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Frederick Douglass: Migration is, and always has been, a fundamental human right

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It is almost impossible to make it through an explanation of the right to migrate without a listener interrupting: “But you can’t let everyone come! You just can’t!” There’s often a litany of plausible-sounding reasons.

Now, I suspect that these plausible-sounding reasons are actually much less defensible and plausible than you might think. But before we get into a deep discussion of the evidence here, the interrupting interlocutor often concludes: “What you say sounds nice in theory, but will destroy us. Your fancy moral theories will sink our ship of state. You are stupidly blinding yourself to the consequences of recognising a right to migrate.”

Yet when I probe into why our objector believes this, I often find he has no evidence for his belief that freedom of migration will destroy his country or the world. All he has to go on is the insistence that it’s a theoretical possibility that recognising the right to migrate will be disastrous. Yes, that’s a possibility — one we’ve thought about a lot.

But you could make such objections against just about every right. We restrict freedom of speech for much less than catastrophic disaster: most countries’ laws ban libel and slander, and many go even farther than that. This doesn’t mean the right to freedom of speech must be exterminated and never recognised — it just means that the right to free speech must be balanced against others’ rights. Such is the case with the right to migrate.

Peculiarly, people often seem allergic to the idea that foreigners have rights at all (never mind that humanity has recognised this ever since the first laws of war were drawn up), let alone the right to migrate. One of the most common objections I hear is that while such a right was feasible to recognise in earlier times, such a right is infeasible in the modern world.
Statue of Liberty(Image source: Christian Science Monitor)
But these objections are not new. They are so old, in fact, that they were anticipated almost 150 years ago. Here is Frederick Douglass, speaking in 1869 against the movement to ban Chinese immigration:

I have said that the Chinese will come, and have given some reasons why we may expect them in very large numbers in no very distant future. Do you ask, if I favor such immigration, I answer I would. Would you have them naturalized, and have them invested with all the rights of American citizenship? I would. Would you allow them to vote? I would. Would you allow them to hold office? I would.

But are there not reasons against all this? Is there not such a law or principle as that of self-preservation? Does not every race owe something to itself? Should it not attend to the dictates of common sense? Should not a superior race protect itself from contact with inferior ones? Are not the white people the owners of this continent? Have they not the right to say, what kind of people shall be allowed to come here and settle? Is there not such a thing as being more generous than wise? In the effort to promote civilization may we not corrupt and destroy what we have? Is it best to take on board more passengers than the ship will carry?

I submit that this question of Chinese immigration should be settled upon higher principles than those of a cold and selfish expediency.

There are such things in the world as human rights. They rest upon no conventional foundation, but are external, universal, and indestructible. Among these, is the right of locomotion; the right of migration; the right which belongs to no particular race, but belongs alike to all and to all alike. It is the right you assert by staying here, and your fathers asserted by coming here. It is this great right that I assert for the Chinese and Japanese, and for all other varieties of men equally with yourselves, now and forever. I know of no rights of race superior to the rights of humanity, and when there is a supposed conflict between human and national rights, it is safe to go to the side of humanity. I have great respect for the blue eyed and light haired races of America. They are a mighty people. In any struggle for the good things of this world they need have no fear. They have no need to doubt that they will get their full share.

But I reject the arrogant and scornful theory by which they would limit migratory rights, or any other essential human rights to themselves, and which would make them the owners of this great continent to the exclusion of all other races of men.

I want a home here not only for the negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours. Right wrongs no man. If respect is had to majorities, the fact that only one fifth of the population of the globe is white, the other four fifths are colored, ought to have some weight and influence in disposing of this and similar questions. It would be a sad reflection upon the laws of nature and upon the idea of justice, to say nothing of a common Creator, if four fifths of mankind were deprived of the rights of migration to make room for the one fifth. If the white race may exclude all other races from this continent, it may rightfully do the same in respect to all other lands, islands, capes and continents, and thus have all the world to itself.

People often say that the words of the Statue of Liberty no longer apply today, because things are just fundamentally different. No longer should we declare:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

Whether stated or unstated, the suggestion is that the people of the 19th century who so eagerly embraced the right to migrate would, today, agree we ought to shut the door and wall out the “wretched refuse” of the world. But reading Douglass’s words, I find this difficult if not impossible to believe.

The same concerns people have about migration today were the ones raised to Douglass in the 1860s. Yet Douglass did not contemplate any reduction or circumscription of the right to migrate. He recognised the theoretical problems that the spectre of migration raises — and he rejected arbitrary prohibitions on human movement as the only solution to these problems.

He did not say they are categorically unfounded, nor did he say they should not be managed. He simply insisted that these theoretical problems are not a good enough reason in of themselves to restrict “essential human rights” — such as the right to migrate. It behooves us to solve these problems with solutions that least-infringe upon fundamental human rights.

People say that times change and that what was once a right might not be valid today. But how then can they answer Douglass’s insistence that the right to migrate is universal and indestructible? How can they explain that restricting migration isn’t really so wrong, when in Douglass’s time it was clear that this constituted an “essential human right”, one that he asserted for all other varieties of men equally with yourselves, now and forever?

I say that Douglass’s words ring as true today as they did well over a century ago. Migration is a fundamental human right. Like all rights, there may come a time when it must be restricted. But restrictions have to balance one set of rights against another — not to categorically declare that a right simply does not exist, and that we have carte blanche to utterly disregard it. As did Douglass, I assert today the universal and indestructible right to migrate equally for all human beings — now, and forever.

Source for featured image: Wikimedia Commons, original photographer unknown.

Open Borders Editorial Note: See also Open Borders guest blogger Ilya Somin’s blog post Frederick Douglass on immigration at the Volokh Conspiracy.

Open borders and tolerance

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This post builds on a previous post where I was critical of conflating open borders with other migration-related beliefs. If open borders doesn’t rely too heavily on migration-related beliefs, what does it rely on? In other words, why might one have a prior in favor of open borders? By prior here, I mean a strong inclination to accept a position somewhat resembling open borders while being (as of that point in time) ignorant of large chunks of pertinent evidence. I will draw on my personal experience and belief system to answer this. These are purely my personal views, and I strive here to elucidate rather than advocate.

My own belief in open borders does not arise from any particular “pro-migrant” beliefs. Migrants are human beings, just like non-migrants (contra James Donald). There may be some systematic differences due to selection effects (which could go in a pro- or anti- direction), and the nature of these differences is likely to change if migration policy changes significantly. Ultimately, however, these differences aren’t what’s driving, or detracting from, my support for free migration in a meaningful way. So what is? Fundamentally, it’s the “commonsense libertarian” approach pioneered by the likes of Bryan Caplan. But formal libertarian theory can focus too exclusively on government and coercion. So I will step back to describe my broader philosophy.

For want of a better word, that approach is tolerance. The term has many different meanings, so I will try to sketch what I mean by it. I’m not trying to say that my usage is the correct one or that others should conform.

Tolerance

Image depicting tolerance, source Patheos

Tolerance as indifference

One can think of tolerance as indifference, or simply not caring. The threshold for not caring may vary. Here are some illustrative possibilites:

  • “I don’t care either way. I don’t know this person and what they’re doing isn’t affecting me (non-negligibly), so I don’t care.”
  • “I don’t care as long as it’s not tangibly harming the people involved.”
  • “I don’t care as long as they’re not harming innocent bystanders.” Such an attitude migh be tolerant of drinking too much but not of drunk driving.

What if I do care? What if a friend is drinking too much and ruining his life? What if somebody is eating unhealthily, or has some habits that I think harm other people? What authority, and what obligation, do I have to interfere? This way of thinking about tolerance doesn’t help address such questions, and insofar as such tolerance is elevated on a pedestal, it goes against a commitment to care for the world and make it a better place. Such tolerance isn’t virtuous. At best, it is tolerable.

Thin libertarian tolerance: a presumption against coercion

At minimum tolerance implies a strong presumption against coercive intervention, even if it is for the other person’s or third parties’ good, and even more so in cases where it’s just about promoting my own interests. Bryan Caplan proposes concerned tolerance in the case that people are doing something that’s not in their own or each other’s interests: inform and educate, but beware of coercion. Even if coercion seems to pass a naive cost-benefit analysis, the complexity of the world should give one pause. This is the “thin libertarian” concept of tolerance, and, at least on paper, one could “deduce” open borders from it, combining with some general beliefs about the prima facie right to migrate. But tolerance as I use the term goes beyond this thin libertarian version, and I think that the additional aspects of it really do add to our understanding of the moral need for open borders. (See here for a backgrounder on thick and thin libertarianism).

We influence each others’ environment (duh!)

Our activities influence one another all the time. Your choice of neighbors affects your quality of life in myriad ways even if you rarely have direct interactions with your neighbors. Recently, I asked the shopkeeper at the grocery store near my residence why he had stopped stocking eggplants (brinjals). He said that people don’t buy the eggplants, so he had to throw them away. My neighbors’ non-preference for eggplants was depriving me of easy access to eggplants. This is just one of thousands of ways that the tastes of one’s neighbors affect one’s quality of life. It’s tempting to call these “externalities” although mechanisms such as rents and housing prices internalize them to quite an extent.

As it happens, my desire for easy access to eggplants is not sufficiently strong for me to be too unhappy about my neighbors’ tastes. But it wouldn’t be intolerant of me to factor this, and many other considerations, in deciding where to live. People do this all the time. It’s not intolerant to try to live in places surrounded by neighbors who share one’s values and can therefore make one’s life more pleasant, as long as one is willing to pay the price. Neither is there anything wrong about choosing a place where one’s life is perhaps not that pleasant, with non-like-minded neighbors, if one wants to cut down costs. (Some people might luck out in finding that the things they value the most can be found at a relatively cheap place). People are looking at their own preferences, understanding how their neighbors alter the landscape for them, and making (partly) informed decisions based on that.

[Sidenote: As Bill Bishop and Charles Murray have pointed out, people residentially segregate based on socio-economic status, education level, and political beliefs quite a bit in the United States, with important social, economic, and political implications, some of which they deplore. But neither of them challenge people’s fundamental freedom to choose where to live, even if they think the consequences are not always pretty.]

Is it okay to coerce people to shape their influences on your environment?

On the thin libertarian conception, it would be intolerant to attempt to coercively restrict the choices of those neighbors. On a somewhat thicker conception, I believe that it’s intolerant to be vociferously critical, or create unpleasant situations, for these neighbors on account of these choices, even though those choices do in the aggregate reduce my quality of life somewhat. While it’s within my libertarian rights to put out pamphlets shaming people for not buying eggplants, I would consider such behavior intolerant (even if it had a chance of succeeding). It would be okay for me to request people to buy eggplants so that they stay in stock — as long as I’m honest that my main motivation is personal rather than doing this for their good.

I don’t particularly love or hate the people I meet on the street, nor do I aspire to such feelings. They are people — like all the people I may not meet. They have preferences of their own, that shape the environment I live in — sometimes to my benefit, sometimes to my detriment. If I am deeply inconvenienced, I could request them to change (while being honest about whether my request is selfishly motivated, and accommodating of the fact that they are not obliged to heed my request) — and pay them if that’s necessitated. And if it gets too intolerable, I can move elsewhere. If I am not inconvenienced enough to do this, I should shrug it off.

Such tolerance is not merely for the benefit of others, but also my own — I can feel more at peace if I combine ” the serenity to accept the things I cannot change, the courage to change the things I can, and wisdom to know the difference” (Bryan Caplan made a similar point here). In other words, tolerance is not just about resisting the use of coercion, but also resisting the impulses that make one want to use coercion — impulses that view others as means to ends or as creatures to be manipulated for one’s benefit. Embracing such tolerance would not merely make people support open borders (or something close), it would also lead them to feel that it’s the right thing. Note that tolerance alone doesn’t imply efforts to actively advocate for open borders — such efforts might require either a specific interest in the subject or a general altruistic character combined with some reasons for believing that open borders advocacy is worthwhile enough.

While the eggplant example might seem laughably trivial compared to the stakes involved with immigration, it’s worth noting that at least some of the complaints about immigration can seem equally trivial. Consider, for instance, that “press 1 for English” is a rallying cry for a number of complaints about immigration. See for instance here and here or just Google it. But then again, trivial inconveniences are not to be scoffed at. But more on the specific issues of language in a separate post. In the meantime, check out Nathan Goodman’s post.

[On a related note, the inconveniences that people impose on each other by living near each other is one of the ingredients in the anarcho-capitalist counterfactual. I don’t disagree with the premise that people affect each other. The premise that I do disagree with is that existing government policies force integration so heavily that we need to resort to immigration restrictions to maintain people’s freedom of association and mimic an anarcho-capitalist society. I admit this isn’t a very satisfactory response, so do read our page linked above, and for a more eloquent elaboration of my point, see Bryan Caplan’s post on association, exclusion, liberty, and the status quo.]

Tolerance of intolerance

The phrase “paradox of tolerance” has been used for the seemingly paradoxical idea that “tolerance” can include tolerance of intolerance. I don’t think it’s that paradoxical in this context. Let me elaborate.

In my view, true tolerance includes tolerance, and even empathy, for people who find open borders deeply unsettling, whether or not I agree with their particular concerns. Example: people who worry about a glut of languages being spoken around them as a result of too much migration, as discussed earlier in the post. Whether or not I share these fears, and whether or not I think that too many languages being spoken around is a good or a bad thing, there is no reason to shame people for holding the view that they find such behavior deeply unsettling. Migration liberalization as forced social engineering to change people’s preferences (for instance, to make them less racist, or more linguistically knowledgeable) is no more laudable than closed borders as forced social engineering to maintain the composition of society. It may sometimes be laudable to change people’s preferences, but such changes should be done through voluntary persuasion in an honest manner (i.e., being honest about my own motives and beliefs). My version of tolerance might strike many as too tolerant of intolerance — for instance, it is a priori critical of allegedly tolerance-increasing coercive measures such as forced desegregation (the prior may be overcome in specific cases via other arguments).

It’s valid to criticize a restrictionist’s embrace of coercion to make their own lives less unpleasant (e.g., restricting migration so that they don’t have to hear foreign languages spoken in the train), and also valid to criticize the restrictionist’s drawing incorrect inferences about objective indicators solely based on subjective experience (particularly when better sources of data are available; I believe such exaggeration has happened historically as well as contemporarily). However, a tolerant person would not extend such criticism to dismissing the restrictionist’s subjective experience of unpleasantness at hearing foreign languages as entirely irrelevant or a sign of moral degeneracy.

To what extent does factoring in people’s subjective concerns about open borders affect the case for open borders?

The next few paragraphs talks specifically of the attitude that somebody (like me) who is actively arguing for open borders should have. I don’t claim that every passive supporter of open borders needs to do what I think should be expected of somebody in my position. In particular, when I talk of moral obligation or responsibility below, I use it in the sense of the ethical imperative of professional excellence (for the self-chosen avocation of open borders advocate) rather than a basic obligation stemming from negative rights (per my three-tiered view, I’m talking about tier 3 rather than tier 1).

I believe that, in the calculus of determining whether open borders are the right thing, I need to account for the subjective experiences of people who find some consequences of migration deeply disturbing. But their subjective feelings enter the equation along with the subjective experiences — and rights — of many other people, including potential migrants and those who wish to invite them. I think that, when all is said and done, caring about people’s subjective experiences should lead one in an open borders-sympathetic direction. People who are unsettled by migration are neither numerically negligible nor morally inconsequential, but they aren’t utility monsters. And I do think that, even though their concerns are worth taking seriously, they should come to the table to discuss keyhole solutions or to provide some sort of reason to believe that the problems really are insurmountable.

That said, it is incumbent upon me to try to work hard to understand the objections and perform a fair and decent analysis of it, suggesting keyhole solutions where feasible and discussing the extent to which they may reasonably be applied. Even if I’m not the one responsible for existing migration restrictions (so the “blame” falls either on the restrictionist preferences of people or on some intrinsic structural reasons that migration poses dangers), I still need to work towards finding a solution (Bryan Caplan made a similar point here). To use a somewhat inappropriate drowning child analogy, the fact that I wasn’t responsible for the child beginning to drown, or the presence of other inactive bystanders, does not absolve me of the responsibility to rescue the child.

PS: Co-blogger Nathan Smith argued that it may be morally virtuous to be intolerant of some things, such as slavery, wife-beating, and mass murder. For activities that are coercive or significantly harm others, I support the use of coercion to prevent them (i.e., prevent something that has a very high probability of leading to significant harm). I also think there could be reasonable grounds for criticism and shaming of such actions, although I’m not convinced that shaming is always necessary. I think that, in general, open dissociation from corrupt or immoral institutions — the open use of exit — accomplishes more than trying to explicitly shame them (cf. exit versus voice). But that might just be semantics. One could consider the use of social pressure to end immoral institutions an example of “intolerance” done right. I believe that many aspects of the closed borders regime today are similarly worthy of intolerance. The fact that closed borders is justified by weak arguments relying on subjective preferences may deserve intolerance. But the preferences themselves don’t deserve intolerance.

PPS: To reiterate: I believe it’s legitimate and often laudable to non-coercively, consensually, and honestly help people “improve” their preferences in the direction of greater tolerance. This is not conceptually different from helping people overcome addictions or procrastination problems or anger management issues. If, however, you’re considering the use of shaming to pressure people into changing their moral views, then I believe (qua thick libertarian) that you need to clear a higher bar. And if you are considering coercion, then (qua thin libertarian) you need to clear an even higher bar.

PPPS: My co-blogger Nathan Smith has written two posts, No Irish Need Apply, and Private discrimination against immigrants is morally fine, and should be legal. The posts make the point that it is consistent to support open borders and allow private discrimination against immigrants, and in fact, allowing the latter may make the pursuit of migration liberalization more politically feasible. I am skeptical of the political feasibility point made by Nathan, but I do agree that my tolerance framework points in the direction of Nathan’s broader point.

Thanks to Sebastian Nickel, Nathan Smith, and Paul Crider for helpful comments

The Open Graph image for this post (the one you see if you share it on social networks such as Facebook and Twitter) is from Discover Nikkei.

November 2014 in review

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November 2014 has been a busy month for Open Borders: The Case. This post summarizes some of the most exciting developments.

Obama’s deferred action announcement sparks interest in migration

On Thursday, November 20, 2014, United States President Barack Obama announced his plans for deferred action for illegal immigrants. In the run-up to and immediate aftermath of the announcement, interest in migration peaked. One question many people had was that of the constitutionality of migration restrictions. Guest blogger Ilya Somin‘s blog post Immigration and the US Constitution, written back in March 2013, received a huge amount of traffic this month. Initially, the traffic was entirely from Google Search (via search terms such as “what does the constitution say about immigration”). Later, we also got traffic from Somin’s Volokh Conspiracy blog post and from Facebook shares of the post.

Our bloggers offered their own takes on Obama’s announcement. The most detailed review is lawyer and activist David Bennion’s blog post Executive Action, Not Legislative Reform, Is How U.S. Immigration Policy Gets Made Now. Michelangelo Landgrave, himself an unaccompanied child and undocumented migrant, offered Obama some unsolicited advice prior to the announcement, and later praised Obama’s actions as a small step in the right direction.

For more information on Obama’s announcement and responses from people with open borders sympathies, see our backgrounder page on the Obama November 2014 deferred action announcement. If you’re interested in open borders advocates’ responses to immigration-related developments in the US over the last few years, check out this page.

An in-depth analysis of Argentina’s Constitution

The case for open borders is universal, and the value of our site lies in how we connect the dots between the moral case and examples around the world. Given the interest in the United States surrounding the constitutionality of migration restrictions, Vipul Naik mooted the idea of doing a blog post or posts on what other countries’ constitutions have to say on the subject, citing old Open Borders Action Group posts on Argentina and Ecuador.

John Lee promptly wrote a blog post on how Argentina’s constitution had entrenched migration as a human right. This post, being of both topical and long-term interest, generated plenty of buzz. Bryan Caplan blogged about it, and charity evaluator GiveWell said they’ll look into the matter.

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

On our site and in our blog, we’ve covered the issue of “illegal immigration” from numerous angles. See for instance here, here, here, and here. One might think we’ve beaten the topic to death.

But a blog post by John Lee titled What part of “immoral” don’t you understand? breathed new life into this old debate. Lee argued that the question wasn’t what part of illegal you don’t understand. The question, rather, was what part of illegal one could understand, given that the typical native simply acquired citizenship in his current country of residence by birth.

Thanksgiving special

John Lee’s blog post Let them come: treasuring the immigrant legacy of Thanksgiving, published to honor the occasion of Thanksgiving in the United States, has become one of our most liked posts of all time. As of the time of this writing, the post has had 282 Facebook engagements.

Also relevant are Thanksgiving posts from previous years by Nathan Smith and Chris Hendrix.

Reviving old popular blog posts

In light of the increased interest in migration as a result of Obama’s announcement, we promoted some of our older posts. Here are some of the posts for which we got good responses:

An explosion in Facebook likes

The like count for our Facebook page almost doubled in November, from about 1800 to about 3400. The initial growth in likes was sparked by the interest in migration driven by Obama’s announcement, and that alone would have increased the number of likes to about 2000. We also engaged in paid page and post promotions to a number of new audiences, and attribute the rapid increase in like count largely to that. Even excluding likes obtained as a result of paid promotions, however, the growth was pretty impressive.

Other metrics

  • The total pageview count of the website, as measured by WordPress, was 38,743. This excludes pageviews by administrators when logged in. The corresponding, slightly lower, number reported by Google Analytics is 37,863.
  • Our Twitter follower count now stands at 970.
  • Our Facebook discussion group, Open Borders Action Group, crossed 600 members and its current size is 643.

Site revamp

John Lee and Vipul Naik started on a site revamp that will hopefully be completed in the month of December. You might already see some changes such as better social sharing and author bios at the bottom of posts. More this coming month.

Let them come: treasuring the immigrant legacy of Thanksgiving

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US President Barack Obama’s announcement of deferred deportation for millions of irregular migrants is a wonderful gift for many American families this Thanksgiving, whatever the greater (de)merits of his executive action. Truly, the biggest regret one might have is that Obama did not go far enough. Or to put it in the way only an Onion headline can, “5 Million Illegal Immigrants To Realize Dreams Of Having Deportation Deferred.”

As I’ve written, no sane person can defend the immoral persecution which most of these immigrants living in the shadows unjustfly face. But if you haven’t considered the issue well enough, you might unfortunately produce such dross as this cartoon that recently ran in the Indianapolis Star:

Indianapolis Star anti-amnesty cartoonIt is truly curious to me that the main reaction of the mainstream media was to label this as racist. The Indianapolis Star actually initially responded to criticism by removing the immigrant’s mustache and republishing an otherwise identical cartoon! Of all the the things wrong with this image, race is the last thing I would single out. The problem isn’t inherently its depiction of race relations; if anything, it’s hard to say without knowledge of the political context what the ethnicity of that immigrant might be. The problem is inherent to this image’s portrayal of how immigrants actually conduct themselves in society.

Now, the basic idea of this cartoon is pretty simple: immigrants need to ask the government for permission to settle in a new country. Without permission, these immigrants are akin to trespassers. Just as it is wrong for me to set foot in your house without your permission, it is wrong for migrants to set foot on the country’s soil without its government’s permission. In short: illegal immigration violates citizens’ “collective property rights“.

There’s a fundamental problem with this analogy, because it ignores the simple reality that irregular immigrants are not trespassers. After all, what exactly is the problem with me sitting down at your Thanksgiving dinner table, uninvited? The problem is that I am there without your permission.

So where are the immigrants sitting themselves down at dinner tables uninvited? What have they done that is the equivalent of inviting themselves over to stay at your house? The reality is that most immigrants, even those who have entered unlawfully, have done no such thing. You cannot say with a straight face that millions of people have literally invaded the homes of Americans.

The average undocumented immigrant paid for his own passage. Transportation providers — some unauthorised coyotes, others actual bus, train, or airline companies — offered these migrants a seat in return for the market rate. No trespassing or theft occurred; the transportation carriers gladly and willingly offered their services because they were compensated by these migrants. You cannot say these migrants robbed Greyhound by daring to buy a bus ticket.

What next? The migrants settled down, and began looking for work. Again, your average migrant isn’t illegally camping out in someone’s house, or sleeping on the sidewalk: your average migrant is renting a room or a home from someone. It is generally agreed that some one-third of undocumented immigrants in the US actually own their own homes! Whose property were they trespassing on when they paid their rent, or paid the market price for their own home? Who did they steal from?

You may think me obtuse: after all, the answer is that these people trespassed on the land collectively owned by all citizens of the country they’re in. But this frankly ignores the reality that the laws of the US, and most countries, recognise no such concept as collective ownership: if the land belongs to you, John Doe, then you get to decide what to do with it, as long as all applicable real estate, zoning, or tenancy laws are followed. The furthest that most democracies go is limiting the sale of land to foreigners, but in such cases, foreigners remain free to rent their own homes from citizen landlords: after all, the homes belong to the individual citizens, not to the state.

Now, am I saying that there is no public interest in managing the flow of migration, no sovereign authority competent to regulate the flow of people across borders? No; I simply hold that the authority of governments to regulate borders flows from the public interest — not “collective property rights”, which don’t exist outside of communist states which refuse to recognise an individual right to private property.

The invocation of “property rights” as an excuse to dispossess people of property they have paid for in this particular instance is particularly ridiculous, because in no other arena of public life in a modern civilised state do we see such logic trotted out. When the government bans you from building a meth lab in your backyard, nobody says the government is justified in doing this because the citizens that collectively own your land haven’t given you permission to do that. The problem with you building a meth lab on your land isn’t that you failed to obtain the necessary permission from the collective that owns it. The problem is that the public has an interest in not having their own homes burned down if your meth lab explodes.

Immigrants who actually enter with the intention to commit crime, to steal, to trespass on private property — these are immigrants the government ought to detain, punish, and perhaps exclude via deportation. There I think I and the cartoonist have no quarrel. But where we differ is that the cartoonist clearly believes those who enter with peaceful intentions, those who pay for the homes they live in and the food they eat with the wages of their own sweat, are somehow also tantamount to criminal trespassers.

It is as though you tore down the treehouse I built in my backyard, using the lame excuse that some people might build meth labs in their backyards; that if I really wanted to build a treehouse I should have waited eighty years in line for the requisite bureaucratic approvals to prove that I’m not building a meth lab; that if I don’t like waiting eight decades to jump through bullshit hoops just to go about my own quiet business, I still have no right to question this because it’s the public’s land, not my own.

When it comes to travel, there is an obvious public interest in detaining criminals, treating contagious disease-carriers, and deterring invading armies. This is equally true inside a nation’s borders as it might be true outside. The health and security of the populace are obvious public interests where governments have a role to play. To the extent that we might impose restrictions on where someone can travel, these controls are justified not by imaginary collective property rights, but by the defence of the nation against actual threats to public safety and order.

I say, if someone wants to go somewhere in peace, and is willing to pay the required fare, it’s simply none of my business where that person goes. As long as he doesn’t trespass on my home, I have no business interfering with the peaceful conduct of that person. And if that person pays market rent for a home, I certainly have no business telling that person he is a trespasser — that he ought to get out of the home he has already paid the market price for.

It is all the more shameful and regretful that this ignorant, dehumanising cartoon had to mark the festival of Thanksgiving — a traditional American holiday which commemorates the cooperation of Pilgrims who immigrated to North America with the native Americans who welcomed them. In reality, of course the picture is much less rosier than the traditional account; the Pilgrims themselves might have had peaceful intentions, but many other European colonists were certainly more invaders than immigrants. And of course there is something to be said for the accuracy of this depiction, from a New Yorker cover marking Thanksgiving a few years back:

New Yorker cover of Pilgrims as illegal immigrants

But all the same, whatever the evils wrought by invading colonists, the people of the United States today owe their heritage to peaceful immigration. Most of their ancestors — poor Germans, Irish, Italians — came not to steal land, but to rent or buy their own homes in peace, and build a better future for their families through hard work. Thanksgiving is a holiday which at least in the popular imagination marks the American legacy of immigration — and yet ironically, sentiments like those of the Indianapolis Star cartoon endorse Soviet- or Maoist-style collectivism, the antithesis of all that the US stands for!

Amidst all those Americans who will mark this Thanksgiving by complaining about immigrants who have done nothing worse than crawl through sewers for the chance to pay market rent and earn a market wage, I hope at least some might remember the words of another President, one George Washington:

The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.

There was no qualification for who could or should be welcomed, as long as their conduct was decent. Most immigrants conduct themselves no worse than anyone else: they pay the fair price for their homes, and they expect only a fair wage for their labour. There is nothing indecent or improper about that. The janitor in your office and the line cook in your cafeteria are not invading anyone’s home. It disgraces Washington to pretend otherwise — to pretend that paying rent constitutes theft and trespassing.

People say that today is different; that things have changed. That’s not how I see it. People have always used bigotry to justify excluding innocent people from our societies, always ignorantly used prejudice to justify treating common people as though they are criminals. And people struggling to earn the dignity of a better life with honest labour have always been willing to risk it all for their dreams of a better tomorrow. It is as true today, and as true for people of all creeds and colours, as it has ever been:

Liu said he was happy to hear what his children told him one day about American history that they studied at school: “America was actually founded by people like dad who was unhappy with his home country and decided to take a boat to come to America.”

Liu said, “I heard their boat was called the May Flower. Mine was called Golden Venture.”

There may be much to regret in the history of Thanksgiving — in how many European newcomers to the Americas came as invaders, rather than peaceful immigrants. But all the same, the legacy of Thanksgiving is one of freedom of movement, freedom to search for a better life wherever your peaceful ambitions may lead you.

I am not American myself, but I am grateful today that I at least have the unearned privilege of being able to live in peace in the US. I am grateful that America’s legacy of open borders defended moral decency and civilisation from the depravity of dictatorship during World War II; that, as my German colleague Hansjoerg Walther says, American open borders changed the course of world history. I am thankful for the truly American legacy of open borders:

Haudenosaunee protest new border regulations

To all my American friends, happy Thanksgiving.

Executive Action, Not Legislative Reform, Is How U.S. Immigration Policy Gets Made Now

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Last Thursday, President Obama announced several measures to liberalize U.S. immigration policy by executive action. First is an expansion of the program initiated in 2012 which gave quasi-legal status to undocumented youth, Deferred Action for Childhood Arrivals (DACA). The age limit for qualification for DACA has been removed, and the date before which an applicant must prove he or she entered the U.S. has been moved from 2007 to 2010. DACA-style benefits will also be extended to undocumented parents of U.S. citizen or permanent resident children who have been in the U.S. since January 1, 2010, and have not been convicted of certain crimes. This new program for parents will be called Deferred Action for Parental Accountability (DAPA). The White House estimates that these two reforms, along with an expansion of waivers for family members of U.S. citizens and permanent residents who are currently ineligible for green cards and reforms to certain employment visas, will protect about five million people from deportation. That’s in addition to the nearly 600,000 who have already benefited from the DACA program.

Vivek Wadhwa believes the changes to employment visa processing will be good for immigrants and tech companies that rely on immigrant labor. Prerna Lal and Dara Lind both posted helpful summaries of the deferred action programs.

Applications for DAPA will not be accepted for another six months. The Department of Homeland Security concurrently made changes to its guidelines on enforcement priorities which will become effective in January. The new guidelines will penalize recent entrants and those convicted of certain crimes, while deprioritizing people who had been deported and reentered the U.S. prior to 2014.

As Dara Lind noted, DACA was an improvement over earlier failed prosecutorial discretion initiatives because the program “has demonstrated that formalized protections work much better than vague promises.” Like DACA and Temporary Protected Status, a type of executive humanitarian relief, once granted, DAPA is unlikely to be taken away. The government emphasizes that deferred action is completely discretionary and can be revoked at any time and for any reason. In practice, it is very unlikely that President Obama would rescind or significantly restrict these discretionary programs once they are implemented. It is harder to take something away than to never grant it in the first place. DACA beneficiaries have been able to come out of the shadows, integrating into communities, making their status known to more people, and becoming more active politically. While excluded from the franchise, the moral power they possess as victims of systemic oppression amplifies their voices. It will be difficult politically for Congress or an antagonistic president to rescind DACA or DAPA in the foreseeable future. Any presidential candidate who runs on a promise to rescind the programs will lose the Latino vote by a large margin, effectively dooming his or her candidacy. These programs are here to stay and will hopefully be expanded further.

The deferred action program has serious flaws.

President Obama’s announcement fell far short of what activists had hoped for. The DAPA program excludes parents of DACA beneficiaries. The program leaves out anyone who has already been deported and prioritizes enforcement against those who try to come back to rejoin their families in the future. The president’s “Felons, not families” messaging is a slap in the face of communities of color targeted by an unjust criminal justice system. Queer immigrants are less likely to have U.S.-born children than hetero immigrants and hence less likely to qualify for the program, and agricultural workers were not included.

The number of DAPA beneficiaries will likely be much lower than projected. A good rule of thumb is to divide by half the projected number of beneficiaries to get the true number. 1.2 million people are purportedly eligible for protection under DACA, but after two and a half years, fewer than 600,000 have actually navigated the process successfully. This is due to the difficulty of documenting presence when one is undocumented, high filing fees, disqualification for minor criminal convictions, lack of reliable legal services, and ingrained distrust of the government.

DACA applicants have advantages in navigating the system that many older immigrants don’t have: most speak English and have been able to access information and resources online. But even many undocumented youth have been unable to apply for DACA or have had applications denied, though they are technically eligible for the program, because they have been unable to prove physical presence in the U.S. I expect this to be an even bigger factor with parents, since they will not have school records, as many DACA applicants did. It can be difficult to document your life when you are undocumented, but that is what the government requires. Many people have been living in a way so as to escape detection. Many have been unable to open a bank account, get a loan, buy a car, get health care, or do any number of things that middle class citizens take for granted that would create a paper trail. Now the government wants ironclad proof that applicants were here since a date certain, and too often begins with the assumption that evidence presented is fraudulent.

Whether it is acknowledged or not, the Department of Homeland Security’s primary mandate is to deport people. U.S. Citizenship and Immigration Services (USCIS) is the agency within DHS tasked with adjudicating DACA and DAPA applications. When reviewing applications, USCIS too often looks for reasons to deny rather than reasons to approve. The pattern with this administration has been to announce a policy reform that is supposed to benefit the undocumented community. By the time the policy is implemented, the cameras have turned away and DHS reverts to norm, denying applications for lack of evidence or using discretion against rather in favor of an applicant.

The DAPA program will exclude a large number of people with criminal convictions regardless of family ties or length of presence in the U.S. Convictions that might result in minor penalties for citizens, like a first-time DUI offense, categorically disqualify potential applicants. A third misdemeanor offense of any kind is a ground of ineligibility, which will screen out some undocumented activists who have participated in multiple civil disobedience actions.

In addition, as Dara Lind points out, for political reasons, the government may send contradictory messages about the program to applicants: “that they should apply now because the program is safe, but that it could be taken away at any time” by Republicans. This may discourage people from applying, especially since this president has deported more noncitizens than any other.

In all, I estimate that only two to three million people will be approved under the DAPA program, far below the five million projected by the White House. This may undercut the political benefits meant to accrue to Democrats as the shortcomings of the system once again come to the fore.

While the new programs are a flawed and partial remedy, and will make things worse for some people, obtaining benefits under the programs will be life-changing for many people. They will be able to work legally and live without fear of immediate deportation. They will become more visible and further integrated into their communities.

So, under these conditions, what can we expect going forward?

Deportations are likely to continue at a historically high rate.

The federal government is likely to continue deporting large numbers of people because DHS’s new enforcement priorities still cover more than enough people to maintain ICE’s existing deportation quota of about 400,000 per year. Unnecessary imprisonment of noncitizens will continue as the so-called bed mandate remains in place, which DHS construes to require it to imprison 34,000 immigrants at any given time for civil immigration violations. Operation Streamline, the federal program to criminally prosecute, jail, and deport immigrants crossing the border, is still in place. Many of those convicted through Operation Streamline were arrested while trying to rejoin families in the U.S., and now face 20-year or, in some cases, lifetime bars on returning to the U.S.

The new enforcement priorities escalate the government’s punitive response to refugees fleeing violence and corruption in Central America. The administration is going ahead with plans to construct the largest immigration prison in the country, primarily to jail refugee women and children until they can be deported. The president’s initiative calls for 20,000 additional border officers, though the mechanism for funding those officers is not yet clear to me.

The DOJ’s Office of Legal Counsel itself estimates that deportations will not significantly slow after the new policies are implemented:

[W]hile the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence.

Mark Noferi of the American Immigration Council notes that deportation numbers may remain high due to an increased use of expedited removal at or near (within 100 miles of) the border and the high-by-historical-standards levels of funding for immigration enforcement.

Given the low percentage of people I expect to successfully complete the process, seven to eight million undocumented people will likely still be in limbo, at varying degrees of risk of deportation. The deportation machine has been built and is running smoothly. It won’t disappear just because the president has placed some people off limits. DHS may now go after those who are not protected more aggressively than before.

Political divisions around immigration will become more entrenched.

The political dynamics that pushed the president to announce the deferred action measures are likely to persist. Legislative reforms are not on the horizon, and additional discretionary measures will be the only viable form of relief for the foreseeable future. The polarization and political salience of immigration policy will only deepen.

After the 2012 general election, I had begun to believe predictions that demographic changes in the electorate would inevitably lead to broad legalization relatively soon. Given the demands of the two-year election cycle, House Republicans might succumb to the temptation to demagogue immigrants. But, the thinking went, more reasonable voices in the GOP would prevail as the party looked ahead to 2016 and the prospect of failing to win the White House and the Senate. I read with interest Tim Dickinson’s analysis of Karl Rove’s political strategy in 2010 of winning state legislatures in order to reshape House districts more favorably for Republicans. Dickinson and others predicted that the strategy of spreading GOP voters among a larger number of districts–turning more districts red, but a lighter shade of red–would eventually backfire as the proportion of Democratic voters grew and turned the districts blue again. However, others rebutted this theory, arguing that the concentration of Democratic voters in urban districts, combined with the increased polarization of the electorate, provides Republicans with a structural advantage in the House that could forestall demographic electoral benefits to Democrats in that chamber for many years.

The Democrats’ demographic weaknesses in midterm elections become strengths in presidential elections. In elections where there is a high percentage of Latino voters and a sharp distinction between candidates on immigration policy, Democrats hold the advantage. This held true for Harry Reid in 2010 and President Obama in 2012. By announcing and implementing the new deferred action programs, the president may have secured the White House for the Democrats again in 2016. Arguably, this was the only way not to lose it.

GOP base voters, who are older and whiter than the electorate as a whole, view the demographic changes brought on by the liberalization of immigration laws in 1965 as an existential threat to the party and the country. They will not willingly compromise on this issue, and will punish Republican candidates who do not take a hard line. The base has now defined amnesty as any liberalization of immigration policy. While the GOP establishment beat Tea Party candidates in most cases this election cycle, the exceptions, such as Eric Cantor’s surprise primary loss to restrictionist-leaning David Brat, pushed even mainstream candidates far to the right on immigration policy. GOP Senate candidates Scott Brown and Tom Cotton ran on the urgent, yet mythical, threat of Ebola and ISIS overrunning the southern border. This in turn pushed Democratic politicians to take ridiculous positions, such as Kentucky Senatorial candidate Alison Lundergan Grimes’s accusation that Mitch McConnell had supported amnesty. Even one-time children’s rights advocate Hillary Clinton urged the government to deport refugee children who had crossed the border.

I believe that the GOP’s populist base will push the party to fight broad legalization until the party is overwhelmed by brute electoral force generated by the demographic tipping point as nonwhites become a majority in the U.S. This tipping point may be the most momentous political event in the U.S. in the coming decades, aside from possibly climate change. I believe immigration policy will track that broader demographic event. Until the political environment acknowledges the changing demographics (which, given California’s experience, should precede the actual demographic tipping point), individual GOP politicians will find political benefit–really, political survival–in opposing the legalization of undocumented immigrants.

But by opposing legalization, Republicans will find it very difficult to win national elections. The Latino electorate is growing each year, while the proportion of white voters shrinks. Immigration policy is a highly-salient issue for many Latino voters. The strategy of some Republicans will be to oppose the deferred action programs while claiming to support legislative legalization. GOP candidates who take this position will likely face primary challenges from the right. Meanwhile, many Latino voters will oppose any candidate who threatens to rescind the programs. This dynamic places the national GOP at a disadvantage, while also creating a hostile environment for comprehensive immigration reform.

If it’s true, as Talking Points Memo proposes, that Democrats won’t be able to win the House back until at least 2022, and the GOP views legalization of undocumented immigrants as an existential threat, then the U.S. may not see broad legislative legalization for another eight years or more.

Further reforms are likely to come from the executive before they come from Congress.

Because there are many shortcomings with the new executive measures and deportations may continue at a high rate, many immigrant rights activists will continue to criticize the president’s deportation record. In fact, some undocumented activists interrupted the president during his speech announcing the program in Las Vegas to ask why he left their parents out. The administration’s response to both pro and anti-migrant critics has been “pass a bill.” However, because of the factors I described above, it is unlikely that Congress will pass a bill in the next several years. This is why the most likely avenue for further expansion of immigrant rights in the U.S. is through further executive action from President Obama or the next president.

I hope to see more immigration civil rights litigation in the courts, which have historically been an important part of civil rights advances. However, the courts move slowly, and Congress and the president have for years strengthened the immigration system’s immunity to attack in the courts.

The legal justification for the deferred action programs rests in the ample discretion of the executive in matters of immigration and foreign policy. The president may have regretted his claim last year that he had no authority to stop deportations beyond the DACA program. The White House took greater care this time to insulate itself from future demands to expand the deferred action programs, but it is already being asked to do just that. The White House took the unusual step of making public the memo from the Office of Legal Counsel setting out the legal arguments for the DAPA program and against expanding the program to parents of DACA beneficiaries. The latter argument rests on dubious legal grounds that would have also precluded the initial DACA program. The OLC memo may cause the president or his successor problems down the road, as organizers pressure them to expand deferred action to parents of undocumented youth.

The increasing convergence and formalization of prosecutorial discretion immigration policies makes them more vulnerable to challenge by opponents. Offloading immigration policy into the realm of discretion is a function of the increased power of the executive vis-a-vis Congress, growing political polarization, and an immigration regime widely seen as morally illegitimate. Prosecutorial discretion works for immigrants when the president feels magnanimous, but not when he is the Deporter In Chief.

Oppressed people draw moral power from the fact of their oppression. Even before the DACA program was announced, “undocumented and undeportable” organizers had carved out a safe space for themselves by coming out publicly, fighting deportation defense campaigns for their peers, and staging civil disobedience actions. Changes in immigration policy reflect and reinforce changes in norms, as the line between documented and undocumented has become more and more blurry. “Illegal means illegal” is no longer a useful or even accurate catch phrase. This incremental, quasi-legal progress may provide a template for immigration liberalization in other assimilationist countries. It’s a type of adverse possession: physical presence eventually leads to legal rights based on moral considerations.

However, as is becoming more clear with respect to DACA beneficiaries, the deferred action programs also represent a step towards formal recognition of an underclass of workers who are legally, indefinitely excluded from full participation in U.S. society. This should remind U.S. citizens of the country’s shameful legacy of state-sanctioned stigmatization and exploitation of disfavored groups.

The promise of legislative legalization has eluded advocates for at least 15 years. Executive relief will likely be the only viable form of formal protection for undocumented immigrants for the next several years. Claims that Obama can’t expand deferred action further will ring hollow, given that he said the same thing about the programs he just announced. Activists and advocates would do well to remember how unreliable both major political parties have been and how fickle a reform strategy that relies solely on electoral politics can be. Comprehensive immigration reform should not be the sole focus of immigrant rights organizing. Now is the time to escalate action beyond elections and Congress and to utilize unconventional strategies to highlight the moral incongruities of the immigration system. Here are some ideas for action (though the DAPA program makes #7 moot).

The immigration system isn’t broken, it is working as intended. But it needs to be broken; we need to break it. The closed-border immigration system is a key element in a regime of global apartheid that mocks the ideals of justice, equality, and liberty. When we mourn those left out of the most recent reforms, let’s not forget those who’ve already been deported or who never had the chance to leave to pursue a better life.

Image credit: Steve Pavey, Portland Occupier