Tag Archives: open borders advocacy

The Cognitive Dissonance of Immigration Law

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Jawziya Zaman, a former immigration attorney, wrote a piece in Dissent Magazine last month about why she left the practice of immigration law. She wrote about the internal conflict attorneys face in advocating for their clients’ material interests by collaborating with the government to suppress clients’ inherent human dignity. Zaman practiced immigration law in San Francisco for four years, leaving her job shortly before Trump was elected. She relayed some positive aspects of her work: working with supportive and dedicated colleagues and achieving life-changing outcomes for her clients. Yet, the frustrations of the work eventually drove her from the profession, even before Trump’s candidacy and election unleashed a whirlwind of chaos and hostility upon immigrants in the U.S.

Zaman writes:

My frustration with the job, I learned, had to do with how I felt implicated in the flawed premises of immigration law, including its reductionist narratives about other countries and its dehumanization of foreigners. In virtually every case involving defense against deportation, the law insisted that I reinforce tired stereotypes about the global South and force clients to undergo a ritual flagellation before they could be granted the privilege of remaining in the country.

As an attorney gradually extracting myself from the daily practice of immigration law after nearly 11 years, Zaman’s analysis resonated powerfully with me. The contradictions and hypocrisy of the immigration system, which reflects the U.S.’s problematic position in the world and the injustice of the current global order, became too much for me to bear.

Zaman highlights the dissonance of protesting detention of Muslims at airports while ignoring civilian victims of U.S. bombing in Yemen and other predominantly Muslim countries. She asks, “Is it only by virtue of seeking entry into this country that foreigners become human beings worthy of our regard?” She notes the irony of a legal system that rejects and punishes migrants fleeing from problems caused by U.S. foreign policy. She writes about the wrongs the U.S. has committed in the guise of national defense, foreign policy, development, and trade. Many of these policies have contributed to violence, poverty, and instability that have made migration the least bad choice for many people. For the U.S. to not only reject but morally condemn those same migrants constitutes rank hypocrisy.

Zaman highlights several grating elements of the immigration legal system:

[T]o add insult to injury, the law demands that immigrants renounce the place of their birth and take a kind of medieval oath of fealty to the United States.
. . .

The bedrock upon which the defense and the prosecution build their arguments in virtually every case is the same: America is the superior option—it’s better than wherever you came from.
. . .

Different circumstances call for different forms of legal relief, but a central feature in many of our cases is that our client did wrong and now he’s terribly sorry. Confession and penance are akin to sacraments in immigration law, and the process of asking the government to pardon your client’s digressions is a disconcerting combination of formulaic and theatrical.

These assertions are consistent with my experience. Arbitrary outcomes and nonsensical legal concepts like “crimes involving moral turpitude” support the argument that immigration adjudication is more a moral or social judgment than a legal one. Immigration law often departs from formal principles of the rule of law such as predictability, transparency, and impartiality. Immigration law is complex and opaque, with laws, regulations, case decisions, policies, and guidelines scattered across dozens of court and agency websites. Few sources of law are available in any language other than English, which of course many immigrants do not speak or read. Some immigration laws have been retroactively applied. Due to gridlock in Congress, much of immigration law has shifted from clear statutory rules to discretionary or temporary guidelines, which further decreases predictability of outcomes.

In the wake of the influx of Central American child refugees in 2014, the president of the National Association of Immigration Judges described immigration cases as “death penalty cases heard in traffic court settings.” Immigration Courts are administrative courts that are part of the executive branch, not the independent judiciary. As a part of the Department of Justice, they retain an implied prosecutorial mandate. Asylum denial rates among judges vary from 3% to 99%, a disparity that demonstrates the incredible discretion vested in judges. Due process is more limited in the immigration context than in the criminal system. The federal rules of evidence do not formally apply and are often waived or ignored by immigration judges. Many immigrants in deportation proceedings do not have a lawyer, since court-appointed counsel is not required to be provided even for indigent non-citizens. Perhaps unsurprisingly, these systemic factors make deportation defense so difficult that hundreds–perhaps thousands–of U.S. citizens are likely deported every year.  

If the immigration legal system is disconnected from the principles of rule of law, something else must be driving immigration adjudication. Following up on Zaman’s piece and based on my own experience, the unwritten principles of immigration law can be distilled as follows:

  1. You have no right to be here. Your presence depends on the government’s forbearance and your willingness to participate in your own ritual humiliation. This country and the people who truly belong here owe you nothing, which is why judges, bureaucrats, prosecutors, and even your own defense counsel can transgress social norms and ethical rules with impunity. By being here, you have violated a critical norm. This is true even if your presence in the U.S. is technically legal, for instance, if one of the federal immigration agencies made a legally erroneous determination that landed you in court or if you applied for asylum, which is legal under domestic and international law.
  2. Your country of origin is inferior to the U.S. in some essential way. Your government abuses or neglects its people; your compatriots subscribe to racist, homophobic, or misogynist ideas; your legal and economic systems are irredeemably corrupt and ineffective; or your culture fails to produce in its people whatever characteristic makes Americans successful and prosperous. The U.S. has avoided these pitfalls through the perseverance and foresight of its people. At home and abroad, the U.S. government respects human rights and the rule of law, fosters prosperity, and is, in the words of Ronald Reagan, “a beacon of freedom and opportunity.” Americans are always and everywhere the good guys; you and your culture, however, are guilty until proven innocent.
  3. You are nothing–less than nothing–but if you prove yourself worthy, you too can receive the bounty that awaits the chosen few. In its benevolence, the U.S. has opened its arms to you, one among the huddled masses yearning to breathe free. But only if you don’t screw up the paperwork. Your diligence in that regard will signify your worthiness.

Of course, these “principles” have little to do with justice, rule of law, security, or any defensible moral code. Instead, they are predicated on the racist underpinnings of the immigration system and fundamental ingroup/outgroup dynamics.

In her piece, Zaman captures the indignity of the performative humiliation that is often required of clients in order to avoid deportation. Defense counsel is typically expected to join in the ritual shaming. Not doing so can imperil the defense in individual cases and even damage the advocate’s ability to effectively represent other clients. Maintaining cordial relationships with counsel for the government can pay clear dividends, as the ICE and DOJ attorneys have remarkable influence to impact the ultimate decision under the legal principle of “prosecutorial discretion.” To conserve law enforcement resources, prosecutors have ample discretion regarding the filing of charges, availability of defenses, and ultimate outcome. During the Obama administration, prosecutorial discretion became even more central to the immigration regime. Prosecutorial discretion provided the legal justification for the Deferred Action for Childhood Arrivals (DACA) program, the proposed extension of deferred action to a larger subset of immigrants, and the enforcement priorities guidelines that allowed tens and possibly hundreds of thousands of people to stave off deportation. While hostile judges can find a justification under the law to deny almost any case that comes before them, sympathetic judges and prosecutors can utilize discretion to grant relief in cases that would not warrant relief under a strict reading of the law. The robust discretion granted to prosecutors and judges creates an incentive for counsel to try to stay in their good graces.

As Zaman notes, immigration cases typically begin with a concession of the defendant’s deportability. Early in the Obama administration, a colleague and I challenged that presumption at the outset of several cases at the legal services nonprofit we worked at, filing “motions to suppress” evidence of nationality in an effort to stop deportation cases before they could really begin. We argued that the government did not have sufficient evidence to prove legal deportability, having obtained the evidence in violation of the Constitution’s prohibition on unlawful search and seizure through home raids or pretextual police stops. While this legal strategy had been pioneered in other courts by attorneys like Rex Chen, it was new to the Philadelphia Immigration Court. The ICE prosecutors’ response to our approach was one of disbelief and indignation. The judges were initially baffled. We weren’t playing along like we were supposed to: first yield, then plead for mercy. Eventually, the judges and ICE attorneys got used to suppression cases, and they became another tool in the litigator’s toolbox.

Zaman described a particular case where a client of hers, an older Korean man, was initially unwilling to perform penance to win his case. He wasn’t willing to relinquish his inherent dignity so easily. But when confronted with the immense situational pressure of an immigration hearing, and fearing the stark consequences of failure, he submitted. Reading that description, I recalled a former client of mine who had committed some minor infraction, the details of which now escape me, and was applying for his green card. He had a forthright and unapologetic demeanor. I suggested, with the infraction in mind, that he adopt a more humble attitude during his green card interview. As soon as he figured out what I was trying to say, he said he would do nothing of the kind. His case was approved anyway, and I regretted my advice.   

I fear that many of my undocumented clients have internalized U.S. society’s expectations of them: to be humble, law abiding, hard-working, and family oriented. They are defined by their economic contributions and family connections to U.S. citizens. They ask for nothing more than the opportunity to work to support their families. This narrative is demeaning and ratifies the de facto caste system our immigration system produces. It elides the exploitative nature of the U.S. economic system. I am encouraged when immigrant activists and organizers refuse to adopt the deferential attitude they are expected to have.  

Undocumented immigrants have suffered systemic oppression for decades, without regard to the party in power. The scenarios that clients of mine or of my colleagues have endured are too numerous to recount here. They include:

  • A man knocked unconscious by police in pursuit of another suspect was charged with assaulting the police and put into deportation proceedings.
  • An asylum applicant who panicked and tried to flee to Canada to apply for asylum there was stopped by U.S. border patrol on his way across the border, imprisoned, and deported back to his birthplace. (He would not have been subject to the Safe Third Country Agreement, had he been able to enter Canada.)
  • An infant 10 days old was imprisoned with her asylum-seeking mother. U.S. officials claimed the baby was on her way to the U.S. to work.
  • After a 19-year-old mother imprisoned with her daughter at one of President Obama’s infamous “baby jails” was the victim of institutional rape by a guard, the prison forbade the inmates from wearing “tight-fitting” clothing. The prison added several paragraphs to the Spanish version of the inmate handbook instructing women how to modify their behavior to avoid being assaulted at the prison, instructions that were missing from the English version.
  • A woman who had been trafficked into sex work by a transnational criminal syndicate was “freed” by ICE in a raid of the house where the women were being held. ICE referred her to a local nonprofit and washed their hands of the matter. She declined to fight her deportation, since the traffickers had threatened her children who had remained in her country. She most likely either remained in the U.S. or left and was re-trafficked, either way returning into the arms of her traffickers.
  • A woman presented herself at a port of entry at the U.S.-Mexico border as part of a group seeking asylum. To pressure her to relinquish her claim, U.S. officials took her U.S.-citizen children into custody and turned them over to local child welfare officials to be placed into the foster system.

Each of these examples occurred under the Obama administration. It didn’t matter to these people whether or not George W. Bush and Donald Trump were “worse” on immigration policy than Obama. The system designed to crush immigrant lives has long been a bipartisan endeavor.

In evaluating a client’s mental state in order to provide evidence of trauma to support an application for relief in immigration court, mental health practitioners unfamiliar with the immigration system at first point to causative factors stemming from the deportation process itself. These factors can include detention or the threat of detention, the threat of long-term separation from family members, and the paralyzing uncertainty produced by an open-ended and inscrutable legal process. Experienced mental health evaluators know that most judges and prosecutors are blind to harm caused by the deportation process. Even judges who might empathize with a client typically discount such factors, following conventional interpretation of case law. Immigration attorneys soon find that one of their jobs is to persuade clients to jettison their existing ideas about what U.S. society claims to value, since traversing the treacherous path to safety may require it.

I’ve started to tally asylum cases where the harm visited on my clients by the U.S. government or actors the government is unable or unwilling to control would satisfy the legal standard for asylum, were that harm to occur in another country. It happens more often that we might like to admit.

As Zaman notes, the practice of compelling people to denounce their home countries and cultures is troubling. Migrants’ relationships to their birthplaces can generate a complex mix of powerful, sometimes contradictory emotions. Governments in countries of origin are often corrupt and hypocritical. Bigotry in its various forms is deeply embedded in many places. But leaving one’s home, family, and culture is rarely easy. And the U.S. has little standing to criticize other governments, given its own failings. Yet the U.S. immigration system tends to expect a reductive and derogatory accounting of immigrants’ experiences in their countries of origin.

Over time, practitioners get worn down. It’s easier not to fight each routine indignity. I’m inspired by my colleagues in the immigration bar who don’t reflexively concede, the troublemakers and reprobates, the pugilists and iconoclasts. (You know who you are.) And the immigrant fighters who stand up to a system meant to destroy them are simply heroes.

In the course of learning about immigration law and its problematic norms, I became more and more aggravated. Blogging and providing support to immigrant rights organizers helped temper my frustration. Later, I encountered the Open Borders website and a nascent online community of proponents of radically freer immigration policies that the site fostered. My gradual acculturation to the immigration system, and my resignation to the reality that zealous advocacy on behalf of any individual client usually meant participating in their degradation, signaled that it was time to leave the daily practice of immigration law. Last year, I incorporated a nonprofit organization to advocate for open borders. I stopped taking on new clients. I felt as though a burden had been lifted. While my obligations to existing clients mean that I’ll be working on immigration cases for years to come, I am able to think about my work with optimism again.

Zaman writes:

Before I left the United States, I spent much time wondering why our legal system is so intent on shaming immigrants before granting them any rights. For undocumented immigrants, especially, the unspoken assumption seems to be that they demand what isn’t owed.

Zaman astutely identifies the core assumption underlying the immigration regime: that immigrants are owed nothing since the right of the sovereign state to restrict immigration outweighs the immigrant’s right to migrate in almost all cases. But that assumption is wrong. Immigrants are owed their basic human rights, including the right to enter, the right to remain, and the right to full economic, social, and political inclusion. Those who do demand those things should be supported, not shamed or silenced.

A small but growing number of activists, attorneys, and organizers argue that immigration restrictions should be abolished altogether. Scholars like Joseph Carens and Bryan Caplan have set out a compelling conceptual framework justifying open borders. Attorney Steven Sacco has argued that immigration lawyers can assist their clients to resist the oppressive immigration system, but that does not alone satisfy their moral obligation to be abolitionists. In her piece, Zaman aptly articulates the cognitive dissonance that results from working to promote human rights within a system that is incompatible with human rights. But there is a way forward, and it begins with dismantling the immigration regime.

A Billion Immigrants: Continuing the Conversation

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My recent post, “How Would a Billion Immigrants Change the American Polity?” attracted a fair amount of attention, most recently an article in the Washington Examiner with the deliciously intriguing headline “Open Borders Would Produce Dystopia, says Open Borders Advocate.” The headline, which somewhat misrepresents the more balanced article by Michael Barone that appears beneath it, is a crude caricature yet in its way bracingly lucid, for it points to what I think this debate has clarified, namely, that the chief difference between open borders advocates and their critics lies not in what they foresee but in how they assess it. As Niklas Blanchard puts it, “this is purely an emotional dystopia for (wealthy) people of a certain temperament…Smith‘s piece is… maximally grating to the ‘social justice’ crowd” (Blanchard, however, goes on to praise me for rigorous adherence to demand and supply logic in making projections and concludes that he finds my analysis “rather beautiful”– thanks!) but it still features doubling world GDP and ending world poverty and the rest of the good features that open borders advocates want in the world they’re trying to bring about. The disagreement is more about values than facts, more normative than positive. 

I’m very grateful for all the feedback, which was not only abundant, but in many cases, pretty astute! To express my gratitude, I’ll reply to some of it. Probably not many of those who responded to the first “billion immigrants” post will ever read this one, but it seems right to have a response, so that anyone who cares to look, knows that I’m listening. (I already engaged a bit at OBAG.)

One point that was raised privately by my colleagues here at Open Borders is that the migration of a few billion around the world (“a billion immigrants” refers, very roughly, to the projected  immigation to the US alone) might not happen as a steady flow, but rather, as a response to crises, such as civil wars, economic depressions, natural disasters, anthropogenic global warming, etc. Or perhaps, more positively, in response to dramatic economic booms, the emergence of new cultural meccas, or religious quests to establish new Jerusalems, such as brought the Puritans to North America and the Mormons to Utah. The Syrian civil war has produced over 4 million refugees, almost one-fifth of Syria’s pre-war population. That’s tragic, but much better than the experience of the Jews on the MS St. Louis,  many of whom died in the Holocaust after an attempt to emigrate from Nazi Germany was thwarted because no one would permit German Jews to immigrate. For some, this may mitigate the implausibility of a billion immigrants coming to the US. I don’t find a billion immigrants prima facie implausible, but this “punctuated equilibrium” version of the scenario seems at least as likely as a steady flow version.

Alex Nowrasteh also pointed out that Americans might respond to a billion-immigrants scenario with more aggressive “Americanization” policies, such as were adopted in the USA around the turn of the last century, about which he wrote an interesting and informative Cato blog post. His take is mildly negative, but I would regard an Americanization campaign led by civil society as quite benign, and even an aggressive, government-subsidized, mildly intolerant Americanization campaign would be very benign compared to current migration restriction policies. However, I don’t know what “Americanization” would mean today, because American culture seems so fractured that I don’t see much to assimilate to. I love listening to bluegrass gospel, which to me represents the very soul of America, yet there is another America where San Francisco liberals would feel at home, and which to me is more hostile and alien, not than Iran perhaps, but certainly more so than many a Christian church in Africa, Russia, or Latin America. I don’t know what Americanization would mean today.

Big Think has a pretty good article about my article, entitled “Thought Experiment: What if the US Had 100% Open Borders?” The summary of my hypothetical is pretty astute, though I might object slightly to this:

What’s most interesting is how Smith conjures a scenario out of which American constitutional democracy becomes so destabilized that it collapses beneath its own weight. We’d be looking at a new world order and an American polity unrecognizable compared to the present.

“Collapse” is the wrong word. What I projected (again, very tentatively: no doubt these disclaimers become tedious, but I want to prevent anyone from investing too much epistemic confidence) is “a new world order and an American polity unrecognizable to the present,” but the path to it would be a kind of swift and mostly peaceful evolution, not any revolutionary collapse. And I’m not sure, in an age of runaway judicial activism, what the phrase “American constitutional democracy” means, anyway. (The phrase “American constitutional democracy” would have had a clear meaning in 1900 but not in 1950. The phrase “American democracy” would have had a clear meaning in 1950, and to a lesser extent in 1980, but not today.) Which leads to my other objection to the piece:

For many people, that might sound like a reason to scrap a 100 percent open-border policy. Smith is not one of those people. He’s got a bone to scrap with American politics and wouldn’t mind it turning into collateral damage amidst the rush of a brave new society [followed by my comparison of modern constitutional law to the late medieval Catholic theology of indulgences and my call for a kind of Lutheran Reformation to overthrow it.]

I can see how someone who read only that article might get the impression that my main reason for supporting open borders is my indignation at judicial activism. This is a case of being misunderstood because one reaches unanticipated audiences. I was writing for regular readers of Open Borders: The Case, who already know my main reasons for favoring open borders. That post reached a wider audience and so caused confusion. A quick review of my position may help.

My major reasons for supporting open borders may be classified into the deontological and the utilitarian:

Deontological. Human beings have rights, arising from their own natural telos, which we must respect. By “must” I mean something close to an absolute prohibition: I would tend to say that one mustn’t torture an innocent child even to save a great city from a terrorist attack. However, life doesn’t generally present us with such stark test cases. More often, we are tempted to violate human rights to prevent amorphous threats clothed in bombastic rhetoric. Thus, Nazi soldiers were driven to terrible crimes by spurious fears of Malthusian national impoverishment or starvation if Germany didn’t acquire sufficient Lebensraum, and even more spurious fears of a conspiracy of international Jewry against the German race. Astute intellectuals may see through such propaganda, or even refute it, but for the ordinary person, the key is to cling stubbornly to one’s humanity and the dictates of conscience, and refuse to commit crimes, no matter how vividly society makes you believe in the horrors that will come from not committing them, and no matter how propaganda stirs your passions to make you want to commit them. Now, migration restrictions involve doing terrible things to people. US immigration enforcement separates thousands of parents from their children by force ever year. European coast guards are culpable for a mounting toll of migrant deaths at sea, and so on. These things simply must stop.

We are not at liberty, as moral beings, to read through my “billion immigrants” scenario and think, “Hmm… Do we want that? No, we’d rather not.” In order to maintain migration restrictions, people who work for governments that represent us are doing things that must not be done. We are constrained by the imperative of human rights, constrained far more tightly than most in the West have yet been willing to admit to themselves. We are guilty every day that we tolerate the status quo. I won’t say, quite, that human rights imperatives demand open borders. (People have a right to migrate inasmuch as their practical telos requires migration, e.g., if it’s necessary to survival or earning a living, while in other cases there is a liberty to migrate in the sentence that no one else has a right to prevent migration by force. See Principles of a Free Society for details.) Rather, I doubt that any policy short of some kind of open borders simultaneously gives adequate respect for human rights and makes it incentive-compatible to obey the law. My “billion immigrants” scenario isn’t like an item on a restaurant menu, which a patron may choose, or not, according to pure preference. It’s more like a forecast of how the courts are likely to treat a robber if he does his duty by turning himself in to the law. Of course, such a forecast might give a robber self-interested reasons to turn himself in– the jail cell may be warmer than his hideout in the woods, with better food; and if he turns himself in he’ll get a shorter sentence– but these are secondary. I hope readers will find the prospect of a billion immigrants not too unpleasant, and that it will encourage people to do the right thing, but if the prospect is frightening, still we must stop deporting people, and prepare ourselves for the consequences.

Utilitarian (universalist). My other major reason for supporting open borders is that it is the best way to promote the welfare of mankind. This belief is based primarily on economic analysis, and more generally is derived from my expertise in international development. As far as I can tell, it seems to be broadly shared by others with similar expertise who have studied the question. Even a thinker like Paul Collier, an expert in international development and a critic of open borders or greatly-expanded immigration, does not so much dissent from the proposition that open borders is optimal in utilitarian-universalist terms, as reject utilitarian universalism as a mode of ethical analysis.

But how can open borders be optimal from a utilitarian-universalist perspective when my “billion immigrants” scenario is so dystopian? Simple: it isn’t dystopian, except from a certain historically myopic and rather unimaginative American/Western perspective that takes “democracy” as the magic word distinguishing everything good from everything bad, without thinking deeply about what the word means. My “billion immigrants” scenario does not involve widespread deprivation of real human goods like food, art, material comforts, family life, freedom of conscience and worship, health, education, truth, adventure, etc. On the contrary, it would seem to involve greater enjoyment of those things by almost everyone, native-born and foreign-born alike. The most dystopian aspects of the scenario, e.g., “latifundia” paying wages that look like slave labor to Americans, aren’t novel features of an open borders world, but features of our present world, which open borders would simultaneously move and mitigate. In soundbite format: open borders would bring sweatshops to America, but they’d be more humane and pay better wages than the sweatshops in China and Indonesia that would mostly vanish as their workers found better lives abroad. Meanwhile, for many an Indian or African peasant, even a steady job in a sweatshop is the end of the rainbow. (Also see John Lee on how open borders would abolish Bangladeshi sweatshops.)

How do these deontological and utilitarian-universalist meta-ethical* perspectives interact? A crude but helpful model is to think of ethical problems as analogous to the consumer’s problem in economics, with the utilitarian-universalist goal of maximizing the welfare of mankind serving as the “utility function,” while deontology provides the “budget constraint.” Deontology dictates that there must be no violence except in self-defense or retaliation against violence, plus a few other things like no lying, no adultery or (I would add, more controversially) premarital sex, no abandoning one’s spouse or children, no non-payment of one’s debts, and so forth. (Just because deontology dictates that it’s wrong doesn’t mean it should be illegal, e.g., most private lying is wrong but probably shouldn’t be punishable by law.) Within the constraints imposed by deontology, we can consider which courses of action are most conducive to promoting the welfare of mankind, and pursue them. At this point, if I were writing a treatise on ethics, I would segue into virtue ethics, explaining how contributing to the welfare of mankind involves the pursuit of all sorts of excellence; but the pursuit of excellence in turn requires certain traits or habits, such as courage, justice, prudence, temperance, faith, hope, and love, which we call virtues; and how, once acquired, we recognize that these virtues are not only the key to effectiveness in all sorts of situations and to doing any real good in the world, but are more desirable in themselves than any merely material pleasures, or any praises from multitudes. But for the present, it suffices to establish that deontology and utilitarian-universalism both point the way to open borders. The need to respect human rights and the moral law, and the desire to promote the welfare of mankind, are why I support open borders. That it might destabilize the judicial oligarchy that currently misgoverns the US is just a small side-benefit.

Next, I’ll turn for a moment to what stands out as one of the least astute reader responses to the article (whom I’ll leave anonymous, but it’s at Marginal Revolution):

Am I the only person who thinks this sounds really, really bad? Transition from republic to empire? Rich people employing almost-slave laborers? No social safety net? No more ‘one person, one vote’? Lots of gated communities? Destruction of the living standards of native-born Americans?

Sometimes my “billion immigrants” scenario seems to have served as a kind of Rorschach test. In the mass of detail, people saw whatever they were predisposed to see. I didn’t predict a “transition from republic to empire.” Rather, I used Rome’s transition from republic to empire to illustrate how a superficial continuity of a polity could be consistent with substantive transformation. I would expect open borders to lead to substantive transformation of the American polity, combined with superficial continuity, but the substantive transformation isn’t aptly described as “transition from republic to empire.” A more astute reader might have noticed that at the end of the transition, my open borders scenario looks rather like the Roman Republic in its heyday, say around 200 B.C., with a well-armed citizen minority ruling fairly beneficently (for one has to grade historic regimes on a very generous curve) over a large and diverse subject population, who to considerable extent consented to Rome’s/America’s rule.

However, according to a post on BMW Aktie kaufen, the “transition from republic to empire” misconception is somewhat understandable. What’s baffling is the impression that I predicted “destruction of the living standards of native-born Americans.” On the contrary, I predicted continuous, surging economic growth, an enormous rise in the stock market, major appreciation of home values, lots of business for professional workers, government handouts and subsidies to the native-born, cheap drivers, cheap nannies, cheap domestic servants… basically, a bonanza for native-born Americans, to the point where many of them become a rentier class whose greatest complaint is the ennui of idleness. Admittedly, I also foresaw that some natives would see their wages fall, but the loss would be more than made up for by other income sources. I also suggested that threats of revolt might lead to the conscription of natives into a domestic police force, but while some might find that unpleasant, it’s not a case of falling living standards. It’s one thing to say that I’m wrong about all this, and that the impact of open borders on most native-born Americans would actually be the destruction of native-born Americans’ living standards, perhaps because restricting immigrants’ voting rights would prove politically infeasible, and immigrant voters would degrade institutions and/or redistribute resources to themselves via the ballot box. But this commenter seems to think that I predicted the destruction of natives’ living standards. I wonder how often writers get blasted as having said the exact opposite of what they actually said.

I found this comment by Jorgen F. a pithy characterization of me:

He is convinced that only white people in the West can create a decent society. Hence America should create a shortcut for the rest of the world.

You know, America should care more for non-Americans than for Americans. It is so beautiful.

That’s not far wrong, though of course I don’t think the capacity to create a decent society has anything to do with race. I think it has more to do with 2,000 years of cumulative Christianization (in which story, historical episodes like the High Middle Ages when parliaments and universities and the common law appeared, the Renaissance, and the benign early Enlightenment, were chapters). Nor is high economic productivity synonymous with “decent society.” But I do think that Western societies are going to be nicer places to live than most of the rest of the world for a long time, so I’d like to see a lot more people get the chance to live in them. And of course we should care more about non-Americans than Americans, because there are a lot more of them, just as we should care more about non-Russians than Russians, non-Chinese than Chinese, etc. That said, since I propose to tax immigration to compensate natives for lost wages (DRITI), I can actually make a citizenist case for open borders too. I think open borders can be designed to benefit almost all native-born Westerners, without much reducing the benefits to the rest of mankind. But the main reason for opening borders is to respect human rights and end world poverty. When I worked for the World Bank, I was proud that its motto is “Our dream is a world free of poverty,” and in advocating open borders, I’m still being faithful to that vocation.

A comment by E. Harding that:

This is precisely the kind of atomism that anti-libertarians decry.

is directed less at me than at fellow commenter Chuck Martel (who had given reasons why he shouldn’t care about most of his fellow Americans), but E. Harding may also have had me in mind. As I argued in a post some time ago, I’m not ultimately very individualistic in my view of human nature and human happiness. Human flourishing almost always has a communal character, and this insight is necessary to fully appreciate the evil of migration restrictions, which inevitably lead to deportations and the forcible separation of families. “Communitarian” arguments against open borders generally boil down to “we’ll protect our communities from possible disruption by shattering your communities by force.” Open borders would allow families and other communities forcibly kept apart by migration controls to come together.

One of the comments I found most horrifying was by Horhe:

I do not understand how anyone can read [Smith’s article] and some of the other writings online and offline that doubt the wisdom of open borders (I particularly liked “Reflections on the Revolutions in Europe” by Christopher Caldwell) and still think that this is a good idea.

If the closed borders crowd are wrong and you do it their way, then nothing is lost and you can open the borders some other time, when people might be more easily absorbed because of lower disparities. But if they are right, and the open borders people get their way, then there is no going back to the way things used to be, without a bloody ethnic war. Which, come to think of it, might actually be started by the newcomers, who would be hurrying history along.

Now, I consider myself a Burkean conservative as far as conscience permits; I always advocate due regard for the precautionary principle; and in my vainer moment I sometimes think that Chapter 2 of my book The Verdict of Reason is a defense of tradition worthy of G.K. Chesterton. But there are fundamental principles of right and wrong that are deeper and more sacred than any human traditions, and in the face of which any mere precautionary principle must give way.

When I was a passionate Iraq War advocate some years back, I never forgot that in supporting the war, I was making myself complicit in a lot of killing, including some killing of innocent people. I thought the price was worth it, to abolish one of the two (Saddam Hussein vs. North Korea was a close call) most detestable totalitarian tyrannies on earth, but it was a great moral burden. Migration restrictionists, too, have a duty always to remember the human toll of border controls: the people stuck in poverty; the families forcibly separated. Maybe, even if they contemplated this frequently, some would still conclude that migration restrictions are a tragic necessity. But to say “nothing is lost”… the mind boggles in horror! How is such callousness possible?

I would not have enjoyed explaining to a bereaved Iraqi mother why I had supported the war that had just killed her son. But I could have done it. I would have spoken of the horror of totalitarianism, the transcendent moral importance of living in truth, and the value of setting a precedent that would make future murderous dictators doubt their impunity. I think many an Iraqi mother, after what her country had been through, would have understood me. Poll evidence tends to suggest that, while by 2005, the Iraqis already wanted the US out, most thought the hardships of the war and transition were worth it to be rid of Saddam.

Migration restrictionists should put themselves to the same moral test, taking responsibility for the vast human toll of the policies they advocate. How would you explain to a mother who is being deported from her children, not to see them again for a decade perhaps, or even forever, why her life is being thus shattered, when she never harmed anyone, never did anything to the Americans who are doing this to her, except clean their houses, or pick grapes and oranges for their table? There might be arguments that would mitigate the offense, but to say that “nothing is lost” since we can always stop doing these horrible things “some other time”… can such a detestable blasphemy, at such a moment, be imagined?

My imagination conjures a scene in which Horhe and his ilk are compelled by some Ghost of Christmas Present to watch, invisible and helpless, as some weeping mother is seized and dragged away from her terrified and uncomprehending children. Their humanity awakened, they plead with the Ghost: “Spirit, please, let them stay together!” And then the Ghost, in the appropriate tone of sneering contempt, quotes their own words back to them: “Later, when people might be more easily absorbed because of lower disparities, we’ll let families like these stay together. Nothing is lost by waiting.”

The answer to Horhe is: Repent! Find the ugly place in your soul from which such heartless thoughts arise, and kill it!

But sorry for getting so heated. I’m not living up to Bryan Caplan’s praise of Open Borders: The Case as a “calm community of thinkers.”

Thiago Ribeiro’s response to Horhe is also good:

If people who were against vaccines, fertilizers, abolishing slavery, abolishing witch trials, eliminating Communism, emancipating the Jews (…) nothing would be lost. Those things could have been dealt with later… Status quo bias at its more stupid.

Exactly. Any reform in history could be opposed on such pseudo-Burkean grounds. And contra “nothing would be lost,” vast losses are incurred every single day that we fail to open the borders to migration.

I found the last bit of this comment by Christopher Chang gratifying:

Sweden… for all practical purposes [has] already been running this experiment for more than a decade, and there still is supermajority citizen support for continuing the experiment…

Of course, most open borders advocates are systematically dishonest and avoid talking about Sweden even after they’ve known about it for years, because the “experimental results” to date are much worse than their rosy projections. I’ve repeatedly told them that one of the best things they could do for their cause is advise the Swedes to adjust their implementation of open borders to be less self-destructive (support for the anti-immigration Sweden Democrats has skyrocketed from ~2% to ~25%, so the supermajority is unlikely to hold for much longer unless the government changes course), but they’ve been totally uninterested even though they’ve interacted with e.g. Singapore’s government in the past. Instead they continue to pretend their ideas are “untried” and might constitute a “trillion dollar bill on the sidewalk”.

Since revealed preference is far more informative than rhetoric, I’m sadly forced to conclude that they don’t actually care as much about increasing global prosperity as they do about harming ordinary Westerners they don’t like, even though some of them have done genuinely good work in other areas. (With that said, I hasten to note that Nathan Smith, the author of the linked post, is an exception who respects the principle of “consent of the governed” and has an excellent track record of intellectual integrity.)

In return, I can say that Christopher Chang’s comments have often alerted me to interesting immigration policy developments around the world. However, the claim that Sweden practices open borders seems a bit clueless. A recent NPR piece reports that “for decades, it had a virtual open-door policy for asylum-seekers and refugees.” Virtual. In other words, not an open borders policy, but simply a relatively generous policy. And only “for asylum-seekers and refugees,” which are only a small subset of all would-be immigrants. If you look at the official site about getting work permits in Sweden, it says (a) you need to get a job offer first, so you can’t just go to Sweden and start applying, (b) the job has to have been advertised for 10 days, so Swedes have a head start in applying for it, and (c) “the terms of employment offered are at least on the same level as Swedish collective agreements or customary in the occupation or industry,” thus robbing migrants of what for most would be their biggest competitive advantage: a willingness to work for much lower wages and in worse working conditions than Swedes. Sweden does seem to be fairly generous in its immigration policy, at least relative to other Western countries (a very low bar), but this isn’t open borders, not even close. (I suppose one could argue that the last condition is just immigrants being bound by Swedish labor law, but the point is that Sweden isn’t just making an open global offer for anyone to come to Sweden and making a living as best they can. Setting refugees to one side, it’s hard for most people to get in.)

Jason Bayz makes an interesting remark:

The essay is interesting because, unlike some politically correct libertarians, Smith does not pretend that his open borders experiment would lead to liberal nirvana. He’s quite open about the fact that it would kill things like “equality of opportunity.” Especially interesting is [the] paragraph [about] “gaps… where where representatives of the official courts feared to tread and a kind of anarcho-capitalist natural law would prevail”… Private law? A more traditional term would be Lynch Law. The Middle East would be an apt comparison for its tribalism, discrimination, importance of religion, and “private” settlement of disputes.

Readers have a right to wonder what my cryptic phrase “anarcho-capitalist natural law” was a placeholder for, and I suppose, to fill in the blank in their own way. Yes, lynching is an example of private law, but so are more benign things like eBay’s customer rating system, or in-between things like the private security companies whose logos appeared on every single house in a South African suburban neighborhood where I once spent the night.

I would also want to push aside the mere knee-jerk reaction to the phrase “lynch mob” and raise the deeper question of what is wrong with lynch mobs. I welcome practical objections to lynch mobs, such as that they don’t respect due process and often punish innocent people, or that they’re not even motivated primarily to prevent real crime but instead want to oppress minority communities. I would challenge the assumption, or resist the assertion, that lynch mobs are evil simply because they’re private, unauthorized by a “sovereign” authority. In US history, it may be the case that private law has been, on average, less just than public law, though that’s unclear, when you recall the injustices perpetrated by the US government against many Indian tribes, in upholding slavery, in the Prohibition era, in deporting peaceful immigrants, etc. But certainly the worst crimes of American lynch mobs don’t hold a candle to the crimes of the sovereign regimes of Nazi Germany, Soviet Russia, etc. I would suggest that violence should be judged by the same standard of justice, whether it’s done by “private” or “public” actors. The problem with lynch mobs is that they so often act unjustly,  but as their injustices seem to be much less than those perpetrated by bad governments, our horror of them out to be less than our horror of bad governments, in the same proportion.

As for the suggestion that there is an “apt comparison” to be made between an open borders America and the contemporary Middle East, the obvious rebuttal is that the Middle East is mostly Muslim, whereas an open borders America would almost certainly be majority or at least plurality Christian, since Christianity is the world’s largest religion with over 2 billion believers today and an expected 3 billion by mid-century; Christians would probably be more attracted to the US as a migration destination; and many immigrants of non-Christian origins would assimilate to America’s predominant religion. I’ll assume (since it’s rather obvious but would take a lot of space to explain) that most readers understand that Christianity and Islam are profoundly different, and that religion is a major factor determining the differences between Muslim societies and Christian societies, including those in western Europe, where Christian belief and practice have recently waned, but where the nature of the societies is largely defined by the moral and institutional legacy of Christianity. An open-borders America wouldn’t be majority-Muslim, so it wouldn’t resemble the contemporary Middle East; it’s as simple as that.

Commenter Mulp makes a historical objection to my assumption that an open borders America would restricting voting rights for immigrants and thus end majority rule:

“If open borders included open voting, US political institutions would be overhauled very quickly as political parties reinvented themselves to appeal to the vast immigrant masses, but I’ll assume the vote would be extended gradually so that native-born Americans (including many second-generation immigrants) would always comprise a majority of the electorate. …”

Hey, why not simply discuss US history from 1790 to 1920 when the US had open borders except in California?

It’s true that from 1790 to 1920, the US had open borders and also open voting. But that open borders America never had nearly as large a share of migrants in the population as the economic models predict that a future open-borders America would, and the US government wasn’t an engine of economic redistribution then. I think my scenario is a better forecast of what an open borders future would look like, than an extrapolation from the experience of the US from 1790 to 1920.

Commenter Fonssagrives writes:

If the writer thinks “All men are created equal” is idealistic twaddle, then why do Americans have any moral obligation to let 1 billion foreigners into their country?

This is an interesting objection. It’s symptomatic of the psychic damage that the cult of equality has done to American minds. It invites a longer answer than I’ll make time for at present, but as a placeholder for that longer answer: people are very unequal in their talents and virtues; and treating them unequally is often prudent; but it doesn’t follow they should get unequal weights in a social welfare function.

Jer writes:

Maybe success can only happen (and be spread) if we restrict access to it.

Maybe the world needs a somewhat isolated ‘system experiment’ that can only remain so (and continue along its special type of development), by restricting access, and therefore be a teaching tool through its successes and short-comings.

Maybe ‘moving away’ from your problems is to not solve them at all and certainly does not lead to overcoming them in-situ.

Maybe those who have the ambition to move away were the ones most likely to effect change and improve their origin, with the move likely resulting in the weakening of the source state and increasing world inequality overall. (is it ethical to allow people to emigrate if that depopulation damages the future potential of the source system itself?)

What I like about this argument is that it seems to accept a utilitarian-universalist meta-ethics, and then argues, or at least tries to suggest (“Maybe…”), that migration restrictions (perhaps even ones as draconian as the status quo?) might serve the common good of mankind through the good example that rich countries can set when they segregate themselves from the rest of the world. I find it wildly implausible that migration restrictions anything like as tight as those the West currently has in place are optimal for the welfare of mankind, and even if they were, I’d have human rights objections. Thus, even if preventing “brain drain” from poor countries did aid development there (on balance), I’d still object to forcing, say, Malawian doctors to stay in Malawi, on the same grounds that I’d object to seizing American doctors by force and exiling them to Malawi. I believe in human rights. But if we could establish consensus that utilitarian-universalism (with deontological side-constraints) is the right meta-ethical framework in which to consider the question, that’s a large point gained.

Finally, thanks to John Lee’s OBAG link, I noticed that my “billion immigrants” scenario got linked in a National Review piece by Mark Krikorian entitled “Where There is No Border, the Nations Perish.” Here’s the context:

But the publics of Europe’s various nations aren’t going to tolerate unlimited flows. The diminution of sovereignty engineered by the EU is bad enough for some share of the population, but many more will object to extinguishing their national existence à la Camp of the Saints. (And “extinguishing” is the right word; just read this piece by an open-borders supporter on how U.S. society would change if 1 billion immigrants moved here.)

Krikorian cites my scenario as evidence (almost, flatteringly if unwarrantedly, as proof) that “the nations perish” under open borders, a phrase amenable to multiple interpretations. It is tendentious because the word “perish” might subliminally suggest some sort of threat of genocide. But if it is interpreted simply as “open borders will bring to a close the episode in world history, which began around the mid-19th century, when the nation-state was the predominant form of political organization,” then I’d tentatively agree. Krikorian disapproves, I approve.

In general, it seems that my “billion immigrants” scenario has made me a useful “reluctant expert” for immigration critics to cite. Maybe that should distress me more than it does. I tend to think the strength of the arguments for open borders is so superior that the more we can get a hearing, even if initially an unfavorable one, the better. Many people don’t even know that being an open borders supporter is a live option. If they’re made aware that one can support open borders, they’ll pay more attention to the arguments for and against. On the plane of intellectual argument, open borders advocates have many rhetorical handicaps, but enjoy the long-term structural advantage of being right.

*My use of the term “meta-ethics” is slightly unconventional. For me, utilitarianism, for example, is a “meta-ethical” perspective.

The image featured at the top of this post is a 1917 painting depicting Armenian refugees at Port Said, Egypt.

Related reading

Bernie Sanders and open borders: OBAG highlights

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United States 2016 Democratic Presidential primary candidate Bernie Sanders was recently interviewed by wonk-cum-journalist Ezra Klein for Vox, a publication whose writers include open borders advocate Dylan Matthews and fellow-traveler Matt Yglesias. Matthews has frequently linked to Open Borders: The Case and did a lengthy open borders write-up based on an interview with Bryan Caplan. Klein, not himself an open borders supporter (to my knowledge) has likely been influenced by his colleagues to treat the position with more seriousness than most journalists do. So he asked Sanders about open borders. Below is the relevant excerpt from Ezra Klein’s interview of Bernie Sanders:

Ezra Klein

You said being a democratic socialist means a more international view. I think if you take global poverty that seriously, it leads you to conclusions that in the US are considered out of political bounds. Things like sharply raising the level of immigration we permit, even up to a level of open borders. About sharply increasing …
Bernie Sanders

Open borders? No, that’s a Koch brothers proposal.
Ezra Klein

Really?
Bernie Sanders

Of course. That’s a right-wing proposal, which says essentially there is no United States. …
Ezra Klein

But it would make …
Bernie Sanders

Excuse me …
Ezra Klein

It would make a lot of global poor richer, wouldn’t it?
Bernie Sanders

It would make everybody in America poorer —you’re doing away with the concept of a nation state, and I don’t think there’s any country in the world that believes in that. If you believe in a nation state or in a country called the United States or UK or Denmark or any other country, you have an obligation in my view to do everything we can to help poor people. What right-wing people in this country would love is an open-border policy. Bring in all kinds of people, work for $2 or $3 an hour, that would be great for them. I don’t believe in that. I think we have to raise wages in this country, I think we have to do everything we can to create millions of jobs.

You know what youth unemployment is in the United States of America today? If you’re a white high school graduate, it’s 33 percent, Hispanic 36 percent, African American 51 percent. You think we should open the borders and bring in a lot of low-wage workers, or do you think maybe we should try to get jobs for those kids?

I think from a moral responsibility we’ve got to work with the rest of the industrialized world to address the problems of international poverty, but you don’t do that by making people in this country even poorer.
Ezra Klein

Then what are the responsibilities that we have? Someone who is poor by US standards is quite well off by, say, Malaysian standards, so if the calculation goes so easily to the benefit of the person in the US, how do we think about that responsibility?

We have a nation-state structure. I agree on that. But philosophically, the question is how do you weight it? How do you think about what the foreign aid budget should be? How do you think about poverty abroad?
Bernie Sanders

I do weigh it. As a United States senator in Vermont, my first obligation is to make certain kids in my state and kids all over this country have the ability to go to college, which is why I am supporting tuition-free public colleges and universities. I believe we should create millions of jobs rebuilding our crumbling infrastructure and ask the wealthiest people in this country to start paying their fair share of taxes. I believe we should raise the minimum wage to at least 15 bucks an hour so people in this county are not living in poverty. I think we end the disgrace of some 20 percent of our kids living in poverty in America. Now, how do you do that?

What you do is understand there’s been a huge redistribution of wealth in the last 30 years from the middle class to the top tenth of 1 percent. The other thing that you understand globally is a horrendous imbalance in terms of wealth in the world. As I mentioned earlier, the top 1 percent will own more than the bottom 99 percent in a year or so. That’s absurd. That takes you to programs like the IMF and so forth and so on.

But I think what we need to be doing as a global economy is making sure that people in poor countries have decent-paying jobs, have education, have health care, have nutrition for their people. That is a moral responsibility, but you don’t do that, as some would suggest, by lowering the standard of American workers, which has already gone down very significantly.

Although Open Borders: The Case the website played a very small role in the ensuing debate (it got linked to by Dylan Matthews for the double world GDP page and then by an unsympathetic AlterNet writer as a “Libertarian” website), the fact that this discussion happened at all, and the attention it got, reveals the increased recognition of “open borders” as a position worth considering and responding to. If the open borders movement didn’t exist, Matthews may not have been referencing “open borders” that frequently in his writing (even if he believed in it). And without Matthews constantly harping on it, Klein may not have chosen to bring up “open borders” — he might simply have asked a question about migration policy without positing open borders as an end state. Insofar as influencing politics goes, this is a small step that rounds down to zero. The biggest gains will happen when global public opinion turns to favoring open borders. But it’s a proof of concept that the fringe “open borders” movement can create ripples, however temporary, in mainstream political discourse.

Rather than review the details or go into my own opinions, I’m going to lay out the chronology by linking to and quoting comments form posts about the subject in the Open Borders Action Group.

First post by Nathan Goodman about the Vox interview

Nathan Goodman posted about Ezra Klein’s interview of Bernie Sanders on July 28, the day it was published. Goodman excerpted the part of the post that interested him most and offered his own summary:

“Open borders? No, that’s a Koch brothers proposal… That’s a right-wing proposal, that says essentially there is no United States.” –Bernie Sanders

He then follows this with a bunch of economic ignorance, claiming open borders would make Americans drastically poorer.

The post was one of the most liked and commented, with 37 likes and 36 comments. Most liked (21 likes) was my own comment, that made a simple but important point:

I’m glad political candidates are being asked for their views on open borders!

This is an important accomplishment, because as Fabio Rojas wrote:

This may sound like a modest, even trivial, proposal. The opposite is true. Currently, the public has no idea that there are other people who even believe in the concept of open borders. Political debate focuses on whether a few lucky persons might get amnesty, not whether we should make our borders open. That indicates to me that the average person doesn’t appreciate that open borders is even a position that one might consider. That has to change.

Another popular comment was by John Lee, that noted the incongruity of Bernie Sanders viewing open borders as a right-wing position:

“That’s a right-wing proposal, that says essentially there is no United States.”

Apparently “imagine there’s no countries” is a right wing idea today.

After seeing the favorable response, John tweeted this from the @OpenBordersInfo Twitter account, where it was also well received:

A number of commenters noted that Sanders’ opposition to open borders was driven by his support from labor unions that represented the interests of organized labor, to whom immigration was a (real or perceived) threat. Another point noted was that the kind of welfare state that Sanders envisioned would not be feasible under open borders, and so his opposition to open borders was rational. Anthony Gregory:

I don’t think he would support [open borders] in any case. You can’t have open borders and the type of economic policies he wants.

Jameson Graber:

It is amusing that he calls open borders a “right wing” idea, because the right wing is overwhelmingly against it in almost every developed nation. Still, I think he’s being perfectly consistent, here. As a socialist he believes his first responsibility is to take care of the middle class “here at home,” where “home” is defined as the nation state. Socialism and open borders are fundamentally incompatible.

David Kraft:

Can’t say I’m surprised that someone who describes himself as socialist – and by implication seeking support from trade unions – advocates artificially restricting the supply of new labour in order to artificially strengthen the position of the representatives of the existing labour force.

Ben Smith noted that Sanders might be better than many other candidates:

In fairness, when it comes to political candidates, when working on radical reform like open borders, you have to pick the candidate that comes closest, and Bernie Sanders endorses policies closer to open borders more than any Republican candidate.

Second post by Carl Shulman on Sanders’ immigration views and the relation with territorialism

Carl Shulman posted a link to Bernie Sanders doesn’t easily fit either side of the immigration debate. Here’s why. by Dara Lind for Vox. He connected it to the idea of territorialism (the idea that the interests of those already present in the country matter, even if their presence is unauthorized, but those outside the country don’t matter). He also quoted two excerpt from the article:

“Sanders is specifically worried about guest-worker programs…For most politicians, what to do with the unauthorized is the trickiest part of the immigration debate. But for labor and business groups, the most important question is whether, and how, the immigration system should be changed for future legal immigration — what’s called “future flow.” Of course, labor and business have very different answers to that question.

Sanders also sees unauthorized immigrants and future flow as different issues, as he made clear to Jose Antonio Vargas during his town hall at Netroots Nation earlier this month…

Sanders is clearly worried that more immigration to the US is going to drive down wages for the native-born. In that respect, he is drawing a clear line: He cares a lot about the treatment of workers in the United States, whatever their legal status, and is not equally concerned with workers who aren’t yet living in the US.”

“If Bernie Sanders is going to be a viable candidate for the Democratic nomination, he’s going to have to do better than the single-digit support he’s currently attracting from Latino voters. And his immigration position isn’t a deal breaker. But it is a liability.

Latino voters are personally invested in immigration reform — but they’re especially invested in the fate of the unauthorized. While future flows matter to Latinos — many of whom have relatives stuck in years-long immigration backlogs — they’ll be affected much more by preserving and expanding family-based immigration than by what happens with employment-based immigration.

Sanders certainly isn’t winning over any Latino voters by talking about how more immigrants would drive down wages, and the rhetoric alone could be a turn-off. But there’s no reason it would have to be a deal breaker on its own. When it comes to the most important immigration issues to Latino voters, Sanders is saying all the right things.”

Andy Hallman responded with a perceptive comment:

Moderate pro-immigrant groups typically believe states have the right to control their border, unlike OB advocates and many libertarians. That means Bernie Sanders can appear pro-immigrant by saying things like “immigrants helped build this country” while also wanting to keep out those “helpful” immigrants.

I read Jorge Ramos’s book “La Otra Cara de America” (The Other Face of America), which is largely about Hispanics in the United States. Ramos, a journalist for Univision, said he didn’t mind immigration controls, he just thought a lot of anti-immigrant sentiment was racially motivated. I think that is the most common attitude among moderate pro-immigration voices.

Third post by Kirien Eyma on AlterNet’s defense of Sanders

Kirien Eyma posted a link to an AlterNet piece by Zaid Jilani titled How the Latest Smear Campaign Against Bernie Sanders Collapsed Before It Started. The Vermont senator’s words were completely twisted. Here’s what he actually said.

John Lee comments with a criticism of Sanders’ proposal:

So the article says it’s twisting Sanders’s words to say he opposes open borders and therefore actively disregards the interests of billions of lower-income people.

But then the article says Sanders does oppose open borders, he just supports slightly less-closed borders than most politicians. And its discussion of how his immigration proposals will help lower-income people focuses entirely on the ~12 million undocumented immigrants already present in the US, ignoring completely how his active opposition to looser immigration controls actively harms billions of lower-income people around the world.

To the extent that the article critiques the claim that looser immigration controls will empower low-income people outside the US, it predicates this on the outlandish assumption that the only reason people would ever want to migrate to the US is because free trade ruined their countries’ economies.

John Lee’s post on Ryan Cooper’s critique of open borders in The Week

John Lee posted a link to Why a massive wave of immigration is not a magic fix for the economy by Ryan Cooper in The Week, which cited nativist backlash as a reason to be skeptical of open borders. John excerpted and commented on it thus:

“What air-dropping a billion random foreigners into the country would do, of course, is create the mother of all nativist backlashes.”

You know what else creates the mother of all bigoted backlashes? Freeing slaves, giving women equal rights, letting black people move into white neighbourhoods…

The most liked comment was by Charles W. Johnson:

Who in the world suggests “air-dropping a billion random foreigners into the country”? I advocate removing all barriers to individual migration. But of course, migrants don’t move *randomly*; they move with a purpose of their own and generally respond to economic incentives at least as well as anybody else does in dispersing towards or converging on available economic opportunities. I suppose if you just dumped a huge pile of random university graduates from around the U.S. on Silicon Valley, that wouldn’t do much to keep the tech industry running from day to day; but fortunately that’s not how mobile labor markets work in a rational society.

However, there was some pushback from others. Jameson Graber:

As much as I would like to just trash this article because of its conclusion, I think the author makes a fair point about the nation state: it really is the most reliable institution develop thus far for allowing large markets to exist. In Hayekian terms, I think this is a major victory in cultural evolution. Whereas ancient people were loyal mainly to their own tribe, modern people are capable of holding onto rather abstract notions of “nation,” and this allows for an amazing level of trust among large numbers of people who would be otherwise totally unrelated. However, moving beyond this to simply eliminating the nation state altogether is, I think, a utopian ideal. Perhaps one day (a long time from now) we might have some sort of global federation uniting all the peoples of the world….

In the meantime, I don’t think the author makes the case that open borders is actually a bad idea. But I do think that making the open borders case based on anti-statism is a bad idea. Better to make an argument rooted in the very traditions which have made great nation states great.

Omar Benmegdoul:

Sure, under open borders immigrants wouldn’t be randomly selected, but there would certainly be a lot more of them than there are now, which is really all there needs to be for a backlash. And I don’t think pointing out that the abolition of slavery and other such forms of progress also created backlash is going to be very convincing, even though it’s a good argument from our perspective.

As it stands, the Harms (theoretical) > “Nativist backlash” and “Culture clash” are pretty weak on counterarguments. We should probably have a keyhole solution at least (“increase immigration by 1% each year until all hell is about to break loose”).

Paul Crider’s post about Bernie Sanders’ response on his website

Paul Crider linked to “Open Borders”: A Gimmick, Not a Solution by Richard Eskow on Bernie Sanders’ official website. Crider wrote:

If only I had time to do a point-by-point response essay to this, it could provide for some interesting engagement …

Andy Hallman:

From the article:

“Open borders is a recipe for the further commodification of human beings. It treats people as economic inputs to be moved about the globe at the whim of global capital.”

If only the refugees knew that we were turning their boats back for their own good, to save them from a life of exploitation.

I’ve been reading about the Khmer Rouge lately, and this is the kind of thing its leaders believed, that nearly any sacrifice of human beings could be justified on the grounds you were saving them from the horrors of materialism.

Carl Shulman:

“Bier fails to consider a fundamental principle of economics: when the supply of labor increases, wages go down. A massive influx of foreign workers would lead to a steep plunge in those multiples. What’s more, there are often significant cost-of-living differences between the United States and these workers’ countries of origin.”

The paper DOES adjust for cost-of-living differences. Although it’s true that wages for migrants (who are substitutes for each other even if they complement natives) would fall with massive migration, and Clemens nods to that when estimating total benefits of open borders (at a lot less than ‘double world GDP’ though).

One fair complaint from the Sanders camp: why single out Sanders vs Clinton, who is probably no better or worse on the issue?

Admittedly, the questioning by Klein was opportunistic, but will Clinton manage to avoid answering any such question? Getting such questions into town halls or any other opportunity to bypass Clinton’s media screening might be helpful for furthering this conversation.

Nathan Goodman’s response:

The other issue is that people willing to adopt radical views look up to Bernie Sanders. If he successfully demonizes open borders for them, that’s a real harm.

Nathan Smith:

I wonder whether Bernie Sanders is sincere. It would almost certainly hurt any presidential candidate openly to support open borders. That’s a downside of asking presidential candidates about their position on this: if they secretly agree with us, we may be forcing them to lie.

Lant Pritchett:

Sanders just clarified that while he is a socialist he is a national socialist.

Other news and opinion pieces on Sanders’ remarks

The following pieces didn’t get directly discussed in OBAG, but received some attention and some of them were referenced in the pieces that got discussed on OBAG.

Related reading

The following material from our archives might be relevant:

The featured image is a public domain image of Bernie Sanders from the United States Congress photos. It was retrieved via Wikipedia.

My reasons for skepticism of linking open borders to legalizing private discrimination

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In the world as it stands today, the pro-immigration/pro-immigrant crowd has aligned itself with the anti-discrimination/anti-racist crowd. There is clear common cause in more ways than one:

Many open borders advocates accept or even deploy these arguments, and this helps establish common ground with many mainstream pro-immigration people. However, there is another interesting strain of thought in the open borders movement, stemming from its ideologically libertarian-leaning wing, that affirms the importance of allowing private discrimination. The idea is that freedom of association is of intrinsic value, and forbidding private discrimination interferes with this right. Interestingly, from this perspective, the quest for open borders (specifically framed in terms of the right to migrate and right to invite) and the quest for allowing private discrimination have affinity: both can be justified based on the importance of freedom of association (I discuss this at greater length a little further down in the post, before getting into the implications for open borders).

Now, to be clear, all three positions discussed (open borders, moral opposition to racism and discrimination, and the importance of letting private discrimination be legal) are mutually consistent. Nonetheless, the position that private discrimination should be legal and the view of discimination as morally problematic are connotatively in tension, particularly once we get outside the circle of people with hardcore libertarian beliefs.

An interesting twist to this triad of views was introduced by my co-blogger Nathan Smith, in his blog posts No Irish Need Apply and Private discrimination against immigrants is morally fine, and should be legal and later in a post on the Open Borders Action Group on Facebook. Nathan argued that allowing private discrimination might be a way to appease people concerned about their ability to avoid (particular types of) immigrants that we’d see more of under open borders. He therefore proposed (open borders + allow private discrimination) as a package deal (in the language of this post of mine, this would qualify as a complementary policy to open borders, though if the legalization of discrimination was restricted to discrimination against immigrants, it would qualify as a keyhole solution in that jargon). In this post, I’ll dissect different arguments of the sort Nathan has articulated and alluded to, and explain my reasons for skepticism of them.

Some background on discrimination

In many contemporary polities, particularly in the United States, opposition to discrimination (particularly along certain dimensions such as race and ethnicity) has attained a moral primacy, at least rhetorically. Philosophically, this has puzzled me. Consider a recent topical category: when incidents of police brutality are reported, there is often significant emphasis on whether the police behavior was discriminatory on the basis of race, often even more so than the question of how justified or excessive the police action was. Racial discrimination was a key theme in discussion of the recent 2015 Texas pool party incident, even though the officer in question had, to begin with, arrested a white girl (this was not part of the viral video, but happened before the video commenced). This led to the weird situation where the officer sought to defend his behavior from charges of racism by pointing out that he had arrested a white girl, even though that arrest too was unjustified.

The emphasis on discrimination can be counterproductive because it can lead to the rejection of Pareto-improving solutions that are discriminatory. In the context of migration, for instance, the expansion of migration quotas or relaxation of migration barriers for people of certain classes or nationalities increases discrimination between potential migrants, even if, overall, it expands human freedom. Reasons of this sort are why those I know who are more hardcore libertarians, as well as more utility-oriented or efficiency-oriented, tend to not give primacy to narratives focused on discrimination. My point here isn’t that hardcore libertarians or utilitarians support discrimination, but rather, that they don’t treat discrimination as a key yardstick by which to judge the morality or desirability of actions.

However, I believe that the focus on discrimination in public discourse is not as irrational or ungrounded as it might appear from a purely philosophical standpoint. I think there are a few reasons for this:

  • It feels awful to be discriminated against, and more generally to be in an environment where you’re constantly wondering whether other people’s behavior toward you is influenced by prejudice: Obviously, in cases where the people who might be discriminating against you are people with a huge amount of authority over you (such as police officers, consular officers, or judges) the feeling is terrible. The fear that they are prejudiced against you, whether justified or not, adds insult to any injury they may inflict on you. But even when the other actors involved have little power over you, the fear that their behavior towards you is based on discrimination for reasons you cannot control, can be demoralizing. My co-blogger Nathan has pointed out in his posts the standard economic wisdom that, even if many people discriminate against a particular race or ethnicity, the material harm to members of that race or ethnicity is minimal as long as there are enough people who don’t discriminate. But despite this small material harm, the psychological damage, even if not debilitating, is nothing to be laughed at. If you know that 20% of restaurants will refuse to serve you due to your race, or that 10% of police officers will stop you for absolutely no reason other than your race and subject you to a time-wasting and humiliating strip search, this detracts from your ability to partake of public life with dignity.
  • In addition to the direct effects of discrimination against those parties being discriminated against (as well as others who my incorrectly believe themselves to be the victims of discrimination) there are also ripple effects on economic and social activity. Some of it might get canceled because of the impediments and inefficiencies created by discrimination. A business might choose not to hire the best employee because of discrimination by its customers against the employee’s race/ethnicity. A group of people might decide not to go to a restaurant or cinema hall that they would have enjoyed, because one member of the group would be barred from the place on account of race or ethnicity.
  • Discrimination, insofar as it largely targets people who lack the relevant kind of power (which may be political, economic, or social) means that the people with the power to change policies are often insulated from the consequences. If police officers behave in humiliating ways only when interacting with people who look young and poor, then those who run city governments and police forces, who tend to be older and richer, may never experience the brunt of humiliating policing. Since these individuals don’t get firsthand experience in the implementation of the policies, they have little incentive to change them. A non-discriminatory and egalitarian approach makes sure that those creating and influencing policies eat their own dog food.

The libertarian perspective, that I largely endorse (although this isn’t an issue that I’m passionate enough about to generally argue in favor of) acknowledges these points, but balances them against these considerations (note that while I try to articulate below a libertarianish view, many libertarians don’t subscribe to it, and many non-libertarians do):

  • In the context of coercive state actors, the libertarian perspective seeks to reduce the coercive, discretionary power that lies with these actors in the first place. The less coercive power these actors have, and the less discretionary leeway the actors have, the less scope there is for them to discriminate in invidious ways, while also reducing abuse of these powers at large. In the context of police abuse, reduced police authority to arbitrarily stop and detain people, the legalization of victimless crimes, and an end to Broken Windows policing-like approaches, reduce the scope for those in authority to harass people at large, and also to do so in a discriminatory fashion.
  • In the context of private discriminators, the libertarian position acknowledges that those discriminated against have experiences ranging from unpleasant to traumatizing. However, the libertarian position still gives importance to freedom of association, even when it leads to bad consequences for others, as long as it does not directly violate their rights. Libertarians also point out that forbidding discrimination can have bad effects not only on those engaged in the odious type of discrimination that is the target of the law but in other, more innocuous, forms of discrimination.

James Joyner articulates the second point well:

Paul’s views are identical to those I held when studying Constitutional Law as an undergrad and not all that far removed from my current position. There’s no question in my mind that private individuals have a right to freely associate, that telling owners of private businesses whom they must serve amounts to an unconstitutional taking, and that it’s none of the Federal government’s business, anyway. Further, in the context of 2010 America, I absolutely think that business owners ought to be able to serve whomever they damned well please — whether it’s a bar owner wishing to cater to smokers, a racist wanting to exclude blacks, or a member of a subculture wishing to carve out a place for members of said subculture to freely associate with only their kind out of purely benign purposes.

The problem, circa 1964, was that there really was not right to freely associate in this manner in much of the country. Even once state-mandated segregation was ended, the community put enormous pressure on business owners to maintain the policy. That meant that, say, a hotel owner who wished to rent rooms without regard to color really weren’t free to do so. More importantly, it meant that, say, a black traveling salesman couldn’t easily conduct his business without an in-depth knowledge of which hotels, restaurants, and other establishments catered to blacks. Otherwise, his life would be inordinately frustrating and, quite possibly, dangerous.

In such an environment, the discrimination is institutionalized and directly affecting interstate commerce. It was therefore not unreasonable for the Federal government to step in using their broad powers under the 14th Amendment. I’m still not sure parts of the Civil Rights Act of 1964 (especially the issue in question here) or the Voting Rights Act of 1965 (especially treating individual states differently from others) are strictly Constitutional. But they were necessary and proper in the context of the times.

The problem that libertarians and strict Constitutionalists have, however, is that precedents set under extreme and outrageous conditions are often applied to routine and merely inconvenient ones. (Or, as the old adage goes, “Hard cases make bad law.”) Once someone’s private business is transformed by fiat into a “public accommodation,” there’s precious little limit to what government can do with it. Requiring private individuals to treat black people with a modicum of human dignity is one thing and dictating what kind of oil they can cook their French fries in or how much salt they can put on them is quite another. But, in principle, they’re not much different.

Piyo draws parallels between freedom of association and freedom of speech, noting the irrationality in how people unequivocally defend freedom of speech while treating defense of freedom of association as anathema:

I confess that I’ve always found this controversy rather puzzling. Consider the following two propositions:

1. A citizen should be allowed to promote white supremacy and racial segregation in a personal blog, in a book, in flyers that he hands out on street corners, to his children, or among his neighbors at weekly meetings at his home

2. A citizen should be allowed to refuse service to non-whites at his store

I find it incredibly odd that believing #1 is considered normal, enlightened, and mainstream, while believing #2 is considered crazy at best and mega-, KKK/slave-owning/Django-level racist at worst. In fact, judging from the controversy over Paul’s stance, I think many or most people believe that it is totally impossible to believe #2 without being racist. Don’t get me wrong; I can easily imagine a reasonable set of beliefs that would lead a person to agree with #1 and disagree with #2. However, I can’t imagine how everyone seems to believe the following

3. #1 is obviously true and everyone should believe so, and #2 is obviously false, and anyone who disagrees is either evil or being willfully ignorant.

I can think of two reasons why a person might confidently believe that #2 is false. Unfortunately, neither of these theories explain the widespread belief in #3.

[…]

More reasonable, I think, is to conclude that almost nobody’s attitude toward #1 or #2 is based on any kind of ratiocination. Through a combination of historical accident and the all-powerful status quo bias, endorsing #1 has become a way to express to others that you, too, value freedom, and rejecting #2 has become a way of expressing that you, too, think racism is bad. If you hold these beliefs, then you’re part of our “group”.

For more discussion of the libertarian perspective on discrimination and some pushback to it, see this Cato Unbound discussion of the subject.

UPDATE: In an email, reproduced with permission, Nathan responds to my point about it being awful to be discriminated against:

The place where I had least sympathy with the argument was where you talked about being discriminated against and how horrible it feels. I can see why it would be pretty bad to be in the position of African Americans before the civil rights movement, when widespread discrimination was enforced by a sinister conspiracy of the law with the domestic terrorists of the KKK, and when most of the population discriminated against you so that your opportunities to flourish in life were severely limited by discrimination on every side, and when discrimination did seem to be motivated by hatred. But I can’t see how it would be so bad to suffer from occasional statistical discrimination not motivated by hatred. Suppose a taxi cab driver were to tell me, “Sorry, it’s nothing personal, but I don’t pick up young men in this part of town, because young men commit most of the crime, and I only have to pick up the wrong fare once, and my wife’s a widow.” If I needed the cab that would be inconvenient of course, but I wouldn’t feel profoundly insulted. I’d feel sorry for the guy for being in such a risky job and earnestly hope and pray for his safety. The notion that it’s an intolerable indignity to be discriminated against, but it’s NOT an intolerable indignity to be forced by the government and its anti-discrimination laws to open one’s home or business to people one doesn’t like or approve of, seems utterly insane. If it feels so horrible to be discriminated against today, even when it causes negligible inconvenience, I suspect that’s either because we’ve been brainwashed into thinking discrimination is the root of all evil, or because what certain groups (LGBT especially) really want is to coerce people to APPROVE of them, a common motive among those who have power. Discrimination against LGBT is an expression of disapproval and as such must be suppressed.

Bryan Caplan’s weighing of the relative importance of immigration restrictions and anti-discrimination law

In a blog post titled Association, Exclusion, Liberty, and the Status Quo, Bryan Caplan, who supports both open borders and an end to anti-discrimination laws, compared the importance of the issues:

I don’t deny that laws against exclusion occasionally have important effects. But their main effect in the modern U.S. economy isn’t to reduce exclusion, but to pressure businesses to either overpay or avoid hiring workers who can easily sue for “discrimination.”

Now consider regulations on the freedom of association. Many are marginal, too. Not much would change if you legalized gay marriage or polygamy; they’re just niche markets. But one class of regulations has a massive effect: immigration laws. Indeed, they probably have a bigger effect than all other regulations combined.

It’s simple. Billions of people around the world live on a few dollars a day or less. Under open borders, tens of millions of them would migrate to the U.S. every year. Remember: Even if you’re an illiterate peasant who doesn’t understand interbank transfers from Bangladesh, credit markets and/or employers would be happy to front the money for airfare.

This immigration flow wouldn’t stabilize until real estate prices massively increased and low-skilled wages drastically declined. The U.S. population could easily increase by 50% in a decade. New cities would blanket the country. The level of output would skyrocket – and its composition would rapidly change, too. Whether you love this vision or hate it, you can’t deny that free association would radically and rapidly reshape the face of America.

I’m as supportive of the right to exclude as anyone. But current restrictions on this right are pretty minor. There are plenty of ways for markets to engineer exclusion, and there’s not much demand for greater stringency. In contrast, restrictions on the right to associate are massive, and there is enormous pent-up demand to migrate. Hundreds of millions of people want to move here, landlords want to rent to them, employers want to hire them – but the law won’t allow it.

Contrary to my conservative friend, then, libertarians aren’t the ones with a blind spot. He is. While restrictions on exclusion are occasionally irksome, they rarely ruin lives. Immigration laws, in contrast, usually condemn their victims to life – and often early death – in the Third World. Libertarians rightly emphasize the freedom to associate, because the status quo’s restrictions on exclusion are minor and mild – and the status quo’s restrictions on association are massive and monstrous.

A closer look at the link between legalizing private discrimination and open borders

Here’s Nathan’s Open Borders Action Group Facebook post (which is the most recent formulation of his view, though his previous blog posts are also worth reading):

Would it be useful to the open borders movement to roll back anti-discrimination laws? Consider the following argument, made to a nativist: “Hey, if YOU don’t like immigrants, fine, you don’t have to do associate with them. But stop interfering with those of us who DO want to associate with them.” This argument needs refining, but I think some form of it could have a lot of force if it weren’t for “public accommodation” laws that force all residents of the US to integrate. As long as so-called “anti-discrimination” laws are in place (misnamed of course since for now discrimination against undocumented immigrants is not only allowed but mandated), this argument doesn’t work very well, since the government might force you to hire immigrants. In effect, the current policy choice is whether discrimination against the foreign-born should be mandatory or illegal, whereas of course, the sensible middle way is to make it voluntary. But to get to it, we’d have to legalize discrimination. Now, I’m hopeful that the attack on religious freedom by the LGBT lobby will backfire and lead to a general revival of tolerance and freedom of association, as the absurdity of having the government force people to bake a cake for a “wedding” they don’t morally approve of, forces us to revisit some deep ethical mistakes we’ve been making for the past generation. If this happens, would it help the open borders cause?

There are several different flavors of the argument, that I’ll list before opining:

  1. If private discrimination were legalized first, the open borders position would be more philosophically defensible than it is now.
  2. The (open borders + allow private discrimination) package deal is more philosophically defensible than mere opening of the borders, while private discrimination continues to remain illegal.
  3. If private discrimination were legalized first, the open borders position would be more practically feasible than it is now.
  4. The (open borders + allow private discrimination) package deal is more practically feasible than mere opening of the borders, while private discrimination continues to remain illegal.

I agree with the view (1): the freedom-based arguments for open borders make more sense in a world where people are freer to not associate with immigrants if they so choose, and the other arguments are largely unaffected. I think the change to the strength of open borders isn’t too huge, largely because of the reasons that Caplan articulated in his post that I quoted above.

I also agree (weakly) with (2): bundling open borders with a broader expansion of the freedom to associate (and exclude) would be more philosophically defensible than merely opening the borders. However, unlike (1), (2) only applies from the perspective of the libertarian case. Those whose reasons for supporting open borders are more egalitarian might well disagree with (2). If you agree with Caplan’s post, however, the effect size either way is relatively small.

This leaves (3) and (4), the questions of practical feasibility. Regarding (3), I believe that there are good arguments on both sides, and I think ultimately it will depend on the details of the societal changes that lead to a relaxation or termination of anti-discrimination laws in the first place. However, I am very skeptical of (4). I don’t think an (open borders + allow private discrimination) package deal is more practically feasible. I don’t think those keen to see open borders become a reality should attempt to draft such a deal or push for it. I think the main benefit of discussing such a combination, apart from the philosophical clarity it offers, is that if somehow the circumstances changed and such a deal became the main way to proceed with open borders, then our thoughts on the issue would be clearly fleshed out.

I’ll begin by elaborating on (3). Why might anti-discrimination laws, such as those surrounding public accommodations in the United States, be repealed or relaxed? I believe there are three broad categories of reasons:

  1. The moral argument for the freedom to associate and exclude gains widespread acceptance.
  2. Efficiency-based arguments against such laws take force. This could be helped by public outrage or disgust at what is perceived as spurious use of anti-discrimination laws.
  3. People interested in discrimination on the basis of race, ethnicity, or some other criterion push for the changes, and their views become influential among the public or among policymakers.

I think that, if (1) is the prime mover for the change in laws, there is a decent chance that public opinion would have also shifted more in favor of freer migration, and Nathan’s logic might then accentuate the effect. In the case of (2), public opinion may remain largely unchanged on migration, but Nathan’s logic might help tip it slightly more in favor of free migration. However, in the case of (3), I think it’s quite likely that public opinion will be more hostile to immigration than before. Even if Nathan’s logic serves to counter that somewhat, I think the net effect would still be in a significantly restrictionist direction. I think that, given what we know today about public opinion, in the highly unlikely event that anti-discrimination law is repealed, this is more likely to happen because of reason (3) than because of the other two reasons (though I expect the overall chances of such repeal as pretty low, so this is merely an academic observation).

Finally, as for (4), the reason I’m skeptical is that, in the present day, there isn’t really a large coalition (outside of hardcore libertarians and efficiency-oriented folks) who support the repeal of anti-discrimination law out of a love of true freedom, as opposed to a desire to facilitate discrimination per se. And, outside of libertarians, people have trouble separating private action from government-enforced action. So, this bundle wouldn’t really appeal to many people, and in addition, means that open borders advocates might lose the support of the broader, mainstream, pro-immigrant people.

John Lee offers a detailed response to Nathan’s Facebook post that I largely endorse:

While this is an interesting idea, I don’t see how you would be able to build a political coalition around both liberalising migration and repealing anti-discrimination laws. I’m skeptical that xenophobes would tolerate having more immigrants around if they were allowed to discriminate against them; I mean, I’m persuadable that their opposition to open borders might diminish somewhat, but I don’t think it’d go away.

A lot of the costs that people complain about as far as integration goes have to do with things that anti-discrimination law doesn’t really meaningfully impact: pressing 1 for English, overhearing funny languages in public, not being able to ask for directions in a strange neighbourhood where nobody looks like you or can speak your own language, etc. Repealing anti-discrimination laws solves for essentially none of these xenophobic complaints.

(Technically repealing anti-discrimination law might partially solve for the “press 1” complaint since that’s to some degree a policy caused by public accommodation laws, but in a free market operating in a diverse society, a lot of companies would naturally provide multilingual servicing anyway. Malaysia and Singapore don’t have meaningful anti-discrimination laws but multilingual servicing is omnipresent in the market because of how diverse their societies are.)

As an aside, this idea is not even applicable outside the Western world; to Christopher’s point, I don’t think this is a “reform” that can be bundled into anything in Asia or Africa, perhaps even Latin America, because most non-Western countries don’t have much anti-discrimination laws to speak of. Speaking from my experience, it’s common to see classified ads in Malaysia and Singapore specifying that they won’t accept job candidates or tenants of particular sexes or genders. (Recently some companies have tried to capitalise on public distaste for these kinds of ads by running ads which explicitly state that they don’t discriminate.)

Now to be sure, introduction of new anti-discrimination laws to these non-Western societies would spur blowback, and I would generally advise against trying to bundle liberal immigration reforms with new anti-discrimination laws in these societies. But that’s separate from trying to bundle liberal immigration reforms w/ anti-discrimination legislation repeals in societies that already have these laws.

He later writes:

[T]he reality of mood affiliation makes me skeptical that one could build a coherent political coalition aligned on just these two things without that coalition consisting pretty much entirely of libertarians.

A couple of my comments in the thread are also relevant, and I quote them below:

I don’t think that the repeal of such legislation would make the world more friendly to open borders: your argument for would be balanced by an argument against, namely that the legitimization of discrimination as morally acceptable might make people more forthright about using it as a basis for public policy (given that people generally have trouble keeping private preferences out of the domain of government-enforced public policy).

“But I don’t think there’s any point in pitching an advocacy strategy to such numbskulls. If mankind is as stupid as that, we won’t make any headway. Fortunately, mankind does sometimes exhibit a capacity to think such moderately subtle thoughts as, “Discrimination against the foreign-born should be legal for private individuals but not be mandated by law.””

Most people would be able to understand this idea if they tried hard enough, but people aren’t generally inclined to put in a lot of effort into evaluating political positions. In general, I would expect that a move that legitimizes private discrimination would be seen (by the general public) as a signal that discrimination is more acceptable both in private and in public policy. At the same time, the people you are most trying to appease with such a policy are likely to not stop at private discrimination anyway.

Conclusion

Discrimination is hurtful, both directly when it’s done, and indirectly because of the fear and inefficiency it creates in society. However, freedom of association and exclusion are important values. Libertarian-leaning people (including myself) think that under most circumstances, private discrimination should remain legal. There may be exceptional circumstances where the harm from discrimination is severe enough to infringe on people’s freedom of association and exclusion. Some people sympathetic to the overall libertarian argument have argued that the post-1964 Jim Crow South presented such an exceptional circumstance, but the present day is not similarly exceptional, so legalizing private discrimination in the modern era is okay.

From a libertarian philosophical perspective, that I largely endorse, repealing some anti-discrimination laws make the case for open borders stronger, insofar as open borders will mean dealing more with a wider range of people. However, as a practical matter, I don’t think it makes sense to try to push for a deal packaging open borders with such repeal. If such a deal emerged as the most feasible way to push for more liberal migration, it might be worth supporting.

Related reading

These links are offered in addition to the numerous inline links in the post.