Norm-busting: rightist challenges in US and Australian immigration and refugee policies

Institutionalist scholars argue that international rights norms, judicial autonomy and discourses of immigrant nationhood constrain shifts to harsher immigration policies in liberal democracies, particularly settler societies. The Trump presidency and the Liberal–National Coalition government in Australia during the same period are occasions to test whether those norms functioned as expected in two paradigmatic country cases. Both governments attempted to undermine judicial autonomy, the illegitimacy of ethnic and religious selection of immigrants, the rights of detained children and families, and the principle of non-refoulement. A new institutionalist analysis of attempted norm-busting in each country specifies which norms were effective constraints. International legal and political constraints were weak. Domestically, norms obliging the protection of children were more effective than norms related to adults. Discourses favouring immigrant nationhood and opposing discrimination resonated, but were confronted by equally powerful discourses of insular nationalism and security that promoted restriction. While the judiciary moderately constrained new policies, particularly in the US, in neither country did the judiciary fully act in line with dominant theoretical expectations, because of both structural and normative weaknesses.