippage from the Montesquieuan understanding of the rule of law to sometimes saying, we've lost the rule of law on our city streets, but we have is chaos. We've lost the rule of law, we have this mob rule. That's conceivable. That's not just a mistake to say. And so in political divides over how much policing, how much crime control, you could in good faith find the phrase and concept of rule of law on both sides without it being misused. What we don't find in ordinary policing cases is a determination to classify people as such as being illegal. Yes, there's a difference between driving where there's relatively stable, predictable enforcement of the rules of the road and driving where that's not true. And there's a kind of rule of law when there's stable, predictable enforcement of the rule of law. And there's a kind of rule by the biggest truck and the most aggressive speeder and the craziest drunk driver if there's not … stable enforcement of the rules of the road. But what we don't find in that case is people starting to say, well, you got to where you were going by driving 10 miles an hour over the speed limit. That violated the law. Therefore, once you get where you're going, you're an illegal person. Everything about you from now on is treated as illegal. Everything from now on, everything about you from now on is treated as a criminal fact. And if you continue to walk the streets after you've broken the speed limit getting to where you're going, well then we've lost the rule of law. No, at that point the good faith slippage between the two senses of the rule of law has failed. What all you're seeing then is a demand for greater punitiveness; and punitiveness that extends over time even after any particular act of law breaking or any particular threat to other people has ended.

If people are illegal, if once you've driven somewhere over the speed limit, you are from then on just as such illegal, then you are perpetually subject to the threat of the secret police and extrajudicial seizure and your entitlement to due process has on this account ended. You live at the mercy of the police from then on. That's the system … that people aim to create when they talk about the demand for lawfulness, what part of illegal don't you understand, as applying in perpetuity to people who have crossed the border or overstayed a visa, which is the more common situation, or entered seeking asylum and overstayed their asylum process and so on. Classifying whole categories of people as being outside the legal system and therefore not entitled to due process, which includes not entitled to due process to verify whether or not they are the kind of people who are being categorized as illegal or whether they just share a racial or ethnicity, a racial background or ethnicity, with other people who the relevant secret police deem to be threats, to be illegal in that way … By then we've lost the rule of law entirely. What we have is a demand for law only in the sense of punishment and punitiveness, but not law governed by rule of law constraints.

NATHAN GOODMAN: And it seems like it violates the rule of law on a couple of different margins. So, it seems like it violates the generality criteria, right? So, the level of protection someone has is very heavily shaped, not by what rules they're following or not in any given interaction … 

JACOB LEVY: But by who they are. 

NATHAN GOODMAN: Exactly! Their immigration status and their country of origin.

JACOB LEVY: Which ordinary people don't know about each other.

NATHAN GOODMAN: Exactly, right? Like, I don't know when entering an interaction, whether the person that I'm starting to interact with, especially an anonymous interaction, whether they were born here, whether they were born somewhere else, if they were born somewhere else, what their immigration status legally is, and so on. Right? So if I like the generality and sort of impersonality type requirement of this, and it also, as you note, when it comes to the ongoing fear of something like an ICE raid or a deportation, it generates the kind of arbitrariness and terror that Judith Shklar is drawing our attention to, right? It seems like it has both of those features. So we've sort of gotten at some of the effects of immigration policy, but I'd like to get into more specifics and how the policies and their threats to world law may have changed over time. So you wrote the piece that we're discussing back in 2018. So this was during Donald Trump's first term in office. And so what threats to the rule of law arose from immigration and border policies at that point in time, both from the policies of the administration then and from policies that had been long standing prior to that administration.

JACOB LEVY: So as I said, border control just as such is in a degree of tension with the rule of law. The more border control becomes an object of primary governing attention, the worse the conflict with the rule of law, the more border control extends physically geographically away from the borders into the interior of the country as a concern to catch every migrant who wasn't caught at the border, the worse the outcomes for the rule of law. And the more politically central immigration control goals are that arise from outside the law, arise from whatever racial or ethnic or economic arguments are being used politically to demand migration control, the worse the consequence because the more politicized the rules are. All three of those things were happening during the first Trump administration and needless to say all three of them are happening again now. Trump didn't invent the problems and there had been a steady worsening over the previous decade. There had been a significant increase in deportations during the Obama administration partly as a result of refugee and asylum flows from Mexico and Central America, which in turn were partly results of the drug war destabilizing societies in Mexico and Central America. But things had been getting worse, but then they got extraordinarily worse during the Trump administration. The central tool of despotism is fear. The attempt to terrorize people into submission and the attempt to make them feel, I'm not safe. I have to subordinate myself because I never know when I'm going to be deemed an enemy of the emperor. I never know when the Gestapo is going to come knocking at my door. I have to do everything I can to make myself small and invisible and even then, I know that I'm not safe. The Trump administration changed things relative even to the Obama administration by making terror a tool and a goal. The, as I recall, the immediate occasion of the law and border essay was the family separation and children in cages policies, which were made public and visible. Why were they made public and visible? In order to terrorize migrants who are already present in the United States into thinking that if I stay here, I don't know whether my child's going to end up locked in a cage. In order to try to terrorize people into, in this terrible phrase that's developed in the US over the last 15 years or so, into so-called self-deporting. Self-deporting is a goal that generalizes beyond people who actually don't have legal status. It's a way of trying to terrorize people who think they might be at risk from ICE and CBP. They might be at risk from the broad sweep of these policies and their enforcement into fleeing the United States. Or, alternatively, to making themselves as small and invisible and vulnerable as possible within the United States. 

If you think that you're in danger of your child being seized and thrown into a cage, you yourself don't go to the police to report violent crime against you. You yourself don't go to the police to report that your employer is subjecting you to slavery-like conditions. You yourself don't seek emergency health care. You try to remove yourself from the visibility to the authorities because every moment of exposure to the authorities is a moment when you might be seized, your child might be separated from you and thrown into a cage. The fact that under the second Trump administration ICE is seizing people at their asylum hearings or at their check-ins where they are legally updating the federal government's immigration law enforcement agencies on their status and that ICE is saying exactly at the moments when you're doing the thing you're supposed to do well that's when we know where you are and so we're going to seize you that's an amplification of this terror regime. You should not make yourself visible to the authorities because if you’re visible to authorities then other authorities know where you are and can seize you and can throw you into this now horrific rat-infested swamp concentration camp in Florida, or can throw you into a supermax prison in El Salvador or deport you to South Sudan, even though you have no connection with either of those places. There's a deliberate amplification of the terror to try to force people into submission. That was a feature in the first Trump administration. That was an inflection point compared to... American border enforcement which has certainly had very bad moments in the past and Certainly under Obama was getting worse than it had been in the immediately preceding history, but to turn it into a an overtly racialized terror state and to bring it more and more away from the border authorizing ICE operations more and more freely away from the border into the interior of American society, did just extraordinary violence of the rule of law and in the second administration it's even worse.

NATHAN GOODMAN: Absolutely. So one thing that I think some listeners hearing this might identify as attention is that you mentioned that they are implementing some of these very cruel policies really publicly as a way of striking terror. But you had also previously in the conversation mentioned publicness as a key criteria of the rule of law so that people know what to expect and what they can and cannot do. So given this, are there some cases where publicness upholds the rule of law and other cases where it contradicts it? How do we tease out some of that tension?

JACOB LEVY: Good. Publicity is a demand of the rules under the rule of law. That the rules should be promulgated, that people know how to be able to live safely. Publicity of punishment can have a very different function. It can have precisely the terror-inducing function of telling people, you're not safe. It's very important that that you know you're not safe. And we will make known at least some portion of the punishments that are being undergone. That second, I think, isn't a monotonic relationship. You can also have a terror state that governs primarily by secrecy. My neighbor disappeared in the middle of the night, and we know that we cannot even discuss the fact that my neighbor disappeared in the middle of the night because the secret police came and got him. The current American border system is drawing on elements of both. The fact that ICE agents in the second Trump administration are so frequently appearing masked when they appear. The fact they're so frequently operating out of unmarked vehicles is creating genuinely the terror of secret police. 

The terror, by the way, further increases the risk to ordinary violent crime as well. It is now the case in the United States that if people in a van wearing masks jump out of the van, point guns at you and throw you into the van, it's just difficult to know. Am I being faced by law enforcement agents with whom I have at least in principle some duty to comply or am I being confronted with kidnappers? The ICE agents are presenting themselves in a way that is indistinguishable from criminals, which aggravates the fear of both of ICE agents and of criminals because you don't know what you're facing. But just focusing on the first part, the fact that they operate as genuinely secret police and the fact that Secretary Homan is making such a a hue and cry out of the claim: “ICE agents are being doxed. ICE agents' identities are being revealed;” as if there's a right somehow for law enforcement agents to genuinely be secret for other people not to be able to find out that you work for a law enforcement agency by contrast with rule of law governed police who will show you a badge where that contains your name and your badge number prior to trying to say execute a search warrant or arrest warrant on you. That's creating a genuine atmosphere of terror on the streets.

But yes, that's public and secret at the same time. The individual agents are secret. Whether the van is an ICE van or not is secret. But it all only works if everyone knows that now masked ICE agents are patrolling the streets. Now unmarked vans are everywhere. So they don't keep the fact of it secret. They keep particular instances of it secret. You know that there's this new concentration camp being built in Florida. That's a public fact and that's meant to inspire terror. What you can't do is have reporters go and provide coverage of what's happening within the prison. It is in that sense secret. You can't visit your relatives who have been thrown into the concentration camp. It's in that sense secret. There is an interesting complicated hybrid of that which is public in order to inspire terror and that which is secret to make the terror worse.

NATHAN GOODMAN: Yeah, and to eliminate any possibility of accountability for any of the government actors, right?

JACOB LEVY: Accountability. Yes, exactly.

NATHAN GOODMAN: Yeah, so we have essentially those who are in command can exert terror on anyone without any real legal constraints on their actions effectively and without them having any real expectation of being held accountable for any particulars of them violating the rights of people. 

JACOB LEVY: Yes, yes.

NATHAN GOODMAN: So, how does the judiciary fit in here? Have they enabled threats to the rule of law in this area, and could they play an important role in restoring the rule of law?

JACOB LEVY: So the Constitution grants authority over naturalization to Congress. Not authority over immigration or border control, but only over the process of naturalization. This has gradually, partly through judicial interpretation, partly through congressional action, come to be seen as a general, what's called plenary power over border control … and Congress has enacted statute after statute regulating the border in ways that are not subject to ordinary judicial review. Creating, for example, immigration courts that are not courts under Article III of the Constitution. They are not governed by ordinary judicial due process. They're not governed by judicial independence. Judges on these courts can be fired by the executive, for example, simply because they're not finding enough people to be guilty of migration offenses, they're not enabling enough deportations in a way that a regular Article III court judge can't be fired by the president. So there's a statutory basis for the courts having stepped back from some parts of the process. And the executive in turn has also claimed a degree of unilateral policing authority. It's called intrinsic Article II authority because the executive has authority over foreign affairs. And the border is, very straightforwardly, the place where domestic society that is supposed to be governed by the rule of law meets international society that is governed by maybe the rules of war but not by the ordinary rule of law. And for decades now, executives have taken advantage of that ambiguity to expand their authority to act without direct judicial oversight at the border. That being said, we've seen now, I don't know, dozens of times in the last six months that there are moments when the actions of ICE and CBP, the actions of the executive to enforce migration rules, do still raise questions that are decisible by Article III courts or for that matter by state courts. The question of when someone has a right to due process in the course of a migration and deportation process. The question of whether someone has the ability to get in front of a judge to, among other things, present evidence … I'm a lawful asylum seeker. I'm a permanent residency holder. I'm a US citizen. If you can't get before a judge, all you can do is scream at the guards in the concentration camp, I'm a citizen, you can't hold me here, and the guards in the concentration camp don't care. If you can't get before court, then your rights as a citizen or a permanent resident or a lawful asylum seeker are in tremendous jeopardy. And the courts have been struggling. Lower courts have been working very hard to find ways to make sure that due process can still be protected in relevant moments. Or the right of habeas corpus can be protected in relevant moments when ICE is now grabbing people off the streets, throwing them into a van, throwing them into a cage, trying to throw them into a different country. But there has to be legally a moment when a person can present a case to a court to say, I am not rightfully subject to this process. Now that already concedes that thousands or tens of thousands of other people are rightfully subject to the process. Even when the Article III courts are exerting themselves right now, they're still doing so against the background rules that say, yes, there's going to be deportation … much of which is immune to judicial oversight. The question is, is there any possible judicial oversight at all? And the administration is being aggressive and creative at trying to evade it. Moving people who've been seized by ICE in one jurisdiction into another jurisdiction before the federal court in the first jurisdiction can have a chance to hear.

Trying to move them out of the jurisdiction of the United States, entirely dump them into El Salvador or South Sudan before any case can be heard in order to establish an ongoing process whereby, no, there's no moment. Once ICE has seized you, there's no moment when a court can assess whether they had the authority to do so or not. The executive has a degree of fast, violent power that is always difficult for the judiciary to check. This is why in the Federalist Paper, the judiciary is referred to as the least dangerous branch. The judiciary does not have a police force that it can send out into the world. It doesn't have what's referred to as the power of the sword. It's why Montesquieu and Shklar and even I'll note Adam Smith are concerned especially with the separation of the judicial and the executive moments because it's the executive that has the capacity to kill you before you can get before a judge, or to lock you into a dungeon from which you'll never emerge and you'll never have a chance to contact a lawyer who could contact a judge who could get you out. The writ of habeas corpus which is the root of the English common law tradition's version of the rule of law is a demand by a judge, produce the person in their own body. It's translated as produce the body, but that's not supposed to mean produce the dead body. It's supposed to mean get me that live person out of the dungeon where you've locked them. They physically need to be able to be in a courtroom where they can present their case. And the writ of habeas corpus is part of what the new immigration regime is working very hard. to stymie and obscure and make impossible to exercise.

If there are those kinds of just genuine logistical constraints on the difference between judicial power and executive power, the executive can move faster, can move with greater secrets, again, move with more violence, then the judiciary always has to work very hard to keep up if the executive is determined to evade the rule of law, which is what we're faced with now. That being said, There's a difference between a court that will say put contempt of court sanctions on ICE officers or on a Secretary of Homeland Security or on any other figure in the executive branch for defying court orders, for defying Habius Corpus, and courts that won't put contempt of court sanctions on those people. Contempt of court sanctions in turn can be regulated by Congress, which is a further and worse problem. But some courts work to use the powers they have more or less out at their full extent. And some courts dither and delay and make excuses for the executive dithering and delaying until such time as the people's capacity for redress has become physically unavailable. Because too much time has passed, because they've already been removed from the country, because they're outside the jurisdiction of the court at hand. There are things courts can do, but the courts can't wholly solve the problem unilaterally.

NATHAN GOODMAN: Yeah, so if given the limitations on what the courts can do, as well as the severity of the threat to the rule of law, right, we just discussed habeas corpus. And so we're talking about core protections against state violence that go all the way back to the Magna Carta are at risk here. And we've seen threats to those at other times in US history, right, from the Bush administration, from FDR, from Lincoln during the Civil War, but all of those were wartime threats. And so there was a part, it was a particular kind of context and I still oppose those violations of habeas corpus, but this is unique in that it's claiming a ability to suspend habeas corpus in a manner that isn't even remotely plausibly connected to a stated war. The Bush administration one was unique because it was an open-ended war. There wasn't an enemy that could surrender. But this is sort of that taken up to an even greater level, right?

So, we've got something very severe and as you say, there are limits to what the judiciary can do about it. So that raises an important question of what could ordinary citizens perhaps do to protect or restore the rule of law and to roll back the emergence of despotism and a terror state.

JACOB LEVY: There's what ordinary citizens can do in their political capacity collectively in the long term, and there's what ordinary citizens can do on a daily basis. I don't want to exaggerate the second. That doesn't mean ordinary people can't do anything. We're seeing increasingly people willing to try to film on their camera phones the actions of asked ICE agents as they're emerging. We're seeing ordinary people, we saw especially in Los Angeles, a mass mobilization of the citizenry against an ICE invasion and mobilization of the city that started off as a cordon around the Home Depot that ICE was deliberately raiding in order to try to seize construction workers who were Latino and who might or might not have lacked legal status, I wasn't paying a lot of attention to that question. Those protests matter. And those protests matter in their immediate effect. There are some people who would have been seized in Los Angeles who were not seized because the protests provided a genuine impediment. They also matter in order to keep attention on the first kind of ordinary citizen activity that I talked about, which is the long-term collective political capacity. Ultimately, solutions lie in reduction of the severity of border control laws, reductions in the severity of migration restrictions, and in ensuring that executive power in particular is held by people who, whatever the border restrictions are on the books, don't view them as an excuse for the creation of racialized terror states; who aren't aiming to have as many deportations as humanly possible who aren't depending their whole political careers on the ability to deport millions of people. The fact that the second Trump administration resulted after a campaign that promised the largest forced migration in human history. Trump and Vance were talking about deporting 20 million people, which is more people than were moved across borders during the partition of India and Pakistan, which is previously the largest forced migration in human history. A presidency that's risen to power on that basis is a presidency that is going to, even if it's not reaching remotely 20 million people, is going to be making things worse and worse all the time. If ordinary citizens refuse to elect presidents on the basis of make a promise to make things worse and worse, that provides a political break. That's a necessary compliment, I think, to the political demands to make the laws less bad. We need less bad laws, but we also need not to an executive who is aiming to enforce whatever laws are there in as terrifying a way as possible. 

NATHAN GOODMAN: So, what would making the laws less bad look like? It seems to me like some of what it might involve might include increasing legal pathways to immigrate so that fewer people are in a position of this sort of case where they have a status on the basis of which they're targeted. It seems like it might involve restraining the search and seizure powers of CBP within the 100-mile border zone where they have expanded search and seizure powers. Might involve limiting immigration detention. Might involve reducing certain surveillance powers, might involve restoring judicial review of immigration by moving from the system where we have what some have called bureaucrats in judges robes, right? These immigration judges who answer to the executive to having a genuine independent judiciary. But are there other ways that we could change the laws in a way that would improve things if we get the chance? 

JACOB LEVY: All of that was splendidly well done on your part. Everything you just said would have been among the things that I would have said. In addition to trying to have immigration judges be Article III judges with judicial protection and who are aiming to uphold the law and not serve executive power, there's also simply a need for many more of them. The number of asylum seekers presenting themselves at the border or entering the United States and presenting an asylum claim once they're inside the United States is so far dwarfs the capacity of the immigration court system as to mean there are at any given time hundreds of thousands of people who are trying to present asylum claims but are present in the United States without the ability to get their claim heard, which means the question of whether they are a legal migrant or not exists in a very dangerous kind of uncertainty. As a matter of international law, they're still legal as long as they're trying to present an asylum case. As far as ICE and CBP are concerned, that's an illegal immigrant. They certainly don't have full legal status yet. They can't start to work. They can't safely go to the police for protection against violent crime or against exploitation by an employer. creating more ability to hear asylum cases immediately at the border would also help. 

Much of the crisis of the last decade has been, the so-called border crisis, has been an inability to hear and an unwillingness to hear asylum cases at the border, meaning that people instead tried to cross the border irregularly, other than at regular border crossings, so they could get their feet onto US soil from which they have a right to present an asylum. regular border crossing has become both harder and more separated from the genuinely permissible legal process of presenting an asylum claim. All of that's been movement in the wrong direction. Raising the sheer number of legal visas, raising the number of caps on legal migration is valuable in its own right, it's good for the United States, and is valuable as something of a pressure valve. But it's actually not going to do the main work of transforming what border enforcement looks like. Even if you have … a cap of five million instead of 100,000, even if … there are still going to be simply more people trying to enter than that number. The transformation in American law and the transformation in the safety of American society in the face of policing to enforce that law would remain in place even in the face of a significant increase in the cap. So there needs to be some of the other reforms that you were talking about, changes to the legal status of ICE and CBP and immigration courts and what kinds of authority they have where.

NATHAN GOODMAN: Absolutely. That makes a lot of sense to me. So shifting towards away from some of the object level issues of immigration policy and back towards some of the broader political theory type questions, towards the end of your piece and in some of your other scholarly work, you've argued that we should be quote, thinking about the political thought of Judith Shklar and F. A. Hayek together. And so we sort of did that earlier in the interview. But could we flesh out a little bit more what that would look like and what types of research questions that type of analysis brings to the foreground? 

JACOB LEVY: Sure, and I'll talk about this in a way that tries to speak to what I take to be the Hayek Program podcast's more likely audience, which is people who know Hayek and not Shklar rather than the other way around. Hayek was a theorist of the free society and a theorist of the viability of free societies. One of his key social theoretic insights is the truth of spontaneous order, the ability of free people to lead coordinated lives without being treated as soldiers, without having their ends chosen for them, without a militarization and command structure over their whole lives. He was not as successful a theorist of the politics and constitutional structure that makes those things possible. By this I don't only mean that he was prone to some misjudgments, as it were, as a person about which political actors were helpful. He was prone to those misjudgments partly because his objects of theoretical interest were not centered on the politics and law, politics and constitutional level law that made the operation of the private sphere of the free society possible. 

Shklar is, I think, a tremendously important corrective here. By focusing attention about the rule of law onto the secret police and the power that the executive has to inspire fear and terror through violent coercive action, Shklar joins together the constitutional face of the rule of law with the private sector ability to lead one's own planned life aspect. Now Hayek still has something to add here. Shklar is not the theorist who's going to draw our attention to the way in which the rule of law is an enabling fact of our private coordination. I think that Shklar is focused on politically the more important part. But she has a level of skepticism about Hayek's connection between the rule of law and the private market economy, some of which I think is right because Hayek was a little bit too narrow in which kinds of economic ordering he thought were compatible with the rule of law. Again, this question about the administrative and regulatory states under welfare state capitalism or social democracy that Hayek was too prone to see as command planned economies when they weren't. But in turn, that meant that Shklar, I think sometimes unfairly thought Hayek was insisting only laissez faire markets were compatible with the rule of law at all. And that's not Hayek's view. Hayek thinks that, for example, broad law-based social insurance is compatible with the rule of law. And that means Hayek is still adding an attention to the way in which the broad social insurance kind of social democracy is compatible with a free society in a way that the command economy is not. Great. So Hayek teaches us those parts. Shklar still asks the question, well, what's the difference between the social democratic polity and the communist dictatorship? That difference is a political and constitutional level one. And that difference is about who has policing and imprisonment power, what kinds of structures select for leadership. It means that even though Shklar is not primarily a democratic theorist, and Shklar has a certain level of ambivalence about democracy, Shklar says the liberal has to be committed to democracy, even if in a restrained way, in a way that Hayek was never, in a way that Hayek genuinely never understood. The difference between the rule of law governed social insurance, social democratic economy, and the communist dictatorship, is partly the communist dictatorship is a dictatorship. And that there is an exercise of unaccountable political power detached from the representative and democratic and electoral mechanisms for restraining in particular executive but also legislative power. 

What that looks like as a research agenda, well, one of the things that I'm working on now, and I'm trying to encourage other people too as well, is to take seriously simultaneously Hayek's emphasis on spontaneous ordering as a generic fact of social order, and Judith Shklar's work in her, especially in her book, “The Faces of Injustice”, on the ways in which there are There could be unjust outcomes of a large number of disaggregated individual level decisions. Hayek says, all justice is, is following the rules of just conduct. Justice is the Oakeshottian adverbial rule of law on Hayek's telling. And Shklar says, even if that's true, even if that's what justice is, injustice is its own phenomenon. Injustice is a social fact that is partly independent of, not merely the shadow cast by justice. And so we want analytic and normative tools to allow us to look at social outcomes and processes. Even if those social outcomes are all governed by the rules of just conduct. 

Even if the social outcomes are the results of spontaneous orderings and to be able to identify them as unjust. Hayek rejects this to the extent that he understands such a possibility. He rejects it in volume two of “Law, Legislation, and Liberty: The Mirage of Social Justice”. And I think Shklar has the better of the argument. I also think Shklar has a keener political sense for the importance of being able to characterize injustices in the world. There's an extent to which once Hayek reached the point of saying, Well, that's not unjust because it arose justly. He doesn't see the possibility of further important political critique. He intends that to be the end of the conversation. And that's part of what Shklar correctly diagnoses. An order is in some ways better than a chaos. But think back to what I said about Hart, about the rule of law. Hart says the rule of law is virtue of laws like sharpness as a virtue of a knife. It can be used for good or for ill. Order is not the same thing as justice. Order is not the same thing as goodness. And sometimes the emergent orders can be a kind of hardened ... An order can be spontaneous and still be too rigid. 

In work I'm doing now, I try to talk about the ways in which to screen through, for example, of gender norms. Gender norms that arise out of not unjust individual and family and firm level decisions that don't require malice or violence at their heart, but nonetheless can lead everyone to know, well, the way I coordinate my life plan, In light of the fact that employers expect women to drop out of the labor force and therefore employers pay women less, the way I coordinate my life plan with that is that in my family, the husband will be the one who goes out and works and the wife will be the one who stays home with children because that's locally economically rational because the employers are paying women less. You get a spontaneous order out of that combination of motives. By the way, here I'm borrowing from some work by the philosopher Ann Cudd. You get, but Cudd doesn't talk about it terms of the spontaneous order. You get a spontaneous order that emerges there. Everyone is following the rules of just conduct. The family is making their own locally rational decisions about the domestic division of labor. The employer is making a locally rational decision in expectation of the genuine fact that women are more likely to drop out of the labor force than men are. But you get a mutual reinforcement between those two facts that turns into a kind of cage; and the order is too rigid. 

Shklar, I think, gives us the language with which to say, even if everyone there is following the rules of just conduct, the result is an injustice. Hayek gives us the tools to talk about the power of the spontaneous order. What we've got there isn't chaos, and it isn't command and control. It's an emergent order. But we don't have to say that emergent order just as such counts as being one that we want to live with. We don't want to say the emergent order is immune to the charge of injustice. That's where my mind currently is in terms of a research agenda that tries to draw on both, that draws on schloron injustice in order to talk about Hayek on spontaneous orders. 

NATHAN GOODMAN: Okay, that's really exciting. I'm really glad that you're working on that. think it builds productively on some threads that some of my colleagues have been working on over the years. So for instance, Virgil Storr and Nona Martin have a paper on perverse emergent orders. Charles Johnson of the Center for a Stateless Society. 

JACOB LEVY: I cite both of them in my work on this.

NATHAN GOODMAN: Awesome. So, there's all that. There's the stuff by Cailin O'Connor on the origins of unfairness. Myself and Alex Craig have been looking at gender norms to some extent through this lens. My colleague Mikayla Novak has an upcoming book chapter with a co-author on transphobia as a perverse emergent order. So, I'm really glad that you're working on this as well because I think there's a lot of really exciting and important stuff that can be done here to really tease out these dynamics. 

JACOB LEVY: So, for all of the people you just named who are listening to this podcast, Shklar is a potential resource. Go draw on Shklar in doing this work on the problems of perverse or unjust spontaneous orders. 

NATHAN GOODMAN: Excellent. Yeah, that's very helpful to know, especially because I think people often are, I think due to disciplinary boundaries, Shklar's work is often neglected, it seems, by economists who are working on these issues. And I've really seen a lot of upshots from your discussion of her work that seem really relevant for my own work and for the work of some of my colleagues. So I'm glad that we're having this discussion. Yeah. So, What would you recommend people read if they want to learn more about the topics we discussed in today's conversation? 

JACOB LEVY: So, there's the most important answer is slightly tangential to the conversation, but it's work that came out after the law and border essay that we've been talking about. And that's Chandran Kukathas' major work on immigration. Chandran Kukathas' book, “Immigration and Freedom”, is the most important answer to this question. We've been talking about the ways in which border enforcement as an enforcement practice, as an institution that involves police and guns and search and seizure powers and all the rest, is a threat to the freedom, including the freedom internally to the society. All of that's present in Chandran's book, but also present in Chandran's book is a direct diagnosis of the impingement on freedom within civil society of migration restrictions. Insofar as part of our freedom is relational. We want the freedom to marry. We want the freedom to befriend. We want the freedom to employ or seek employment. Border restrictions are restrictions on who it is we as citizens can do those things with. There will then be enforcement mechanisms that are brought to bear against even people who are uncontroversially lawful citizens within the society because there's a kind of criminalization of what we want to do with other people in the world. 

So, there's a deeper, richer normative political theory about the whole character of a free society that Chandran offers in “Immigration and Freedom” that is wholly compatible with what we've been talking about, but that adds a great deal of really important normative philosophical and political or theoretical depth to it. He has a forthcoming book, “Dialogues on Immigration”, which I've read for the purposes of blurbing and which might well be out, I think, by the time this podcast even goes live. And I'm very enthusiastic to recommend that as a compliment and possibly as more accessible compliment to people who don't have a substantial background in political theory and philosophy. 

NATHAN GOODMAN: Yeah. His work is really important and excellent. So I'm going to heartily second to these recommendations for all of our listeners. So thank you so much for your time today and for the vital work that you're doing on these issues. I really appreciate the conversation and I hope that others learn from it as much as I have. 

JACOB LEVY: Thank you so much for having me and please good luck carrying on with the important work that you and the center and the podcast do.