Photo: Pedro Pardo/AFP/Getty Images
It’s the optics that are fatal. The image of that caravan, crammed with thousands of desperate brown human beings, winding its way tortuously through Central America and Mexico, headed to a showdown at the U.S. border, is a white nationalist’s twisted fantasy. The question is not if George Soros funded it, but if Steve Bannon did (I’m kidding, I’m kidding). It reminds me of that infamous poster in the Brexit campaign which showed a long, packed line of migrants, in theory waiting to enter Britain, with the slogan: “Breaking Point.”
And as my colleague Ed Kilgore noted earlier this week, it is also weirdly redolent of the racist 1973 French novel Camp of the Saints, where a mass of migrants from India suddenly decide it’s time to relocate to the West, jump on a big cruise ship and set course for Europe. The novel’s author, Jean Raspail, said he was inspired by a moment of revelation he had, gazing at an idyllic Mediterranean scene on the French southern coast. “What if they were to come? I did not know who ‘they’ were, but it seemed inevitable to me that the numberless disinherited people of the South would, like a tidal wave, set sail one day for this opulent shore, our fortunate country’s wide-gaping frontier.”
That, it seems to me, is the fevered, frightened vision now scrambling the brains and hearts of the Western publics. It’s riddled with irrationality, of course. In the U.S., the immigration influx on the southern border is way down from its extraordinary peak at the turn of the century (although, for families with kids, it’s now rising again). The labor market is humming at home. Net Mexican migration is in reverse. The United States has long been a miraculous machine for immigrant assimilation. Which is why it’s easy to dismiss the appeal of anti-immigrant sentiment as nativist racism, waxing as it periodically does in America. It is especially easy to do so when the president himself can simply throw out the idea that the caravan is also made up of Middle Easterners, terrorists, and the like, offer no proof, and still gain some traction before the midterms.
And that’s why most Democrats, asked to respond to the issue, bob or weave or want it to go away, only to retreat to a condemnation of bigotry, or launch a vague appeal to our better natures. Beto O’Rourke, for example, condemned the paranoia about the caravan this week, said he didn’t buy the rhetoric of “crisis,” called on Americans to be the “big, bold confident country I know us to be,” and wondered why the asylum claims had to take place at the border rather than in their countries of origin (you actually have to be physically in the U.S. or at the border to claim asylum). Many liberal and Democratic commentators have simply expressed anger that the mainstream media has covered this story at all. Photos on the front page of the New York Times two days in a row! We’re back to Hillary email coverage as the midterms approach.
I get all that. I’m an immigrant myself. But it doesn’t answer a simple question. What do we do when the caravan gets here? And more saliently: What do we do if many more caravans show up behind it? This is not an abstract question. It’s a pressing, practical, and in some ways existential one. It cuts to the core of whether the United States has to choose between being inhumane to the point of betraying some core moral principles and remaining a sovereign nation in control of who joins its population.
The problem the caravan presents, after all, is not the usual one. These migrants are not seeking to enter the U.S. illegally, by subterfuge. They are seeking entry legally — by applying for asylum, as any noncitizen is entitled to do. It doesn’t matter how many resources we throw at border enforcement — because there is nothing here to enforce. The wall won’t help either, even if it were miraculously effective. In fact, the wall could hurt: As the border becomes harder to cross, it makes more sense simply to show up and turn yourself in to the border cops as an asylum seeker when you get here. It’s far cheaper than paying coyotes to get you across; and it’s much safer, especially in the numbers that the caravan has achieved. That’s why, as word about the caravan spread on social media, especially WhatsApp, so many impulsively decided to join. There was both strength in numbers and a real chance of legally getting in. As the Washington Post’s invaluable Nick Miroff notes, “this is the new way to come to America.”
For the most part, asylum seekers get a near-automatic entry into the U.S., temporarily in detention centers, eventually into the interior of the country, along with an ankle bracelet and a court date in the distant future. But nearly half of asylum seekers, especially those with weak cases, don’t show up in court. They simply melt away into the general population. And the number of asylum seekers who get physically deported is minimal. The result is not formally one of open borders. But they sure are ajar.
And increasingly, these incentives are encouraging unaccompanied kids and intact families to make the journey to the border. That was the rationale behind the Trump administration’s horrifying policy of separating children from parents — it was designed to discourage families with children from seeking entry to the U.S., as well as disincentivizing those trafficking kids and pretending to be families. Because children could only be detained for 21 days, and families were detained together, the “catch and release” policy was indeed a pretty big loophole for many to get a foothold in the U.S. And so the Trump administration made the fateful decision to enact hideous cruelty. It was and is indefensible, but it was not without a rationale. And since the policy of separating kids has been abandoned, the number of individuals arriving as family units at the border has soared — in July, there were 9,247; in September, there were 16,658, an all-time high.
So what is there to do? Part of the answer is what Attorney General Jeff Sessions has done: He’s tightened the criteria for asylum. “The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he announced in June. Part should be a massive investment in immigration courts and judges, as well as family detention centers. Part should be aid and support for the very Central American countries we are now threatening foolishly to sanction. But none of this would actually “solve” the problem, just mitigate it slightly. In fact, if we sped up asylum cases, we could incentivize even more of them.
And after a certain point, there is nothing to be done. As long as the U.S. remains more peaceful, prosperous, and free than much of the Western hemisphere, it will be a magnet. And as more and more people see on social media what life in America is really like, and feel so much closer to it, and as the cost of travel continues to drop, the logic of mass migration north is close to unassailable. The same goes for mass immigration into Europe. When you look at the huge demographic surges in Africa and the Middle East, and when you factor in the impact of climate change and civil unrest in forcing people to leave their homes, all of this will intensify.
All of it is putting unprecedented strain on liberal democracy in the West itself. The connection between mass migration and the surge in far-right parties in Europe is now indisputable. Without this issue, Donald Trump would not be president. As we can see right now in front of our eyes, elections can turn on this. Which is why Trump is hyping this caravan story to the heavens — and why, perhaps, the last few weeks have seemed less promising for a “blue wave.” David Frum is right: “If liberals insist that only fascists will defend borders, then voters will hire fascists to do the job liberals will not do.” And unless the Democrats get a grip on this question, and win back the trust of the voters on it, their chance of regaining the presidency is minimal. Until one Democratic candidate declares that he or she will end illegal immigration, period, shift legal immigration toward those with skills, invest in the immigration bureaucracy, and enforce the borders strongly but humanely, Trump will continue to own this defining policy issue in 2020.
This is not a passing crisis. It is the new normal, and its optics do nothing but intensify the cultural panic that is turning much of the West to authoritarianism as a response. The porousness of the West’s borders are, in other words, becoming a guarantee of the West’s liberal democratic demise. This particular caravan will take a while to make it to the U.S. border, if it ever does. It will surely lose some followers on the way. It may peter out altogether.
But the caravan as a symbol? Its days are just beginning.
Title IX and Gender
At one point, very early on in the campaign for marriage equality, in 1993, we had a breakthrough. It was in a court in Hawaii and it was a case, Baehr v. Miike, that upheld a right to civil marriage for gays on the grounds of sex discrimination. The argument was a simple one: If two women showed up for a civil marriage license, they would be denied one; but if one of the women were a man, they would receive one, no questions asked. Ergo: The plaintiff was discriminated against on the grounds of her sex, which was well-established as impermissible under the constitution of Hawaii (and those of countless other states).
What’s not to like? We got same-sex marriage without even having to debate it! I was happy — ecstatic, actually — we had an actual case to point to, because until then most people had looked at us funny when we made the argument, as if we were somehow hallucinating. But I still felt very queasy about the reasoning. It seemed like a bit of a trick to me, a way of dodging the actual issue of homosexuality and civil marriage, and piggybacking gay rights onto women’s rights, a separate issue entirely. I also didn’t think the broader public would somehow discover that same-sex marriage was now legal, but wouldn’t think it was that big a deal, since it was only really a case of sex discrimination, and wasn’t breaking any new barriers. In fact, I thought that was absurd. The only way past this question, I believed, was through it, rather than somehow around it. Sure, that made things much, much harder — and Baehr v. Miike jump-started the religious right’s crusade against us, and led directly to the Defense of Marriage Act in 1996. It took another couple of decades to win across the country. But it was an honest campaign; it was real; it was direct; it was democratic in its critical early stages. If successful in this way, I believed, it could endure. And it did.
I thought about that precedent while reading the rather breathless coverage of the Trump administration’s leaked memo on whether to rescind a 2016 Obama administration guidance on the meaning of the word “sex” in Title IX. You would have thought there was a plan for trans genocide: “’Transgender’ Could Be Defined Out of Existence Under Trump Administration,” bemoaned the New York Times.
What happened here was that in May 2016, the Obama Justice Department added the following in a guidance on the scope of Title IX: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” This was passed by no law; or even formulated as part of the regulatory rule-making process. It was just an executive fiat, and one that was clearly beyond the intent of those who passed the laws that gave us Title IX.
What the guidance effectively did is to redefine “sex” as including “gender identity.” But if there’s one thing I thought the transgender movement has always insisted on it is that sex is not gender. That’s why we have two separate words, right? Sex is what biology gave you; gender is how you express or understand and experience that sex. Someone who has male chromosomes, hormones, and sex organs can nonetheless rightly identify her gender as female, and present herself as such. It’s trans-gender not trans-sexual, after all. And Title IX is quite clearly about sex. Here’s the actual text from 1972: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” There’s no way that legislators in the early 1970s were talking about concepts of “gender identity” as we understand them today.
More to the point, to smuggle in Title IX protections for trans people, not by proposing a change, debating it, or even — God forbid — legislating it, but by quietly reinterpreting the meaning of a word and issuing a bureaucratic rule is a classic case of anti-democratic liberalism. It’s rule by the enlightened few, not the messy masses. It’s an authoritarian move that, like other unconstitutional executive fiats from Obama (DACA comes to mind), is highly vulnerable to being reversed. And it is, of course, perfectly possible for Congress to pass a law granting trans people the same kind of constitutional and legal protection under Title IX that women (and men) have as a class. You can add “gender” to “sex” if you want. I’d support and vote for such a change in a heartbeat. The trouble is that a law has not been passed. And simply returning to constitutional government after a couple of years is not the same thing as defining away an entire minority population.
What Fresh Authoritarian Hell Is This?
It is not news that this president despises the First Amendment. But the extent of his opposition is not to be underestimated. A proposed new rule was quietly issued by the National Parks Service last August concerning “special events and demonstrations in the National Capital Region.” The details of the regulations — try reading the link — do indeed make your eyes glaze over, which is perhaps the point, but in the fine print, it’s perfectly clear that Donald Trump is determined to restrict demonstrations as they have long been held around the White House and the Mall. The NPS now wants to charge people for costs associated with demonstrations, it wants to ban all protesters from the sidewalk outside the White House, and it wants to treat demonstrations as if they were “special events” which require permits (including fees) from the government to take place.
One of the very first things that struck me as a new immigrant when I visited the Mall in D.C. was how democratically unruly the space was. There were tourists and loonies, frisbee players and site-seers, picnickers and lovers, volleyball players and cyclists — and they could and would go anywhere on or around the Mall, as if they owned the place. To my British sensibility, there was shockingly little decorum or deference to these monuments that bore down all around us. It was such a stark difference from the parks in central London, far better tended, with railings and “keep off the grass” signs, indications that yes, this was still a monarchy, and yes, these parks were, first and foremost, her Majesty’s. There was always Trafalgar and Parliament Square, and Hyde Park, of course, but there was something just less kempt, more ornery, and carelessly chaotic about the American center, as if the people had owned it all along. Which, of course, they had.
This was a space not for the government but for the people, and much of the city was, in fact, designed to host large gatherings, protests, inaugurations, and demonstrations. What else would it be for, after all? It was built on democracy, not industry. A huge amount of it was lost after 9/11, as the concrete barriers went up, traffic was cleared from crucial streets, and cops patrolled everywhere; but the security state didn’t win entirely. There was something about knowing that the president might be able to hear and see you as you yelled or chanted outside on the sidewalk. And on some occasions, as with the showing of the AIDS quilt, or the Obama Inauguration, the place felt almost sacred in its openness. I will never forget the footage of an ACT-UP demonstrator throwing the ashes of his lover over the White House fence onto the lawn — shocking on so many levels, but mostly for its its empowering assertion of owning the place, of always being able to get in the face of the powerful.
I know why Trump hates all that. It’s why I despise him. And why I hope these new restrictions on our freedoms will encounter a ferocious resistance.
See you next Friday.