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:
- 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?
- 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.)
- 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.