Constitutionally entrenching migration as a fundamental human right: Argentina and open borders

US President Obama just announced a major policy change that will, at least temporarily, allow some immigrants a reprieve from the threat of deportation. Co-blogger Michelangelo’s pointed out that this is still extremely far from the true liberal reforms which the unjust, draconian US immigration system sorely needs. People are falling over themselves to contest the constitutional permissibility of Obama’s actions — for more on that, see our guest blogger and law professor Ilya Somin’s take. Irrespective of that legal issue, Michelangelo is right that we need to dream bigger — so let’s talk about one country in the world which legally enshrines freedom of movement as a universal human right: let’s talk about Argentina.

Now, I don’t have the time or space in this post to cover every single aspect of the Argentinean story: despite the many parallels between Argentina and any number of Western or developed countries you can name,  Argentina is not the canonical open borders country; it does not represent a template that can be copied whole sale. Neither can it be a representative test case illustrating the likely effects of open borders if another country were to adopt them.

The empirical learnings to be had from the Argentine experience are worth a whole set of blog posts, if not books. Today, I want to just talk about the laws and constitution that govern immigration to Argentina — for in of themselves, they prove that what so many restrictionist naysayers call legally and philosophically impossible can in fact be done without the nation-state collapsing into a black hole of philosophical contradictions.

Argentina, like the US and many other countries, has a long history of being shaped by migration. Prior to the abolition of international open borders in the early 20th century, as much as a third of the Argentine population was comprised of immigrants. Over the course of the 20th century, restrictive immigration laws were introduced by various dictatorships, and the immigrant population eventually dwindled to a small fraction of its former size. So far, the Argentine story is much like that of every other country in the world: open borders up until the early 20th century, and restrictionism thereafter.

Up until a decade ago, Argentinean immigration law was like that of any other country’s. It disclaimed and disdained any concept of freedom of movement as a human right. Sizeable populations of undocumented migrants lived in the shadows, legally separated from the course of ordinary human life, and routinely deported when discovered. This legal-philosophical framework, we are supposed to believe, is the natural order of things: it is impossible to have an immigration law that abolishes arbitrary deportation, impossible to have an immigration law that recognizes mobility as a human right.

But in 2004, the Argentine government swept all this away, and adopted a new immigration law, simply labeled Law 25.871. This unremarkable name aside, the law is sweeping in its defence of movement as an inalienable human right. Article 4 states simply:

The right to migrate is essential and inalienable to all persons and the Republic of Argentina shall guarantee it based on principles of equality and universality.

The law does not go as far as to abolish visa or border controls, but it lays out a simple — at least on paper — process to immigrate to Argentina: find an employer or family member who will sponsor you. Once sponsored, you become a temporary resident. After one to two years, you can apply for permanent residency. After a few more years, you become eligible to apply for naturalisation as a citizen. There are no visa caps or quotas to worry about — something which already puts the Argentine system way ahead of every other country in the world in respecting the human right to migrate.

But Argentina goes further: not every individual who enters Argentina might be able to find a sponsor. And although the law prohibits entry without a visa or similar legal documentation, people will find a way in — not least because you could always just overstay a temporary visa. It’s virtually impossible to seal your borders without becoming a military dictatorship. And Argentina recognises this, with Law 25.871 declaring that those who migrate to Argentina without legal residency are simply “irregular migrants”.

Remarkably, Law 25.871 bans discrimination against irregular migrants in the provision of healthcare or education. Deporting an irregular migrant requires a court hearing, and generally may only be executed if the government offers the irregular migrant a chance to regularise their status, and the migrant refuses this offer. Exceptions, of course, are made for criminal convicts and the like, but otherwise, deportation is rarely enforced, and instead large-scale “amnesties” — though the more accurate term would be regularisations — have been the norm. The International Detention Coalition summarises Argentine deportation policy:

Migration decisions are made by immigration authorities but are reviewable by a court, with no detention during this period. Legal aid is available throughout the deportation process for all irregular migrants. Deportation and detention are both decisions that must be ordered by a court, with detention used only as a final resort after all other remedies are exhausted. Detention is limited to 15 days pending removal. In practice, migrants who have been committed to prison for criminal offences are the only immigration detainees.

One American immigrant to Argentina worried about his spouse overstaying their visa and becoming an irregular migrant describes what happened when he asked an immigration official what he should do:

Then we spoke with another, much kinder immigration official who assured us that there is absolutely no deportation law in Argentina. She laughed when I told her that I feared that a white van would come to our house to take my spouse and deport him. She told me that Argentina is not the United States and they don’t treat immigrants this way. The only time that Argentina would ever consider deporting someone who is illegal is if he or she commits a crime.

Imagine that — a country with no deportations! It’s not just easy if you try: it’s actually real! But not all is roses, naturally: the continued existence of large populations of irregular migrants in Argentina points to the failure of the government to live up to the law it passed. Anecdotal evidence suggests that bureaucratic red tape often constitutes a barrier to successful sponsorship — and while this is a mere headache for middle-class immigrants, for semi-literate members of the working class, complying with the requirements of immigration laws can be more than onerous.

Argentina is hardly unique in this regard: when my family immigrated to the US (after first overcoming the ridiculous quotas that kept us waiting for about two decades after our visa petitions were first submitted), we had to provide documentation from the local police in every jurisdiction we’ve lived in showing that we’ve been citizens in good standing with the law. Obtaining this documentation is at worst a nuisance for a middle-class person — and even then, since documentary burdens like these are many and cumbersome when you’re dealing with immigration authorities, a lot of people in our shoes would have outsourced this gumshoe work to an expensive lawyer. For a working class person who might have frequently moved around a lot without keeping many records, and whose educational attainment may not go past elementary school, obtaining this sort of evidence can border on the impossible.

Aside from the burdensome red tape that makes legal residency difficult to attain, Argentina also strangely upholds legal persecution of irregular immigrants: landlords and employers who do business with irregular migrants are singled out for punishment by Law 25.871. Clearly this has not stopped Argentineans from doing business with irregular migrants, but this does seem discordant with the rest of the law: notably Law 25.871 explicitly states that all leases and employment agreements which irregular migrants enter into will be upheld and enforced by the courts, even though entering into these agreements is in of itself an offense.

Argentina does not have truly legal open borders, but it comes remarkably close. If the bureaucratic requirements for obtaining residency were loosened and the fines for employing or renting to irregular migrants were abolished, I think Argentina would basically have open borders — because every person seeking to travel to Argentina for work, study or pleasure would be free to do so. Those seeking to commit crimes would still be punished and subject to exclusion; all others seeking to move and live in peace would be let in peace.

Argentina is a remarkable counterpoint to those who allege that open borders are by definition inconsistent with national sovereignty, or that open borders by definition threaten the social compact governing the welfare state. We on this blog have spoken a lot about how governments are free to limit migrant access to welfare, and other similar policies that we call keyhole solutions.

Argentina is faring just fine despite throwing these out the window: even irregular migrants have full access to both private and public education and healthcare, and are generally allowed access to other social benefits too. In fact, other keyhole solutions we’ve discussed, such as the imposition of tariffs or additional surtaxes on migrants, are unconstitutional.

That’s right: Law 25.871 didn’t pull the concept of the right to migrate out of thin air. Argentina’s history of open immigration dates a long way back, all the way back to 1853 when it adopted its constitution. Article 16 consciously adopts an egalitarian stand on the rights of citizens and foreigners, treating them all as inhabitants entitled to the same freedoms under Argentine law:

All its inhabitants are equal before the law, and admissible to employment without any other requirement than their ability. Equality is the basis of taxation and public burdens.

The rhetoric about equitable taxation is remarkably repeated twice more. Article 20 of the Argentinean constitution elaborates on egalitarian treatment of foreigners:

Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade and profession; own real property, buy and sell it; navigate the rivers and coasts; practice freely their religion; make wills and marry under the laws. They are not obliged to accept citizenship nor to pay extraordinary compulsory taxes. They may obtain naturalization papers residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the Republic.

No extraordinary taxes — and foreigners enjoy all the same civil rights as citizens! And Article 25 of the constitution states:

The Federal Government shall foster European immigration; and may not restrict, limit or burden with any tax whatsoever, the entry into the Argentine territory of foreigners who arrive for the purpose of tilling the soil, improving industries, and introducing and teaching arts and sciences.

No tariffs on the entry of immigrants either! We’ve proposed such schemes as potential mechanisms to mitigate possible fiscal burdens of managing migrant inflows, but Argentina has expressly ruled these out — and yet nobody can say that open borders or open immigration are what is ruining Argentina. Argentina has easy naturalisation (you can become a citizen within five or six years of entering the country) and birthright citizenship for anyone born on its territory — all things restrictionists dread — and yet hardly anyone can say this is what’s ruining the country.

If anything, Argentina seems to have been designed as a decisive rejection of all the philosophical ideas immigration restrictionists hold dear. Most arguments for the arbitrary restriction of immigration rest on this moral philosophy sometimes labeled as “citizenism”: the belief that the government of a country is justified in excluding, abusing, and mistreating non-citizens as long as this is for the benefit of its own citizens. Even if these non-citizens come in peace, even if they want to work with you, work for you — the government has no business considering any of this. The government is established for the benefit of current citizens alone, to the exclusion of all others.

Acuerdo_de_San_NicolásAcuerdo de San Nicolás de los Arroyos, a treaty between different governors signed in 1852 to convene a Constitutional Convention that drafted the constitution of 1853, source La Guia 2000, discovered via Wikipedia
Well, the preamble of the Argentine constitution explicitly rejects citizenism — I’ve added emphasis to make this clear:

We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on Argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation.

A constitution that insists on treating immigrants as virtual equals with citizens, and a constitution that enshrines immigrants’ rights to justice, peace, welfare, and liberty: it sounds like an utopian dream, but it is real, and it’s in Argentina.

There are many things not to recommend about Argentina; its overly burdensome red tape, both in immigration and in just about every other arena of public life, famously strangle ordinary economic activity. The long legacy of Peronism has seen Argentina’s economy stagnate, and even today, Argentina’s government chronically mismanages the public fisc. But none of these problems have anything to do with immigration, and everything to do with problems endemic to the culture of Argentinean public life — a culture that has remained remarkably resilient despite Argentina’s long history of open immigration and now its reopened borders.

Argentina is far from perfect, but its constitution and immigration laws show us the way forward in guaranteeing the just and equitable treatment of all human beings subject to our governments’ laws, be they citizen or foreigner. In drafting their constitution, Argentina’s founding fathers drew on the constitution of the United States. Perhaps now those Americans opposed to open borders and freedom of movement would do well to take a page from the Argentine playbook, and remember the wisdom of their own founding fathers.

The American and Argentine tradition of open borders did not emerge from a legal or philosophical vacuum, after all. At the founding of modern Germany in the 1860s, German legislator Wilhelm Liebknecht articulated the legal rationale for egalitarian principles like those upheld in Argentina’s constitution and immigration laws:

A right that does not exist for all is no right… Gentlemen, it is necessary for us to proceed in the same fashion that England, that free country, has already taken, and to extend to foreigners the same right that exists for Englishmen. There is no such thing as police expulsion in England; the government there does not have the right to deny someone their place of residence.

Or, as one of Liebknecht’s colleagues put it,

…it is a barbarity to make a distinction between foreigners and the indigenous in the right to hospitable residence. Not only every German, but every human being has the right to not be chased away like a dog.

I could not have said it any better myself. Argentina is not perfect, but its laws come far closer to the wisdom of our ancestors on freedom of movement than the laws of virtually any other country today. Obama’s action to provide relief from deportation for a few million American immigrants is welcome, but it is not true justice. There cannot be justice until America, and every country in the world, recognises that every human being has the right to not be chased away like a dog. Stop the deportations — not one more!

I am indebted to Barbara Hines’s The Right to Migrate as a Human Right: The Current Argentine Immigration Law and discussions with members of the Open Borders Action Group for their assistance in preparing this article.

Source for featured image: We didn’t keep track of the original source, because there are many similar images available via Google Search. This might have been the original source.

Related reading

What part of “immoral” don’t you understand?

A common retort to suggestions that our governments regularise the status of irregular immigrants is that these people are “criminals”, they’re “illegal”, and just what part of illegal don’t I understand? The mainstream immigration reform has adopted this rhetoric too, even if they claim to reject it; the rhetoric of US President Obama (who at the time I write just announced a deferral of deportation for some few million migrants) and others has been chock full of insistence that irregular immigrants owe a debt to society, that they ought to do some sort of penance — perhaps pay a fine — in return for any sort of regularisation. In short, the mainstreamers say that they do understand that these migrants are “illegal”, and that they do intend to punish them — just not as badly as the hardcore restrictionists want.

I see no justice in this. As co-blogger Joel Newman says, our governments owe irregular migrants an apology, not a fine. Make no mistake about it: if you’ve done something wrong, if you’ve injured someone or taken someone’s property, you ought to pay the price. But if all you’ve done is an honest day’s work, if all you’ve lived in is a home you’ve paid the price for, then there is nothing to punish you for. Living in the shadows our government forced you into for dreaming of a better future for yourself and a family was more than punishment enough.

The persistent, shrill cries of “what part of illegal don’t you understand?” are pretty blind to the meaning of the term “illegal” in the first place. For instance, most of these people don’t seem aware that it’s not a crime to be present without a lawful immigration status in the US; this is such basic legal knowledge that it didn’t make any headlines when the Supreme Court acknowledged this in an aside as part of a larger ruling on immigration law. For another, most of these people routinely break the law and get indignant when it is actually enforced against them. Just witness the furore when bicyclists are ticketed for cycling on the sidewalk, or when drivers are caught speeding by automated cameras. If committing unlawful acts in the course of ordinary business makes immigrants “illegal”, that makes everyone “illegal”.

Now of course people will say immigration law is on a special plane of existence, something that deserves far more respect than menial traffic laws. Sure. I simply say: let the punishment fit the crime.

The consensus is that half of all undocumented migrants in the US entered lawfully at a border checkpoint, and simply took up residence or employment in violation of the terms of their visa. There is no crime in paying rent for a residence, and no crime in searching for work. If an immigrant applying for my job is stealing from me, then who did I steal from when I applied for the job I hold now? Is it only a crime when immigrants do it?

These undocumented migrants should be punished appropriately for any actual crimes they have committed. If they drove drunk, if they shoplifted, if they committed welfare fraud, whatever — they should do the time, and pay the fine. But they should not be deported or excluded from the country they call home. As long as they are willing to accept the laws of their new home, and accept the punishments of these laws, they should be allowed to stay. They entered legally. The most they should be required to do to stay is fill out a basic form, and submit to legal proceedings for any other unpunished crimes in their past. Innocent immigrants who have done nothing worse than pay rent and earn honest wages deserve an apology for the persecution that our laws unjustly put them through.

As for the other half who entered without inspection at a border checkpoint, they should submit to a screening comparable to what they would have gone through at the border, and register with the authorities. Again, the idea is to make restitution for the original offense. The original offense, in legal parlance, was “entering without inspection”. So let the punishment fit the crime.

But it wouldn’t be fair, you might say. What about all the immigrants waiting in line? Well, whose fault is it that they are waiting in that line? Isn’t it your fault that the government you elected made crappy laws which have kept out all these innocent immigrants, and forced them to choose between waiting in a line that will never end (literally: some visa categories have backlogs that exceed 80 years), or migrating illegally?

I do agree it is not fair to do amnesties in a one-off manner. It is not fair to the good people who want to immigrate legally, but who are banned from doing so by irrational quotas and queues. It is also not fair to all of us who are harmed by the bad apples, the actual criminals, who either hide amongst the innocents in the undocumented population, or worse, take advantage of these migrants’ warranted fear of the government to abuse and exploit them.

Many governments — such as those of France and Germany, to name a couple you may have heard of — do not do one-off amnesties; instead, anyone who migrated illegally but who has otherwise complied with the law for a sufficient length of time is allowed to register with the government and become a legal immigrant. If we can’t have open borders, let’s at least allow anyone who has proven their commitment and loyalty to our laws to come out into the open and register as a law-abiding member of our community. That’s the fair thing to do, instead of having these one-offs.

But at the end of the day, if being fair to those immigrants in line is what bothers you so much, well — it’s the line your government created. The absurdity of having queues backlogged such that people applying today would have to wait an entire human lifetime to get their application approved is something only a government could create. The problem isn’t those good people forced to choose between waiting in line versus entering by other means to rejoin their families or seek gainful employment. The problem is your government and the stupid laws it made up.

Now, those laws aren’t stupid you might say. I agree: to the extent that they protect us from criminals, contagious disease outbreaks, and other harms, they are good laws. But to the extent that they “protect” us from people who just want to pay the market price to live in a safe home and work in a functioning economy, they are bad laws. To the extent that they treat someone whose ambition is to earn minimum wage washing dishes 18 hours a day as if he’s the scum of the earth, they are evil laws.

I’ve written before that the best way to secure the US’s border with Mexico would be to open it. Drug lords and slave traffickers rely on being able to disguise themselves among the masses of innocent people crawling through sewers to rejoin their families; let those innocent people buy bus tickets instead of paying thousands to coyotes, and where will the criminals hide? Restrictionists scoff at the idea of these immigrants being innocent — but you tell me, where’s the sense in treating someone who just wants to mop your floors for minimum wage as if he is the equivalent of a murderous drug trafficker?

I understand the intuition that one should comply with the law, and that failing to comply with the law generally marks you as a bad person — somewhere on the scale between reckless and just plain criminal. But this intuition only works for laws where the burden of compliance applies equally to everyone. Everyone knows what it means to not steal. But does everyone know what it means to comply with immigration law?

I would bet anyone that the majority of citizens of any country have no idea how the typical migrant in their country should comply with their own country’s immigration laws. Why should any of us know? All we ever did to comply with the law was be born. We didn’t have to do anything else, just slide out of the right person’s uterus at the right time, on the right soil.

Anyone in the US who has ever been in trouble with their taxes should know the feeling: you did everything right, and yet apparently your filing was still illegal — the government says you didn’t pay enough taxes. US tax law is so complicated that in some cases even the Internal Revenue Service throws up its hands and admits it doesn’t know what the law says. Yet for all your trouble, the public lambasts you as a tax evader, blasts you for not paying your fair share. And that is pretty rich, when virtually everyone who files taxes has likely fallen afoul of some technicality in the law (did you really report on your tax return the $20 in income you earned from that casual bar bet with your cousin?).

Multiply this frustration a few hundred times over and you can imagine the frustration of complying with immigration law. Some of the best, most honest and decent people I have personally known have been “illegal”. In some cases they didn’t even realise it until after the fact: as a student, your visa bans you from working more than a certain number of hours. Exceed the limit, and bam, you’re “illegal”. In other cases, delays or government processing issues while you’re transitioning from one visa type to another mean that you can “fall out of status” until your new visa is approved. Bam! Illegal.

And these are the lucky ones: they were already present in the US, and nobody could conveniently detect they’d committed these violations of immigration law. Usually nobody would ever be the wiser that they had, for a period of time, been “illegal”. Millions more such innocent people are trapped in the unlucky position of either waiting decades in line, or just jumping a fence that shouldn’t be keeping them out in the first place. Long wait times for immigrants to the US aren’t unusual; they’re the norm. Stories of the insanity of immigration law are a dime a dozen: see this, this, this, or this.

But how many citizens know of this? They know nothing, of course: the law has nothing to do with them. They can feel free to demand 100% compliance with the law, because they will always be 100% compliant. All they have to do is breathe. It’s pretty easy to follow the law when you have to do nothing. How can you demand people follow the law when you yourself have no idea what the law demands, and you yourself don’t have to do anything to comply with it?

I am making no claim to perfection here. As a Malaysian, I have no idea what laws the foreigners living in my country have to comply with. When people ask me about how easy it is for foreigners to live in Malaysia, all I can say is “Well I saw a lot of them in my junior college so I think it’s pretty easy to come in”. I honestly have no freaking idea what our visa laws are; I have no reason or incentive to, because by definition, it is impossible for me to ever break the law!

Claims that “Well, my ancestors followed the law” ring pretty hollow. After all, what laws did your ancestors follow? In the case of most Americans, their ancestors immigrated legally because all you had to do to immigrate was not be Chinese. If by definition it is impossible for you or your ancestors to have broken the law, then it is pretty rich of you to insist that you know exactly what laws others should comply with. Yet people often pretend they know exactly what the laws are, and blame the victims of these abusive laws for not submitting to their unwarranted punishment.

Anti-Chinese poster

What’s good for the goose is good for the gander: if you want people to prove their loyalty and knowledge of your country by passing a test, then why don’t you subject yourself to that same test? Why not? Didn’t your schooling prepare you for that test?

If millions of ordinary people can waste 20 years of their adult lives waiting for government permission to pay rent and apply for jobs, why not you? What makes you so special? Isn’t it unfair to others who did wait those decades in line, who actually complied with the bullshit hoops your government made them jump through? Your ancestors didn’t jump through those hoops — so don’t you owe it to them to follow the law on their behalf?

And so on you go, railing against “amnesty”, even though there’s a good chance if you are American that you are only here today thanks to an amnesty your ancestors arguably didn’t deserve. I refer, of course, to that time some of your ancestors took up arms in violent rebellion against the lawful government of the United States, and were rewarded with an unconditional amnesty for their trouble.

At the end of the day, there is nothing that makes sense about most immigration laws. A handful of restrictions actually target terrorists, criminals, or contagious disease carriers. The rest of these laws just treat people who want to pay market rent for a safe home and the chance to earn the market wage for honest work as though they are criminals for doing the same things as everyone else. There is no sense in treating a minimum wage cook like a cutthroat, and there is no justice.

The real question isn’t what part of illegal don’t I understand; I’m well aware that, at least far as my own country goes, I don’t understand, because I have no reason to! No matter how many laws I break or how many wrongs I commit, I’ll always be in compliance with Malaysia’s immigration laws.

The real question is, what part of “illegal” do you understand at all? You don’t understand any of it. You don’t know what it’s like to be worried that accidentally working one extra hour a week this semester might mean that you’ll get deported. You don’t know what it’s like to earn pennies a day, banned from earning the dollars which your hard work could easily earn you because this year, only 23 people from your country of millions will be given work permits.

The persistence in which people pretend that complying with the law is no burden, that if their ancestors could do it then so can anyone else, truly boggles the mind. Laws which ban parents from paying to put a roof over their children’s heads and ban dutiful children from sending home money to care for their aging parents criminalise the virtues we so often commend to ourselves. What can this be, if not hypocritical injustice? Let me ask you — what part of “immoral” don’t you understand?

South-South migration and the “natural state”

This blog post builds upon an Open Borders Action Group post of mine and the comments on it.

In an earlier post on what open borders advocates and scholars of migration and development can learn from each other, one of the things I had said open borders advocates can learn from scholars of migration and development was the importance to give to forms of migration that currently exist, as opposed to what might exist in a hypothetical open borders world:

More focus on intranational migration, migration between low-income countries, and migration from low-income to middle-income countries: […] [I]t might be worth looking at the huge amount of migration that already exists and understanding its implications. While still arguing morally for open borders worldwide, we can focus on understanding what already exists and making changes to it. Often, there is little reliable data and little interest among readers in such matters (such as Nepal and India, or North Korean refugees), simply because blog readers are highly likely to be in First World countries and are more aware of First World issues. But I think that pushing more in the direction of better understanding migration as it’s actually happening is worthwhile, even if it doesn’t make us popular. We can be inspired here by migration scholars, who have worked very hard to compile data and collect anecdotes to further the world’s understanding of migration.

World Press 2014 Signals from DjiboutiWorld Press 2014 photo: Signal from Djibouti, source National Geographic. The photo shows people from Somalia living in Ethiopia trying to catch Somali cellphone networks at the border of the country so as to talk cheaply with their families.

This post can be considered a partial attempt to put that learning in practice. Here are some examples of “South-South migration” that I have in mind when listing my general observations. Each of these should deserve its own post. For those that don’t already have posts I link to a relevant news article or paper:

Some of the salient features of much of this South-South migration:

  1. In most of the cases, the destination countries of migration are large and somewhat heterogeneous economically. The average GDP per capita in the destination may be somewhere between 2 and 5 times that in the source country (with the exception of the somewhat special case of migration from North Korea to China, the range is more like 2 to 3 times). However, this hides a large degree of intranational variation in the destination country. The destination countries, despite their poverty and Third World status, generally have greater scope for people to become rich and successful. They have bigger cities with more opportunities. Compare, for instance, Afghanistan with Pakistan. Pakistan scores pretty poorly in terms of GDP per capita or HDI. But it has cities like Karachi and Lahore, that are (relatively speaking) thriving centers of commerce. Similarly, Indian cities offer opportunities that most Bangladeshis can’t access in their home countries. Even if the migrants don’t initially move to cities, the promise is there.
  2. Large parts of the destination country are rural, and the rural-urban gap on many development indicators is huge. Moreover, the rural areas may not really have much affiliation with or integration into the national identity. Many people in rural areas may not even have any form of documentation establishing citizenship or national membership. Thus, many natives are also “undocumented” and in some ways indistinguishable from migrants. The role of ethnicity as betrayed by appearance and accent is therefore greater than the role of formal citizenship.
  3. Migrants tend to move to border towns and to some large cities, generally those with pre-existing diasporas (cf. diaspora dynamics). These are the places where the issue of migration has the greatest salience, and anti-migration sentiment may be more common, and expressed more openly and virulently than in most developed countries.
  4. There is usually no pro-migration or pro-migrant movement per se, though there may be NGOs focused on providing services for migrants.
  5. If anything, intranational migration might be more salient in many parts of the country. In fact, intranational migration may also quantitatively swamp international migration, as is the case in China and India (here’s a blog post on intranational migration within India and a blog post discussing large-scale migration within India and China). But insofar as there are no real constitutional ways of restricting intranational migration, it might never become a politically important issue at the national level. In many regions, on the other hand, intranational migration may take on more significance than international migration in political rhetoric, even if politicians have little power or little interest in actually curbing such migration.
  6. At the national level, the importance of migration is minimal. This is partly because the destination countries have many more pressing problems. Anti-migration movements are relatively localized, and pro-migration movements are negligible.
  7. For many people in such countries, the issue of open borders and migration restrictions is a largely theoretical one, and their answers to it might represent generic ideas of human fairness untainted by personal interest, so to speak. This might explain why India, despite not being known for having a high degree of tolerance and welcome for foreigners of different races and ethnicities, had a roughly 25-25-25-25 split in the World Values Survey question of how open migration policy should be.

In some ways, the current nature of South-South migration as well as the social and political attitudes to it closely resemble 18th and 19th century migration worldwide. People moved from very poor countries to less poor countries with more vibrant cities and growth opportunities. Natives weren’t exactly thrilled, but strong anti-migration sentiment, while often virulent by modern standards, was relatively localized and took a fair amount of time to translate to successful national movements to curb migration. I’m not aware of survey data similar to the World Values Survey for the 19th century, but my guess is we’d see a similar 25-25-25-25 split about migration despite more overtly prejudicial attitudes among the people (similar to the situation in India today).

This connects with my very first post on the Open Borders site, where I blegged readers on why immigration was freer to the 19th century USA. I had listed three potential reasons in that post: (1) wisdom/desirability, (2) technological/financial feasibility, and (3) moral permissibility. At the time, I had written that (1) was unlikely, and the likely truth was a mutually reinforcing loop of (2) and (3) (that did eventually get broken in the United States with the Chinese Exclusion Act). I think the same dynamic is at play in South-South migration, with the difference that South-South migration today has at least some nominal level of border controls, and there’s enough of a global precedent of strict border controls that the learning curve towards very strict border enforcement can be (and in many cases, is being) traversed a lot faster.

In many ways, both current South-South migration and historical migration are closer to the “natural state” of migration and the responses it engenders. All is not hunky-dory with this natural state. The occasional outbreak of riots against immigrants, while quantitatively negligible, as well as the more frequent displays of overt private prejudice, are disconcerting. But for all that, the system is still a bigger win-win for migrants and natives than the strict border controls that much of the developed world has successfully implemented, and that the developing world is rapidly building out.

We still have much to do

In a speech late yesterday President Obama spoke about the need to fix the United States’ immigration system and announced a series of executive actions his administration was taking. The full text of his speech can be found here, and the Department of Homeland Security’s fuller description of Obama’s executive actions can be found here. If you are wondering about the constitutionality of Obama’s actions I refer you to Law Prof. Ilya Somin’s post on the issue and his updated version.

I agreed with much of what President Obama said last night. Immigrants have shaped the United States. We are a nation of immigrants. Our national epic begins with a group of migrant Pilgrims fleeing religious prosecution in Europe and settling in the new world; we celebrate this event every year on Thanksgiving. I cannot think of a better time for immigration reform.

President Obama conceded in his speech that the bill passed last year by the Senate was imperfect, it was a compromise on both sides, but nonetheless it was an improvement over our current system. Here too I agreed with the President.

I diverge with the President however in thinking that one of the main issues of immigration reform is what to do with our nation’s illegal alien population. By all means I have a vested interest in seeing some sort of legal status conferred to this population. The life of an illegal alien in the United States is difficult, but it is infinitely better than the life of those who weren’t able to make the trip at all. What we should concentrate on is reforming the system so that everyone who wishes to come to the United States has the opportunity to do so.

President Obama spoke about the need to make it “… easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy…” but this is still missing the point. President Obama seems to believe that the United States need a specific type of migrant and that the government is capable of screening for them whilst simultaneously denying entrance to ‘undesirables’. One of the reasons I support Open Borders is precisely because we can’t know what type of migrant we need.

If I may lift a page from F.A. Hayek, the question is not whether immigration should be planned but who should plan it. Many people believe by default that it is the state that should plan for society. In this respect most mainstream pro-migrant and anti-migrant advocates are only marginally different. They may differ in how they believe the state should plan, but they nonetheless believe it should plan. The radicalness of Open Borders is the belief that the role of planner should go not to the state, but to the spontaneous order that is created through the actions of individuals.

Whether a migrant is employed by a firm should be a decision made by his potential employer. Whether a migrant finds housing should be a decision made by his potential landlord. Whether a migrant is accepted into a given church, club, association, or Jazz band should be up to these respective groups. Whether a potential migrant is able to succeed in his mission should depend on his ability to find employment, housing, and social ties through voluntary transactions with other individuals. There is neither need nor place for the state to become involved in these transactions.

The executive actions undertaken by the Obama administration yesterday have improved on the status quo, and to that extent I welcome them. These reforms are not enough though, we still have a long way to go before we reach Open Borders. The United States immigration system must be replaced with one led by the market process. Immigration systems elsewhere must also be reformed. The posts on Open Borders: The Case are US-centric because most of our writers are Americans, but this should not be confused to mean that only the United States needs to adopts Open Border policies. Israel, the United Kingdom, Australia, Mexico, South Africa, and every other polity should adopt Open Borders. By all means let us celebrate the marginal improvements the Obama reform has brought, but let us not forget that our end goal is something far more radical.

What should the Obama administration do?

The Obama administration is expected to announce a series of executive orders later today (8pm EST) regarding immigration policy. Many suspect that the President may provide relief from deportation and work permits to millions of US illegal aliens, among other changes. The best sketch of what we can expect has been provided by Fox News, which has allegedly received a ten point draft of what Obama will announce.

I have reservations about the Obama administration attempting to pass immigration reform via executive order. My chief concerns are that it sets precedent for greater executive discretion in migration policy, and that congressional Republicans will simply spend the remainder of Obama’s term trying to reverse ‘Obamigration’.

Co-blogger Nathan Smith and Bryan Caplan penned a more optimistic perspective on Obama’s use of executive powers back when the administration first announced the Deferred Action for Childhood Arrivals (DACA) program in 2012.  Caplan seems less optimistic about this latest round of executive action.

My reservation should not be taken to mean that the Obama administration should stay quiet on immigration. Far from it, there are two major steps the administration could pursue if it were serious about being more pro-immigration.

1. Negotiating NAFTA 2.0

The North American Free Trade Agreement (NAFTA) is celebrating its twentieth birthday this year. The trade agreement improved trade relations between the United States, Canada and Mexico in several sectors, but it fell short on several others including labor mobility.

Obama could call up his counterparts in Mexico City and Ottawa and begin negotiations on expanding NAFTA to remove any remaining trade restrictions between the three countries. The issue of labor mobility was ignored in the initial phase of NAFTA to minimize political tensions, but surely after two decades we can begin dialogue on allowing the free movement of people across North America?

The Schengen Area in the European Union provides us with a prime example of how to, and how not to, implement a free movement zone among the North American nations. Ideally a free movement zone between the North American nations should allow the unrestricted movement of individuals, while not creating tax burden on the host nations to provide state welfare.

I have written on this possibility previously. Of related interest Freakonomics recently had a podcast on a US-Mexico ‘merger’.

2. Allowing the Federalization of Immigration Policy.

It is unlikely that we will see sweeping reforms of the immigration system at the federal level in the near future. Even if last year’s Senate immigration bill were passed the system would only be marginally improved. Things are more optimistic at the state level though, and several state legislatures have signaled willingness to pursue their own regional policies.

Unfortunately most state legislators have curbed their proposals in fear that the federal government won’t stand for their actions. If the Obama administration made it clear that it were willing to see states take a more proactive role in shaping immigration policy things might turn out for the better in the long run.

For comparison let us consider marijuana legalization efforts. At the federal level marijuana is still illegal, but the Obama administration has thus far tolerated its legalization by the states of Colorado and Washington. In the most recent midterm elections Alaska, Oregon, and Washington DC all passed legislation to legalize marijuana. At this rate it won’t be long before marijuana is legal nationwide.

Why not allow states the same leeway in immigration policy? If Utah wishes to grant legal status to its illegal alien population and create a guest worker program for its state, why not allow it to do so? If New York wants to grant citizenship to its resident migrants, why stop it? Allowing states to set their own migration policies might lead to a few of them adopting anti-migration policies, such as Arizona, but this is a small cost to be paid.

The Obama administration should set parameters under which the states can work and thereafter sit back and watch them experiment with migration policy.

I have previously written on the subject in We Need More San Franciscos and Thoughts on State-Based Immigration Reform . My co-blogger John Lee has also explored the concept as it relates to Canada’s immigration system . Alex Nowrasteh and his colleagues at the Cato Institute have teased the idea out in previous events , and policy analysis papers . The Reason Foundation has also begun toying with the idea recently.

"The Efficient, Egalitarian, Libertarian, Utilitarian Way to Double World GDP" — Bryan Caplan