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Allow Renewals for Guest Worker Visas

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This post was originally published at the Cato-at-Liberty blog here and is reproduced with the author’s permission.

Reforming low-skilled guest worker visas is a vitally important part of immigration reform. It will substantially reduce unauthorized immigration by providing a lawful pathway to enter and reenter the U.S. To that specific end, an effective guest worker visa has to be designed to address how migrant and guest workers actually behave. Allowing a guest worker visa to be renewed multiple times for each worker, assuming the worker follows the law when in the U.S., will decrease the incentives to migrate unlawfully. For each theory of migrant movement, allowing a guest worker visa to be renewed multiple times is compatible with migrant actions and will decrease unauthorized immigration. Here are the theories:

Target Income Theory

Under the target income theory, migrants come to the U.S. to meet a specific monetary or life goal, like starting a business or buying a house back home, that they would be unable to meet in their home country. Upon reaching the monetary threshold for that goal, they return home. According to this theory, a recession in the U.S. would cause migrants to stay longer until they meet their targeted goal, while higher migrant wages or an economic boom would make them return sooner.

If a migrant behaves according to this theory, he will work until the goal is met. Let’s say a guest worker visa allows a migrant to work in the U.S. for 10 years but no longer. If, at the end of that period, the migrant requires 2 more years of work to reach his income goal, the migrant will be tempted to overstay and work illegally until the goal is met. In this case, allowing the guest worker to legally stay longer and meet his goal will decrease the incentive to overstay on the visa. If the target income theory explains migrant behavior, allowing many visa renewals will help decrease unauthorized immigration. Renewable visas will allow immigrants to satisfy their income goal and return home.

Disappointment Theory

According to this theory, migrants return home if the economic conditions in the U.S. are less favorable than they imagined, or if the economic conditions in their home country improve. Migrants would prefer to return when conditions improve, at least temporarily, but many stay in the U.S. longer because it is difficult for them to reenter should they ever want to. The depth of migrant social networks in their home and destination countries greatly influence this effect.

Guest worker visas that could be renewed multiple times will incentivize migrants to return home when conditions there improve because they will not fear being stuck there if they deteriorate.

Circular Migration Theory

To distinguish circular migration from the disappointment theory above, migrants come to the U.S. for seasonal or yearly work but move back and forth as labor demand for their occupations changes. Beginning in 1986, this circular movement between Mexico and the U.S. was interrupted with expanded border security that increased the length of time that unauthorized migrants stayed here, which in turn increased the likelihood that they would settle permanently. Because migrants suddenly faced the possibility of being stuck in Mexico if they ever left, they decided to stay and work.

If those migrants had a lawful way to cross the border, many would have returned to Mexico just as they did when the Bracero Program offered a visa to do just that. Renewable guest worker visas will allow some legal migrants to move back and forth for seasonal labor, lessening the incentive to illegally stay once here.

Conclusion

Migrants come for different reasons. Migrant actions might exhibit some or all of these theories, or enter the U.S. with one in mind and then switch to another during their stay. No matter which theory provides a better explanation of why migrants come, making the visa renewable as many times as possible will substantially decrease the incentive to migrate illegally or overstay a visa.

Creating a guest worker visa that can be renewed multiple times will allow migrants to legally work in the U.S., leave while preserving the possibility of legal return, and thus reduce unlawful entry and visa overstays. A flexible and numerically large guest worker visa program will substantially reduce the supply of unauthorized immigrants by channeling them into the legal market. The more times that such a visa can be renewed, the more effective it will be at decreasing unauthorized immigration.

America Can Aid Syrians Without Military Intervention

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FINANCIAL INTEREST DISCLOSURE: Nowrasteh has a paid job as immigration policy analyst at the Cato Institute (since April 15, 2012), and formerly had a similar role at the Competitive Enterprise Institute.

This post was originally published at the Huffington Post website here and is reproduced with the author’s permission.

The Syrian civil war has killed over 100,000 people and displaced as many as seven million — about one-third of Syria’s population. Russia’s offer to put Syria’s chemical weapons under international control may stop American military involvement, but the humanitarian crisis remains. The good news is military involvement isn’t necessary to help alleviate the humanitarian crisis. Instead, we can allow Syrian emigration to the U.S.

The number of refugees grows daily. Non-Muslim Syrians, who make up 13-to-15 percent of the population, are at particular risk. Christians, Druzes, and the non-religious face attacks from many rebel groups who are motivated by a violent interpretation of Sunni Islam. For instance, rebels from the extremist Jabhat al-Nusra rebel group recently conquered the Aramaic speaking Christian town of Maaloula — forcing most of the population to flee with only a handful of nuns and orphans left behind.

But Muslim Syrians are in grave danger as well. A mere 13 percent of Syrians — including President Bashar Assad and his government — are Shiites, compared to 74 percent who are Sunnis. Sunnis form the core of the rebellion, while Shiites generally support the government. Warring factions drawn along sectarian lines will extend and deepen the violence, killing non-combatants of all faiths in the cross-fire.

These conditions prompted a mass exodus from Syria, and it’s likely to continue. As the director-general of Sweden’s Migration Board, Anders Danielsson, has said: “The conflict in Syria has heated up, to put it mildly… we can assume that it’s not going to be resolved in the foreseeable future.”

Of the seven million displaced Syrians, two million have left the country altogether. So far, neighboring Lebanon, Jordan, and Turkey have taken in more than 1.7 million of the refugees. Sweden has announced that it will grant permanent residency to the 14,700 Syrian refugees already there, as well as some subsequent arrivals. Germany has also decided to take in 5,000 Syrian refugees.

In contrast, in 2011 and 2012, the U.S. allowed just 374 Syrians to gain asylum status, while only 60 refugees were approved. The Obama Administration has announced plans to let in 2,000 refugees — but those are only promises. Syrians already in the U.S. are allowed to stay and work under Temporary Protected Status (TPS) — as are many Haitians, Somalis, and others whose home countries are devastated, but that doesn’t help those trying to flee their war-torn country.

The United States used to be the world’s safety net for refugees, especially religious ones. The Pilgrims fled the Netherlands, Irish Catholics escaped English oppression, Jews from Eastern Europe escaped pogroms, and Armenians fled genocide and war to settle in California. But then America changed its immigration laws in 1921, and the government shamefully turned away German Jews fleeing Nazi Germany and Chinese fleeing the Japanese invasion.

The United States could help avoid an even worse humanitarian crisis in Syria by guaranteeing TPS status to all peaceful Syrians who make it to the U.S. It’s important to note that TPS is not a green card and cannot lead toward citizenship. Furthermore, any war criminals or individuals affiliated with criminal or terrorist activity would be excluded. TPS status could be a game-changer for Syrians and it could be done just by changing a few words in the U.S. code.

This sounds simple, but there will undoubtedly be questions about the results of such a move. How will the Syrians fare once they are in the United States? The answer: pretty well.

Syrian refugees would not burden the welfare state, since they would only have access to public education for their children and Emergency Medical Assistance. In fact, they’d likely find work, which is the best vehicle toward cultural and economic integration. According to a government report in 2010, 58 percent of recent adult refugees were employed — a rate higher than the U.S. born population. In Sweden, by contrast, only 30 percent of all immigrants are working even after they’ve been in the country several years.

Syrians in particular have proven successful in the U.S. Americans of Syrian descent have an average income of $56,000 and 66 percent of Syrian adults are in the workforce – higher than the 63 percent for U.S.-born Americans.

Allowing Syrians to get TPS upon landing in America is a cheap and effective way for Congress to limit the scale of the humanitarian disaster in Syria. President Obama and Congress’ interest in Syria is likely fleeting and focused primarily on WMDs, but the violence isn’t. TPS is already keeping some Syrians out of harm’s way. It’s time that Congress allows TPS to save more lives.

Open Borders note: See also Paul Crider’s blog post Taking our humanitarian impulses seriously.

The photograph of Syrian refugee children in Jordan that appears above this post was taken by Russell Watkins, and is licensed under the Creative Commons Attribution licence.

Weekly link roundup 13

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Here’s our weekly installment of links from around the web (see here for all link roundups). As usual, linking does not imply endorsement.

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.

The illusion of self-determination

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The right of a people to determine its own fate—national self-determination—is one of pillars of the Westphalian model of world political order holding nation-state sovereignty as its core principle. It also underpins most philosophical defenses of the right of nation to control who moves across its borders and who can join its citizenry.

Here at the outset I’d like to submit that, provisionally, the principle of national self-determination makes a fair bit of sense. The principle was included in the Westphalian model in order to minimize war (capably discussed by my co-blogger in this post). It proscribes invasions of foreign lands for causes like defending or advancing a religion or ideology, for instance. After all, the birth of Protestantism was the proximate cause of the Thirty Years War which ended with the Treaty of Westphalia and the principle of national self-determination.

But the presumption in favor of national self-determination can be overridden in certain circumstances. I take it as mostly uncontroversial to say that if a genocide is underway within a nation’s borders, national sovereignty carries insufficient moral weight to prevent a humanitarian intervention (even if, say, military intervention is ruled out for pragmatic reasons, it isn’t respect for sovereignty that restrains those who would intervene). More importantly (and less dramatically), I’d like to suggest that the principle of self-determination loses coherence when it strays too far from its primary task of protecting a population against external threats of violence.

To bring this to migration, national self-determination is often appealed to in order to justify the right of a state to limit its membership. Michael Walzer, the distinguished communitarian philosopher, has argued in his book, Spheres of Justice, that the authority to limit membership of the national community is fundamental to national independence.

Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically ongoing associations of men and women with some special commitment to one another and some special sense of their common life.

In his essay, Immigration: the Case for Limits (found in this book), David Miller has also defended the right of the citizens of a nation to exclude migrants at the border on the basis of cultural continuity:

[T]he public culture of their country is something that people have an interest in controlling: they want to be able to shape the way that their nation develops, including the values that are contained in the public culture. They may not of course succeed: valued cultural features can be eroded by economic and other forces that evade political control. But they may certainly have good reason to try, and in particular to try to maintain cultural continuity over time, so that they can see themselves as the bearers of an identifiable cultural tradition that stretches backward historically.

The ability to preserve culture is fundamental to self-determination-based defenses of controlled borders. “The distinctiveness of cultures and groups depends upon closure. … If this distinctiveness is a value … then closure must be permitted somewhere.” (Walzer again) Given the persevering cultural distinctiveness that can be observed among the several states of the USA and among nations within the European Schengen area of porous borders, for a couple examples, it seems like this concern may be overwrought. Indeed, cultural distinctiveness can even be observed among various neighborhoods within individual multicultural metropolises around the world. Nonetheless, the preservation of national cultural distinctiveness has a strong and intuitive appeal. In Migration and Morality: a Liberal Egalitarian Perspective (found in this anthology), Joseph Carens—a friend of liberal migration if ever there was one—sketches out a case for limiting immigration for the sake of preserving culture as one of the few acceptable—in principle—justifications for limiting migration. He argues that Japanese culture, for example, would be worth preserving even to the inconvenience of would-be immigrants. This argument can only go so far, however, for he concludes that this cultural preservation can’t overcome the claims of migrants whose basic needs are not being met.

[M]ost people in Japan share a common culture, tradition and history to a much greater extent than people do in countries like Canada and the United States. It seems reasonable to suppose that many Japanese cherish their distinctive way of life, that they want to preserve it and pass it on to their children because they find that it gives meaning and depth to their lives. They cannot pass it on unchanged, to be sure, because no way of life remains entirely unchanged, but they can hope to do so in a form that retains both its vitality and its continuity with the past. In these ways many Japanese may have a vital interest in the preservation of a distinctive Japanese culture; they may regard it as crucial to their life projects. From a liberal egalitarian perspective this concern for preserving Japanese culture counts as a legitimate interest, assuming (as I do) that this culture is compatible with respect for all human beings as free and equal moral persons.

It also seems reasonable to suppose that this distinctive culture and way of life would be profoundly transformed if a significant number of immigrants came to live in Japan. A multicultural Japan would be a very different place. So, limits on new entrants would be necessary to preserve the culture if any significant number of people wanted to immigrate.

Carens anticipates the most obvious counter that restricting immigration limits real individual freedoms for the sake of what is essentially a “by-product of uncoordinated individual actions” that does not itself violate any individual’s rights.

The problem with this sort of response (which clearly does fit with some strains in the liberal tradition and even with some forms of liberal egalitarianism) is that it uses too narrow a definition of freedom. It excludes by fiat any concern for the cumulative, if unintended, consequences of individual actions. A richer concept of freedom will pay attention to the context of choice, to the extent to which background conditions make it possible for people to realize their most important goals and pursue their most important life projects. That is precisely the sort of approach that permits us to see the ways in which particular cultures can provide valuable resources for people and the costs associated with the loss of a culture, while still permitting a critical assessment of the consequences of the culture both for those who participate in it and for those who do not.

The problem with Carens’s “richer concept of freedom”—which I acknowledge is real and worthy of consideration—is that it is difficult to conceive of a legitimate ownership of it. Who decides which aspects of “traditional” society are worth preserving (at the cost of more focused and observable individual freedoms, let’s not forget) and which aspects are merely parts of inevitable cultural evolution? The “by-products of uncoordinated individual actions” can presumably manifest as cultural improvements, and not just “erosion”, as Miller seems to assume. Some things (Islam, manga comics, or capitalism, for a few examples) that may represent cultural decay to some will be embraced by others as beneficial innovation, and it’s difficult to say who would be right in such a contest of values. Should a committee of bureaucrats be set up to decide which foreign influences are acceptable cultural adaptations, the way the French have circled their wagons around the integrity of their language? Even if such a committee were popularly elected, it’s difficult to see how that democratic mechanism would achieve any greater legitimacy than uncoordinated individual actions.

The larger point I want to make is that restricting immigration for the sake of cultural preservation is ineffective to the point of quixotic. There are other influences that will impact culture, influences that cultural preservationists are less willing to stifle by coercion. Indeed in the quotes above Carens and Miller both recognize that culture evolves in ways that “evade political control”. The first of these purely internal. Culture, including language, social values, artistic (literary, musical, etc) expression, and political values can and do all change as a result of younger generations challenging the ideas and practices of their forebears. This process of change over generations may be exacerbated by outside influences, but it would be hard to deny that at its core it is a natural phenomenon at work even in closed societies. I think the relatively recent and rapid expansion of the gay rights movement in America is a good example of this. It has seemed primarily domestic in origin (the fact that some other countries have possibly made greater strides in gay rights hasn’t been particularly influential), and the level of acceptance of gays and lesbians in society is famously starkly divided between young and old folks. The Civil Rights Movement of the 1960s can likewise not be said to be imported, as the legal and cultural legacy of southern slavery and the long reign of Jim Crow were peculiar to American history. Less politically, musical innovations like rock & roll, entertainment innovations like video games and the mobile solitaire app, and linguistic innovations like African American Vernacular English have not needed outside influences to sprout and evoke consternation among parents and other squares.

It isn’t even clear that anyone notices the difference between cultural innovation by natives and that by outsiders. Invention from the outside can “go native” as well as a person can. Carens’s example of Japan gave me an excuse to read about the history of manga, an art form I think I can safely describe as distinctively Japanese. Five minutes of research unearthed a surprisingly mongrel history, including its inspiration by a nineteenth century British cartoonist and “U.S. cultural influences, including U.S. comics (brought to Japan by the GIs) and images and themes from U.S. television, film, and cartoons (especially Disney).” The desire to protect a national culture from outside influences seems to ignore the ability of those same cultures to ingest, adapt, and own inputs from the outside, all in bottom-up fashion without need for supervision from any cultural defenders at the top.

Technological innovation can radically change the contours of a society and isn’t intrinsically related to immigration. The Industrial Revolution destroyed old occupations and enabled people to leave rural life en masse. Widespread rail networks and the adoption of the automobile made the world a smaller place, even within nations. Electrification, radio, television, the airplane, the printing press, the integrated circuit, and the Internet have all profoundly changed human life and the ways individuals relate to each other and wider society. The birth control pill empowered women to control their own sexual and reproductive lives and enabled them to pursue opportunities in the world outside the home (occupational, educational, political, etc). All these innovations have arguably changed national cultures on a scale greater than anything widespread immigration could likely achieve.

It could be argued that the American examples above do not actually serve my cause since America is so famously and fundamentally shaped by immigration. And it could be argued that the technological innovations I mentioned and the ways they undoubtedly transformed societies are nonetheless irrelevant to the present discussion: technological changes affecting the whole world can be adapted to different national cultures in unique ways and so perhaps the point is more that each national culture must be allowed to express itself through technological advancement in its own way. Technological change is, of course, not all homegrown, but it spreads through international avenues other than migration, avenues which most immigration restrictionists would not attempt to close.

Ideas are spread through trade between nations, through travel and tourism, through international communications and media, and through common international gatherings like professional conferences and sporting events. Good ideas (and bad ones), will find ways to spread whether there are appreciable levels of migration or not. International migration will surely speed up cultural change, but it’s not the only driver of change, or even the most important one. Yet the focus of the argument for national self-determination is always on preserving the right of a nation’s sovereign authority to restrict entry of new members, and little ink is spilled advocating closing off these other pathways of social change. Given the long odds of meaningfully preserving national culture (however it is defined), and the apparent lack of enthusiasm for protecting it from equally powerful mechanisms of change,  it is fair to ask, Why does immigration warrant such special treatment?