Answer to Vipul’s question about enforcement

This post is in answer to Vipul’s post “Immigration enforcement — what’s morally acceptable? A question for fellow open borders advocates.” I have indeed thought a lot about this. In fact, to establish the answer to this question was one of my main goals in writing Principles of a Free Society, though I don’t focus my arguments on that question in any one place in the book. Vipul asks: “I feel that harping too much on [criticism of enforcement] is dismissive of… legitimate concerns, namely, how can you enforce any immigration policy — or any specific keyhole solution — without some enforcement teeth?” Yes, that’s why I had to be a rather careful policy designer in Principles. Because I think conserving good institutions is very important, but at the same time, deep moral logic compels me to regard most of the sorts of measures governments use to control immigration today as unjust. Morally, I think ICE is pretty much on a level with any gang of robbers: an organization whose raison d’etre is unjust violence.

My starting point in Principles is natural rights:

A human being is mind and body. The body has a particular telos, or peculiar flourishing, of which we have some natural understanding. Thus, we see the difference between a healthy body and a body wounded, injured, decrepit, or sick, though it would probably be impossible mathematically to define the difference in microphysical terms. To flourish, the body must have food, water and air; must not be subjected to cold or heat too extreme or for too long; must not be pierced by sharp objects or crushed by heavy blows; must not be exposed to certain substances, certain types of radiation, certain intensities of sound; must be allowed a certain degree of movement and a certain degree of sleep; should not spend too much time in water or darkness; and so forth. Each body is naturally subject to one human mind. To be subject to that mind is part of the body’s telos. The means by which the body can be subjected to the power of other human minds– it can be beaten, wounded, dragged in chains, and so on– trespass against or violate the body’s telos. The body should belong to its natural possessor. (Principles of a Free Society, p. 1)

I call this the habeas corpus principle, “taking some liberties with a venerable phrase from the English common law, yet faithfully capturing, I think, both its strict semantic sense and its highest historical significance.”

To cut a long story short, you can’t violate natural rights except as retribution for violations of natural rights. Utility can’t trump natural rights because (a) a person must generally be presumed to be the best judge of their own utility, and (b) utility isn’t interpersonally comparable. The state’s claim to a special right to use violence must derive from a social contract if it is to be just at all. Most problematic here is taxation. Ordinary law enforcement is (if the laws in question are just) retribution against violations of natural rights, usually at the behest of the victim, so that’s fine. But what justifies the state in forcing people who have violated no one’s natural rights to pay it money.  To this, I give a handful of answers which are not that satisfying, but which I think are the best you can do. Three of them are:

  1. Violating rights to protect rights.Even if utility does not trump rights, might an action be acceptable which violates rights but prevents other rights violations so that there are “less” violations (whatever that means) than otherwise?
  2. Free-rider problems.It’s possible that Pareto-improving collective action could be prevented by interminable problems of negotiation. Perhaps a state is assuming power justly if doing so improves the welfare of all members. (Interpersonal utility comparison is not a problem in this case, but it’s still a problem that utility is unobservable.)
  3. Payment for judicial services.Complex forms of property rights, such as corporate property rights with their separation of ownership and control etc., are probably only possible with the help of state coercion. To the extent that the state facilitates wealth creation through provision of sophisticated property rights (which arise from natural property rights but are too complex for casual moral intuition to settle disputes about), it may be justified in extracting some of the wealth thus created from the beneficiaries of judicial services.

Where does this leave the undocumented immigrant? To simplify somewhat, he has violated no one’s rights, and no one has a right to interfere with him. But isn’t the undocumented immigrant comparable to a trespasser? No, no, no! The more sinister form of this argument holds that all the land in the country is somehow the collective property of the people as represented by the government. This is prima facie totalitarian, or socialist as Bryan Caplan put it recently, and while people may have come up with ingenious ways of curtailing the terrifying ramifications of “the government owns all the land” while maintaining the view for purposes of immigration law, there is no need to look into them because they are wholly false and without foundation. A less sinister (and more tenable) version of the argument holds that the streets are government property, and since immigrants can’t live here without using the streets, they can be excluded altogether, even if they do no wrong by being on private property with the owner’s consent. My response to this is one of the more subtle and original parts of the book, and I was gratified when I read Vipul’s summary of my theory of streets at this site, which was the first evidence I’d had that anyone other than my publisher had understood it. Streets, I argue, are not public property or state property, but rather places where many non-exclusive individual transit rights overlap. Only habitual users have rights in a street, but the non-exclusive nature of these rights leaves non-habitual users with a liberty to use the street as well, including, of course, foreigners.

By the way, I think someone here or at EconLog once suggested the government should just acquire a narrow strip of land all along the border, and then undocumented immigrants would be trespassing by crossing it. No. Landownership in natural law confers rights of use, and rights of exclusion that derive from rights of use, but not rights to exclude people from other land besides what is owned merely because of the accidents of contiguity; and when the ownership of a piece of land would exclude others from places they have a right/liberty to go, an easement exists in natural law, recognized in the common law, allowing individuals to pass through privately-owned land in such a way as to minimize infringement on usage rights. One of my dad’s clients when he was practicing law had an opportunity once to buy a narrow strip of land which would complete the encirclement of a property he wished to buy. He asked my dad and his colleagues whether he could force the owner to sell by completely excluding him from his own land. They said, no, in that case there would be an easement.

While deporting by force people who have not violated anyone’s natural rights is always unjust, I argue for the permissibility of progressive taxation:

However, there is no reason that the state cannot justly “price discriminate” in its provision of public goods, charging much to the rich and little or nothing to the poor, as long as the rich are not charged more than the public goods are worth to them (although measuring the value of public goods to any individual person is a serious problem). To the extent that the state generates “surplus value,” it has some scope to be particularly generous to some without being unjust to others. (Principles of a Free Society, pp. 22-23)

And that’s why immigration tariffs are all right: basic principles of justice allow tax discrimination, and that can be applied against foreigners. As for enforcement:

Would [immigration tariffs] solve the problem of [undocumented] immigration and restore the rule of law? It might seem not, for after all, immigrants might still want to sneak across the border to avoid paying the deposit. Realistically, though, illegally crossing the borders is generally harrowing, dangerous, and costly, and few would choose to do it if they had another way into the country. And, crucially, under [immigration tariffs], the logical punishment for illegal entry would be different.

An [undocumented] immigrant’s crime would be, not that he was present in America, for he would have a right to be in America, but that he had failed to pay the deposit. The logical punishment would be, not deportation– coercion against his person– but a fine– coercion against his property– equal to the deposit (but that would remain his property) plus a little extra as a disincentive. If the police caught an [undocumented] immigrant, they would exact a fine and then give him a… visa. In effect, there would be an automatic and regular version of the amnesties passed in 1986 and that were considered by the Senate in 2006 and 2007. It is because [undocumented] immigrants would be punished by coercion against property (a lower-order right, which the state has some leeway to define) rather than by coercion against their persons (a violation of the higher-order rights of habeas corpus) that [immigration tariffs are] MORE JUST as well as more efficient than discretionary migration control.

Of course, it is possible in principle that migrants would come without the… visa and be unable to pay the fine when caught, but it is not plausible that this would remain a serious problem. To enter the country illegally is to forgo the benefits of modern transport, making a costly and dangerous trek through the Arizona desert. Very few would choose this course if there were a quick, reliable, and fairly cheap way to get a visa and then hop on a plane or, from Mexico, bus. Once here, it would be difficult for [undocumented] immigrants to find work, since employers could easily recruit [documented] immigrants for jobs native Americans do not want, avoiding the risks of doing business illegally. If traditional [undocumented] immigrants were caught, in the case of Mexicans, the… deposit would be only a few hundred dollars, and it is unlikely that the assets even of poor immigrants would be worth less than this amount. It is a safe bet that [these] visas would put the coyote out of business.

From the position I worked out in Principles of a Free Society, it is not irresponsible to attack basically any and all enforcement measures governments are currently using or considering. By the way, I do have a preference among proposed measures: as I wrote years ago, “Of all the unwise, brutal measures advocated by immigration restrictionists, a border fence is the only one that is not an existential threat to our heritage of freedom.” But, still a bad idea. (And I think Mexicans would be justified in blowing it up if they had a mind to do so, just as, if someone fenced off the street in front of your house, you would have a right to tear that down.) My proposed keyhole solution would be enforced not through any special immigration enforcement but simply through the tax code.

Two more things. (1) Often proposed immigration policies take the form of giving some immigrants a path to non-deportation, permanent residency, citizenship, or something, while ramping up enforcement. This creates agonizing moral dilemmas for immigration advocates. I usually support proposed immigration reforms, but I feel guilty doing so, since it seems to involve actively supporting more unjust violence, in some respect or other.

(2) I’m not absolutely wedded to the idea that deportation is never permissible. However, I can’t think of any situations where it would be appropriate. There are certainly crimes for which deportation would not be an excessive punishment; but for those crimes it’s usually either inapt or insufficient. A man guilty of rape or murder shouldn’t be deported, but imprisoned. Maybe there are scenarios where deportation would be the right thing to do, but I can’t think of them. I have some sympathy for the Nicene council which banished Arius the heresiarch for his views when they temporarily had the emperor on their side– they had suffered much at the hands of the pagans, and would yet suffer much at the hands of the Arians, and mere banishment is impressively moderate under the circumstances– but it’s not a precedent to imitate today, when the principle of free thought has been firmly established.

UPDATE: Minor edits were made to the post.

Nathan Smith

Nathan Smith is an assistant professor of economics at Fresno Pacific University. He did his Ph.D. in economics from George Mason University and has also worked for the World Bank. Smith proposed Don’t Restrict Immigration, Tax It, one of the more comprehensive keyhole solution proposals to address concerns surrounding open borders.

See also:

Page about Nathan Smith on Open Borders
All blog posts by Nathan Smith

7 thoughts on “Answer to Vipul’s question about enforcement”

  1. Nathan, that’s a very thought-provoking post. I would also like point by point answers to my four questions when you get time. In particular, I would like to know more specifically your response to my original question 3. Also, I see you have sort of addressed my question 4, but I would like to hear more of that since I am not convinced by your response.

    I’m aso interested in quantitative estimates from you on what kind of immigration tariff woul be reasonable enough. From what you write above, you seem to be thinking in the hundreds of dollars, and I was thinking in the thousands and tens of thousands of dollars.

  2. Well, OK, let me take on the four questions directly.

    1.What are some morally permissible enforcement mechanisms for immigration policy and under what circumstances? Under what circumstances is deportation permissible? If there’s an immigration tariff to migrate legally, would a fine that is some multiple of the immigration tariff be acceptable to impose on people who migrate illegally? What type of multiple are we talking here? If the fine is not paid, what are the recourse options for the state? Is imprisonment an acceptable option? Deportation?

    Recourse options would include garnishing wages and confiscating real property. I think that’s enough, given that the fines would be relatively small in any case. I don’t think resort to deportation is either necessary or wise, but if you did include deportation, I’d advise giving people an option to work off the fine through labor. That would be cheaper for the government anyway.

    2.At what level of openness of immigration policy would it be morally permissible to expend serious resources into beefing up enforcement? Clearly, my co-bloggers think that a lot of “enforcement” nowadays is misguided because the policy they are trying to enforce is immoral and harmful. But, getting the perfect policy isn’t possible. Would it be morally impermissible to expend resources on enforcement for an immigration policy that moves halfway toward the goal? Would it be morally desirable? Would my fellow open borders advocates get behind stricter enforcement for an immigration policy that is a radical improvement over the status quo but falls far short of open borders? How would they trade off the theoretical openness of borders against the strictness of enforcement?”

    I meant to address this in the post and left out a couple of sentences… they’re added in in now. One is often confronted with dilemmas in which policymakers are willing to do Good Thing A only if it’s combined with Bad Thing B. Suppose Nazi Germany held a referendum on whether they should stop killing gypsies so as to focus resources on extermination of the Jews. Would you (if you were a German voter) favor the change? On the one hand, it would be good to spare the gypsies, but by voting for the measure you would seem to be supporting extermination of the Jews. I don’t think there’s a general rule for negotiating such compromises. Obviously, I’m not saying that today’s immigration enforcement is as evil as the Holocaust. But I usually do feel bad about supporting the various compromise immigration reforms that come along, because it means I have to support enforcement measures that are wrong, even as I advocate for immigrants’ rights.

    3.If non-deportation is a moral side-constraint, does that mean that immigration tariffs need to be price-adjusted for the difficulty of migrating illegally? For instance, if the US computed that the ideal immigration tariff for workers with no specific in-demand skills is $20,000, but a Mexican would choose to migrate legally only if the tariff were $10,000 or less (based on the coyote fees), does this impose a practical restriction on the US to offer a special discount to immigrants from Mexico, compared to immigrants from, say, China or Malaysia? Or would it be acceptable to expend resources on stricter border enforcement once some legal migration option is present?

    Here I can also answer Vipul’s question in the last comment, about what kind of tariff would be reasonable. Actually, come to think of it, maybe I should distinguish here between immigration tariffs and immigration taxes. I envision only a small initial payment before a visa is issued. Moreover, this payment is a DEPOSIT, which STILL BELONGS TO THE IMMIGRANT, and can be recovered when the immigrant goes home. The purpose of the deposit is to preimburse the government for the expense of deporting him if he asks to be deported. That is, an immigrant present in the United States on a certain kind of visa– in the book I call it the DRITI visa for “don’t restrict immigration, tax it”; open borders visa might be a good name too– could, upon request, be deported to his home country “for free” because he would have paid for that service in advance. This is a substitute for a social safety net, to which immigrants on this visa (not necessarily all immigrants) would be denied access. If an immigrant bought his own plane ticket home he could collect the deposit. As I suppose this would always be the cheaper option (govt. is inefficient) I doubt the voluntary deportation option would be used much. So if a tariff is defined as a payment to cross the borders, that’s not what I support.

    What I favor, rather, is taxes on migrants after they arrive. That only applies to migrants who come and get jobs. Those who come as tourists or students need not pay it at all. Migrant workers would see their wages garnished. Moreover, in addition to migration taxes, there would be a forced savings program for immigrants on this visa, which could be withdrawn in the migrant’s home country or forfeited upon obtaining citizenship after it had reached a certain level. All this could involve quite a substantial economic burden. I’ve tended to consider a citizenship threshold of $50,000, but I don’t have a firm basis for these numbers. Maybe 5-10% for the migration tax, 15-30% for the forced savings rate. But of course it depends on your policy objective. If you want a lot of new citizens, keep the forced savings rate low and the taxes high. If you want a lot of sojourners, keep the taxes low and the forced savings rate high. Restrictionists could set both at high levels.

    The deposit, though, is intended to be rather locked in by the rule that it is simply preimbursement of the government in case the immigrant exercises the voluntary deportation option. It should vary with the source country. It might be a few hundred dollars for Mexico, since a bus ticket to Mexico doesn’t cost too much, but might be several thousands for India, since plane tickets there are expensive. I wonder if Vipul is convinced that this would largely eliminate the incentive for undocumented immigration. Crossing the Arizona desert is harsh and dangerous, and a lot more expensive than a bus ticket. Being here without papers would be a serious inconvenience and something of a risk, even if the practice of deportation were abolished. It would be safer and cheaper to come in legally. Enforcement at the physical border wouldn’t be a terrible thing in this case, since more undocumented immigration would consist of criminals and drug smugglers, but I suspect it would be ineffective and a waste of money. It’s still a little bit unjust, after all. Why should a Mexican who wants to go to a dinner party at this friend’s house on the opposite bank of the Rio Grande need to show anyone his papers? Whose business is it of anyone’s but himself and his host? Better to drop it if it’s largely needless and very expensive and ineffective at the few legitimate policy objectives that it does serve.

    4.If you’re convinced that your preferred immigration solution will cause illegal immigration to drop to practically zero, thus rendering all the previous questions irrelevant, why do you think so? After all, there are strong social and legal sanctions against murder, yet there are over 10,000 intentional homicides in the United States every year. What makes you think that illegal immigration will drop to zero, or anything close to that, even under near-open borders?

    The murder analogy is inapt because there is no option of legal substitute for illegal murder. The whole point of open borders is that people could come in legally. Yes, the deposit would prevent some. The deposit might prevent a few even of those who could pay the airfare or whatever. But migrating legally would be cheaper and safer than migrating illegally. I’ve been trying to think of an analogy in which a society legalizes murder provided one gets a license first, but it doesn’t work: it seems one just can’t analogize actions that violate rights to actions that don’t, it doesn’t make sense. (Thus, if I apply for a license to murder you, and there is, say, a seven-day waiting period, you’ll wish to take out a license to kill me, but mine will come through first, so maybe you kill me without the license and take the consequences, only I foresee this and kill you without the license… A very silly example of course! And it doesn’t cross-apply to migration at all, because migration is victimless.)

    Having said that, I wouldn’t be at all surprised if under open borders, 10,000 acts of illegal entry to the United States occurred. Maybe even more. That’s not a problem.

    Two last things. (1) Even under open borders, I still like undocumented immigration, because it would help to keep Congress honest about setting deposit levels. The deposit is supposed to represent the cost of deporting an immigrant, which gives it a rather low upper bound, but of course restrictionists in Congress would be tempted to abuse their discretion in this matter and inflate the number. If they did, they would create an incentive for undocumented immigration, which would be a useful signal that deposit rates would need to be brought back to reasonable levels. Also, undocumented immigration is just REALLY COOL in itself. It’s terrible that people have to do it just to be with their families, but in itself, going through the desert for days in deep night, with little water, etc.– WOW! It’s an honor to have such brave people living in our midst.

    (2) The real enforcement challenge under my open borders plan would, of course, be to collect taxes. Not being an expert in tax enforcement law, I didn’t talk much about that in Principles of a Free Society. While I doubt the problem would be too serious if taxes were set at reasonable rates, if Congress tried to achieve a degree of restrictionism comparable to current law via migration taxes, I think that would involve very high tax rates, say 80% or 90% or more, and in that case the migration taxes would become unenforceable. By the way, tax evasion and undocumented immigration are largely separate issues. An undocumented immigrant would have to work “under the table” and couldn’t pay the special migration taxes if he wanted to, but immigrants who came in with documents would also have an incentive to evade taxes by working “under the table.” That’s another reason why I think enforcement at the border loses relevance. The crucial enforcement issue would not lie there.

    1. Thanks for your answers. A bit of a follow-up on this: if an undocumented immigrant is discovered, and there is no objective evidence for how long this person has been around, how are the “back taxes” — the taxes that would have been collected had the person migrated and worked legally — to be collected? Would the burden of proof be on the person to provide evidence of when he/she migrated, and what back taxes he/she needs to pay, or would the burden of proof be on the state to demonstrate that back taxes are due in addition to the deposit?

  3. What back taxes are due if a person is discovered to have been evading taxes for some time? I think it’s up to the government to demonstrate that an individual earned a certain amount of money over a certain time period. No reason to treat immigrants differently here. I did some tutoring “under the table” a few years back and earned a few thousand dollars. Initially, I didn’t declare it as income, then, standing in the confession line one Saturday evening, my conscience impaled me with the conviction that if I wanted to live in truth, I’d have to declare that income. If I hadn’t, I’m certain the government would never have discovered it. I was paid cash and my employers didn’t have my Social Security number, I’m not sure they even knew my last name. I filed taxes incorrectly (not on purpose) while I was working at the World Bank, too, and there the IRS did– eventually– come after me. Like, four years later. That was horrible. It’s one thing to owe $40,000 (roughly: I don’t remember the exact figure), but it would have been nice to know that sooner, so I could make different plans. If a person’s been using a fake Social Security card, you could presumably check how much they earned on that. But a tax lawyer would be better able to come up with good answers to this question.

  4. Another way to put it is that there’s no need to reinvent the wheel. We already know how to achieve a high level of general tax compliance. I’m not sure how exactly, but just do the same thing with respect to immigrants. Open borders might make the problem of enforcing tax compliance harder in some ways, and adjustments might be called for. Maybe even, more “teeth.” But it’s not some special, new problem, just the old problem of how to collect taxes.

  5. I was going to write a response of my own, but I think Nathan has said everything I would like to say, better than I could. The only thing I might add or beg to differ on is that although I would still find it morally questionable, I would be ok with deportation as punishment for certain crimes. The only moral reasons I can think of to prevent entry at the border are for public health and safety, so quarantines as well might be another reason to do this, though again, it would depend a great deal on the context.

    The difficulty of enforcement I think arises when you make it impossible for a lot of non-criminals to legally immigrate, as the status quo currently does. Consequently you have both people seeking a better life or family reunion as well as criminals crossing your borders illegally. I wouldn’t have a problem with strict enforcement against illegal border crossings if the immigration system were set up to allow those with non-criminal intentions to easily go back and forth. Considering that Indonesian fishermen seem to find it desirable to immigrate to Australian jails for the wages they can earn working in prison, strict border controls against those who don’t bear ill intent don’t seem enforceable at all to me. Allowing people with no criminal record to cross the border on payment of a deposit, with surtaxes on their wages, as Nathan proposes, seems far easier to enforce to me.

    The only real issue I can envision is the cost of imprisoning immigrants who commit crimes (as the judicial and rehabilitation systems might become overcrowded), in which case I would not be terribly opposed to deportation for some. Deportation as a punishment has existed for a long time, well before the establishment of border controls; I don’t see why it should be unenforceable even in an open borders society, especially given the enforcement tools available to modern immigration systems which didn’t exist in the 19th century or earlier.

Leave a Reply