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Constitutionally entrenching migration as a fundamental human right: Argentina and open borders

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US President Obama just announced a major policy change that will, at least temporarily, allow some immigrants a reprieve from the threat of deportation. Co-blogger Michelangelo’s pointed out that this is still extremely far from the true liberal reforms which the unjust, draconian US immigration system sorely needs. People are falling over themselves to contest the constitutional permissibility of Obama’s actions — for more on that, see our guest blogger and law professor Ilya Somin’s take. Irrespective of that legal issue, Michelangelo is right that we need to dream bigger — so let’s talk about one country in the world which legally enshrines freedom of movement as a universal human right: let’s talk about Argentina.

Now, I don’t have the time or space in this post to cover every single aspect of the Argentinean story: despite the many parallels between Argentina and any number of Western or developed countries you can name,  Argentina is not the canonical open borders country; it does not represent a template that can be copied whole sale. Neither can it be a representative test case illustrating the likely effects of open borders if another country were to adopt them.

The empirical learnings to be had from the Argentine experience are worth a whole set of blog posts, if not books. Today, I want to just talk about the laws and constitution that govern immigration to Argentina — for in of themselves, they prove that what so many restrictionist naysayers call legally and philosophically impossible can in fact be done without the nation-state collapsing into a black hole of philosophical contradictions.

Argentina, like the US and many other countries, has a long history of being shaped by migration. Prior to the abolition of international open borders in the early 20th century, as much as a third of the Argentine population was comprised of immigrants. Over the course of the 20th century, restrictive immigration laws were introduced by various dictatorships, and the immigrant population eventually dwindled to a small fraction of its former size. So far, the Argentine story is much like that of every other country in the world: open borders up until the early 20th century, and restrictionism thereafter.

Up until a decade ago, Argentinean immigration law was like that of any other country’s. It disclaimed and disdained any concept of freedom of movement as a human right. Sizeable populations of undocumented migrants lived in the shadows, legally separated from the course of ordinary human life, and routinely deported when discovered. This legal-philosophical framework, we are supposed to believe, is the natural order of things: it is impossible to have an immigration law that abolishes arbitrary deportation, impossible to have an immigration law that recognizes mobility as a human right.

But in 2004, the Argentine government swept all this away, and adopted a new immigration law, simply labeled Law 25.871. This unremarkable name aside, the law is sweeping in its defence of movement as an inalienable human right. Article 4 states simply:

The right to migrate is essential and inalienable to all persons and the Republic of Argentina shall guarantee it based on principles of equality and universality.

The law does not go as far as to abolish visa or border controls, but it lays out a simple — at least on paper — process to immigrate to Argentina: find an employer or family member who will sponsor you. Once sponsored, you become a temporary resident. After one to two years, you can apply for permanent residency. After a few more years, you become eligible to apply for naturalisation as a citizen. There are no visa caps or quotas to worry about — something which already puts the Argentine system way ahead of every other country in the world in respecting the human right to migrate.

But Argentina goes further: not every individual who enters Argentina might be able to find a sponsor. And although the law prohibits entry without a visa or similar legal documentation, people will find a way in — not least because you could always just overstay a temporary visa. It’s virtually impossible to seal your borders without becoming a military dictatorship. And Argentina recognises this, with Law 25.871 declaring that those who migrate to Argentina without legal residency are simply “irregular migrants”.

Remarkably, Law 25.871 bans discrimination against irregular migrants in the provision of healthcare or education. Deporting an irregular migrant requires a court hearing, and generally may only be executed if the government offers the irregular migrant a chance to regularise their status, and the migrant refuses this offer. Exceptions, of course, are made for criminal convicts and the like, but otherwise, deportation is rarely enforced, and instead large-scale “amnesties” — though the more accurate term would be regularisations — have been the norm. The International Detention Coalition summarises Argentine deportation policy:

Migration decisions are made by immigration authorities but are reviewable by a court, with no detention during this period. Legal aid is available throughout the deportation process for all irregular migrants. Deportation and detention are both decisions that must be ordered by a court, with detention used only as a final resort after all other remedies are exhausted. Detention is limited to 15 days pending removal. In practice, migrants who have been committed to prison for criminal offences are the only immigration detainees.

One American immigrant to Argentina worried about his spouse overstaying their visa and becoming an irregular migrant describes what happened when he asked an immigration official what he should do:

Then we spoke with another, much kinder immigration official who assured us that there is absolutely no deportation law in Argentina. She laughed when I told her that I feared that a white van would come to our house to take my spouse and deport him. She told me that Argentina is not the United States and they don’t treat immigrants this way. The only time that Argentina would ever consider deporting someone who is illegal is if he or she commits a crime.

Imagine that — a country with no deportations! It’s not just easy if you try: it’s actually real! But not all is roses, naturally: the continued existence of large populations of irregular migrants in Argentina points to the failure of the government to live up to the law it passed. Anecdotal evidence suggests that bureaucratic red tape often constitutes a barrier to successful sponsorship — and while this is a mere headache for middle-class immigrants, for semi-literate members of the working class, complying with the requirements of immigration laws can be more than onerous.

Argentina is hardly unique in this regard: when my family immigrated to the US (after first overcoming the ridiculous quotas that kept us waiting for about two decades after our visa petitions were first submitted), we had to provide documentation from the local police in every jurisdiction we’ve lived in showing that we’ve been citizens in good standing with the law. Obtaining this documentation is at worst a nuisance for a middle-class person — and even then, since documentary burdens like these are many and cumbersome when you’re dealing with immigration authorities, a lot of people in our shoes would have outsourced this gumshoe work to an expensive lawyer. For a working class person who might have frequently moved around a lot without keeping many records, and whose educational attainment may not go past elementary school, obtaining this sort of evidence can border on the impossible.

Aside from the burdensome red tape that makes legal residency difficult to attain, Argentina also strangely upholds legal persecution of irregular immigrants: landlords and employers who do business with irregular migrants are singled out for punishment by Law 25.871. Clearly this has not stopped Argentineans from doing business with irregular migrants, but this does seem discordant with the rest of the law: notably Law 25.871 explicitly states that all leases and employment agreements which irregular migrants enter into will be upheld and enforced by the courts, even though entering into these agreements is in of itself an offense.

Argentina does not have truly legal open borders, but it comes remarkably close. If the bureaucratic requirements for obtaining residency were loosened and the fines for employing or renting to irregular migrants were abolished, I think Argentina would basically have open borders — because every person seeking to travel to Argentina for work, study or pleasure would be free to do so. Those seeking to commit crimes would still be punished and subject to exclusion; all others seeking to move and live in peace would be let in peace.

Argentina is a remarkable counterpoint to those who allege that open borders are by definition inconsistent with national sovereignty, or that open borders by definition threaten the social compact governing the welfare state. We on this blog have spoken a lot about how governments are free to limit migrant access to welfare, and other similar policies that we call keyhole solutions.

Argentina is faring just fine despite throwing these out the window: even irregular migrants have full access to both private and public education and healthcare, and are generally allowed access to other social benefits too. In fact, other keyhole solutions we’ve discussed, such as the imposition of tariffs or additional surtaxes on migrants, are unconstitutional.

That’s right: Law 25.871 didn’t pull the concept of the right to migrate out of thin air. Argentina’s history of open immigration dates a long way back, all the way back to 1853 when it adopted its constitution. Article 16 consciously adopts an egalitarian stand on the rights of citizens and foreigners, treating them all as inhabitants entitled to the same freedoms under Argentine law:

All its inhabitants are equal before the law, and admissible to employment without any other requirement than their ability. Equality is the basis of taxation and public burdens.

The rhetoric about equitable taxation is remarkably repeated twice more. Article 20 of the Argentinean constitution elaborates on egalitarian treatment of foreigners:

Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade and profession; own real property, buy and sell it; navigate the rivers and coasts; practice freely their religion; make wills and marry under the laws. They are not obliged to accept citizenship nor to pay extraordinary compulsory taxes. They may obtain naturalization papers residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the Republic.

No extraordinary taxes — and foreigners enjoy all the same civil rights as citizens! And Article 25 of the constitution states:

The Federal Government shall foster European immigration; and may not restrict, limit or burden with any tax whatsoever, the entry into the Argentine territory of foreigners who arrive for the purpose of tilling the soil, improving industries, and introducing and teaching arts and sciences.

No tariffs on the entry of immigrants either! We’ve proposed such schemes as potential mechanisms to mitigate possible fiscal burdens of managing migrant inflows, but Argentina has expressly ruled these out — and yet nobody can say that open borders or open immigration are what is ruining Argentina. Argentina has easy naturalisation (you can become a citizen within five or six years of entering the country) and birthright citizenship for anyone born on its territory — all things restrictionists dread — and yet hardly anyone can say this is what’s ruining the country.

If anything, Argentina seems to have been designed as a decisive rejection of all the philosophical ideas immigration restrictionists hold dear. Most arguments for the arbitrary restriction of immigration rest on this moral philosophy sometimes labeled as “citizenism”: the belief that the government of a country is justified in excluding, abusing, and mistreating non-citizens as long as this is for the benefit of its own citizens. Even if these non-citizens come in peace, even if they want to work with you, work for you — the government has no business considering any of this. The government is established for the benefit of current citizens alone, to the exclusion of all others.

Acuerdo_de_San_NicolásAcuerdo de San Nicolás de los Arroyos, a treaty between different governors signed in 1852 to convene a Constitutional Convention that drafted the constitution of 1853, source La Guia 2000, discovered via Wikipedia
Well, the preamble of the Argentine constitution explicitly rejects citizenism — I’ve added emphasis to make this clear:

We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on Argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation.

A constitution that insists on treating immigrants as virtual equals with citizens, and a constitution that enshrines immigrants’ rights to justice, peace, welfare, and liberty: it sounds like an utopian dream, but it is real, and it’s in Argentina.

There are many things not to recommend about Argentina; its overly burdensome red tape, both in immigration and in just about every other arena of public life, famously strangle ordinary economic activity. The long legacy of Peronism has seen Argentina’s economy stagnate, and even today, Argentina’s government chronically mismanages the public fisc. But none of these problems have anything to do with immigration, and everything to do with problems endemic to the culture of Argentinean public life — a culture that has remained remarkably resilient despite Argentina’s long history of open immigration and now its reopened borders.

Argentina is far from perfect, but its constitution and immigration laws show us the way forward in guaranteeing the just and equitable treatment of all human beings subject to our governments’ laws, be they citizen or foreigner. In drafting their constitution, Argentina’s founding fathers drew on the constitution of the United States. Perhaps now those Americans opposed to open borders and freedom of movement would do well to take a page from the Argentine playbook, and remember the wisdom of their own founding fathers.

The American and Argentine tradition of open borders did not emerge from a legal or philosophical vacuum, after all. At the founding of modern Germany in the 1860s, German legislator Wilhelm Liebknecht articulated the legal rationale for egalitarian principles like those upheld in Argentina’s constitution and immigration laws:

A right that does not exist for all is no right… Gentlemen, it is necessary for us to proceed in the same fashion that England, that free country, has already taken, and to extend to foreigners the same right that exists for Englishmen. There is no such thing as police expulsion in England; the government there does not have the right to deny someone their place of residence.

Or, as one of Liebknecht’s colleagues put it,

…it is a barbarity to make a distinction between foreigners and the indigenous in the right to hospitable residence. Not only every German, but every human being has the right to not be chased away like a dog.

I could not have said it any better myself. Argentina is not perfect, but its laws come far closer to the wisdom of our ancestors on freedom of movement than the laws of virtually any other country today. Obama’s action to provide relief from deportation for a few million American immigrants is welcome, but it is not true justice. There cannot be justice until America, and every country in the world, recognises that every human being has the right to not be chased away like a dog. Stop the deportations — not one more!

I am indebted to Barbara Hines’s The Right to Migrate as a Human Right: The Current Argentine Immigration Law and discussions with members of the Open Borders Action Group for their assistance in preparing this article.

Source for featured image: We didn’t keep track of the original source, because there are many similar images available via Google Search. This might have been the original source.

Related reading

How rational can we expect nation-states to be in setting immigration policy?

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A recent comment by Christopher Chang made a point that I feel we haven’t adequately addressed on this site: if open borders is such a great deal, why has nobody tried it? Using a similar structure of argument as Bryan Caplan employed in his blog post on motivating sheep or Gary Becker employed in the now-standard argument that market forces gradually erode discrimination, Chang writes:

It does not matter if 90% of actors are inefficiently biased, as long as some subset of the other 10% knows what they are doing; that subset, and its future imitators, win in the long run. This has happened over and over and over again in political, economic, and military history. Both you and Paul fail to comprehend the nature of “collective assessment” that requires only one yes vote. As I’ve mentioned numerous times, you can even provide much of the yes vote yourselves, and according to all your economic claims, this would be quite lucrative. (This does not mean that any particular individual’s failure to do so is damning; life circumstances frequently interfere. But the fact that none of you have done anything like this does, in fact, add up to a strong revealed preference against your claims. Your failure to even seriously openly discuss this among yourselves strongly implies that you do not actually want your rosy projections tested.)

I like the general reasoning behind the generation of these types of questions. Claims that the status quo is radically suboptimal should be met with skepticism, and should be taken seriously only if the people making the claims can offer a convincing explanation for why the suboptimal system is stable. In this post, I explore some possible explanations. Read and judge their strength for yourself!

Note that this post is not, in and of itself, a complete argument for open borders, or open borders with keyhole solutions, being optimal. It’s rather an explanation for how the current state of the world (far from open borders) is consistent with the possibility of open borders being a lot better. It seeks to address a potential inconsistency, rather than offer complete proof. Therefore, my rhetoric in the post will assume the open borders position and simply demonstrate that there are no obvious contradictions.

There’s a connection between this post and my earlier post on whether migration levels under open borders would be optimal, too high, or too low. But whereas that post is about the decisions of individuals holding state policies constant, this post is about the creation and tweaking of the policies themselves.

#1: The gains from pure open borders go to quite an extent to migrants and their descendants, and even though existing residents of migrant-receiving countries gain somewhat, the gains are a lot less

Why don’t we have pure open borders, if it benefits the world so much? The short answer is that the people with the power to decide this (the people in political power and the voters and special interests that they cater to) are not the people who benefit the most from open borders. As Nathan Smith notes here and here, immigration policy is quite “undemocratic” in the sense that potential immigrants have no (direct) electoral say in a matter that affects their freedom.

This point has a number of different aspects:

  • If the gains from migration went mostly to the immigrants and not to non-immigrants in the target country, the people who gain the most don’t have a say in the electoral process. Note that this point is valid even in the absence of disparity or asymmetry between nations. If immigration from Canada to the US significantly enriches the Canadians who migrate to the US, but has little effect on US natives, then US natives (who vote in the elections) have little incentive to push for freer migration from Canada.
  • One possible remedy to the above would be to push for free migration through reciprocity, for instance, freeing migration from Canada to the US in exchange for freeing migration from the US to Canada. This would work in the case that the fraction of the population in either country that has an interest in the option of migrating is large enough: if enough Americans want the freedom of easy migration to Canada, they may vote for a treaty that frees migration both ways. If, however, the fraction of people interested in migrating is small, then they may not be able to push for freer migration even if the absolute gains they experience are huge. That’s because democracy is based on counting votes, rather than on winners compensating losers.
  • In the current world, there are significant international disparities in wealth and wages, and a strong directionality to potential migrant flows. In light of this, the spotlight falls on the migration policy of countries that have greater per capita income or wages or are otherwise attractive migrant destinations. The degree of solidarity between potential migrants and the set of people who have the most influence over the most relevant migration policy is now quite low: the former are people from low-income countries, and the latter are people of prosperous countries. Even though the latter set is expected to gain somewhat in expectation, the gains are smaller in absolute terms, and even smaller when viewed as a proportion of how well off they currently are.

Note that many of these can be fixed, at least in principle, if we relax from pure open borders to open borders with appropriate keyhole solutions such as pro-native tax-and-transfer schemes. So why don’t we have instances of the latter? Actually, we do, to some extent. We’ll get to this later in the post.

#2: The full gains from open borders take time to materialize

Estimates of significant increases in world production after open borders are not estimates of overnight gains. Rather, these are estimates of how the world would look a decade or two from the opening of borders, relative to how it might look in the counterfactual. Even if the estimates were correct, the full magnitude of the gains would be felt after a fairly long time-lapse. Thus, there may not be good electoral incentives for democratic governments to support freer migration for the economic benefits. Some of the economic benefits would be reaped immediately, but it would be an order of magnitude less than the long-term gains. Note that this is similar to the reason why we expect individual migration to be less than what seems economically optimal, as discussed in my other post.

#3: In so far as there is a citizenist case for open borders, it relies on a tax-and-transfer scheme combined with somewhat draconian enforcement

Nathan Smith has previously argued that there is a citizenist case for open borders: use a tax-and-transfer scheme such as immigration tariffs or DRITI to hold natives harmless and distribute the gains away from migrants and towards natives.

Schemes like DRITI present a dark side: they exacerbate the visibility of poverty and, even as they reduce the unfairness of the system as a whole, make it more visible. So, in addition to open borders advocates who’d worry about such schemes (see, for instance, here and here), there are many others, such as immigrant rights activists, who would reject these schemes. Even if open borders started out with such “keyhole solutions” it’s not clear that they’d be stable.

The combination of citizenism and the form of local inequality aversion make tax-and-transfer-based keyhole solutions a hard sell in many countries. I don’t think the problems are insurmountable. But I don’t think it’s surprising that we haven’t seen a lot of progress on these so far. It’s fruit, but it’s not very low-hanging fruit.

Incidentally, one prediction of this setup is that countries that are less democratic, and where governments have more authority to carry out more draconian enforcement, might be more likely to have implemented citizenistic migration liberalization. This is indeed the case, as we’ll see in #5.

#4: The incentives of democracy

The incentives of the politicians and bureaucrats running the government are not perfectly aligned with the long-term interests of the citizens. There are two broad problems:

  1. Citizens themselves don’t know what’s best for them, so they may not reward their representatives in government for choosing better policies or delivering better outcomes.
  2. Politicians often cater to special interests rather than the needs of citizens.

In the context of why there hasn’t been more significant migration liberalization, I expect (1) to be a far bigger reason than (2). The general phenomenon of political ignorance in the electorate in advanced democracies has been well-studied (the political knowledge elsewhere is highly unlikely to be better, and quite likely to be worse). Explanations such as rational ignorance and rational irrationality have been offered. Given generally low levels of political knowledge and decision-making skill on the part of the electorate, we shouldn’t have strong reason to expect a democracy to converge to a good outcome. But we might still expect that, by random chance, some democracies would converge to good outcomes in a given area. So a bit more is needed.

Bryan Caplan has posited that one particular aspect to voter irrationality is anti-foreign bias: people systematically underestimate the benefits of interactions with foreigners. Are people inherently anti-foreign? I think that people have inherent tendencies to support their ingroup and resent or discount the welfare of outgroups. But the particular use of nationality as the criterion to define ingroup and outgroup is probably an artifact of the political process: there is an existing governance infrastructure that facilitates discrimination on the basis of nationality, and an existing ideological infrastructure that gives particular importance to national identity. So people’s diverse ingroup-outgroup choices get projected to divisions based on nationality and citizenship even if that’s not the best way of describing the distinctions in their own minds. The upshot is that we might expect the political process to produce an anti-migration bias relative to what’s optimal, and while this reflects some discomfort that individuals experience interacting with foreigners, it’s often a result of a political process translating other forms of discomfort people have to the language of discrimination based on nationality (this is a somewhat tricky point, and I hope to elaborate in a future post).

#5: Some countries that are undemocratic or less democratic, and have more deference for elites, tend to have citizenistic and numerically liberal migration policies

Carl Shulman has been doing yeoman’s work of late examining some interesting “open borders with keyhole solutions”-type regimes. He looked at Singapore in a blog post titled Migration levies and unskilled labor mobility in Singapore, where he discussed Singapore’s large temporary guest worker program for low-skilled migrants, that combines fairly huge numbers of migration with fairly stringent restrictions on what migrants can do, as well as taxes on the migrants that make them fiscally good for the government. In a blog post titled What does migration to the United Arab Emirates tell us about labor mobility?, he looked at the UAE, where a significant majority of the population is foreign-born, and where there are significant differences between the rights and privileges accorded to a native elite and a large foreign-born workforce. In both cases, their policies created a win-win for natives, the government officials, and migrants. In Singapore, the success of these policies arises from an effective one-party system and considerable deference to elites in policymaking, despite the general population being less pro-migration than in many First World countries with far stricter limits on migration. The UAE is a federation of hereditary monarchies, which insulates it from the pressures of competitive democracy. The population is also less likely to push for liberal ideals of equality that jeopardize the stability of keyhole solutions.

Relatedly, a recent book called The Price of Rights by Martin Ruhs (to be reviewed later) empirically came to the conclusion that there’s a trade-off between the number of migrants a country admits and the package of rights that are accorded to people after they migrate. A similar point had been made in a post by Michael Carey a while back on immigration and class struggle. If modern liberal democracies tend to be strong on the package of rights and privileges, this (often) comes at the expense of the number of migrants they admit.

#6: If many countries tried citizenistic open borders, competition would drive down tariffs eventually, bringing the world closer to open borders

In #1, we (sort of) ruled out the plausibility of pure open borders (barring dramatic changes in people’s views of moral permissibility and side-constraints). But in #5, we pointed out that we do have partial approximations to “open borders with keyhole solutions” and these could be taken further. So how far are “open borders with keyhole solutions” from pure open borders?

We can think of pure open borders as migration with zero government-imposed barriers or taxes. Suppose most countries have prohibitively high barriers, and a few countries experiment with selectively reducing taxes to the level of “open borders with keyhole solutions.” These few countries can still afford to keep the taxes at their profit-maximizing level, because they’re effective monopolists: all the other countries are out of the running because their barriers are too high. The policies of these few countries are a Pareto improvement over the status quo, but they still carry the inefficiencies of a monopoly. If, however, more countries start getting drawn into the game of open borders with keyhole solutions, then there is more competition between countries that exerts a downward pressure on the taxes and barriers. Thus, as more countries do it, we get closer to open borders. We probably don’t get anywhere near pure open borders, but we do get a lot closer than if only one or two countries were trying it out.

PS: Open borders isn’t the only policy proposal for which we can ask this sort of question. I’m quite curious to hear the thoughts of proponents of drug legalization, free trade, organ trading, and other such cutting-edge proposals. The situation with some of these seems to be a bit better than for open borders, but not by a huge margin. For instance, consider the case of drug legalization. According to this Wikipedia page, there is only one country, Uruguay, where the possession, sale, transport, and cultivation of cannabis (marijuana) are all legal. But there are a number of nation-states (plus member states in nations) where the possession of marijuana is legal, or illegal but decriminalized, and there are others where marijuana use is de facto tolerated. So even though full-blown legalization is rarely embraced, we have enough variation in the direction of legalization to address the question of “if it’s such low-hanging fruit, why has nobody plucked it?” This is roughly similar to the situation with open borders.

PS2: I wrote up a condensed version of an early draft of this post in the form of an Open Borders Action Group post.

Make More Singapores!

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I have advocated the DRITI policy– instead of coercively restricting migration, tax it and use the proceeds to compensate natives– for years, and Principles of a Free Society was written, if you like to think of it that way, as a political philosophy suited to undergird DRITI policies. By now, this has become a standard part of the case for open borders. Thus, in “Meant for Each Other: Open Borders and Western Civilization,” Bryan Caplan writes:

Still worried [about open borders undermining natives’ wages]?  There’s a cheaper and more humane remedy than keeping foreigners out: Charge them an admission fee or surtax, then use the proceeds to help displaced native workers.

Which is the same idea as DRITI. Not that I’m blaming Caplan for borrowing the idea from me without acknowledgment. Caplan knows I advocate migration taxes. He even wrote one of the blurbs for Principles of a Free Society. But Gary Becker proposed a migration tax to the IEA back in 2010. Actually, that was four years after I published the idea, but Becker had written about it before, in an op-ed in the 1980s. Recently, at the APEE conference in Las Vegas last April, Richard Vedder also proposed a migration tax. The idea is really too obvious to quibble over its paternity. It’s a simple cross-application of the standard free-trade advocacy truism– “yes, free trade has winners and losers, but tax the winners to compensate the losers”– to migration policy. I’m not sure whether Caplan got the idea from me. I’m pretty sure that if he hadn’t got it from someone, he’d easily have thought it up on his own. It’s a no-brainer for economists, but somehow policymakers are blind to it. Or so I thought.

What I didn’t realize is that Singapore already has something close to a DRITI policy in place, as Carl Shulman reports. From 1970 to 2010, the number of foreign workers in Singapore rose from just over 20,000 to more than a million, a third of the labor force, and still rising. Most of these are not the high-skilled workers that OECD democracies tend to privilege. Nearly a million are here on low-skilled “work permits,” including foreign domestic workers (214,500) or construction workers (319,100). How is the number of immigrants regulated? First, by Foreign Worker Levies, i.e., migration taxes, a policy variable. There are also Dependency Ceilings, maximum foreign shares of an employer’s workforce. Shulman doesn’t say how often these are binding, but they seem liberal, e.g., 87.5% of construction crews can be foreign. And how much do migration taxes raise?

Levies for unskilled workers range from $3,600-$9,000 per annum. With around a million workers subject to levies, the proceeds to Singapore should be in the billions of dollars (all figures are Singaporean dollars, about 0.8 $USD each).

Total levies collected amounted to $1.9 billion in 2010 and $2.5 billion in 2011. Total government operating revenues in 2010 were $45.5 billion and $50.5 billion for 2011, so worker levies alone accounted for 4-5% of operating government revenue. Since then the migrant population has grown substantially and levies have been hiked, by a third or more in many cases, with further increases scheduled, so the current percentage is likely significantly higher. Even so, the figure will be small compared to the economy, because low-skill workers contribute disproportionately little to economic output, but is high as a proportion of compensation costs. While Singaporean natives with such low incomes would pay no income tax, the top levy rates for unskilled workers (charged to employers) can be half or more of wages.

In short, while we can quibble about details, Singapore more or less understands and is applying and applies the citizenist case for open borders. Singaporeans benefit from cheap cleaners, bus drivers, and domestic workers. And they don’t just benefit themselves; foreign workers also gain opportunities. As Vipul Naik pointed out in conversation, if all developed countries adopted policies like this, migrant wages and wages in migrant source countries would be competed up. I might argue for slightly different moral side-constraints (e.g., I wouldn’t endorse deportation of pregnant women), but it would be a great thing for both economic development and freedom if other developed countries followed Singapore’s lead.

Lastly, a more general point. Singapore is amazing. Every time I read about policy in Singapore, I find myself involuntarily thinking Wow! This is the most enlightened regime on earth. Perhaps that’s a slight exaggeration, but few would deny that Singapore is a spectacular success. So why don’t we make more of them? Much of the key to Singapore’s success seems to be simply that it’s a sovereign city-state. In general, sovereign city-states make wildly disproportionate contributions to civilization. Think of the city-states of ancient Greece, Athens and Sparta and Corinth, birthplaces of philosophy, history, science, and democracy. Or the city-states of Renaissance Italy– Venice, Florence, Genoa– which were also gloriously accomplished in arts and letters and sciences. Today, Hong Kong has a kind of partial sovereignty. It, too, is a dazzling success, whose success has spilled over in a massive way. Hong Kong has been a major catalyst for China’s economic take-off. Yet, perversely, we have established a system of international sovereignty which makes it impossible to found new sovereign city-states. We need charter cities.

Immigration and Political Freedom

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This is a guest post by Ilya Somin, a Professor of Law at George Mason University and a blogger at The Volokh Conspiracy (posts by Somin only). He is the author of Democracy and Political Ignorance: Why Smaller Government is Smarter. A list of some of his writings relevant to open borders can be found at the Open Borders page about Somin. Somin has also written on the relation between foot voting and political freedom (see here) and he draws upon that work in this blog post. His previous guest post for the site was about immigration and the US constitution.

There is widespread agreement that political freedom is a fundamental human right – that everyone is entitled to substantial freedom of choice in deciding what type of government policies they will live under. This is one of the main justifications for democracy. Voting enables the people to exercise political choice. But the principle of political freedom also has implications for international migration. The same logic that justifies giving people a right to vote at the ballot box also implies that they should have a right to vote with their feet. This is particularly true of people living under authoritarian governments, where foot voting is often the only feasible way of exercising any political choice at all. But even for those fortunate enough to live under a democracy, the right to migrate elsewhere is an important aspect of political freedom. In both cases, obviously, the right to emigrate is of little value unless there is also a right to immigrate to some other nation.

I. Political Freedom and Migration Rights for People Living Under Authoritarian Regimes.

Although the democracy has spread rapidly in recent decades, the majority of the world’s population still live in undemocratic states. According to Freedom House, almost 2.4 billion of the world’s 7 billion people live in nations that are “not free” at all in political terms, while another 1.6 billion live in “partly free” countries that have some semblance of democracy, but also place severe restrictions on political rights such as freedom of speech or the right to form opposition parties. These figures are surely imperfect. But there is no doubt that hundreds of millions of people languish in authoritarian and partially authoritarian societies where there is little or no meaningful democratic political process.

For most such people, emigration is their only practical way to exercise political freedom in the sense of the ability to choose the government policies they live under. One can object that they should instead work to democratize their home societies. In many cases, however, such efforts are both highly unlikely to succeed and dangerous for those who attempt them. Many authoritarian regimes repress dissenters ruthlessly, imprisoning or even killing them. We rightly admire the Vaclav Havels and Nelson Mandelas who bravely seek to transform oppressive regimes. But it is understandable that most subjects of such governments are unwilling to run such enormous risks. Moreover, in many oppressive societies, no amount of effort and courage is likely to succeed in establishing a functional democracy in the foreseeable future. Such societies lack the economic or cultural preconditions for the establishment of liberal democracy.

Residents of many authoritarian nations can exercise political freedom only through international migration or not at all. If developed democracies refuse admission to migrants from such countries, they effectively deprive them of their political freedom. They therefore become complicit in violating a fundamental human right. One can object that Westerners are not responsible for the lack of democracy in many Third World nations. But as philosopher Michael Huemer explains, immigration restrictions don’t merely leave in place poor conditions created by others. They involve the active use of force to prevent people from bettering their condition through voluntary transactions. If I forcibly prevent a starving man from purchasing food, I bear moral responsibility for his resulting death, even if it is not my fault that he was starving in the first place. Similarly, those who use force to prevent the exercise of political freedom through migration are partially responsible for would-be immigrants’ political oppression, even if they had nothing to do with establishing undemocratic governments in the migrants’ homelands.

Deprivation of political freedom is far from the only wrong inflicted by immigration restrictions that prevent people from fleeing oppressive regimes. Such people are also often forced to endure a variety of other human rights violations, as well as severe poverty. But the loss of political freedom is an important additional strike against immigration restrictions, one that is usually ignored even by most advocates for migration rights.

II. Migration and Political Freedom for Citizens of Democracies.

Residents of democratic nations generally have much greater political freedom than those who live under authoritarian rulers. But even in the best-functioning democracies, the freedom provided by the franchise is distinctly limited. Any individual voter has only an infinitesmal chance of making a decisive difference in an election – about 1 in 60 million in a US presidential race, for example. We would not say that person enjoys adequate religious freedom if he has only a 1 in 60 million chance to determine his religion. We would not say that he has freedom of speech if he has only a 1 in 60 million chance to determine what he can say or write. Similarly, a 1 in 60 million chance at political freedom is far from sufficient. In many democracies, voters’ already miniscule chance of making a difference is further undermined by institutional corruption, “capture” of the political process by narrow interest groups, and other forces that make it harder for the electorate to influence government policy.

In addition, the effectiveness of the ballot as an exercise of political freedom is vitiated by the reality that voters have little incentive to acquire enough knowledge to make an informed decision. Because the chance of casting a decisive ballot are so low, most voters devote little time and effort to acquiring politically knowledge; they are “rationally ignorant.”

By contrast, migration rights enable individuals to have a genuinely decisive say in choosing the policies they wish to live under. An individual or family can migrate from one nation to another regardless of whether millions of others agree with the decision or not; or at least they can if governments do not use force to prevent it. And, unlike ballot box voters, migrants who “vote with their feet” have strong incentives to acquire adequate information about their decision, and use it wisely. While liberal democracies do not differ from each other as starkly as from authoritarian states, there is still substantial policy divergence between them on issues as varied as health care, economic regulation, land use policy, education, taxation, and law enforcement policy. That creates opportunities for meaningful international foot voting. Where governments permit it, many people already vote with their feet for such reasons.

None of this suggests that the ballot is utterly worthless. Democratic elections are often an important check on abuses of government power. But they are not enough to give individuals meaningful political freedom. That goal can only be achieved by giving people the power to “vote with their feet” as well as at the ballot box. Even for citizens of democratic states, political freedom is greatly enhanced by having the right to migrate to other nations.

Even in the absence of restrictive immigration policies, not everyone can effectively use international migration to enhance their political freedom. For many, the costs of moving are likely to be too great. Others are unable to make the adjustment to living in a society with different language or culture. Nonetheless, freer international migration could greatly increase political freedom for millions of people, even if it is not a complete solution for the problem of political oppression.


III. What About the Political Freedom of Citizens of Receiving Nations?

Immigration restrictionists might object to the above argument on the grounds that it ignores the political freedom of citizens of receiving countries. If they have to accept immigrants they may not want, that might vitiate their own freedom to choose their government’s policies. The new migrants could, for example, vote for policies that are inimical to the interests of natives. There may indeed be cases where the harms inflicted by immigration on natives are grave enough to justify restrictions on immigration. The political freedom of potential migrants is not an absolute right that always trumps all other considerations. But in the vast majority of situations, any such harms can be dealt with by “keyhole solutions” less draconian than excluding migrants, and forcibly consigning many of them to lives of poverty and political oppression.

For example, the obvious remedy for concerns that immigrant voters will undermine the political freedom of natives is to have a long waiting period before immigrants are allowed to gain the franchise or – in extreme cases – even deny them the vote entirely. Living in a nation without voting rights may be unjust to immigrants. But, in many cases, it will still be far better than being forcibly consigned to poverty and political oppression in their home countries. At the very least, their political freedom is enhanced by having the right to make the choice between the two for themselves. There are also a variety of other possible solutions for potential “political externalities” of immigration.

Restrictionists could still argue that denial of the ability to exclude migrants undermines the political freedom of natives even if immigration does not lead to objectionable changes in other government policies. But the right to political freedom surely cannot encompass the power to complete destroy the political freedom of others, as happens when residents of authoritarian states are denied the only means by which they can exercise any political choice at all. That is like saying that the right to religious freedom includes a right to force others to practice your own preferred faith if you believe God commands you to forcibly convert infidels. Moreover, any reduction in natives’ political freedom caused by an inability to exclude migrants irrespective of their influence on other policies is minor compared to that suffered by potential migrants who are trapped in authoritarian states by restrictionist policies.

Even in cases where immigration does cause some harm that cannot be alleviated by keyhole solutions, any such harm must be weighed against the many wrongs caused by immigration restrictions themselves. Political freedom should be an important factor in any such analysis. It certainly is not the only issue that must be weighed in debates over immigration policy. But it is a major and oft-ignored consideration tipping the scales towards broader migration rights.

Ellis Island and keyhole solutions

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Nostalgic treatments of open borders in the United States often reference Ellis Island, an immigration checkpoint through which millions of people from Europe, Africa, and Asia entered the United States from 1892 to 1954 (immigrants from Latin America generally entered via land and did not need to go through a checkpoint). With the exception of a few laws such as the Chinese Exclusion Act of 1882, the US had virtually open borders until the Emergency Quota Act of 1921, followed by the more comprehensively restrictive Immigration Act of 1924. In this blog post, I explore a few aspects of the immigration processing at Ellis Island, and compare them with how things are today. This post can be thought of as loosely related to, but not quite part of, the series started by my co-blogger Chris Hendrix.

Then versus now alert

Many things have changed between then and now. Open borders today would be a far more radical proposal than it was back in the era of Ellis Island, just in terms of the number of people who would likely move around. Falling transportation and communication costs, as well as a higher-than-ever place premium, are the obvious culprits. For these reasons, this blog post should not be interpreted as an attempt to sentimentally use a historical analogy of limited scope to sneak in an open borders conclusion, but simply an examination of the kinds of concerns that people had back then.

The legislative backdrop

(This section was added after publication of the post, based on additional understanding I gained about the timeline of immigration legislation in the United States).

Ellis Island became operational as an immigration station in 1892. It was part of the implementation of the provisions of the Immigration Act of 1891 (note: I created this Wikipedia page). This Act built on the Immigration Act of 1882 (the first major federal immigration enforcement legislation) and the Alien Contract Labor Law. In particular:

  • The Immigration Act of 1882 was the first to set formal rules regarding the regulation of entry of immigrants by sea. The Immigration Act of 1891 also extended this to people arriving by land.
  • The Immigration Act of 1882 had a few classes of excludable immigrants. The Immigration Act of 1891 expanded the list significantly, and also had a provision for medical inspection of immigrants. The medical inspection procedure at Ellis Island was the implementation of this provision.
  • The head tax on migrants mentioned later in the post was first provided for in the Immigration Act of 1882, and upheld by the Supreme Court in Head Money Cases. This tax was gradually increased in tandem with increases in the cost and complexity of immigration enforcement. I discuss the “user-funded” nature of immigration enforcement here.
  • The Immigration Act of 1891 clearly specified that the financial burden of returning prospective migrants who were deenied entry fell on the migrant’s sponsor. For migrants who had just arrived, it was the responsibility of the captain or master of the ship that brought the migrant to carry the migrant back home. Refusal to do so carried a fine, and refusal to pay the fine caused the ship to be grounded.

There was also a parallel stream of legislation developing to more effectively exclude Chinese. The Chinese Exclusion Act was passed in May 1882, the same month as the Immigration Act of 1882. There was other legislation pertaining to the Chinese (Scott Act of 1888, Geary Act of 1892). We currently have a blog post by Chris Hendrix on the debates leading up to Chinese Exclusion and how well the arguments hold up, and separately, by me on the implementation of the Chinese Exclusion Act. The period also saw increased rates or rejection of people from Asia (in particular, from Japan) using the provisions of the Immigration Act of 1891. However, most prospective migrants from Asia landed at ports on the West (i.e., bordering the Pacific Ocean) and are therefore not too relevant to the story of Ellis Island.

Whites/Europeans only?

Some critics of open borders would be quick to point out that migration to the United States in the beginning of the 20th century was largely migration of “whites” from Europe, whereas open borders today would entail huge amounts of migration from Asia, Africa, and Latin America. It is true that the de facto levels and proportion of migration from these continents would be much more today than in the 20th century. But I haven’t found any evidence that, apart from the Chinese Exclusion Act (which Chris argues was a terrible idea in hindsight) there was any large-scale attempt to block immigration, de jure or de facto, from any other nationality (until the Acts of 1921 and 1924). In addition to European immigration, there was some immigration from Africa and the Caribbean, mostly arriving via the Atlantic. Immigrants from Asia (excluding China) mostly arrived at ports in the Western United States, via the Pacific Ocean. A couple of people have made related points suggesting there may have been some level of discrimination based on nationality:

  • People of Asian ethnicity and appearance were probably discriminated against. Anti-Chinese prejudice was a special case of a somewhat larger phenomenon of anti-Asian prejudice, and though only the former manifested itself in law, the latter may have had some effect on the ground. In particular, Asians were more likely to get rejected based on provisions of the Immigration Act of 1891, as being deemed likely to become public charges. Note, however, that most Asians didn’t even arrive at Ellis Island, but rather at Western ports. The Pacific analogue of Ellis Island, Angel Island, would only become operational in 1910.
  • In his post about Thomas Sowell, Alex Nowrasteh talked about the Dillingam Commission. Officers at the immigration checkpoints may well have been influenced by the findings of these commissions, and this may have influenced their decision of whom to admit and whom not to admit.

With all that said, the overall rejection rate at Ellis Island was estimated as being around 2%. This means that even the worst discriminated against nationalities are unlikely to have had a huge rejection rate (as noted, this excludes most entrants from Asia). Incidentally, this rejection rate earned Ellis Island the nickname of “Heartbreak Island” (more on that later).

How did Ellis Island process potential immigrants?

Here are two quotes from the Wikipedia page:

Generally, those immigrants who were approved spent from two to five hours at Ellis Island. Arrivals were asked 29 questions including name, occupation, and the amount of money carried. It was important to the American government that the new arrivals could support themselves and have money to get started. The average the government wanted the immigrants to have was between 18 and 25 dollars. Those with visible health problems or diseases were sent home or held in the island’s hospital facilities for long periods of time. More than three thousand would-be immigrants died on Ellis Island while being held in the hospital facilities. Some unskilled workers were rejected because they were considered “likely to become a public charge”. About 2 percent were denied admission to the U.S. and sent back to their countries of origin for reasons such as having a chronic contagious disease, criminal background, or insanity.[24] Ellis Island was sometimes known as “The Island of Tears” or “Heartbreak Island”[25] because of those 2% who were not admitted after the long transatlantic voyage. The Kissing Post is a wooden column outside the Registry Room, where new arrivals were greeted by their relatives and friends, typically with tears, hugs and kisses.

The trickiest part appears to have been the medical inspections:

To support the activities of the United States Bureau of Immigration, the United States Public Health Service operated an extensive medical service at the immigrant station, called U.S. Marine Hospital Number 43, more widely known as the Ellis Island Immigrant Hospital. It was the largest marine hospital in the nation. The medical division, which was active both in the hospital and the Great Hall, was staffed by uniformed military surgeons. They are best known for the role they played during the line inspection, in which they employed unusual techniques such as the use of the buttonhook to examine aliens for signs of eye diseases (particularly, trachoma) and the use of a chalk mark code. Symbols were chalked on the clothing of potentially sick immigrants following the six-second medical examination. The doctors would look at the immigrants as they climbed the stairs from the baggage area to the Great Hall. Immigrants’ behavior would be studied for difficulties in getting up the staircase. Some immigrants entered the country only by surreptitiously wiping the chalk marks off, or by turning their clothes inside out.

Alex Nowrasteh sent me a link to a book chapter by Claudia Goldin where she writes (speculatively):

Because the shipping companies that brought immigrants across the ocean were responsible for the return voyage of any who did not meet U.S. immigration standards, it is likely that these companies would have administered a literacy test of their own, in the same way that they screened for health violations in European ports.

A few things that struck me:

  1. In a sense, it’s telling that a rejection rate of about 2% earned the island the nickname of “Heartbreak Island.” Today, the rejection rate for first-time applications is about 15-20%, and the rejection rate considering repeated applications is about 10-15% (see here and here). One might also argue that there is more pre-screening today than in the past: people who don’t have the appropriate authorization documents don’t even get to the stage where they apply for a visa, because the system won’t accept their application, and the application fee deters frivolous applications. (The shift to requiring a visa began at the end of World War I and was solidified in the 1920s; more information is on the Wikipedia page on consular nonreviewability (history section). On the other hand, having to pay for a voyage and actually undertake it is also pretty strong pre-screening for desire to move. Further, the quote above suggests that shipping companies did some pre-screening of their own, though the extent of that is unclear.
  2. It can also be argued that immigration law today can be just as strict as that at Ellis Island while being far less cruel. In the days of Ellis Island, a person had to endure a long and expensive journey in cramped conditions and then got to “apply for a visa” so to speak. Today, people can apply for visas to consulates in their home countries. Possibly, with more open borders, consulate capacity would need to be expanded, or outsourced (and the higher costs of this expansion could be met through increased fees on immigrants). But at any rate, in so far as the process of rejection happens before the immigrant books the plane, bus, or ship ticket, this is less cruel on the immigrant.
  3. It’s also interesting that, even in this era where a federal welfare state, and state-level welfare states, were practically non-existent, immigration authorities were concerned about the ability of potential immigrants to fend for themselves and not become “public charges” — however, we need to keep in mind that poverty was a lot worse overall, so there were serious concerns about immigrants overstretching private charitable resources when a lot of natives were in desperate need of these. It’s notable, though, that very little money was charged of the immigrants. [ETA: I had originally written that no money was charged of the immigrants, but this seems to be factually incorrect. The Immigration Act of 1882 set a head tax of 50 cents on all entering immigrants, which was increased in stages to 8 dollars by 1917. It’s not clear if this tax was charged of all immigrants.]They were simply required to demonstrate that they possessed some money; it wasn’t taken from them: “The average the government wanted the immigrants to have was between 18 and 25 dollars.” According to this website, $25 in 1900 dollars would be somewhere between $583 and $18,300 in today’s dollars, and the simple CPI calculation would put it at $691, and the actual “head tax” would, under the same CPI calculation, come to about $200. I think the relevant figure for our purpose is a CPI-type value, so this is not a demanding requirement]. Presumably, the goal was that there should be enough money for them to move around in search of jobs and places to live. Today, most people who migrate temporarily or permanently already have their first job or place to live lined up for them. Reading some restrictionist critiques of that era, it seems one of the chief (and valid) concerns of restrictionists was that the immigrants would essentially stay stuck near the port of arrival because they didn’t have the funds or knowledge to look for jobs elsewhere in the country — so a requirement to demonstrate some funds probably went a long way here.
  4. The medical inspections procedure feels demeaning, but in another sense it is probably one of the fastest and most efficient ways of handling a large number of immigrants. The rough idea: quick physical inspection to identify people who might need a more thorough inspection, then follow up with more detailed inspection for those people marked for more inspection. This was also a time and era where there was much more serious danger of infection and much fewer resources and techniques to combat such infections. In today’s world, it’s possible to have far more reliable screening for diseases at possibly a somewhat higher cost, without being demeaning or imposing much uncertainty on migrants.