Many economic arguments have been made for why the non-citizen should be permitted to work in the United States. Many have argued that immigrants don’t compete materially with American for jobs, that they only compete with very “low-skilled” U.S. citizens for jobs, or only suppress wages by marginal and ultimately insignificant amounts, or that, regardless of competing slightly for already existing jobs, migrating people also create jobs and economic growth anyway, offsetting any competition.[i] Even I have made these arguments.[ii] But all of these arguments, while compelling and true, miss the point: it really doesn’t matter if immigrants compete with U. S. citizens for jobs- because the jobs in the U.S. do not belong to Americans – they belong to everyone because everyone has a right to survive.

The Right to Work Follows From the Right to Life, Despite Racist Law

The right to life is recognized under both American[iii] and international law.[iv] Unfortunately, the law does not recognize, either domestically[v] or internationally,[vi] that the right to life means the right to cross a border to access the means of survival, such as employment.[vii] Nonetheless, if people have a right to live, and people need to work to live, it follows that people have a right to work. So, while the right of all people to compete for the same job does not follow legally – it does follow logically and morally. The law, as is so often the case, just hasn’t caught up to the morality yet. But the law has not caught up to the morality yet because, while the right to work may follow morally, it does not follow politically.

It does not follow politically because it does not follow racially. White supremacy is naturally opposed to truly color blind and nationality blind, work opportunity. The artifice of white supremacy that says locus of birth dictates whether or not you have a right to survival, long ago found an expression in the law. This vehicle of expression is called the plenary power doctrine.

Like many platforms for white supremacy (e.g., the war the drugs[viii]), the plenary power doctrine hides behind ostensibly race-neutral concepts. On its face the plenary power doctrine says that a nation state is sovereign, meaning it has a right to self-determination, and therefore has a virtually unconditional right to exclude any non-citizen it wants from its territory, for whatever reason it wants, when and (more or less) however it wants.[ix] While generally, the constitution and its protections attach to any person in U.S. territory,[x] the doctrine still effectively allows Congress to eject non-citizens and especially “undocumented” non-citizens from that territory or deprive them of equal treatment basically, willy nilly.[xi] Practically, this means sovereignty absolves our society from any moral duty whatsoever to any human being that is not a citizen of the nation state. In other words, it exploits and abuses the idea of self-determination to vanquish totally the humanity of any human life that is not a citizen. Since citizenship is traditionally tied to race and nationality, and is, I would argue, an unalterably racialized idea,[xii] the ability of this sovereign-supremacy doctrine to serve white-supremacy should be obvious.

The reader may disagree that nationality is an inherently racist idea, but that does not change my moral obligation to call a fig a fig. It is impossible for me to ignore that the practical function of nationality is to allow different rules to apply to different people based on an assigned national label; a label which is itself defined by immutable (e.g., locus of birth, lineage) or non-meritorious traits (e.g., language or religion) – in a word, racism. It is a means to rationalize violence. In an employment context, economic violence.

Actually, Supreme Court Justice David Josiah Brewer, in a dissenting opinion from a late nineteenth century case that discussed the plenary power doctrine, made a not entirely dissimilar criticism of the doctrine than that one I am making right now:

It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they took to the practices of other nations to ascertain the limits? The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, and it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.[xiii]

Indeed, the idea that the plenary power doctrine is anything other than a racialized effort to diminish the humanity of others via banishment is belied by the very case law that articulated the doctrine. The seminal cases on the plenary power doctrine, Nishimura Eiku v. U.S.,[xiv] and Fong Yue Ting v. U.S.,[xv] were failed efforts to challenge the Chinese Exclusion Acts, explicitly racist exclusionary laws that prohibited Asian immigration. That the U.S. Supreme Court used an ostensibly race-neutral doctrine to procure an unambiguously racist result that upheld an equally racist law makes suspect the allegation that the doctrine is race-neutral and reveals the true motivation behind the doctrine and the Supreme Court decisions that kept it law.

Nonetheless, today the plenary power doctrine is the legal foundation of the federal government’s power to restrict immigration and permit discrimination, such as restricting which benefits non-citizens may receive, including work opportunity.[xvi] In this way the plenary power doctrine is the most powerful legal tool for protecting (white/american) privileged access to jobs and obstructing the right to life and survival for non-citizens. The argument that marginalized group A is “taking” the work that hegemonic group B has a superior right to is not new. It was wielded against black citizens and citizen women to exclude them from work as well. This exclusion not only gave white men privileged access to wages but also generated a source of cheap labor. As Aviva Chomsky notes in her book They Take Our Jobs!: And 20 Other Myths About Immigration, marginalizing a group of people, be it women or blacks, provided a cheap source of labor for white men, just as marginalizing immigrants does now:

For centuries, the United States and other industrialized countries have institutionalized inequalities by granting rights to some people but not to others. People without rights may be slaves, they may be colonial subjects, they may be racial and ethnic minorities, or they may be immigrants . . . In all cases, though, governments have made sure that there are people without rights to fulfill buisness’s need for cheap workers and high profits.[xvii]

Making the immigrant’s right to work less than the citizen’s right performed the same function today as it did before – shutting out equal opportunity of some group performs the dual purpose of both hoarding wages for the privileged few and creating a cheap source of labor to benefit them. That kind of privilege is just a rationale for brutality.

American Jobs Belong to the World

If everyone has the right to compete for jobs regardless of locus of birth and nationality than no one’s right is superior to anyone else’s. The non-citizen with permission to work is not morally superior to the non-citizen without that permission. They are not more deserving, they are not more accomplished, and they can prove no greater claim to the opportunity. The employment authorization card is issued without the moral authority to issue it: No one should need another person’s permission to survive. To propose that any person or institution has the right to give that permission is an argument against equality. Either everyone who needs to work has the right to work, or no one does.

To horde your local work opportunity for yourself is not just racist – it is also selfish. It is an act of destructive hedonism, a victory for shameless narcissism. The person who endorses “our jobs, not theirs” must admit they enrich themselves at the expense of another. They embrace an amoral, me-first universe and spit on the golden rule. There is no dignifying the law of the plenary power doctrine – it is the mindless law of the jungle masquerading as jurisprudence. Its true purpose is for “determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.”

The jobs in the United States belong to the world, to the nation of Humanity, not just to the tribe of Americans. You may insist that you have a superior right to compete for that job in your neighborhood because you accomplished the dumb task of being born closer to it than someone else, but you would be wrong. Of course immigrants bring jobs, but that’s irrelevant because they have a right to compete for existing jobs. Will you lose a job if an immigrant is hired in your place? Of course you will, that’s how sharing works. That’s what equality looks like. Does that mean you may have a duty to make sacrifices so that others might live? Yes, that’s how morality works. Henry David Thoreau, making an argument against slavery that could easily double as an argument against work restrictions, once put it thusly:

If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself. . . But he that would save his life, in such a case, shall lose it. These people must cease to hold slaves . . . though it cost them their existence as a people.[xviii]

Morally, it doesn’t matter if immigrants produce jobs, because they also have a right to compete for your job and my job. No non-citizen can take your job, in fact, because it isn’t yours. But if you are someone who insists on the contrary, curmudgeon myth, for as long as you insist on it, as an immigration lawyer I will insist on aiding as many people as possible to survive by helping them get work permission in the United States – as far and as often as the law allows me. I will work hard to pry what is not yours from your stubborn, selfish hands.

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[i] See, e.g, Alex Nowrasteh, “Immigrants Did Not Take Your Job” (Nov. 2, 2012); Sari Pekkala Kerr & Willian R. Kerr, “Economic Impacts of Immigration: A Survey,” Harvard Business School (2008, 2011), available at http://www.hbs.edu/faculty/Publication%20Files/09-013_15702a45-fbc3-44d7-be52-477123ee58d0.pdf; Tanvi Misra, “Immigrants Aren’t Stealing American Jobs,” The Atlantic (Oct. 21, 2015), available at http://www.theatlantic.com/politics/archive/2015/10/immigrants-arent-stealing-american-jobs/433158/; Adam Davidson, “Debunking the Myth of the Job-Stealing Immigrant,” The New York Times (March 24, 2015), available at http://www.nytimes.com/2015/03/29/magazine/debunking-the-myth-of-the-job-stealing-immigrant.html?_r=1.

[ii] Steven Sacco, “In Defense of the Eligible Undocumented New Yorker’s State Constitutional Right to Public Benefits,” 40 N.Y.U. Rev. L. & Soc. Change 181, 228 (2016).

[iii] Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (noting the “life, liberty or property” formulation articulated in the Fifth Amendment of the U.S. Constitution has its roots in the Magna Carta, which included the “right to life.”)

[iv] Art. 6 of the International Covenant on Social and Political Rights. (“Every human being has an inherent right to life”); UN Doc. HRI\GEN\1\Rev.1 at 6 (1982)(“[The Right to Life] is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation . . . It is a right which should not be interpreted narrowly”).

[v] Harisiades v. Shaughnessy, 342 U.S. 590 (1953) (Douglas dissenting)(The power of Congress to exclude, admit, or deport aliens flows from sovereignty itself and from the power ‘To establish an uniform Rule of Naturalization’. U.S. Cnst., Art. I, s 8, cl. 4. The power of deportation is therefore an implied one. The right to life and liberty is an express one. Why this implied power should be given priority over the express guarantee of the Fifth Amendment has never been satisfactorily answered.”)

[vi] While international law recognizes a righto work (See art. 6(1) of the International Convenient on Economic Social and Cultural Rights) international law does not also recognize the right to cross a border to fulfill that right to work See International Convention on the Protection of the Rights of All Migrant Workers and Their Families. (Describing nowhere in the document any right to cross a border for the protection of life, other than the right to seek asylum, which is itself very narrow).  See Also art. 12 on the International Covenant on Social and Political Rights. (ensuring a right to leave one’s country, but no corollary right to enter another has been interpreted). See, e.g., the similar right to leave under the European Convention on Human rights: A.E. v. Poland, No. 14480/04 (31 March 2009), at ¶ 46 (“reiterates that Article 2 of Protocol No. 4 guarantees to any person a right to liberty of movement, including the right to leave any country for another country to which he or she may be admitted”).

[vii] See Supra, Notes 5 and 6.

[viii] See, e.g., Angela Y. Davis, Abolition Democracy: Beyond Prison, Torture and Empire Interviews (2005); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Color Blindness (2010);

[ix] Nishimura Eiku v. U.S., 142 U.S. 651, at 659 (1892)(“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe”).

[x] See, Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)( The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. . . These provisions are universal in their application to all persons within the territorial jurisdiction); But See Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir. 2001)(finding that a lower standard of review is appropriate for review of laws that discriminate between documented and undocumented people when the law says what federal immigration authorities may and may not do); Mathews v. Diaz, 426 U.S. 67 (1976).

[xi] See, supra, notes 9 and 10.

[xii]

[xiii] Fong Yue Ting v. U.S., 149 U.S. 698, 737-8 (Brewer Dissenting).

[xiv] Nishimura Eiku v. U.S., 142 U.S. 651, at 659 (1892).

[xv] Fong Yue Ting v. U.S., 149 U.S. 698, 728 (1893)(“For the reasons stated in the earlier part of this opinion, congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country . . .”)

[xvi] See Mathews v. Diaz, 426 U.S. 67 (1976).

[xvii] Aviva Chomsky, They Take Our Jobs!: And 20 Other Myths About Immigration (2007), at page 27.

[xviii] Henry David Thoreau, “Civil Disobedience” (1849).

Earlier this month Libertarian presidential candidate Gary Johnson made it clear that he was against using the term ‘illegal immigrant’ and that he preferred the term ‘undocumented’. The issue of what to call illegal aliens is often discussed, see John Lee’s previous post and the general page on the topic.

Conservatives object to calling illegal aliens “migrants” on the grounds that it justifies their actions as a viable form of migration. Some in the alt-right go as far as to claim that “alien” is the proper term as it makes it clearer that ‘white’ countries are being invaded. The left on the other hand objects to the term “illegal” as it dehumanizes individuals. No human is illegal – so goes that slogan. The alternative term proposed is “undocumented”.

I am indifferent to the distinction between migrant and alien. I have to resist chuckling when I hear someone seriously worry about illegal aliens invading. Can I be blamed? My home state of California is littered with Spanish place names – Los Angeles, San Francisco, San Jose, San Diego, etc. What would the point of an invasion be at this stage? To rename Bakersfield to San Panadero?

It is the promotion of the term “undocumented” term that concerns me. Just as no human is illegal, I see no reason why we should promote the idea that humans should be documented. To me being “documented” conjures up the image of a dystopian future where we are branded with identification numbers that are needed for every little transaction. Indeed, I consider the term undocumented to be worse than illegal since it implies that all individuals, including natural born citizens, should be documented in this manner. At minimum the term implicitly justifies a program like e-verify, a de facto form of national ID in the United States, which makes one’s right to work dependent on government approval.

This is not to mean that an open borders regime would do away with all forms of identification. It would be possible to still require potential migrants to undergo a background check in order to screen out criminals. However there is a difference between a background check and requiring everyone, migrant and natives alike, to constantly present documentation.

Both terms then, illegal and undocumented, should be objected to. Alternative terms have similar failings. “Dreamer”, a moniker used to describe to illegal aliens who entered as children and are pursuing higher education, implicitly suggests that “normal” illegal aliens should be deported. “Unauthorized” still implies, if subtly, that states have the right to restrict migration.

I personally prefer the term illegal alien because, at least in the United States, I think open border advocacy needs to be focused towards conservatives. This is not to mean that the left has embraced open borders mind you, but there are more leftists in the movement than conservatives. I am willing to concede the terminology debate if it means that there is more time to make the rest of the case for open borders.

Political considerations aside, what should these individuals be called? I think the answer should be obvious to open border advocates: humans. Under open borders all individuals are humans with the same inherent rights.

Last year Pope Francis visited the United States and addressed Congress. A significant portion of his speech was devoted to how people should respond to immigrants. While not appealing for specific immigration policies, Pope Francis reminded his listeners that immigrants deserve to be treated humanely:

“… thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities. Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation. To respond in a way which is always humane, just and fraternal. We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: ‘Do unto others as you would have them do unto you.’ This Rule points us in a clear direction. Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves.”

Open borders supporters can highlight certain remarks that appear to support our cause, especially the sentence “Let us seek for others the same possibilities which we seek for ourselves.” For immigrants from developing countries to enjoy the same opportunities as people living in developed countries, they must be allowed to enter and remain in advanced countries. And it seems impossible to treat immigrants in a way that is “humane” and “just” under a policy of restrictions. (The group No One Is Illegal states that “the achievement of fair immigration restrictions… would require a miracle.”) At the same time, those opposed to open borders could reference a remark in the Pope’s speech (not quoted above) in which he states that the world refugee crisis “presents us with great challenges and many hard decisions.” One might infer that those decisions might involve accepting some migrants into destination countries and refusing others.

But what about the Golden Rule itself? Is it a foundation for open borders? One approach to the Golden Rule would seem to support open borders. Consider Bryan Caplan’s remark that all that we really owe strangers is to leave them alone. If this is applied universally, “Do unto others…” could mean that you wouldn’t have anyone block you from shopping, living, or working where you please, even if it’s in another country, so you shouldn’t interfere with others’ ability to do the same, regardless of their nationality. This seems to be what the Pope means when he says, “Let us seek for others the same possibilities which we seek for ourselves.”

The Golden Rule also could be seen as supporting a limited version of open borders. It would support open borders for citizens of countries with comparable economic prosperity. For example, Argentina, Chile, and Uruguay have roughly the same per capita GDP.  It would make sense that citizens of any one of these countries would have the other two countries allow them to migrate freely to those countries to pursue economic opportunities, so they should have open borders for citizens of the two other countries to enter their country.

However, the Golden Rule’s support for open borders could founder when applied to citizens of countries with wide economic disparities. This is because citizens of the Third World generally have much more to gain from moving permanently to the First World than citizens in the First World have to gain from moving permanently to the Third World. Citizens of developed countries, who generally have little desire to migrate to developing countries, probably wouldn’t have developing countries open their borders to them, especially if it meant they would have to, under the Golden Rule, reciprocate. Therefore, they wouldn’t be obligated to open their borders to citizens from developing countries. For example, most Canadians likely would be okay with Bangladeshis telling them that they couldn’t migrate to Bangladesh, so Canadians wouldn’t have to open their borders to Bangladeshis. On the other hand, most Bangladeshis probably would have Canada open its borders to them, so they would have to open their borders to Canadians. This difference in perspective reflects a weakness that others have noted about the Golden Rule: the difficulty of applying it to “differences of situation.”

Pope Francis’ comments about treating immigrants with compassion are inspiring. However, I disagree that the Golden Rule “points us in a clear direction” about how to respond to immigration. It is too malleable to provide a moral foundation for immigration policy.

In a previous post, I noted that, in my opinion, the best argument for open borders is that it would allow people, not their birthplace, to control their lives. Open borders would offer people who had the bad luck of having been born in poor and/or unsafe countries the opportunity to escape their unfortunate circumstances and find a better life in a safer, more prosperous country. It is wrong for the lucky who were born in the developed world to deny this opportunity to the unlucky who were born in poor countries, to paraphrase the ideas of several other critics of immigration restrictions.

How persuasive is this argument? Research on the role that awareness of one’s luck has on one’s generosity suggests that the argument, by reminding people of their good fortune in having been born in the First World, could be effective.

A recent article in The Atlantic by Robert Frank of Cornell University focuses on this connection between being aware of one’s good luck and a willingness to help others. Mr. Frank notes that when people disregard the role luck plays in their success, they are less generous. However, “… when people are prompted to reflect on their good fortune, they become much more willing to contribute to the public good.” He cites experiments in which subjects who are induced to feel grateful or consider factors outside their control that have helped them are more generous towards strangers than subjects in control groups.

It would be interesting to see what the results would be if a similar experiment were conducted in which some subjects were prompted to consider their good fortune at having been born in an advanced country and then asked their views on open borders, while other subjects were not given such prompts. The results of the aforementioned studies, even though the generosity was directed at strangers who were presumably fellow citizens, suggest that the subjects in the hypothetical experiment who were led to consider their good fortune would be more favorable towards open borders than the other subjects. (While he doesn’t express his views on immigration policy, Mr. Frank states that “the one dimension of personal luck that transcends all others is to have been born in a highly developed country.”)

As open borders advocates consider which arguments are most likely to convince more people in advanced countries to embrace open borders, this focus on making individuals aware of the huge role that their place of birth has had on their lives could be potent. Of course, this message would be received better by those who are prospering more than others. As the Brexit vote has shown, many of those who are struggling in the developed world are in no mood for increased immigration.

Mr. Frank observes that successful people in the First World tend to overlook the role luck plays in their success: “Most of them are vividly aware of how hard they’ve worked and how talented they are. They’ve been working hard and solving difficult problems every day for many years! In some abstract sense, they probably do know that they might not have performed as well in some other environment. Yet their day-to-day experience provides few reminders of how fortunate they were not to have been born in, say, war-torn Zimbabwe.” If the open borders movement can provide more such reminders, it could be significantly strengthened.