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Rand Paul’s interesting precedent

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While I don’t generally buy into the views of Ron or Rand Paul on foreign policy, Rand Paul’s filibuster, which is being credited with giving new momentum to the GOP, sets a promising precedent. Paul’s insistence that the president has no constitutional authority to use drone strikes against Americans on US soil was morally obvious, yet at the same time profoundly subversive, since it implies that there are, after all, limits on state authority, and therefore that the doctrine of sovereignty in the pure Hobbesian sense is fall. Bravo! Interestingly, since the Republicans have a reputation as the hawkish party, strong on national security, Paul’s stand actually went against part of what Republicans identify with, but the political configuration allowed Paul to appear, sort of, as the voice of the GOP against the soulless statism of the Obama administration. Paul’s message was fundamentally the doctrine of human rights or natural rights: it’s wrong to kill innocent people, period.

It probably wouldn’t work right now, but one wonders whether at some point in the future, Republicans could be flip-flopped on the immigration issue with similar ease. If a Republican candidate opportunistically assailed the Obama administration for its draconian deportation policies, that would doubtless alienate some of the base, but the GOP might look like white knights and protectors of the weak, and become more popular in some quarters, and Republicans who aren’t particularly nativist might just embrace it. What’s at stake here is the moral high ground. Seizing it is really a lot of fun, and it can pay off in the oddest and most delightful ways.

Self-driving cars and undocumented immigration

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Technology has altered migration patterns many times. New modes of transportation– railroads, faster and safer ships, cars, airplanes– made migration cheaper and easier. The internet and cheap international telephony have made it easier for migrants to stay plugged in to their home countries, and possibly discourage assimilation among migrants, though on the other hand, modern technology and cultural globalization probably encourage pre-assimilation. The internet also encourages international dating. What about the next transportation technology that seems to be in the pipeline, self-driving cars?

It’s always hard to foresee how new technologies will change society, the economy, and people’s way of life. But I’ll try. Self-driving cars probably won’t crowd out private car ownership anytime soon, but they will make it optional. A car sitting in a parking space is a waste. It’s a waste of both the car and the parking space. The taxi cab model uses cars and space more efficiently, but of course, it’s labor-intensive. Labor is expensive. That’s why even a short cab ride can cost $10-$15 or more. But a self-driving taxi cab could be much cheaper. In some ways, it would be more convenient as well. Presumably you could summon one with a smartphone, and order it to drop you off at the entrance of wherever it is you want to go. If you’ve been drinking, no problem. Also, you’re not require to drive the same car, day in, day out. Cab companies, with a much larger volume of business, could offer a large selection. Got a big load? Order a roomier vehicle. By yourself? Order a miniature one-car cab. Electric cars might benefit, because people wouldn’t suffer from “range anxiety.” Smartphones plus self-driving cars might allow for sophisticated forms of carpooling, with minivans planning out complex routes on the fly so as to serve many customers at the same time. Some parking lots would turn back into green spaces. It’s hard to say whether cities or suburbs will benefit more. Currently, it’s suburbanites who have to bear the burdens of car ownership. City dwellers can do without them, relying on public transit instead. On the other hand, city dwellers may be very glad to be able to get out of town at will, and to take a self-driving cab when they’re in a hurry, or late at night, instead of navigating buses and metros.

What does this have to do with immigration?

1. If long-distance cargo transport came to be dominated by self-driving trucks, that might complicate border control. Currently, it’s probably not too difficult for a US citizen to bring someone in by car across the Mexican border, hiding them in the trunk, say. But it’s risky, because if the driver gets caught, they can be punished. (I can’t seem to find out what the punishment is, but I think it’s pretty serious.) But what if there’s no driver? Maybe you could punish the owner, but what if you can’t find the owner, or can’t find out who the owner is? Or what if the owner says the illegal immigrant was there without his knowledge or permission?

2. Once undocumented immigrants arrive, one of the things that makes life difficult for them is that they might not be able to get drivers’ licenses. But in the age of self-driving cars, drivers’ licenses will no longer be a sine qua non of modern life, even in the suburbs. Many natives may not bother to get them. Undocumented immigrants will do just fine without them. They’ll have an unprecedented range of movement, without needing the fake papers.

3. Professions that involve home visits may be especially facilitated by self-driving cars. In jobs that involve a lot of time on the road, not having to be behind the wheel will be an immense blessing. The stressful and boring time spent watching the road can be spent socializing on Facebook, or studying, or watching movies, or taking classes, or maybe even doing some kind of paid work that can be done on a smartphone. Since undocumented workers seem disproportionately to be involved in driving-intensive jobs– housecleaning, landscaping, etc.– self-driving cars will make their lifestyles pleasanter. Perhaps that will even lure more of them to come. Those professions will also be easier to get into when one will no longer need a car, or a driver’s license.

Wedging a crack in trans-Atlantic borders: reforming the Visa Waiver Program

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Credit for featured image: Wikimedia Commons. It shows in green the countries eligible for the US Visa Waiver Program. For more, see the Wikipedia article.

A few years ago, the South Carolina Journal of International Law and Business published an article by then-law and business student Robert Wilson on the risks that US visa policy poses to trans-Atlantic foreign relations. The article is a good and I think fair review of the case for and against stricter non-immigrant visa policy. Wilson never hides that he favours a looser policy, but he accurately notes the reasons why the US government has felt compelled to tighten the borders.

Wilson’s focus is on the US visa waiver programme (VWP) which allows people from certain countries to enter the US without a visa. They simply need to pass a quick (30 seconds is the figure he cites) check at border control. Wilson notes that this is how some of the 9/11 terrorists were able to enter the US. This is why since 9/11 the US has mandated interviews for almost all visa applicants, and why the US has been reluctant to extend the reach of the VWP.

I-94W

Visa Waiver Program I-94W form that any person from a VWP-eligible country needs to fill in when landing in the US for a short-term, VWP-eligible trip. Source: magazineUSA.com

But as Wilson notes, sealing the borders in this manner is not practical. It is not any more useful or pragmatic than demanding the search of every cargo container entering the US for bombs or drugs. Other than a cursory check at the border, the VWP essentially throws open US borders to eligible foreigners, with no obligation to present additional information prior to entry. And these foreigners are screened not on any meaningful factual basis other than national origin: an person from Nigeria has to face stringent checks prior to boarding a flight to the US, while an identical twin who happens to have British citizenship can waltz right on up to the border.

I am in favour of open borders, but this manner of implementing them strikes me as arbitrary and self-defeating. Just as there are safe ways to deregulate, there are also plenty of unsafe ways, and this arbitrary discrimination strikes me as just one such unsafe way. Wilson cites how the number of people travelling to the US for tourism and business has been falling since 9/11 because of stricter visa procedures, while equivalent figures for other countries have been trending up.

Wilson recommends the US pre-screen VWP-eligible foreigners, using a system similar to Australia’s. Nathan Sales, a law professor, testified before Congress that this approach would be much more sensible compared to the arbitrary status quo, and more importantly, would allow the US to expand the reach of the VWP. It makes sense to me: a government can legitimately limit entry at its borders if it justifiably believes that this addresses a concerning security risk. Refusing to submit basic biographical information or fill out a basic form signals that you are likely to be a risk of some kind.

I’ve used the Australian electronic equivalent of the VWP before: it’s straightforward and transparent. It’s not open borders, but I’d much rather have an extended visa waiver programme on a similar basis, open to as many people as possible. My belief is that the government should approve visas for anyone who is acting in good faith. Right now, the US denies visas to over 1 million people annually for essentially no reason (they’re not criminals, not carrying communicable diseases, etc.). Give those 1 million people the visas they need to visit or study.

One final point Wilson raises is that expanding the VWP to all the European countries who desire it would allow cooperation with those countries in immigration enforcement. By coordinating governance systems in this area, the US could more effectively deter people with outstanding criminal issues from entering, while opening the borders to those acting in good faith. If the US pursues this, this could eventually lead to trans-Atlantic open borders: even if border controls remain, visas would be available to all good-faith visitors, and one day perhaps even workers or immigrants.

Migration and Christianity

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When I wrote Principles of a Free Society, I hinted at a Christian case for open borders:

American Christianity has not been only a conservative force, fending off bad foreign ideas and keeping America true to its heritage of freedom. It has often championed reform, progressively realizing the latent imperatives of America’s founding ideals.

Nobel laureate Robert Fogel has argued that American history has followed a pattern by which the evolution of religion leads the evolution of political reform, with four “Great Awakenings” in religion– in 1730-60, 1800-40, 1890-1930, and 1960 to around 1990– leading to four great eras of political reform: the American revolution, the anti-slavery movement and the Civil War, the creation of the welfare state, and the civil rights movement; and finally the tax revolt of the Reagan era and the 1996 welfare reform.

Fogel’s periodization could be disputed; but the links he draws between religion and political reform are compelling. Churches enjoy no institutional representation in the American political system, nor do they typically instruct their members how to vote. Yet religion heavily influences voting behavior and other forms of political participation. Today, for example, one of the strongest predictors of voting Republican is church attendance.

In spite of the Republican bias of American Christians, however, and the anti-immigration bias of the Republican Party, I think there are signs that immigration (that is, support for immigration) is emerging as a distinctively Christian political issue. An immigration amnesty in 1986 was championed and signed by a born-again Christian president, Ronald Reagan. Another Christian president, George W. Bush, strove for and nearly succeeded in passing immigration reform in 2006 and 2007, with widespread support from churches.

The Catholic Cardinal Mahoney of Los Angeles compared a repressive anti-immigration law in Arizona to Nazism. Richard Land, president of the general conservative Southern Baptist Convention’s Ethics and Religious Liberty Commission, has advocated comprehensive immigration reform. Polls by Pew show that religious leaders and frequent churchgoers are significantly more pro-immigration than less frequent attenders.

Ultimately, I think the Bible, the New Testament, the Parable of the Good Samaritan, and in particular one detail in the Parable of the Good Samaritan, will force Christians to turn against the world apartheid system of border controls. When the priest and the Levite see the wounded man on the road to Jericho, they do not just fail to help, they pass by on the other side of the road— that is, they deliberately create physical distance between themselves and the suffering man in order to avoid incurring the moral responsibility to help him.

But of course, this is exactly what migration restrictions do: they keep the world’s poor at a distance, so that we will not feel conscience-stricken and have to help them. But of course it is perfectly clear in the parable that the priest and the Levite only make themselves more culpable by trying to avoid moral responsibility; and so it is with rich countries that close their borders to poor immigrants. Christians cannot go on failing to see this indefinitely. Time for a Fifth Great Awakening?…

How would church-state relations change if the conviction became widespread among Christians that to “love thy neighbor” meant not collaborating with the enemies who want to deport him? (Principles of a Free Society, pp. 189-191)

At that time, however, I had not read what the Old Testament specifically has to say about immigrants. When I did so, last May, for the post “The Old Testament on Immigration,” I was astonished at how thoroughly they confirmed my views. Again and again, the Bible stresses that foreigners are to be given justice, treated fairly, loved, and included in Jewish festivals and Sabbath observances. They were often grouped with widows and orphans as a protected class. In correspondence with readers after that post, I learned that there seems to be a distinction between a ger, which I’ve seen translated as “resident foreigner” but which means something close to “convert to Judaism,” that is, someone who has accepted the religious rules of ancient Israel, and a “foreigner at the gate,” zak or nekhar. Many of the Biblical passages which most strongly urge “foreigners” to be treated well use the word ger, and some argue that these exhortations do not apply to the zak or nekhar. I believe it is the latter, moreover, to whom the Mosaic law permits Jews to lend at interest and sell meat found already dead, which Jews are not allowed to eat. Some contemporary writers equate ger with legal immigrants and zak with undocumented immigrants. But this is certainly untenable, for several reasons. First, ancient Israel had no passport regime, and zak were not breaking the law by dwelling there: they were not illegal. Second, while the Bible does suggest that ger must obey the Mosaic law and thus shared the obligations as well as the privileges of Jews, there is no hint of some process of permission by Jewish authorities that had to take place for a person to become a ger. And in the story of Ruth the Moabite, no permission is asked. Ruth admittedly has a Jewish mother-in-law, Naomi, but her admission to Israel is not conditional on that. She simply comes, and gathers grain behind the reapers, taking advantage of a sort of ancient Jewish poor law. In short, there were open borders under the Mosaic law. And if that was the case even under the Old Testament law, which in many respects is rather harsh– a girl found guilty of premarital sex was to be stoned, for example (Deuteronomy 22:21)– then what about the New Testament, which often seems to endorse complete nonviolence…

“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’[a] But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well.” (Matthew 5:38-40)

… which pointedly softens the Mosaic law, e.g., when Jesus pardons the woman taken in adultery (John 8:1-11), and which is far more universalist in spirit, for example in eliminating the circumcision requirement so as to integrate Gentile converts? Surely it would be odd for someone to agree that the Old Testament called for open borders and then say that the New Testament offered a warrant for a harsher and more exclusionary migration policy than what the Old Testament allowed.

Given the comparative rarity of open borders advocacy among Christians, however– devout Christians are more likely to favor open borders than others, but it’s still a small minority view– I’m always interested in hearing the other side. What do Christian restrictionists have to say for themselves? Continue reading Migration and Christianity →

US immigration law creates hundreds of mini-dictators, empowered to enforce racist policy without question

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Donald Dobkin is a Canadian-American immigration lawyer who, a few years back, authored a Georgetown Immigration Law Journal article titled Challenging the Doctrine of Consular Nonreviewability in Immigration Cases. The whole article is worth reading, but the short story is:

  • US consular officers are entitled to deny you a non-immigrant visa if you cannot prove to them you won’t immigrate to the US
  • Because this is considered a question of fact, under US law, this decision cannot be questioned or overturned, not even by the Secretary of State or the President
  • Courts have held that under very limited circumstances, they can review non-factual issues that affected the visa application outcome
  • However, the end result is that for the vast majority of people refused a non-immigrant visa to the US, there is no appeal mechanism and no check on US consular officers’ power to disrupt or destroy foreigners’ lives

One interesting thing I learned is that the doctrine of consular nonreviewability (sometimes mockingly called consular absolutism; John Lennon supposedly once referred to US consular officers as “absolute monarchs”) has its roots in the 1889 case Chac Chan Ping v. United States (often simply called the Chinese Exclusion Case). This is the case which first held that the government has the right to do whatever it likes to foreigners trying to enter the US, for whatever reason. Consequent immigration law doctrine in the US has built on the foundation of the Chinese Exclusion Case, especially in the area of consular nonreviewability. As Dobkin quotes one scholar saying:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

(For non-Americans, Dred Scott and Plessy v. Ferguson are two famous US Supreme Court cases which respectively held that black people have no rights and that racial segregation is constitutional.)

Immigration law’s roots in racism go deep. Beyond the US, virtually every modern Western country rooted in the common law tradition originally adopted immigration controls in order to exclude foreigners from the wrong racial backgrounds. See for instance the UK closing its borders to Commonwealth citizens because they received too many black and Asian immigrants, Australia adopting a “White Australia” legal regime to keep out Asian immigrants, or Canada pursuing immigration controls in the 19th century to restrict Chinese immigration.

And the best traditions of immigration law continue today. In Olsen v. Albright, former US consular officer Robert Olsen sued the State Department for wrongful dismissal after he refused to enforce a visa policy that discriminated against people who “look poor” or were born into the wrong race.  Given how well-documented the racist nature of State’s visa policy was, the judge had no choice but to agree with Olsen — but given the doctrine of consular nonreviewability, he had no power to overturn the denial of visas to anyone who, as one visa refusal documented, “Looks + talks poor.”

Dobkin notes that in many European countries, including Germany, judicial review of visa decisions is enshrined in law. The catastrophic effects which US judges and consular officers fear from permitting judicial review have not materialised. Dobkin suggests that this is because:

  1. Pursuing judicial review is costly, so applicants will only pursue it if they strongly believe the consular officer was wrong
  2. More importantly, the risk of facing judicial review forces consular officers to get visa decisions right

One interesting point Dobkin highlights is that unfortunately for foreigners, immigration law cases tend to be decided precisely when anti-immigrant sentiment runs high: you get a lot more immigration lawsuits when immigration law enforcement is at its peak. This bias means that immigration legal precedents favourable to immigrants are relatively rare, and likely accounts for the long survival of the Chinese Exclusion Case.

There are of course rare instances where the courts do decide to review a consular officer’s decision, and Dobkin cites quite a few. These are worth a separate post, which I will publish in due time. But they do not materially change the picture: US immigration policy enthrones consular officers as dictators, capable of punishing people for reasons as trivial as wearing the wrong coat or being from the wrong ethnic origin. Not even the President or Supreme Court can overturn their decision. And there is no real reason for this, except for the US immigration legal system’s peculiar attachment to consular nonreviewability, a doctrine rooted in racism, and one that plenty of other developed countries are fine doing without.

The painting featured at the top of this post depicts the deportation of Acadians from Canada in 1755.