All posts by John Lee

John Lee is an administrator of the Open Borders website. Liberal immigration laws are a personal passion for him. See all blog posts by John.

Uphold the rule of law, and let your illegal immigrants stay

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A common restrictionist trope is that allowing people who have settled unlawfully to regularise their legal status would be an intolerable departure from legal tradition and the rule of law. But in his recent book Immigrants and the Right to Stay, philosopher Joseph Carens demonstrates that the opposite is true: our legal and moral traditions demand a rules-based system for regularising the unauthorised. Justice and the rule of law are perverted when they deny people due process and instead offer them justice so delayed that to call it anything but denied would make the term “delay” a mockery.

Carens’s basic contention: anyone who has lived in a community for a certain period of time can be reasonably considered a member of that community and should be afforded similar rights as other members of that community. This sounds rather abstract, so let me put this to you: someone is a pillar of your community. Attends your religious services, well, religiously. Always ready to lend a helping hand when a neighbour could use it. Always the first to chip in a donation for someone in need. Never in trouble with the law. One day, the authorities raid his home and evict him, on the grounds that a long, long time ago, he didn’t fill out the right form allowing him to join this community. Not that he murdered someone; not that he trafficked drugs; he filled out the wrong forms, and that makes him “illegal”.

Carens’s contention, which makes eminent sense, is that your status as part of a community of people does not flow from a piece of paper. It flows from your contributions to and standing with your peers. We do not gain our humanity, our family, our friends, our neighbours from the law. We learn about and make our families, friends, and neighbours long before the law ever got or gets involved. In his book, Carens notes that the British immigration authorities once tried to deport an 80-year-old woman who had lived in the United Kingdom her entire adult life, and only public outrage stopped them. If living somewhere for 60 years makes you a member of the community, Carens notes, then might not a shorter time period still grant you similar standing? He ultimately proposes a waiting period of 5 to 7 years. Irrespective of what the right period should be, the principle is clear: living somewhere in peace with your fellow man eventually makes you a part of that community. The law cannot tear that community apart without tearing up basic morality.

Carens notes that tradition is on his side: that even countries like the US, where today any amnesty is seen as taboo by many, have a long history of allowing people who have lived there for a certain period of time to regularise. Even today, many countries have ongoing rules-based regularisation regimes: simply identify yourself to the authorities, present proof you’ve lived peacefully in the community long enough, and the sword of Damocles over your head is lifted.

Basic legal principles are on Carens’s side too: typically, the statute of limitations on most crimes isn’t more than a few decades, and for many crimes it’s under a decade. (The statute of limitations refers to the period of time after a crime after which the state can no longer prosecute you for it.) In most jurisdictions, only the worst crimes, such as murder, don’t have a statute of limitations. As I’ve written before, the US legal system treats crossing an imaginary line (which harms nobody) as a crime worse than exploiting children for sex. US law essentially sends the message that crossing a border illegally is worse than filming child pornography or committing murder!

And regardless of what harm may inherently occur from crossing an invisible and arbitrary line, I certainly don’t think you can reasonably compare it to filming child pornography or murder. The primary “harm” of non-violent border crossing is economic competition between foreigners and natives. But how is Josef “stealing” a job from Joe supposed to be harming Joe, while John taking a job Joe could have taken isn’t any harm at all? Why do we criminalise Josef from earning an honest living because it might “harm” someone, while we allow Johns to steal jobs from Joes every day? Competing on a level playing field is not an infringement of anyone’s legal rights, unless you believe some people are less human than others.

And yet dehumanisation of the foreign-born is yet another message which the legal system sends: we give inanimate objects more rights than people. The robot that “steals” your society’s jobs has an easier time getting into the country than a foreign-born person who might be able to do that robot’s job for even cheaper. And what does that robot contribute to your society? Maybe it creates jobs for robotics maintenance crews, but that’s about it. The human being is a living, organic part of our community — he or she creates jobs for and immeasurably enriches the lives of landlords, restauranteurs, hairdressers, community organisers. Despite this, most countries’ laws look more kindly on importing inanimate objects that “destroy” jobs than they do on allowing free people to come in and “create” service jobs. And we have somehow deluded ourselves into thinking that this legal system makes moral sense: I once asked a free trade advocate why he opposes liberalisation of immigration laws. He proudly told me that it was because he believes, I quote, “people are not commodities.”

Sure, you can pretend your legal system humanely does allow immigrants to come. But most people consider waiting a year for any government document a rather intolerable delay. For many immigrants — on occasion, even the spouses and children of citizens — a year’s wait is far better than anything they got. Some immigrants to the US are getting their visas today after waiting in the “queue” for over two decades. Many of the “queues” for US visas are backlogged by decades — 80 years in some cases. And the US has one of the better immigration systems out there! Is it even right to speak of a queue for immigration to the UK, when the government’s avowed goal is to cut net immigration essentially to 0 — and it has every intention of accomplishing this by hook or by crook, regardless of how many families and communities and jobs it must destroy? If the phrase “justice delayed is justice denied” was not coined to describe the world’s immigration laws, it seems remarkably apt.

The world’s numerous legal systems have tried to ban many things in the past. They have experimented with banning various sexual acts among consenting adults, banning alcohol production/distribution, banning interracial families. They have tried and they have failed. What we find is that pretending to enforce the unenforceable only engenders disrespect for the law. It makes a mockery of the rule of law when we concoct laws that cannot be enforced. Now, these are not laws that many people were willing to risk their lives to violate — yet these laws could not stand. Meanwhile, every single day, innocent people around the world risk death in deserts or on the high seas to get into countries that offer them no legal way to enter. What hope have we of ever enforcing a law that bans innocent, hardworking people from supporting themselves and taking care of their families?

Moralists and conservatives often worry about what message the law is sending. I have to agree: what message does the law send when it deports a mother for caring for her children? When it denies the husband a visa to live with his wife? When it tells the hardworking wage-earner, “Sorry — the queue is 50 years long, don’t even dare send an employer your CV”? We are making a mockery of fundamental morality when we criminalise the family and we criminalise honest wages. As Carens says, the law is violating social reality.

Yes, the message is supposed to be: when crossing made-up lines on the map, identify yourself to the proper authorities. Somehow this is a crime worse than exploiting children for sex, and at least as bad as murder. If that is the message the law wants to send, ok. But if our message really is that innocent people identify themselves properly, why not allow them to do so? If this really is your concern, what do you have against allowing people to identify themselves after they have entered — or simply allowing people to enter and identify themselves at regular ports of entry, instead of making them wait in a queue that’s so long, it shouldn’t be called a queue at all?

There are a lot of things we could do to move to a more just legal system, one offering all people the due process they deserve. But Carens’s moral and philosophical case for ongoing regularisations intrigues me, precisely because it so neatly reconciles many of the moral absurdities of arbitrary immigration restrictions with the rule of law. Offering people a transparent legal process to acknowledge their standing as contributors to our society and community resonates with the principles of justice. The punishment fits the crime, if you can call crossing a made-up line a crime at all.

We wouldn’t send people to jail 40 years after the fact for a speeding ticket. So why would we wreck families and communities years or decades after the fact? When we are presented with such absurdities, as shown in the case of the grandmother facing deportation from Britain, we recoil because we recognise that the law is destroying the community and imposing a punishment all out of proportion to the offense. A legal mechanism for regularising “illegals” should be essential for any civilised society. If we can’t have truly open borders, we should at least have an immigration regime that doesn’t make a mockery of the rule of law. Only barbarians believe the law should send the message that the just reward for doing our job or taking care of our family is deportation and exile from the place we call home.

Open borders would abolish Bangladeshi sweatshops

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Substandard working conditions recently murdered over 1,000 people in the deadliest garment factory accident in history. This accident in Bangladesh drew attention to the substandard wages of “sweatshop” workers in the developing world, and industrialists’ scant regard for their workers’ safety. Many on the left in the developed world saw this as an indictment of free market economics, urging government action to prevent such future disasters. Responding to such pressures, the US government recently raised tariffs on a number of Bangladeshi goods. I’m as concerned as anyone that Bangladeshi workers aren’t earning a fair wage or working in dangerous conditions. So it strikes me as strange that utterly absent from this debate has been the one measure that we know for sure would alleviate these conditions for countless Bangladeshis.

If we truly find it disgusting that Bangladeshis aren’t earning a fair wage for their work, or are being forced to work under slave-like conditions, we should ask ourselves: who is trapping Bangladeshis in their antiquated, inefficient economy? Do Bangladeshis really want to risk death every day to earn a pittance?

The standard analysis of this problem points out that the alternative to most Bangladeshis employed in industry is a life of subsistence agriculture. Farmers run the perennial risk of crop failure, and in the developing world, most subsistence farmers literally live hand to mouth, doing backbreaking labour in the sun. Industrial work may be risky, but it’s often a better alternative.

In response, you can argue that if people have to choose between a life of subsistence agriculture versus risking their lives for a job paying 50 cents an hour, this only illuminates the utter rottenness of the choices open to people in the developing world. And you’d be right. But it’s odd that we stop ourselves there. Sweatshops have been debated time and time again for decades, and yet hardly anyone seems to have stopped and asked themselves why these are the only two real choices open to sweatshop workers of the world. What’s keeping the Bangladeshi in the factory from doing the same work at a better wage elsewhere?

The answer, quite simply, is us. By politically and morally legitimising laws that ban Bangladeshis at gunpoint from working in our countries, we have left them no choice but to toil away in sweatshops. If we allowed them to cross borders in search of work, how many of them do you think would embrace the abominable wages and working conditions they’re forced to endure right now? Hundreds of thousands of Afghans literally risk being shot to death today so they can find work in Iran — if we allowed people to search for work across borders, without fear of abuse and murder, how much longer could sweatshops endure?

Part of the reason compensation in Bangladesh is lower than it is elsewhere is simply because of the differences in its economy versus the economies of developed countries: skill and human capital levels are different, the cost of living is different. But a major reason Bangladeshis are so underpaid is because we, the citizens of more developed countries, ban Bangladeshis from earning higher wages. The economic concept of the place premium illustrates this quite well: statistical analysis allows us to take an identical person and predict how their wages for doing the same work would vary depending on which country they work in.

When you consider the place premium, the magnitude by which people in the developed world are underpaid for their work is astonishing. People in the West get upset by wage discrimination on the basis of gender; without adjusting for statistical differences, women might underearn men by almost 30%. The magnitude of wage discrimination on the basis of nationality is so shocking, I cannot find any term to describe it that would be less apt than global apartheid.

For the exact same work that their American counterparts do, Bangladeshis are underpaid by almost 5 times — in other words, they are underpaid by almost 80%. And they aren’t even the worse victims of global apartheid — Yemenis and Nigerians are underpaid 15 times over compared to Americans. If Americans had allowed those dead Bangladeshi workers to work in the US, doing exactly the same work they were doing, not only would they be alive today, but they would be earning 5 times as much.

It is morally unconscionable that our conversations about sweatshops ignore the elephant in the room: we are the ones who put those sweatshop workers to death. It wasn’t just that we bought the goods those workers produced. It was that we banned those workers from working for us in our countries. We forced them to stay in Bangladesh, despite knowing that this would guarantee them an unfair wage and unsafe working conditions. We made them slaves to those sweatshops because they had no other choice — we took all their other choices away from them.

Until labour mobility and freedom of movement become part of the conversation about our economic rights and responsibilities, we might as well not be having any conversation at all. To ignore our immense fault for these people’s plight is morally callous and unjustifiable. In concluding his seminal 1997 essay on sweatshops, Paul Krugman wrote:

You may say that the wretched of the earth should not be forced to serve as hewers of wood, drawers of water, and sewers of sneakers for the affluent. But what is the alternative? Should they be helped with foreign aid? Maybe–although the historical record of regions like southern Italy suggests that such aid has a tendency to promote perpetual dependence. Anyway, there isn’t the slightest prospect of significant aid materializing. Should their own governments provide more social justice? Of course–but they won’t, or at least not because we tell them to. And as long as you have no realistic alternative to industrialization based on low wages, to oppose it means that you are willing to deny desperately poor people the best chance they have of progress for the sake of what amounts to an aesthetic standard–that is, the fact that you don’t like the idea of workers being paid a pittance to supply rich Westerners with fashion items.

In short, my correspondents are not entitled to their self-righteousness. They have not thought the matter through. And when the hopes of hundreds of millions are at stake, thinking things through is not just good intellectual practice. It is a moral duty.

That is a perfect summation of the case for doing business with sweatshops — except for one thing. Krugman utterly ignored the possibility of allowing the wretched of the earth to serve as sewers of sneakers for the affluent outside their home country. Allowing people to work under alternative economic and legal regimes if they are born into unjust and insensible regimes only makes sense. What reason do we have to not consider this alternative that Krugman couldn’t even bother to list? Are we willing to deny desperately poor people the best chance they have of progress for the sake of an aesthetic standard — because, say, we don’t like the idea of guest worker programmes?

Our conversation today on sweatshops automatically takes open borders off the table. We automatically rule out the one thing that would automatically abolish sweatshops, and automatically give the people of the world a fair choice in determining where they work and on what terms. What reason do we have not to give this proposal serious consideration? It’s our guns and tanks that ban good, honest people from taking better-paying jobs — that ban people from working in safe factories where they won’t have to worry daily about the roof caving in or the machinery catching fire. We need a damn good reason not to consider revoking our ban on people seeking fair work at fair wages.

In our conversations today, I just don’t see those reasons. And so as Krugman says, I don’t see how anyone in this debate can be entitled to their self-righteousness. Anyone ignoring labour mobility, or the fault of the developed world in banning poor people from looking farther for work, has simply not thought matters through. They have not done their moral duty. If you won’t consider open borders as a solution to sweatshops, then don’t bother complaining about sweatshops at all. You’re clearly not interested in solving the problem.

Immigration restrictions are a threat to liberty everywhere

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In the civil libertarian world today, two issues rule the roost: surveillance and drones. Ordinarily civil rights issues like these find it difficult to gain traction, but increasingly it looks like even the mainstream media can’t ignore these issues. Spying on the behaviour of millions of innocent people, and murdering innocent people (AKA “collateral damage”) from a remote-controlled airplane, are difficult things to readily reconcile with modern ideas of human rights and freedoms. These issues make me think: how long before civil libertarians begin to comprehend the danger of similar totalitarian disregard for liberty in immigration policy?

Drones are primarily a concern for people burdened by the welfare of innocent people in war zones. Innocents in Yemen, Afghanistan, and Pakistan live daily in fear of an errant missile strike, meant for another, but still deadly to all innocents in its path. The policy for deploying drones, and launching their weaponry, until recently has been near-entirely opaque (some would argue it is still entirely opaque). What due process do we have to ensure that drones won’t recklessly murder dozens, hundreds, of guiltless people, in search of taking out one terrorist? What assurances can we give innocents that an overzealous government bureaucrat can’t use his discretion to murder innocent human beings?

The rationale for the US government’s National Security Agency surveillance programmes has always been: we spy on foreigners’ data, not our own. The NSA still maintains it protects US citizens’ data rigorously, though there are many reasonable doubts that this is true. Edward Snowden’s revelations, even if reconciled with the NSA’s claims about protecting US nationals’ data, still ring alarm bells for American civil libertarians: how easy might it be for the NSA to turn the same lens it has trained on foreigners onto us instead? In 1975, US Senator Frank Church warned of such surveillance:

That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know.

Since I blog for Open Borders, you would be wise to surmise that neither drones nor NSA surveillance are issues I think about much. But like millions of others, these are issues that weigh on me nonetheless. It worries me that innocent people are subject to murder by the state without due process. It worries me that innocent people are subject to surveillance by the state, again, without due process. And I know these worries all too well, for as an immigrant and someone who enjoys reading stories of immigration, I have seen just how utterly the modern state throws due process in the garbage the moment an immigrant crosses the threshold.

I’ve written before about how perplexed I am that civil libertarians devote a disproportionate amount of energy to criticising allegedly dehumanising air travel procedures. I’m glad to see that deserving due process issues are taking up more attention than ever before. But civil libertarians need to add another issue to complete their trifecta of due process concerns: drone murder, arbitrary surveillance, and arbitrary restriction of human movement. The simplicity and fairness of open borders is not just a nice-to-have; it is critical for a just and fair legal process.

I and others have written time and time again about how modern immigration procedures recklessly abandon due process. Ask yourself: did the refugees whose files were wheeled past a UK Minister so civil servants could “truthfully” tell Parliament that a Minister had duly reviewed their applications get justice? Did they get due process? How about the Brazilians whose visa applications were rejected because a US consulate decided that black visa applicants must be poor? Did they get due process?

Any US consular officer is entitled to reject most visa applications for any reason they like. This “consular nonreviewability” discretion, by US law, cannot be challenged in court or overruled by senior officials — not even the President. Since 1990, the American Bar Association has persistently asked the US government every year to  “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles” — a request that has consistently fallen on deaf ears. In 2005, the US State Department issued a report recommending further reductions in existing due process and more discretion for consular officials.

It would be one thing if this due process brouhaha focused on police officers arbitrarily writing speeding tickets (as they often seem to be doing in many jurisdictions). But this lack of due process tears families apart. It destroys jobs. Imagine if you lost your job because your employer claimed you were a drug smuggler (based on your name resembling someone else’s, who actually is a drug smuggler) — and you had no right to challenge that claim in court. That actually happened to one unlucky immigrant in the US. A lack of legal due process harms real human beings; it breaks hearts and homes.

It is no consolation that the government is only empowered to take your spouse and children away from you, or fire you from your job, if you’re a foreigner. As Senator Church warned in 1975:

I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return. (emphasis added)

A government powerful enough to arbitrarily evict your neighbour from his home, take him away from his family, and take his livelihood away from him, is powerful enough to do that to you too. One remarkable thing I’ve found about the debate surrounding drones and surveillance is that the people criticising them often also implicitly criticise a focus solely on the well-being of citizens, urging us to account for these policies in the totality of their effects on innocent human beings, regardless of nationality. I do not think this criticism of citizenism has struck that much of a chord with the masses — Glenn Greenwald may worry about the innocent Afghan victims of drones, or innocent British victims of surveillance, but the median news media consumer probably does not.

However, these issues resonate, because people appreciate the risk of giving government too much power — the power to kill and the power to spy without the process of law or supervision. Perhaps people need a similar awakening about the power of government to keep you alive while taking away everything you hold dear — your home, your job, your family. That the victims are mere foreigners should be little consolation. A government powerful enough to do anything without due process is powerful enough to make a victim of you too.

The photograph featured at the top of this post is of striking miners being deported from Bisbee, Arizona in 1917. Scanned by the Arizona Historical Society; original photographer unknown.

Yakko’s World and the incredible danger of fetishising borders

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Recently, I stumbled across this clip from the children’s cartoon Animaniacs, which in a little ditty lists the countries of the world:

The ditty is not actually accurate for two reasons:

  1. The map and composition are based on information that was current in the early 1990s, which is well over two decades ago;
  2. For musical purposes, not all countries are named and some countries are incorrectly named

Both of these reasons, in other words, highlight the incredible arbitrariness of national borders. Some I noticed in just one listen:

  1. “French Guiana” is one of those former European new world colonies that are still in old world hands today
  2. “Russia” in the video is really the USSR, comprising many regions that today are independent countries
  3. “Germany now in one piece”
  4. “England” is only one constituent country of the United Kingdom
  5. “Two Yemens” (Yemen used to be two separate states)
  6. “Sumatra and Borneo” — the island of Sumatra is entirely Indonesian (although it once had an active and violent separatist movement), while Borneo is divided between Indonesia and Malaysia
  7. “Somalia” is arguably two or three countries, depending on whether you recognise governments like those of Somaliland
  8. “Sudan” is now two countries

You can easily conceive of a very different world map, one where:

  1. French Guiana is its own country
  2. Russia/the former USSR are partitioned or united in different configurations
  3. Germany remains partitioned
  4. The United Kingdom is splintered into its constituent countries (some people are still trying to make this happen)
  5. Yemen is splintered (this potentially could happen, given the unrest today)
  6. Sumatra and Borneo could be countries of their own, or divided in some different way between Malaysia and Indonesia (Sumatra is actually culturally and linguistically more similar to Peninsular Malaysia than Borneo is)
  7. Somalia is splintered, and Somaliland could be a sovereign state in its own right
  8. Sudan would still be unified

All of those outcomes are either incredibly realistic, being actively worked towards, or once actually were the case. What reason do we have for these not being the case, other than accidents of history? If the British and the Dutch hadn’t signed a few pieces of paper because Napoleon invaded the Netherlands, Singapore might be part of the former Dutch East Indies (i.e. Indonesia) today, while Sumatra could be a thriving former British colony instead of a region of Indonesia. Nothing innate about the people of Singapore or Sumatra dictated that their borders be where they are today — in a larger sense, Napoleon had more to do with how their borders are set and where these people may travel than any living Singaporean or Sumatran does today. A similar story applies to just about any patch of land you might pick in Southeast Asia.

Depending on which side of a line you were born on, or on what side of the midnight hour the clock read when you were born, you could be Sudanese or South Sudanese. You could be Dominican or Haitian. You could be Pakistani or Bangladeshi. And based on these totally arbitrary factors, where you can live, travel, work, and study will forever be defined. If Napoleon invaded your former coloniser two centuries ago, maybe you wound up British or Singaporean instead of Dutch or Indonesian, or vice-versa. I do not see the sense in this.

There are two sensible ripostes I can think of:

  1. Some arbitrariness is inherent to the workings of the world, and necessary if we are not to go insane
  2. Countries and their unique institutions and cultures are incredibly relevant to shaping who you are

I would articulate the first as similar to observing that in the US, if you drink at 11:59PM in the evening you can be committing a crime, and 2 minutes later, simply exercising the natural right of an adult to enjoy an alcoholic beverage. But while arbitrary cutoffs may be necessary, at least these arbitrary cutoffs which lawmakers set are based on some non-arbitrary study. Governments (one hopes) consider the relevant medical and social science research in deciding an arbitrary minimum drinking age, just as they consider traffic engineering research in deciding an arbitrary speed limit. So remind me, why is it that Napoleon’s invasion of the Netherlands means someone born in Sumatra can’t work in Singapore today without begging for permission? What social science study are we relying on here?

As to the second point, I think this is all well and good. But it is one thing to suggest that countries are relevant to policymaking and our real lives. Nothing inherent to this point demands an automatic ban on foreigners living and working in your country. Maybe it demands a special language test. Maybe it demands an immigration surtax that funds language classes for immigrants or subsidises job training for displaced natives. The point I am making is that you cannot rely on the relevance of the institution of countries to demand a fetishisation of their arbitrary borders. I probably have more in common with a New Yorker of Asian descent than I do with a Borneo longhouse-dweller, yet I am a “foreigner” to the first and a “fellow citizen” to the second. Yet I am allowed to “impose” myself on the Bornean’s community and not the New Yorker’s, because ostensibly I have more in common with the Bornean and pose a threat to the New Yorker.

None of this means we should discard the nation-state, treat it as irrelevant, or even refuse to consider nationality in policymaking. Even borders have some relevance: they define the boundaries of a certain legal jurisdiction, and I would hesitate to just tear that down.

But we cannot take borders for granted. If we find ourselves suddenly declaring someone shouldn’t count or matter because of this arbitrary line, we need to be absolutely sure why we believe this. We cannot grant borders all the due deference in the world. When borders depend on which tyrant invaded your country a century or more ago, that’s a strong reason to instead believe borders might not be worth the paper they’re drawn on. Considering how often our fetish of borders gets in the way of exploring new ideas about citizenship or adhering to our most-cherished civilisational beliefs, this is no trivial matter.

The American bureaucracy that is worse than the TSA, IRS, and DMV combined

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Recently I stumbled on a Bryan Caplan blog post I remember reading a couple years ago, about a businessman who was refused entry to the US purely on the basis of a technicality with his visa. The businessman, Tim Worstall, had a valid business visitor’s visa which he’d used several times before without issue. On this occasion, he was refused entry because US immigration officers just felt he ought to have a different visa in order to enter the US. They held him for interrogation without a lawyer, without recording what was said. An officer wrote an account of what happened from memory, and forced Worstall to sign this account, despite Worstall’s protests that it was inaccurate, because he “was told that if [he] did not [he] would be deported, [his] passport declared invalid for travel to the US for the rest of [his] life.” Worstall concludes:

There is no law, evidence, representation nor even accurate recording of proceedings in such “voluntary departures”. It is entirely at the whim of the agents at the border post. I was actually told by one agent “I’m gonna screw you over”. Something of a difference from what’s scrawled over that statue in New York really.

The comments are interesting; quite a few people seem horrified by the lack of due process in these proceedings. But they are really just par for the course. As I’ve written before, US consular officers essentially have dictatorial discretion in denying visa applications. Border agents have similar authority. In the comments on Caplan’s post, a Pierre Honeyman wrote about how one unprofessional US border officer arbitrarily reduced the validity of his 1-year work visa to 2 weeks, and arbitrarily invalidated the work visas of several of his colleagues.

There was another commenter, one Brian, who argued that some fault must lie with the victims of arbitrary immigration policies:

Don’t perjure yourself by signing a false statement. Don’t do or say suspicious or clever things to hostile and armed agents of a cruel and nasty government. Demand access to a supervisor, a lawyer and a judge, even if they tell you you’re not entitled to them. Have some friends expecting you who know to demand answers from local officials. Never say or do anything whatsoever in the USA without advice from a good lawyer.

I’m not sure how often Brian crosses international borders, but this is really something easier said than done. I’ve been crossing borders since young, and few things strike more fear in my heart than dealing with immigration agents, even though I know I’ve done nothing morally wrong (I’ve never crossed a border unlawfully, never been deported, never had any trouble with the law, in fact). A simple typo in your immigration papers can ruin your life. This is as true outside the US as it is in the US, though this problem is especially pernicious there.

Demanding access to a lawyer in US immigration proceedings is easier said than done, especially when you’re trying to enter lawfully. US deportation proceedings are no beacon of due process or justice, but even those subject to deportation have more legal rights than foreigners trying to enter lawfully do. Worstall could have refused to sign false statements and demanded a lawyer all he liked — the fact is, given US immigration agents’ dictatorial discretion, all of this would have been in vain. Standard principles of due process and fair trials which most of us in civilised societies take for granted simply don’t apply.

(None of this is to say we ought to blame the individual professional civil servants in immigration bureaucracies. The worst personal encounters I’ve had with immigration bureaucrats have been limited to facing mildly unpleasant demeanours; the best have been quite helpful and pleasant. But the professional conduct of individuals can never excuse the corruptness of the system that employs them.)

I don’t think it’s an accident that immigration laws are so inhumane, arbitrary, and unjust. US legal scholars note that this dictatorial discretion offered to individual US government employees stems directly from the US judicial precedent of Chae Chan Ping v. United States — better known as the Chinese Exclusion Case. As one of them says:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson [two since overturned cases which similarly sanctioned government bigotry and prejudice]. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

When we base our laws on the moral principle that foreigners have no rights worth respecting, it should not be surprising that due process and a fair trial are consigned to the dust heap. When we base our laws on the moral principle that we can do whatever we like to foreigners who come in peace, it should not surprise us that foreigners try to come in peace without getting our attention and immigrate illegally.

Americans love to complain about government bureaucracies like the TSA, the IRS, or the DMV. At least those bureaucracies actually have rules they need to follow and can’t arbitrarily decide you really should pay more taxes than what the law says, or you really should have a driving licence for only 1 year instead of the usual 5 years, or you really need an anal probe before you board that train. Immigrants live in fear of a bureaucracy that’s worse, more powerful, and more arbitrary than the TSA, the IRS, and the DMV combined — and because they’re foreigners, we’ve apparently decided that that is perfectly fine.