A Resident’s Bill of Rights: Fixing Immigration While Protecting Communities

My fundamental convictions have not changed: I support open borders. And yet one can’t tilt at windmills too long without feeling a sense of futility and even foolishness. We may have had an impact. We have been noticed in high places, a little. But of course there is no prospect of open borders being adopted as official policy in any of the world’s developed countries anytime soon. Meanwhile, there is room for reasonable hope that immigration policy will move quite a ways in the right direction, and for reasonable fear that it will move far in the wrong direction, in the coming years, and it’s far from clear that advocating open borders is the best way to help accomplish the former, or avoid the latter. To advocate open borders, assuming, as seems likely, that that aim cannot be achieved for decades at least, can only help indirectly, e.g., by expanding the “Overton window,” and might plausibly hurt, by provoking a restrictionist reaction against an open-borders bogeyman. For those idealists who really want to know what justice demands, we’ve explained that. I’d be happy to explain it again, debate it, whatever. But the value of refining the case for open borders still further seems doubtful until there’s evidence that people exist who really want to do the right thing, have read what has been argued so far, and are still unconvinced. My impression is that among people with a thorough exposure to the public case for open borders, as it has been made here and elsewhere, the insufficiency of the arguments offered is not a very important factor in any failure to persuade. Some of the unconvinced just aren’t very smart, while more aren’t good enough to do the right thing when they start to see it, so they bluster and stonewall and scoff.

So in this post, I’m going to attempt something a bit different, involving an unaccustomed degree of compromise. I’m going to lay out a policy platform that, while falling well short of open borders, lies, I think, at the radical end of what might actually find a coalition to carry it through to success in the United States in the near future. It doesn’t institute open borders. If passed, deportations would still occur, and billions who would benefit from immigrating would be excluded from the territory of the United States permanently from birth. Indeed, the centerpiece of this proposed policy, the Residents’ Bill of Rights, wouldn’t increase at all the number of people enjoying a definite legal right of residence, much less a path to citizenship. But it would ensure that all those residing in the United States would be treated a little more justly. It would make it harder to backslide into a harsh enforcement regime or a reduction of immigrant numbers. It would give the foreign born, however they got there, a certain dignity and a certain security. It would cause many acts of wickedness, many violations of fundamental human rights, to cease. It would give conscientious Americans the right to be substantially less ashamed of the way their government treats immigrants. At the same time, by empowering immigration skeptics to act locally instead of nationally, it would appease some of their more legitimate fears. It would not institute open borders, but I believe it would help to prepare the way.

The coalition I’m envisioning, to whom I think this might appeal and who might carry it through, would include most liberal Democrats, especially those of a commercial and globalist stripe, and many Christian and/or libertarian NeverTrumpers like myself, who in some sense identify, even rather strongly, with conservatives and the GOP, though the Trump era has left us politically homeless. My starting point in designing it is the extreme popularity of the never-passed DREAM Act. The Dreamers, born abroad but raised in America and having no other home, and clearly enjoying a right to stay in America if right and wrong mean anything at all, have become the archetypal immigrants threatened with deportation. But of course, the DREAM Act is a one-time fix. A decade after its passage, unless perfect enforcement magically appears, there would be more similarly situated individuals, born abroad but raised in America and knowing no other home, the deportation of whom should be intolerable to anyone who has a ghost of a conscience. So suppose the Democrats win a surprise supermajority in November 2018 on a pro-DREAM Act platform, and want to use their mandate, not just for a one-time fix, but for a permanent correction of the bad laws that have created the sad plight of the Dreamers, while meanwhile boosting the economy. What might they do?

I would propose the following. It might be called “the Human Rights and Growth Act.”

First, remove the cap on H1-Bs. So far, so obvious. Skilled workers contribute to the competitiveness of US-based companies, don’t compete for jobs with the most struggling Americans, and aren’t a fiscal drain. An arbitrary cap makes no sense. This doesn’t particularly help now or future Dreamers, but it’s a good way to signal an end to Trumpism and the scapegoating of immigrants even at the cost of sabotaging the economy. All immigrants could sleep a little better feeling that we’re making some attempt to make immigration policy rational.

Second, a pathway to citizenship for the Dreamers, because that’s what the Dreamers have been led to expect, and what the public wants, and it’s the surest way to protect them from deportation, which some unworthy Americans still darkly desire for them. Yet it raises as many problems as it solves. Dreamers are a minority of the undocumented immigrant population. The Dreamer population must be defined somehow. There must be lines drawn, rather arbitrarily, defining who’s in and who’s out. Good Dreamers, turned citizens, will seek to protect their parents from deportation, as they should. And the more politicians defend the fundamental justice of turning the Dreamers into citizens, the more they’ll fuel the case for the next generation of Dreamers to get their citizenship, too. Anticipating this, more undocumented immigrants will come, slipping through the Rio Grande or the Gulf of Mexico, or coming from China in shipping containers, and that’s great, but what happens next? Within a few years of the great moral triumph of the DREAM Act, US officials will again find themselves tasked with executing orders to deport people raised in the U.S. from childhood, which everyone now knows, thanks to the DREAM Act debate, is morally wrong. Who’ll be the last to get deported for a mistake?

So this brings me to the third plank of my proposal, the most original and doubtless the heaviest political lift. Call it a Residents’ Bill of Rights. This gets to the heart of the ethical and constitutional crisis that the Dreamers have brought to a head. I’ll first try to frame it in quasi-legislative language, then explain my rationale somewhat, and how I would expect its implementation in law and society to play out.

Residents’ Bill of Rights

  1. No resident of the United States, defined as anyone living and making their home on US territory, regardless of their legal status, being over 25 years of age, not having been convicted of a violent or property crime and not constituting a demonstrable threat to the public safety, shall be deported to a country where they lack a substantial history of residence. A substantial history of residence shall be defined as three or more years living in a country at an age of 16 years or more, within the twenty years previous to the date of the proposed deportation. Citizenship of a foreign country shall be presumptive evidence of a substantial history of residence there, but if a potential deportee denies that they have a substantial history of residence in their country of citizenship, they shall be given due opportunity to prove otherwise.
  2. No resident of the United States living in close proximity, defined as 50 miles or less, to a close relative, defined as a spouse, parent, child, or sibling, not having been convicted of a violent or property crime and not constituting a demonstrable threat to the public safety, shall be forcibly separated from this family member through deportation without this family member’s consent, regardless of whether the family member is a citizen or legal resident of the United States.
  3. No person shall be deported, or otherwise required by the laws of the United States to go, to a country where they face a serious threat of violence on account of their religion due to the policies of the government of that country.
  4. States and municipal communities shall enjoy a right to offer sanctuary to residents of the United States otherwise legally vulnerable to deportation. No person, therefore, shall be deported without the explicit consent of all state and local governments enjoying jurisdiction at the point where the person was apprehended for deportation.
  5. No citizen of the United States shall be deprived of his or her livelihood through the deportation of a foreigner without his or her consent, unless at least two years of advance notice are provided. If a deportation process is initiated, citizens of the United States whose livelihoods are adversely impacted by the deportation shall have four months in which to object, and having done so, four further months in which to prove that their power to earn a livelihood is grievously injured by the proposed deportation. If they prove this successfully, the deportation order shall be suspended for two years subsequent to that determination.
  6. No city, town, village, or other legally constituted municipal community, enjoying a coherent democratic government and continuously settled geography, as defined under state law, shall be required to permit the new entry of residents who are not US citizens. Municipal communities shall be empowered to regulate residency so as to confirm proof of citizenship, so as to exclude non-citizens in general or in particular, before authorizing the purchase or lease of real estate. This right shall not be construed to include the right to expel non-citizens who have already established residency by means that were legal at the time, or to exclude the close family members, defined as spouses, siblings, parents, and children, of legal residents, provided they live in the same dwelling as those residents.
  7. National origin shall be a permissible basis for citizens, companies, religious and educational institutions, private voluntary organizations of all sorts, and state, local, and federal governmental entities to decide whom to hire and at what wages, whom to fire or lay off and for what causes, whom to lease or sell real estate and movable goods to and at what prices and rents, and whom to provide services to and at what price, provided that such discrimination is not applied to the direct disadvantage of citizens of the United States.
  8. National origin shall be a permissible basis for state and local governments to decide how much tax is owed by a person, provided that no citizen of the United States is required to pay more tax than a similarly situated non-citizen would be.
  9. No state or municipal community shall be required to finance or administer welfare or public assistance to residents who lack US citizenship. Instead, they may, if they choose, require beneficiaries to provide proof of citizenship before assistance is provided. They may also provide welfare and public assistance to some non-citizens, on the basis of nationality, education, profession, language, length of residency, or any other criterion they shall see fit to apply, and not to others.
  10. All residents of the United States shall enjoy the right to work for a single willing employer for up to $600 of earnings in a calendar year without providing documentation, and for up to $30,000 if the employer pays a tax equal to one-third of the worker’s wages to the federal government, plus any state and local taxes that may be levied on this anonymous income. Citizens of the United States shall be exempt from reporting anonymously earned income for purposes of taxation or benefit eligibility determination, but non-citizens shall be required to report such income and pay taxes as required by any applicable federal, state, and local income tax codes.

Obviously, the “bill of rights” language echoes, and the hope is that the Residents’ Bill of Rights could borrow the popularity of, the original Bill of Rights in the US Constitution.

The first five provisions curtail the right of deportation, and would introduce an element of human rights and due process into the immigration enforcement regime which is desperately deficient today. They would recognize that there are large classes of persons resident on US territory whom the government cannot justly remove, and give these persons legal protection. Notably, they don’t quite actually, positively, grant anyone a right to reside in the United States, much less a path to citizenship. But by greatly reducing the fear of deportation in which undocumented immigrants live, they could be expected to grow the stock of immigrants in the United States. More would overstay visas or slip through the border if immigration enforcement were less scary, and new undocumented immigration would be offset by fewer deportations. Provision (10) would also be an important incentive to immigrate, for people to whom $30,000 per year in legal, anonymous income might be very appealing.

Provisions (6)-(9) would, I expect, feel like “concessions” to many supporters of immigration. But they do something important, namely, empower individuals, companies, and communities to protect themselves against the consequences of mass immigration, which I think will continue to be mainly good, but which it’s certainly not crazy to fear may be bad in some respects. For those who fear “forced integration” with immigrants due to the operation of anti-discrimination laws, provision (7) ensures that they can “hire American” if they want to. For those who fear that immigrants will be a fiscal drain, provisions (8) and (9) serve as strong protections at least at the state and local levels. Provision (6) is the most offensive to libertarian sensibilities. Yet it’s plausible that subtle externalities operate at the neighborhood level, and certainly, until the education system is comprehensively voucherized, most people will have good reason to worry about certain kinds of immigrant children lowering the quality of the schools. I argued in Principles of a Free Society that gated communities are just, provided that the community’s use of its streets involves activities that contribute  substantially to the flourishing of its members in ways that depend on the peculiar character of the community and its membership. In effect, provision (6) lets towns convert themselves into gated communities. I suspect most of them don’t really have a sufficiently rich and shared communal street life that it would really be just for them to exclude immigrants so as to protect it, but it would be far less, if at all, unjust for towns to practice such exclusion, than for the entire country to so so.

The Human Rights and Growth Act wouldn’t be easy to pass, of course. It gores sacred cows on both right and left. The right could see it, with good reason, as an assault on national sovereignty and “border security” (in the peculiar sense of that phrase, divorced from its legitimate meaning of securing the border against armed invasion, in which the nativist right likes to use it; note that in this sense the 19th-century United States never enjoyed or aspired to such “border security”). The left could see it as an insidiously undermining equal rights and the social safety net, and introducing into American society a deliberate element of apartheid and class stratification. Yet each side would also get something beyond its wildest dreams. Right-wing communitarians worried about immigrants’ impact on the culture could create homogeneous citizenist enclaves where immigrants are excluded, and see how they work. High-minded leftists could celebrate a drastic curtailment of deportation, and exercise their right to create sanctuaries through their local governments.

It’s a highly federalist proposal, which empowers state and local governments to make their own immigration policies, shifting in either direction. They could deny immigrants welfare or even exclude then from residing in certain cities and towns (a “right-wing” policy), or grant sanctuary and full welfare benefits (a “left-wing” policy), or they could protect them from deportation while denying them welfare (a “libertarian” policy). Finally, they could, and I think many soon would, maximize locals’ prosperity, by banning deportation and immigrant welfare and charging immigrants extra taxes to finance state and local government. House and apartment hunting for immigrants would become a bit more complex, since they’d need to look up residency restrictions in any community they considered moving to. For some, long commutes would be the price of living in America and working in a restrictionist town. But for most, this would be a small price to pay in order to enjoy a lot of new options for avoiding deportation.

Even if it didn’t pass now, the strange staying power of the DREAM Act in public discourse shows how even a failed law can become a legitimizing force and a standard of justice. I can imagine a generation waiting in growing indignation until the Human Rights and Growth Act finally gets passed. So, is it a good idea? Who’s with me?

Nathan Smith

Nathan Smith is an assistant professor of economics at Fresno Pacific University. He did his Ph.D. in economics from George Mason University and has also worked for the World Bank. Smith proposed Don’t Restrict Immigration, Tax It, one of the more comprehensive keyhole solution proposals to address concerns surrounding open borders.

See also:

Page about Nathan Smith on Open Borders
All blog posts by Nathan Smith

5 thoughts on “A Resident’s Bill of Rights: Fixing Immigration While Protecting Communities”

  1. I think it’s a good start. IMO the best approach should be a highly federalist one.

    You wrote: “The coalition I’m envisioning, to whom I think this might appeal and who might carry it through, would include most liberal Democrats, especially those of a commercial and globalist stripe, and many Christian and/or libertarian NeverTrumpers like myself…”.

    Wouldn’t the coalition need to be broader in order for this “Resident’s Bill of Rights” to carry through? Republican NeverTrumpers let alone libertarian ones are almost non-existent. Are we talking about voters, politicians, both? Don’t you think you should be looking to support from across the aisle?

    You wrote: “4. States and municipal communities shall enjoy a right to offer sanctuary to residents of the United States otherwise legally vulnerable to deportation. No person, therefore, shall be deported without the explicit consent of all state and local governments enjoying jurisdiction at the point where the person was apprehended for deportation.”

    Even if the person has been (in reference to bullet points 1 & 2) “convicted of a violent or property crime and constitutes a demonstrable threat to the public safety”?

    You wrote: “6. No city, town, village, or other legally constituted municipal community, enjoying a coherent democratic government and continuously settled geography, as defined under state law, shall be required to permit the new entry of residents who are not US citizens.”

    By new entry you mean only residency? So immigrants could still work, travel through, visit these “restricted” areas? Or if they should be able to restrict movement, how?

    You wrote “7. National origin (of non-citizens) shall be a permissible basis for citizens, companies, religious and educational institutions, private voluntary organizations of all sorts, and state, local, and federal governmental entities to decide whom to hire and at what wages, whom to fire or lay off and for what causes, whom to lease or sell real estate and movable goods to and at what prices and rents, and whom to provide services to and at what price, provided that such discrimination is not applied to the direct disadvantage of citizens of the United States.”

    Why not change this to “7- National origin ***of non-citizens*** shall be a permissible basis for citizens, companies, religious and educational institutions, private voluntary organizations of all sorts, and state, local, and federal governmental entities to decide whom to hire and at what wages, whom to fire or lay off and for what causes, whom to lease or sell real estate and movable goods to and at what prices and rents, and whom to provide services to and at what price.

  2. Biblical law already has provisions protecting non-criminal foreigners in the land (Exodus 22:21; Leviticus 19:33) who are to be protected by oppressive, threatenings and vexing procedures targeted directly against them just for being foreingers.

  3. In all of the articles I’ve seen putting forth the open borders idea, I have yet to see one that takes into account the reality of what we would be dealing with. Realistically the vast majority of the migration will initially come from Latin America, and of those, the majority would be Mexican. This may not have been as big of a problem a few decades ago, but today’s Mexico is little like the Mexico of the past. It is very close to a failed state, with the drug cartels taking over more and more areas. They are well funded, well armed, and vicious. They are entrenched in the social and governmental structure, and I see little chance that they will do anything but get stronger and more powerful. The Mexican government has let this go on until, I fear, it is now too late to eradicate them.

    I spent a week in Manzanillo last year, and was told by the people there that the cartels were fighting over the port (the largest in Mexico). Fortunately I never saw any of the violence that was taking place, but I was assured it was there nonetheless. Not long after we got back, that area was put on the no travel list by the State Department. Some of the stories I heard from the Mexican citizens there about the police, courts, prison system, and politicians were eye opening. The cartels have infiltrated every aspect of society in that, and many other areas. Vast areas of Mexico are no longer safe to travel to. Acapulco used to be a prime tourist destination, but is now one of the most dangerous cities for a US citizen to travel to. As a Texan, we used to go to border towns quite often to shop and partake of the nightlife. I don’t know of anybody who does that any more. It’s simply too dangerous.

    It is naive to believe, with a massive influx of Mexicans into the US, that these criminal elements would not come right along with them. And they are nothing like what we’ve seen here, even in the prohibition era. There would be little we could do to stop them. They would be especially prevalent in the southern states which would be completely awash in new immigrants. The only way to avoid swamping those states would be to force them into other states further north. Open borders is a nice ideal. Putting it into practice would be a nightmare.

    1. I think it would be beneficial to create a new classification for immigrants, so that it would be Citizen, Resident, Undocumented non-resident (New), and Illegals. The new classification, “Undocumented non-resident” would describe a person who entered the country illegally, but has complied with US government agencies here to get vetted, and to receive a work permit which would protect from deportation. This person would still be held to the same standards that are detailed by Nathan. And maybe we could keep illegal immigrants as a classification, so we can deport people who fail to comply. That way, people who choose to remain outside the law, will not receive any protections.

Leave a Reply