Tag Archives: amnesty

The bait-and-switch from fiscally realistic to humane, or, the weakness of the mainstream moderate case against deportations

This post is going to critique some arguments against deportation that start out from concerns of fiscal responsibility. I’m going to argue that, even while correct, these arguments often don’t prove as much as their proponents think they do, both in theory and in terms of their practical effects.

Note what I am not arguing here. I am not claiming that anybody who opposes deportations must therefore support open borders. The relationship between opposing deportations and supporting open borders will be the topic of another post (I do believe they are linked, but taking a no-deportation position without endorsing open borders is not inconsistent per se). Second, I am not arguing against immigrant rights groups and civil rights groups who advocate stronger due process protections for migrants facing detention and deportation, without categorically opposing deportation. That perspective is internally consistent and has value, so even though I have disagreements with it I don’t think it’s fundamentally confused.

I’m critiquing some flawed arguments whose core is characterized by concerns about fiscal realism and practicality surrounding deportations. I believe these flawed arguments, that might have evolved in an attempt to build a broader coalition around reducing deportations, offer a fragile case against deportations. I also think that many of the people who make these arguments aren’t offering their true reasons for not wanting there to be deportations, and some of the surprise and shock they express when policies turn out differently than they hoped could have been avoided with more clarity.

Now, it is possible that I am factually right about the inconsistency, but deploying these flawed arguments has actually been the most realistic path for immigration moderates to achieve some gains against deportations. I don’t understand politics very well and I won’t rule out that possibility. If so, the pushback from people like me can probably help them bolster the case that they are not extremists of the sort that people at Open Borders: The Case are. So even if I’m wrong I don’t expect what I say to hurt moderates’ chances.

This post of mine will focus on arguments deployed in the United States. Interestingly, many of these arguments are specific to the United States, because the mass deportation versus amnesty debate is one that has been much more prominent in the United States. In an Open Borders Action Group post, I asked people about whether similar rhetoric was found in other countries, and got interesting responses, some of which I reference in the post.

Some examples

A while back, co-blogger Nathan responded to a post by Victor Reppert, highlighting the contradictions in Reppert’s apparent moderate stance on migration. Here’s Reppert’s overall stance:

I seriously doubt that 1070 is going to result in very many deportations. The cost in ill will between the Hispanic community and the rest of us, to my mind, far outweighs the improvement in will provide in law enforcement, which I suspect will be minimal.
So, without actually having done a full cost-benefit analysis on all of this, I would say start with security at the border, make the process of immigration more rational but don’t just throw it wide open, and then provide some path to citizenship that involves a serious penalty and isn’t just simple amnesty.

Below are some excerpts from a recent Los Angeles Times op-ed:

No matter how you parse it, all those people are here in violation of federal law, and are thus subject to deportation. Yet the size of that population is precisely what makes deportation on a grand scale impractical.


The bottom line: It’s easy to say, “deport them all,” but to do so would be prohibitively expensive, not to mention disruptive for employers and, of course, wrenchingly hard on those who would be swept up.


The solution: a congressional fix to make the system more humane — by granting relief to many who have lived and worked in the country for years — and also more tailored to the nation’s needs, including making accommodations for agricultural workers and others whose labors are desired here. It’s a new year, and a new Congress, so who knows, maybe a legislative miracle can happen. Regardless, the answer is not “deport them all.”

Or, consider CNN’s coverage of then-President Barack Obama’s November 2014 deferred action announcement:

A key element of Obama’s plan is to instruct immigration authorities to target those undocumented immigrants who are dangerous rather than law-abiding undocumented parents of U.S. citizens and residents and others.


He said they will go after “felons, not families. Criminals, not children. Gang members, not a Mom who’s working hard to provide for her kids.”

“We’ll prioritize, just like law enforcement does every day,” he said.


The President argued that ordering a mass amnesty would be unfair but mass deportation would “be both impossible and contrary to our character.”

The Immigration Policy Center says:

Many political pundits, GOP presidential aspirants, and Members of Congress want to have it both ways when it comes to federal spending on immigration. On the one hand, there is much talk about the need for fiscal austerity, and a Congressional “super-committee” is currently working on slashing federal spending in order to reduce the deficit. On the other hand, even though the Department of Homeland Security (DHS) just announced a record high number of deportations, some still want to increase federal spending on immigration enforcement; putting more Border Patrol boots on the ground, completing the border fence, and deploying an array of high-tech gadgetry. However, they miss one very important fact: piling on more immigration enforcement without immigration reform is a practical and fiscal dead-end.

Over the past decade, the federal government has spent tens of billions of dollars trying to keep unauthorized immigrants out of the United States, or trying to get them out of the country if they are already here. The end result? Roughly 11 million unauthorized immigrants now call the United States home, the majority have been here for more than 10 years, and many have U.S.-born children. In short, the “enforcement only” approach to unauthorized immigration has proven to be costly and ineffective.

But many political candidates and Members of Congress have yet to get the news that the enforcement-only approach has been tried and failed. They seek to forge ahead with expensive new immigration-enforcement measures, such as a mandatory employment-verification system (E-Verify) for all businesses and workers in the country—and a dramatic expansion of the nation’s system for long-term detention of unauthorized immigrants. At a time when the federal government is looking for fiscal restraint, anti-immigrant hawks are proposing that we spend billions of dollars more in an endless quest to remove 11 million unauthorized men, women, and children from the United States.

Yet there is a fiscally sound alternative to the enforcement-only approach: immigration reform which includes the creation of a pathway to legal status for unauthorized immigrants already living in the United States, as well as flexible mechanisms for regulating future immigration. Research indicates that unauthorized workers who attain legal status will earn higher wages, spend more in U.S. businesses, and pay more in taxes. Moreover, if unauthorized immigrants living in the United States could acquire legal status, the federal government would no longer waste billions of dollars every year trying to capture and deport them. Enforcement dollars that are now used to track down unauthorized dishwashers and gardeners could be used to find criminals and terrorists. In other words, bringing immigration policy in line with reality is good for the public treasury, good for public safety, and good for national security

Perhaps the best summary of the mainstream moderate view that I wish to critique is provided in a Center for American Progress report, whose summary reads:

That legislative battle for immigration reform now looms again on the horizon. There are three options for restoring order to our immigration system:

  • Live with the dysfunctional status quo, pouring billions of dollars into immigration enforcement programs at the worksite, in communities, and on the border without reducing the numbers of undocumented immigrants in the country
  • Double down on this failed enforcement strategy in an attempt to apprehend and remove all current undocumented immigrants
  • Combine a strict enforcement strategy with a program that would require undocumented workers to register, pass background checks, pay their full share of taxes, and earn the privilege of citizenship while creating legal channels for future migration flows

The first alternative would leave in place policies that have allowed 5 percent of our nation’s workforce—approximately 8.3 million workers in March 2008—to remain undocumented in our country. This is clearly an unsustainable position in a democratic society—permitting a class of workers to operate in a shadow economy subject to exploitation and undermining all workers’ rights and opportunities.

The second option, mass deportation of undocumented immigrants, is essentially the enforcement-only status quo on steroids. As this paper demonstrates, this option would be prohibitively expensive and trigger profound collateral consequences.4 Our analysis is comprised of a detailed review of all federal spending to prevent unauthorized immigration and deport undocumented immigrants in FY 2008, the last fiscal year (ending in October 2008) for which there is complete data (see box on page 5). It shows that the total cost of mass deportation and continuing border interdiction and interior enforcement efforts would be $285 billion (in 2008 dollars) over five years.

Specifically, this report calculates a price tag of $200 billion to enforce a federal dragnet that would snare the estimated 10.8 million undocumented immigrants in the United States over five years. That amount, however, does not include the annual recurring border and interior enforcement spending that will necessarily have to occur. It would cost taxpayers at least another $17 billion annually (in 2008 dollars) to maintain the status quo at the border and in the interior, or a total of nearly $85 billion over five years. That means the total five-year immigration enforcement cost under a mass deportation strategy would be approximately $285 billion.

When viewed through this most narrow but most telling fiscal lens, it should be clear that a deportation-only strategy is highly irresponsible. In these challenging economic times, spending a king’s ransom to tackle a symptom of our immigration crisis without addressing root causes would be a massive waste of taxpayer dollars. Spending $285 billion would require $922 in new taxes for every man, woman, and child in this country. If this kind of money were raised, it could provide every public and private school student from prekindergarten to the 12th grade an extra $5,100 for their education. Or more frivolously, that $285 billion would pay for about 26,146 trips in the private space travel rocket, Falcon 1e.

The worst economic downturn since the Great Depression has clearly diminished the number of people attempting to enter the country illegally–the absence of jobs eliminates the predominant incentive to migrate. And yet, even with diminished pressure at the border, the dramatic increases in spending on immigration enforcement have not significantly altered the net number of undocumented immigrants in the country. In fact, the U.S. Department of Homeland Security, or DHS, reports that the undocumented immigrant population as of January 2009 stood at 10.8 million, or 300,000 more than it was in 20052 In other words, the massive outlays in enforcement resources are barely making a dent in the current population.

That leaves the third course, comprehensive immigration reform, as the only rational alternative. The solution to our broken immigration system must combine tough border and workplace enforcement with practical reforms that promote economic growth, protect all workers, and reunite immediate family members. Among other things, that means we must establish a realistic program to require undocumented immigrants to register with the government while creating legal immigration channels that are flexible, serve the national interest, and curtail future illegal immigration.

A few threads emerge in these arguments, that I wish to critique.

  1. The all-or-nothing argument, that because it’s hard to deport everybody, deportation is not a sensible solution at the margin.
  2. The priority argument, that immigration enforcement should be applied only to high-priority cases because enforcement resources are limited.
  3. The numbers game, where amnesty and deportation are viewed as two solutions to the same problem: bringing the number of people in unauthorized status down to zero.

#1, the all-or-nothing argument. Objection: the impossibility of deporting everybody is not an argument against deportation at the margin

One of the strands of argumentation that appears frequently, often in the form of a fait accompli, is:

The number of people eligible for deportation is very large (estimates range between 10 and 20 million). At a cost of a few thousand dollars per deportation, the total cost of using deportation to completely solve the problem of illegal immigration is prohibitive. Therefore, we need to think of better, more creative, more humane solutions.

My problem with this “all-or-nothing” line of thinking is that it places too much importance on what might be called an ideal state: a state where there are no illegal immigrants. And rather than acknowledging partial steps to that end state, it treats the end state as a binary: either you’re completely free of illegal immigrants, or you have them, and if you can’t solve the problem completely, then it’s hopeless to even try.

I believe that when (some) immigration moderates reason in this way, they believe they are accurately describing not just their own views but also the views and desires of more outspoken restrictionists and other critical of illegal immigration. However, my impression is that most fervent critics of illegal immigration don’t think of it this way. While these critics definitely want to see an end state where illegal immigration is a negligible phenomenon, they value partial progress in that direction. That’s why they favor deportations and enforcement measures at the current margin while knowing that those measures won’t free the world of illegal immigration.

The “all-or-nothing” type calculus also doesn’t make sense in many other contexts: when we think of charity, we don’t (or at any rate shouldn’t) think that an individual act of charity will make only a marginal fractional dent in the problems it’s trying to solve, and therefore it’s not worth doing. Rather, the relevant metric is to look at the absolute good that can be accomplished for a given quantity of resources. This idea is neatly demonstrated in the story of The Girl and the Starfish (quote from Everything2.com):

Once there was a great, great storm. Waves high as mountains, winds strong as giants.

But that’s not important

What is important is the next day, when Old Man Acha comes walking down the beach, looking for bodies and treasure, the last remnants of ships gone to sleep in the storm. He has to pick his way carefully, ’cause the beach is littered in starfish, castaways from the deep. The storm plucked them from their watery beds and deposited the poor souls on the sandy shore. Acha steps around them – many still alive. He keeps ambling up the beach, minding his own business, when he spies a youngling. She’s throwing starfish into the ocean, many as she can, but still not makin’ a dent in the piles. The Old Man, he wonders at this and says:

“Why bother to throw back any? How can it matter when there are so many? You throw back one, you still left with a ton? You never save them all.”

That little girl she doesn’t even pause to glance his way. She just keeps on flinging those ‘fish back in the sea. She stops only long enough to say:

“It matters to this one”

as she flings it into the ocean.

To take an opposite example, when we think of enforcing crimes, a high crime rate is no reason to give up on the idea of law enforcement. Rather, the relevant question is how much crime reduction can be accomplished with a given amount of law enforcement resources.

Now, one could argue that the larger the population of illegal immigrants, the harder it is to hunt them down and deport any at the margin. But this seems unlikely — if anything, the size of the population means that there should be particularly low-hanging fruit for deportation.

To be clear, I don’t endorse deportations. But this position has nothing to do with the size of the illegal immigrant population. The size of the population is definitely relevant to determining the size of the issue at stake. If, for instance, like most of the bloggers on this site, you believe that deportations are (presumptively) morally wrong, the size of the population affected by this moral wrong is relevant to determining how important it is to spend resources opposing this moral wrong. But that step comes only after you have decided on the moral legitimacy of deportation.

If, on the other hand, you grant the legitimacy of the end goal of successfully enforced immigration restrictions, and also of deportation as a means to achieve that goal, then size should not be a barrier. Rather, the question becomes: given that only a small fraction of the affected population can be deported, how can the deportations be selected to achieve the maximum bang for the buck? And here we turn to the next flawed argument.

It’s interesting to compare this size-based argument made in the United States with the rhetoric opposing deportation in other countries. Australia and Japan, for instance, have very small “illegal immigrant” populations, and most of these are people who overstay visas after entering with authorization. When the size of the illegal immigrant populations is small enough, however, we don’t generally see immigration moderates jumping in and saying “there are so few illegal immigrants, it’s actually feasible to round them all up and deport them, let’s do that!” I suspect that instead the reaction would be “there are so few of them, let’s just legalize them and move on!” Assuming I’m right about this (and I may not be) I think the all-or-nothing size-based resistance to deportation is a bit of a red herring (for more, see the Open Borders Action Group post comments).

#2, the priority argument. Objection: limited resources for deportation necessitate prioritization, but this does not mean that only the “worst” people should be deported

The United States Immigration and Customs Enforcement (ICE) claims that it has resources to deport 400,000 people a year, or a little over 30,000 a month. Given limited deportation resources, it makes sense to give higher priority to the deportation of people who pose more of a public safety threat. I’ve previously argued that it is not wise to use deportation as a key crime-fighting strategy. But, many people, perhaps even those who support open borders, might agree that if you had to choose between a criminal and a non-criminal to deport, it’s better to deport the criminal. Hence, the Obama administration has repeatedly issued internal memos (starting with the 2011 Morton memos) urging the CBP and ICE to prioritize the deportation of people with criminal records and those who have committed aggravated felonies.

There are a couple of mistakes that people make when thinking about such prioritization. The first is that such prioritization recognizes or affirms the rights of non-criminals to stay in the United States. It does not. It simply says, “in an ideal world, we [the government] would deport you, but we’re currently too busy deporting others.” Obama himself has contributed to (and perhaps also been confused by) the ambiguity. In an article for Vox, Dara Lind explains:

The irony here is that the new policy is in line with what ICE agents have long claimed they’re under orders to do — and management’s long denied. Chris Crane, head of the National ICE Council, testified under oath in 2011 that his agents were being given secret, unwritten instructions not to arrest unauthorized immigrants except in very limited circumstances. When pressed by Democrats in Congress, Crane said he couldn’t offer any documentation to support his claims, and that no other agents would be willing to corroborate them out of fear — so his claims of a super-secret unwritten policy started seeming a lot like the West Wing’s “secret plan to fight inflation,” and were generally ignored by Democrats and the press. (So while the new guidance is being described as “catch and release 2.0,” it’s not clear whether the agents believe catch and release 1.0 ever went away.)

But for all that agents complain, ICE field offices have demonstrated — especially during Obama’s first term — that they didn’t have much of a problem deporting immigrants who were supposed to be “low priorities” anyway. This was actually the entire reason the initial deferred-action program was developed in 2012 to begin with. There were already memos asking ICE agents not to deport unauthorized immigrant students who’d been in the US for years. And on the basis of those memos, President Obama and senior officials said confidently that they weren’t “rounding up students.” But those memos weren’t actually sufficient to keep students from getting deported. So the administration had to develop a way for immigrants to apply themselves, proactively, for protection from deportation — rather than relying on ICE and CBP agents to follow guidance.

Obama himself has clarified that not being a priority does not mean legal status, and a person who’s not a priority now can become a priority any time:

“Deferred action is not a pathway to citizenship. It is not legal status. It simply says that for three years, you are not a law enforcement priority and are not going to go after you,” said one senior official. “It is temporary and it is revocable.”

The second mistake is the belief that, just because limited deportation resources mean that particular kinds of deportations need to be prioritized, that implies that the optimal quantity of other deportations is zero. In addition to directly removing people, deportations also serve a deterrent goal: they deter future immigration of people who are at risk of being deported (in this case, illegal immigration). And they may also encourage some others to “self-deport” (i.e., they could be part of a broader strategy of attrition through enforcement that in general makes life harder for the affected set of immigrants). If the goal with deportation is not merely to remove people but also to deter migration and encourage attrition, then it makes sense to deport people who would not otherwise be deportation priorities. Why? The idea is that if a few such people are deported, then that sends a message to everybody that they could be deported, and therefore serves the deterrent effect. If, on the other hand, the administration only carries out high-priority deportations, those who know they won’t qualify as high-priority feel (relatively) safer migrating and staying on. Again, this is similar to how a law enforcement agency might handle a mix of crime types: while the focus would be largely on the most serious crimes, action would be taken for at least some of the less serious crimes. It’s probably not optimal to spend all law enforcement resources investigating murders and effectively saying that cold burglaries won’t be investigated at all.

Would focusing only on high-priority deportations be a feature or a bug? From an open borders perspective, it’s clearly a feature if large numbers of people can carry out their lives with little fear of deportation. It heightens the contradictions between the stated objective of immigration enforcement and the reality on the ground. For the same reason, however, from the perspective of somebody interested in enforcing immigration laws, focusing entirely on high-priority deportations is a suboptimal way of using limited enforcement resources.

The problem here is that people who oppose deportations have latched on to some reasons for doing so that, while true, offer only partial justification for it and not exactly in the desired direction. It’s true that deportation costs money and resources, and it’s true that prioritization makes sense. But it does not follow from these that the optimal enforcement strategy would involve zero deportations of low-priority people. If you think that even one deportation of a person in a low-priority category is a moral travesty, then that belief does not stem from arguments typically provided about deportation costs and the need for enforcement priorities.

#3, The numbers game. Objection: It doesn’t make logical sense from most perspectives, including the open borders and restrictionist perspectives

One of the most puzzling attitudes I’ve seen to the phenomenon of illegal immigration is that people view it as a numbers game: adopt a mix of strategies to somehow or the other bring down to near-zero the number of people classified as not being in lawful status in the United States. It is because of this numbers game approach that people can view both amnesty and mass deportation as two alternative solutions to the same problem — despite their diametrically opposite goals and their diametrically opposite effects on the ground.

The view that reducing the number of people currently classified as not being in authorized status can be an end goal in itself can be justified based on a twisted territorialist perspective. Why twisted? The typical territorialist perspective is concerned with protecting the rights and interests of all who are currently present in the geographical territory of the nation-state. But if we adopted a strictly territorialist perspective, we’d be opposed to deportations.

The twisted territorialist perspective I’m describing here is one that gives importance not so much to the welfare of all those currently in the geographical territory, but to achieving an end state at which point the rights and interests of everybody in the geographical territory are protected. Getting to that point might involve deportation or legalization or whatever it takes. But once everybody in the territory is in legal status, law enforcement and civil society can flourish without the problem of people having to worry about getting deported and therefore having to live in the shadows.

While this perspective has some merit, the numbers approach to illegal immigration (that treats deportation and amnesty as competing solutions to the same problem) does not make sense from the several other perspectives that are more common:

  • The pure territorialist perspective is opposed to deportation, because of its effect on the people currently in the territory.
  • The right-to-migrate (open borders) perspective is opposed to deportation. From this perspective, the fundamental problem is that the state’s definition of authorized status is at odds with the morality of freedom of migration, so that the state deems as unlawful the presence of persons who had a right to be present.
  • From the restrictionist viewpoint,the people currently classified as being in unlawful status should not be here at all (with perhaps a few exceptions). If they could be here legally, they wouldn’t need to enter illegally. So legalizing their status only makes the problem worse because it legitimizes the presence of people who should not be here.
  • From the law-and-order viewpoint, even if the people involved might have been allowed to come under a different regime, the fact that they migrated illegally makes them worthy of punishment.

What I find interesting about rhetoric that seems to treat illegal immigration as a numbers game is that, even though it can be justified based on the twisted territorialist perspective, that perspective is rarely articulated or justified. Thus, I’m not sure if people actually subscribe to that perspective or just made a careless logical error. Either way, probably a lot more people subscribe to one of the four perspectives I discussed, or something close, and in none of those perspectives can deportation and amnesty be treated as substitutes.

Treating illegal immigration as a numbers game is somewhat similar conceptually to treating balanced budgets as a numbers game. Crudely put, there are two ways of trying to reduce the budget deficit (or increase the budget surplus): increase revenues, or decrease spending. Revenues for governments generally come from taxes. So budgets can be balanced by increasing taxes or decreasing spending. These two actions can therefore be presented as alternate “solutions” to the “problem” of a budget deficit. From a perspective of minimizing budget deficits (or maximizing budget surpluses) high taxes and low spending is the best combination. Note that this perspective is at odds both with the fiscally conservative perspective (low taxes, low spending) and the progressive perspective (high taxes, high spending). That said, I believe that reducing illegal immigration to a numbers game is less well-grounded than using budget surplus maximization as a driving goal for taxation and spending decisions.

True rejection of deportations

I think that many immigration moderates who adopt the arguments I discussed above are not articulating their true rejection of deportations. I don’t quite know what their true reasons are — I suspect it’s mostly a visceral feeling that deportation is presumptively morally wrong, a view that could be influenced by ordinary human decency, with a dash of territorialism thrown in. The moral basis for opposing deportations, and how it ties in with open borders, will be the subject of a separate and long post. But just as a thought experiment, let’s review the typical lines of argumentation:

  1. The all-or-nothing view that since there are so many illegal immigrants, deportation isn’t a feasible solution: Would advocates of this view enthusiastically support deportation if the number of illegal immigrants were comparable to the number that could be deported over a year? This doesn’t even have to be a purely theoretical question: the size of the illegal immigrant population population, as well as legalization policies, vary heavily by country, so looking at the differences in rhetoric employed by moderates would be interesting. My impression is that mainstream liberal moderates rarely support deportation whether the numbers are small or big, suggesting that size isn’t the real reason — it’s just deployed as an add-on argument when it fits.
  2. The priority argument: Again, it’s not clear that moderates who argue that enforcement resources should be prioritized for criminals actually believe that once all the criminals are rounded up, it will be time to start deporting the others. Crime rates of immigrants (and natives) vary heavily by country, but I haven’t seen examples where moderates say, “Okay, now that we’ve managed to deport most of the criminals and have the deportation resources to spare, it’s time to start deporting law-abiding and honest illegal immigrants.”
  3. The numbers game: I believe many of those who use that framing don’t actually treat it as a numbers game, because they generally come down heavily on the side of one solution (deportation or amnesty) while rhetorically claiming that they are substitutes. Perhaps a better model is that a lot of people think that others treat it as a numbers game, and therefore tailor their argumentation accordingly.

A recent Open Borders Action Group post by me asked for thoughts on moderates’ emphasis on the fiscal costs, and whether other things that were later regarded as moral travesties were initially opposed for fiscal reasons. The ensuing discussion was informative, and included examples such as laws against the death penalty, killing horses, and war. A comment by John Lee is particularly illuminating, and I quote it here:

Well, I think [moderates’ invocation of fiscal costs are] also a form of intellectual gymnastics where you’re trying not to appear to be a raving open borders dreamer. If you admit that undocumented immigrants have done nothing wrong, if you say that deportations are categorically immoral, then you’re basically advocating open borders. Which makes your position verboten given where the Overton window currently is.

So your best bet is to try to sound “reasonable” on the issue by crafting some argument contoured around the particular issue you want to address (the existing stock of undocumented immigrants, child asylum-seekers, etc.) and limiting the scope of your premises to only issues that have bearing on this narrowly-focused area of immigration policy.

That way, you don’t have to admit to yourself you’re being hypocritical — hey, it is true that it is fiscally wasteful to spend money treating families and workers as if they’re drug lords — and you don’t have to worry about defending a much broader claim — that all deportations and/or border controls are unjustifiable — which you don’t feel prepared to make.


I’ve looked at three different styles of argument used by immigration moderates to articulate and justify their dislike for deportations, while also staying within the framework of accepting the legitimacy of mainstream immigration enforcement. I think many of these don’t reflect their true reasons for being uncomfortable with deportations. When such arguments are made, and conflated with the true reasons, it gets in the way of clear thinking of the consequences of such policies. It can give people a false sense of security that a right to stay has been established, when nothing of the sort has happened.

Related reading

The image featured in the header of this post is of anti-deportation graffiti in Vienna, Austria. Photo by Herzi Pinki licensed under the Creative Commons Attribution-Share Alike licence.

Let them come: treasuring the immigrant legacy of Thanksgiving

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

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

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

A common retort to suggestions that our governments regularise the status of irregular immigrants is that these people are “criminals”, they’re “illegal”, and just what part of illegal don’t I understand? The mainstream immigration reform has adopted this rhetoric too, even if they claim to reject it; the rhetoric of US President Obama (who at the time I write just announced a deferral of deportation for some few million migrants) and others has been chock full of insistence that irregular immigrants owe a debt to society, that they ought to do some sort of penance — perhaps pay a fine — in return for any sort of regularisation. In short, the mainstreamers say that they do understand that these migrants are “illegal”, and that they do intend to punish them — just not as badly as the hardcore restrictionists want.

I see no justice in this. As co-blogger Joel Newman says, our governments owe irregular migrants an apology, not a fine. Make no mistake about it: if you’ve done something wrong, if you’ve injured someone or taken someone’s property, you ought to pay the price. But if all you’ve done is an honest day’s work, if all you’ve lived in is a home you’ve paid the price for, then there is nothing to punish you for. Living in the shadows our government forced you into for dreaming of a better future for yourself and a family was more than punishment enough.

The persistent, shrill cries of “what part of illegal don’t you understand?” are pretty blind to the meaning of the term “illegal” in the first place. For instance, most of these people don’t seem aware that it’s not a crime to be present without a lawful immigration status in the US; this is such basic legal knowledge that it didn’t make any headlines when the Supreme Court acknowledged this in an aside as part of a larger ruling on immigration law. For another, most of these people routinely break the law and get indignant when it is actually enforced against them. Just witness the furore when bicyclists are ticketed for cycling on the sidewalk, or when drivers are caught speeding by automated cameras. If committing unlawful acts in the course of ordinary business makes immigrants “illegal”, that makes everyone “illegal”.

Now of course people will say immigration law is on a special plane of existence, something that deserves far more respect than menial traffic laws. Sure. I simply say: let the punishment fit the crime.

The consensus is that half of all undocumented migrants in the US entered lawfully at a border checkpoint, and simply took up residence or employment in violation of the terms of their visa. There is no crime in paying rent for a residence, and no crime in searching for work. If an immigrant applying for my job is stealing from me, then who did I steal from when I applied for the job I hold now? Is it only a crime when immigrants do it?

These undocumented migrants should be punished appropriately for any actual crimes they have committed. If they drove drunk, if they shoplifted, if they committed welfare fraud, whatever — they should do the time, and pay the fine. But they should not be deported or excluded from the country they call home. As long as they are willing to accept the laws of their new home, and accept the punishments of these laws, they should be allowed to stay. They entered legally. The most they should be required to do to stay is fill out a basic form, and submit to legal proceedings for any other unpunished crimes in their past. Innocent immigrants who have done nothing worse than pay rent and earn honest wages deserve an apology for the persecution that our laws unjustly put them through.

As for the other half who entered without inspection at a border checkpoint, they should submit to a screening comparable to what they would have gone through at the border, and register with the authorities. Again, the idea is to make restitution for the original offense. The original offense, in legal parlance, was “entering without inspection”. So let the punishment fit the crime.

But it wouldn’t be fair, you might say. What about all the immigrants waiting in line? Well, whose fault is it that they are waiting in that line? Isn’t it your fault that the government you elected made crappy laws which have kept out all these innocent immigrants, and forced them to choose between waiting in a line that will never end (literally: some visa categories have backlogs that exceed 80 years), or migrating illegally?

I do agree it is not fair to do amnesties in a one-off manner. It is not fair to the good people who want to immigrate legally, but who are banned from doing so by irrational quotas and queues. It is also not fair to all of us who are harmed by the bad apples, the actual criminals, who either hide amongst the innocents in the undocumented population, or worse, take advantage of these migrants’ warranted fear of the government to abuse and exploit them.

Many governments — such as those of France and Germany, to name a couple you may have heard of — do not do one-off amnesties; instead, anyone who migrated illegally but who has otherwise complied with the law for a sufficient length of time is allowed to register with the government and become a legal immigrant. If we can’t have open borders, let’s at least allow anyone who has proven their commitment and loyalty to our laws to come out into the open and register as a law-abiding member of our community. That’s the fair thing to do, instead of having these one-offs.

But at the end of the day, if being fair to those immigrants in line is what bothers you so much, well — it’s the line your government created. The absurdity of having queues backlogged such that people applying today would have to wait an entire human lifetime to get their application approved is something only a government could create. The problem isn’t those good people forced to choose between waiting in line versus entering by other means to rejoin their families or seek gainful employment. The problem is your government and the stupid laws it made up.

Now, those laws aren’t stupid you might say. I agree: to the extent that they protect us from criminals, contagious disease outbreaks, and other harms, they are good laws. But to the extent that they “protect” us from people who just want to pay the market price to live in a safe home and work in a functioning economy, they are bad laws. To the extent that they treat someone whose ambition is to earn minimum wage washing dishes 18 hours a day as if he’s the scum of the earth, they are evil laws.

I’ve written before that the best way to secure the US’s border with Mexico would be to open it. Drug lords and slave traffickers rely on being able to disguise themselves among the masses of innocent people crawling through sewers to rejoin their families; let those innocent people buy bus tickets instead of paying thousands to coyotes, and where will the criminals hide? Restrictionists scoff at the idea of these immigrants being innocent — but you tell me, where’s the sense in treating someone who just wants to mop your floors for minimum wage as if he is the equivalent of a murderous drug trafficker?

I understand the intuition that one should comply with the law, and that failing to comply with the law generally marks you as a bad person — somewhere on the scale between reckless and just plain criminal. But this intuition only works for laws where the burden of compliance applies equally to everyone. Everyone knows what it means to not steal. But does everyone know what it means to comply with immigration law?

I would bet anyone that the majority of citizens of any country have no idea how the typical migrant in their country should comply with their own country’s immigration laws. Why should any of us know? All we ever did to comply with the law was be born. We didn’t have to do anything else, just slide out of the right person’s uterus at the right time, on the right soil.

Anyone in the US who has ever been in trouble with their taxes should know the feeling: you did everything right, and yet apparently your filing was still illegal — the government says you didn’t pay enough taxes. US tax law is so complicated that in some cases even the Internal Revenue Service throws up its hands and admits it doesn’t know what the law says. Yet for all your trouble, the public lambasts you as a tax evader, blasts you for not paying your fair share. And that is pretty rich, when virtually everyone who files taxes has likely fallen afoul of some technicality in the law (did you really report on your tax return the $20 in income you earned from that casual bar bet with your cousin?).

Multiply this frustration a few hundred times over and you can imagine the frustration of complying with immigration law. Some of the best, most honest and decent people I have personally known have been “illegal”. In some cases they didn’t even realise it until after the fact: as a student, your visa bans you from working more than a certain number of hours. Exceed the limit, and bam, you’re “illegal”. In other cases, delays or government processing issues while you’re transitioning from one visa type to another mean that you can “fall out of status” until your new visa is approved. Bam! Illegal.

And these are the lucky ones: they were already present in the US, and nobody could conveniently detect they’d committed these violations of immigration law. Usually nobody would ever be the wiser that they had, for a period of time, been “illegal”. Millions more such innocent people are trapped in the unlucky position of either waiting decades in line, or just jumping a fence that shouldn’t be keeping them out in the first place. Long wait times for immigrants to the US aren’t unusual; they’re the norm. Stories of the insanity of immigration law are a dime a dozen: see this, this, this, or this.

But how many citizens know of this? They know nothing, of course: the law has nothing to do with them. They can feel free to demand 100% compliance with the law, because they will always be 100% compliant. All they have to do is breathe. It’s pretty easy to follow the law when you have to do nothing. How can you demand people follow the law when you yourself have no idea what the law demands, and you yourself don’t have to do anything to comply with it?

I am making no claim to perfection here. As a Malaysian, I have no idea what laws the foreigners living in my country have to comply with. When people ask me about how easy it is for foreigners to live in Malaysia, all I can say is “Well I saw a lot of them in my junior college so I think it’s pretty easy to come in”. I honestly have no freaking idea what our visa laws are; I have no reason or incentive to, because by definition, it is impossible for me to ever break the law!

Claims that “Well, my ancestors followed the law” ring pretty hollow. After all, what laws did your ancestors follow? In the case of most Americans, their ancestors immigrated legally because all you had to do to immigrate was not be Chinese. If by definition it is impossible for you or your ancestors to have broken the law, then it is pretty rich of you to insist that you know exactly what laws others should comply with. Yet people often pretend they know exactly what the laws are, and blame the victims of these abusive laws for not submitting to their unwarranted punishment.

Anti-Chinese poster

What’s good for the goose is good for the gander: if you want people to prove their loyalty and knowledge of your country by passing a test, then why don’t you subject yourself to that same test? Why not? Didn’t your schooling prepare you for that test?

If millions of ordinary people can waste 20 years of their adult lives waiting for government permission to pay rent and apply for jobs, why not you? What makes you so special? Isn’t it unfair to others who did wait those decades in line, who actually complied with the bullshit hoops your government made them jump through? Your ancestors didn’t jump through those hoops — so don’t you owe it to them to follow the law on their behalf?

And so on you go, railing against “amnesty”, even though there’s a good chance if you are American that you are only here today thanks to an amnesty your ancestors arguably didn’t deserve. I refer, of course, to that time some of your ancestors took up arms in violent rebellion against the lawful government of the United States, and were rewarded with an unconditional amnesty for their trouble.

At the end of the day, there is nothing that makes sense about most immigration laws. A handful of restrictions actually target terrorists, criminals, or contagious disease carriers. The rest of these laws just treat people who want to pay market rent for a safe home and the chance to earn the market wage for honest work as though they are criminals for doing the same things as everyone else. There is no sense in treating a minimum wage cook like a cutthroat, and there is no justice.

The real question isn’t what part of illegal don’t I understand; I’m well aware that, at least far as my own country goes, I don’t understand, because I have no reason to! No matter how many laws I break or how many wrongs I commit, I’ll always be in compliance with Malaysia’s immigration laws.

The real question is, what part of “illegal” do you understand at all? You don’t understand any of it. You don’t know what it’s like to be worried that accidentally working one extra hour a week this semester might mean that you’ll get deported. You don’t know what it’s like to earn pennies a day, banned from earning the dollars which your hard work could easily earn you because this year, only 23 people from your country of millions will be given work permits.

The persistence in which people pretend that complying with the law is no burden, that if their ancestors could do it then so can anyone else, truly boggles the mind. Laws which ban parents from paying to put a roof over their children’s heads and ban dutiful children from sending home money to care for their aging parents criminalise the virtues we so often commend to ourselves. What can this be, if not hypocritical injustice? Let me ask you — what part of “immoral” don’t you understand?

Support for open borders is a fundamental tenet of libertarianism, and David Brat is not a libertarian

I live in Virginia, where unknown challenger David Brat just recently made US national news as a political giant-killer, toppling Eric Cantor from his Congressional seat and running on a vehemently anti-immigration, anti-open borders campaign. Cantor was widely seen as a strong candidate for next Speaker of the House of Representatives, and his loss was a huge shock to the US political establishment. A lot of ink’s been spilled on this, but I want to focus specifically on the libertarian response to Brat’s unexpected victory.

Brat teaches economics at Randolph-Macon College in Virginia, and generally describes himself both as a strong Christian and an adherent of Ayn Rand, a very influential thinker in the libertarian movement. He makes a lot of strong nods to libertarianism in his political rhetoric, although I’m unclear whether he self-identifies as libertarian.

Either way, I honestly don’t care that much about the outcome of this election: I have never liked Cantor, and although he has made some welcome limited moves towards amnesty for some irregular immigrants, he has basically been more pro-closed borders than many others in the political establishment (which says something). It is pretty amazing that Brat campaigned in part on the basis of alleging that Cantor supports open borders, and disappointing that Brat won, but it’s unclear how far his victory reflects voters’ stance on immigration or other policy areas, versus their general distaste for Cantor as a politician and legislator. I wouldn’t even bother to comment on this brouhaha, if not for how libertarians on the internet seem to be reacting to Brat’s win.

Now, full credit to the various libertarian analysts I’ve seen writing about Brat on immigration — virtually all of them dismiss his closed borders stance as inconsistent with libertarianism:

But reading through the reader comments on all these pieces, one cannot help but be struck at the amazing number of self-identified libertarians who are not just skeptical of open borders but outright opposed to it. If they support Brat for his alignment with Christian ideals or Randian thought, perhaps they ought to be aware that to the extent the Bible speaks about borders, it actually advocates for immigrant rights and the human right to migration (see our blog posts tagged Christianity), and that Rand was “indignant” at the idea of opposing open borders.

Although my personal policy stances (not just on immigration) tend to lean libertarian, like some other libertarian-leaners I have some skepticism about identifying as libertarian — in part because of the paleoconservative right-wingers who seem to occupy a disproportionate space in the libertarian movement. Either way, I lean libertarian, and so I feel somewhat obligated to engage with the idea that opposing open borders is consistent with the ideas of libertarianism.

In my view, it is impossible for a consistent libertarian to oppose open borders. One of the fundamental tenets of classical liberalism, which has been adopted (at least in name) by most of its descendants — including modern left liberalism and modern libertarianism — is respect for the individual’s rights and dignity. Prohibiting individuals from moving freely is a prima facie violation of these individuals’ rights. Now, in some or many cases, violating these individuals’ rights may be justified. But what sort of justifications can we provide that would be acceptable to libertarians?

The libertarian case for open borders hinges on the opinion — though I am tempted to call it fact — that you cannot justify arbitrary restrictions on the movement of individual people without resorting to fundamentally illiberal excuses which (to a libertarian) unjustly put the interests of the government or state ahead of the rights of the individual. From a libertarian standpoint, most — if not all — arguments for restricting the movement of individuals who have committed no crime against any identifiable victim simply boil down to collectivism, totalitarianism, or both.

On our site, we list out some common retorts to the libertarian case for open borders. They are:

  1. Enforcement of border controls is not a form of government action, and should be viewed instead as a form of government inaction
  2. Because governments are obligated to put the interests of their citizens above all else (a view sometimes called citizenism), they must prioritise the interests of citizens over the liberty of non-citizens
  3. The people of a state have a collective property right over their state’s territory which grants the state’s government a moral authority or right to arbitrarily exclude any foreigner that the polity sees fit to exclude
  4. That in an anarcho-libertarian world, many individual landowners would be able to and would in actuality exclude immigrants from their land, and therefore in a second-best world with government, governments must similarly exclude immigrants

True enough, virtually every one of these rationales for ostensibly-principled libertarian opposition to open borders has appeared in the reader comments section of the libertarian analyses I mentioned earlier. So let’s dissect them each in turn:

  1. Are states literally spending billions of dollars to do nothing? The barbed wire fences we build and gunships which our governments deploy in our name are surely meant to do more than just sit around and look pretty. It seems almost intentionally obtuse to deny that these things are meant to serve an active, violent purpose.
  2. There are many reasons to be skeptical of the citizenist worldview (or at least its most strong form), but to a libertarian, surely it’s relevant that citizenism outright declares that the interests (not just rights) of some individuals are more important than others’ rights. Sure, you can argue that a fundamental tenet of citizenism is that some people just aren’t entitled to certain rights, but you’re just shifting the goalposts: you can’t justify restrictions on individual movement of non-citizens without resorting to a literally collectivist worldview that says “citizens” are a collective whose interests supersede the rights of individuals that don’t belong to the citizens’ collective.
  3. The “collective property rights” argument literally has the word “collective” in its name. You can’t dress this up with liberal sprinklings of the phrase “property rights”. In the end, you’re still saying that a collective should be allowed to supersede the rights of individuals.
  4. First, I’m not sure the anarcho-capitalist counterfactual is all that compelling to libertarians who embrace minarchism or basically any non-anarchist approach. But even if it is, you can imagine a counterfactual world where many private property owners are happy to build a road and allow anyone to travel on it, whether for free or for a toll, and therefore bypass those landowners less amenable to immigration (if such a concept as “immigration” could even exist in a world with literally no borders). Libertarians who espouse this counterfactual also often take for granted that individual landowners could easily choose to ban natives, not just foreigners, from their lands. Consistent libertarians who take this idea seriously should agitate for stronger mobility controls over other citizens too, to preserve their property rights ostensibly implied by this counterfactual. In light of all this, why should my open borders counterfactual — one which also happens to more closely resemble the real world, with its actual roads built on the common law concept of right-of-way — be any less compelling than this strange hypothetical world?

You may not be a libertarian and find all of this irrelevant navel-gazing, if not possibly counter to your actual views. If so, sorry, but as is hopefully clear, these arguments aren’t aimed at non-libertarians. There are plenty of non-libertarian or non-libertarian-specific reasons to favour open borders and indeed to characterise open borders as a fundamental human right — I’m just intentionally not getting into them because I think the libertarian case for open borders ought to be compelling enough for libertarians.

Now, obviously a decent number of self-identified libertarians are able to reconcile their opposition to open borders with their proclaimed respect for individual rights. I think in general they do this by compromising a little and saying that collectives such as nations or states do have some rights (in some cases, such libertarians have explicitly made this part of their rationale).

Some libertarians no doubt will be tempted to right away dismiss these people as traitors to the libertarian cause. While yes, these people are surely no anarcho-libertarians, on the face of it they don’t seem to me all that different from libertarian minarchists or even other centre-leaning libertarians (such as, most famously, Milton Friedman and Friedrich Hayek, both of whom seemed content to accept the state even though this obviously necessitated some compromises on individual vs collective rights).

But saying that a collective has rights does not tell us what the collective is allowed to do — what its rights are, or how it may exercise those rights. I contend that a collective entity such as the state simply lacks the authority to forcibly exclude anyone, citizen or not, from its territory or jurisdiction on the basis of arbitrary reasons. Individuals may delegate collective authority to legislate to the government of a state, but that does not give the government a justifiable reason to arbitrarily exclude people whose last name starts with the letter Z, or people who have a freckle on their chin. It certainly does not give the government a justifiable reason to arbitrarily exclude people because of their race or sex or even sexual orientation.

I simply go one step further to say that place of birth should also be up there on that list of intolerably arbitrary criteria. I am not saying that your place of birth is irrelevant to who you are. It is no less relevant to who you are than your sex, your race, or a whole host of other things about you. I am simply saying that as far as the government is concerned, these conditions of birth should not be any of its business when it comes to deciding who it can exclude.

Now you can protest my general statement that governments cannot justifiably exclude people in an arbitrary manner — in which case you seem to be endorsing government exclusion of people on the basis of race, sex, and a whole bunch of other things, which in general is repugnant to libertarianism (a vocal racist fringe who self-identify as libertarian notwithstanding). But more likely you’ll protest my specific statement that exclusion of foreigners is arbitrary.

Now it’s certainly true that foreigners are different from citizens in a whole bunch of ways. They often grow up speaking a different language and operating under a different set of institutions. But our own citizens also grow up in a variety of communities, institutions, and backgrounds. Why do we treat citizens as morally non-excludable, and foreigners as excludable?

The objection seems to be that foreigners are fundamentally different from citizens. But why should this matter to a libertarian? If foreigners agree to respect the state’s laws, then they don’t harm any citizens and certainly don’t harm the state. If foreigners run afoul of the state’s laws, then the state may exclude them. The state certainly has no compunctions about excluding citizens who violate its laws, although it typically excludes them from society by jailing them instead of deporting them.

Perhaps anti-open borders libertarians worry that foreigners’ promise to respect the laws can’t be trusted. But judging from what they’ve written on this issue, it seems the clear theme is this: foreigners will respect the law, and that’s the problem. To be specific, they’ll obtain welfare as provided for by the state’s laws, and as Milton Friedman supposedly told us, society will literally collapse as a result.

To these libertarians, the claim that open borders and a welfare state are not compatible is a self-proving result; it also often seems to self-axiomatically lead to the conclusion that a welfare state which opens its borders will collapse into violence and disorder. Now, Friedman never stated that a welfare state with open borders would collapse into violence, so that second half seems completely suspect to me. But even so, it seems to me that libertarians are also completely taking for granted that Friedman must have been right when he declared this fundamental incompatibility.

The biggest reason Friedman was wrong is simple: welfare states generally do not determine who has access to their benefits simply on the basis of who is present on their territory or in their jurisdiction. There is almost always a whole bunch of paperwork you have to fill out to get your benefits, which is how the government makes sure you’re eligible. You can’t just show up and say “I’m a warm body, so give me my benefits!”

You might argue discrimination in benefits access isn’t an implementable public policy. But virtually every welfare state you can think of, even the most generous ones, already curtail foreigners’ and/or immigrants’ access to welfare benefits in some way. So it’s not impossible; it’s already being done. Americans often seem to forget that part of Bill Clinton’s sweeping welfare reforms included stricter eligibility criteria for immigrant access to federal benefits.

You might say that our insistence that the government refrain from arbitrarily excluding people inevitably forces us to open benefits access to anyone irrespective of birth condition. But this confuses two very different things: under the collectivist principles we’ve been taking for granted, governments have the authority to exclude some people from society, and they also have the authority to subsidise some people. These two things are separate. The criteria you use to decide who to exclude don’t have to be the criteria you use to decide who to subsidise.

Exclusion is a matter of fundamental justice; abuse of the state’s power to exclude is a violation of the fundamental human right to associate with other people. Fundamentally everyone agrees the state exists to provide criminal and civil justice services — failure to provide these in a just and fair manner is unconscionable. Subsidies on the other hand are a matter of redistributive justice or compassion. Yes, these are things which many if not most libertarians reject as any reasonable basis for government policy — but if we’re taking the welfare state as a given, we are still taking as a given that the principles under which welfare benefits get doled out may and ought to differ from the principles under which we decide who to criminally punish and exclude.

So Milton Friedman was just wrong here: the welfare state does not fundamentally require border controls to limit access to benefits. The welfare state already has access to documentary evidence which it uses to determine eligibility. It is not just strange to insist that the police-military state be allowed to violently exclude people for the sake of protecting a limited pool of welfare benefits; it is completely unnecessary. The welfare state doesn’t need you to violently exclude anyone, because it already has its own process for checking people’s papers to confirm eligibility for benefits.

Grasping for straws, anti-open borders libertarians finally reach for perhaps the least libertarianism-compatible of all objections so far: the claim that immigrants will implement or encourage citizens to implement more statist policies, such as an expansion of the welfare state, and that to protect what little libertarian policies are left, it is imperative for libertarians to support the exclusion of immigrants. This argument is so patently unjust and transparently unlibertarian that I am amazed anyone can make it and call themselves libertarian with a straight face.

Let’s take for granted the questionable empirical claim that immigration leads to an expansion of the state’s power over individuals. How does this justify restricting immigration, without also justifying a whole host of other unjust exclusionary policies?

After all, besides immigrants, you can think of a whole bunch of other demographic groups who seem inclined to oppose libertarianism: in the US context, these include people like blacks, women, perhaps Jews. Why shouldn’t libertarians support policies that exclude these people too? You know what: allowing blacks to eat means that there’ll still be blacks around to oppose libertarian policies. Therefore, a good American libertarian should support policies that restrict the sale of food to African-Americans. Force the state to starve the statists, and ensure a brighter future for liberty!

You will surely object: hey, libertarians should oppose policies that unjustly exclude citizens, but libertarians may and should support the exclusion of non-citizens who hold the wrong political beliefs. But what rationale do you have for holding non-citizens’ rights to a different bar? Now we go back to all the rationales you cited earlier: collective property rights, bla bla bla.  But it sure seems to me like your whole project to erect an edifice of libertarian arguments for closing the borders is actually tearing down liberty, not building it up: if you’re so willing to make compromises on the liberty of people who’ve committed no crime other than being born in the wrong place, or thinking the wrong way, it’s questionable whether you’re committed to the liberty of anyone else at all.

Let’s say you’re all right with the idea that libertarians shouldn’t oppose open borders, but still find it a self-defeating political strategy to “eat your own” when it comes to the likes of David Brat. After all, when there’s someone saying the right things about markets and all freedom and all those things libertarians love, but also saying the wrong things about some other things, is it fair to criticise him? Especially when he’s doing well in the polls and might make a real political splash?

I am not all that qualified to pontificate on the political ramifications here, but let’s focus on whether support of open borders should be a top consideration in assessing someone’s libertarian credentials. From our discussion here, it seems to me that any libertarian who opposes open borders either has some serious missteps in their thinking, or simply rejects, in very large part, libertarianism’s ostensible commitment to the rights and dignity of the individual. Libertarians who oppose open borders simply should not exist; either you favour open borders, or you aren’t a libertarian.

This is not an arbitrary hurdle, such as “Well he doesn’t fully oppose government subsidisation of healthcare, so he must be a statist nut” (as was said of Robert Sarvis, the Libertarian Party candidate for Governor of Virginia in 2013, when he articulated a healthcare policy that didn’t boil down to “Abolish all government subsidies”). No, if you are a libertarian, the way you think about open borders cuts to the core of what it means to truly respect and uphold the rights and dignity of individuals. Opposing open borders is not just putting the collective ahead of the individual in a few fringe cases; it is literally letting the collective trample on individuals who have done nothing wrong except choosing to be born in the wrong place or holding the wrong political views. This cannot be libertarianism.

For centuries, the clarion call of liberals standing for liberty has been: “I may disagree with what you say, but I will defend to the death your right to say it.” You can come up with clever pseudo-libertarian justifications for opposing open borders, but those seem to me to virtually always devolve to: “I may disagree with what you say, and so if statists will let me, I’ll put you to death.” That characterisation may seem uncharitable, but I cannot see how you can describe yourself as committed to the rights of the individual if you have a gap in that commitment big enough to drive the lives of billions of people right through.

For decades, a commitment to the free market has been a key component of the libertarianism acid test. But as many libertarians responding to David Brat have observed, you cannot have a free market when you ban your citizens and billions of other individuals from doing business as they would like to do it in your country. But worse, you cannot have a free society. A society which spends billions of dollars to exclude billions of peaceful individuals by using violent force can hardly call itself free. No libertarian should want any part of a society built on the active and continuing oppression of innocents who have committed no crime worse than being born on the other side of a border.